FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: BOC GASES IRELAND LIMITED (REPRESENTED BY A & L GOODBODY LLP, SOLICITORS) - AND - MR STEPHEN KINSELLA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00032129 CA-00042710-001 Mr. Kinsella, ‘the Complainant’, was a VCH Compressed Gases Driver for BOC Ireland, ‘the Respondent’. He was dismissed in December 2020. On 12 December 2019 he was issued with a Final Written Warning under the Respondent’s Disciplinary Code to take effect for 12 months from 4 December 2019, following an incident on 17 October 2019 where he had left the company premises, due to what he described as frustration with how his vehicle had been loaded. He had refused a request from his manager to return that day. Prior to this incident, the Respondent had sent a bald tyre to the manufacturer for analysis. The manufacturer’s report was received subsequent to the warning being given to the Complainant. It identified that there were no structural defects to the tyre. It was alleged that a number of drivers, including the Complainant, had driven the vehicle identified with this tyre in the period after a formal tyre check by a tyre company. It was alleged that none had identified the defects in their mandatory pre trip checks of the vehicle. Following an investigation, other drivers were issued with verbal warnings. The Complainant was dismissed. He lodged a complaint under the Unfair Dismissals Act 1977-2015, ‘the Act’ with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer decided that the complaint was not well founded. The Complainant appealed to this Court. Summary of Respondent Arguments On 6 September 2019, a production operative noticed a bald tyre on vehicle no. 7155 and reported it. The tyre was sent to the manufacturer, Michelin, for analysis. The Complainant was one of five drivers who had driven the vehicle since the tyres had been examined by a tyre company on 22 August. No action was taken at the time pending a report from Michelin. However, the importance of pre trip checks by drivers was emphasised in driver safety meetings. On 17 October 2019, the Complainant took exception to the manner in which his vehicle had been loaded. He left the premises and refused a request by his manager to return. His manager, Mr. Jonathan Roche, conducted an investigation. In the course of one meeting, Mr. Roche made passing general reference to the ‘bald tyre incident’ to which the Complainant took exception. The Complainant was issued with a Final Written Warning for the incident on 17 October, following a disciplinary meeting. He was offered the right to appeal but he chose not to do so. On 24 January 2020, the Michelin report was received. No manufacturing faults were identified. The report stated that the tyre had been worn down significantly due to ‘excessive wear’. The Respondent identified that 5 drivers had driven the vehicle since a comprehensive check by a tyre company on 22 August 2019 up to 6 September 2019, (2 were agency workers). None had highlighted the issue in their mandatory pre trip checks. The Respondent instigated an investigation. The Complainant refused to take a letter from his manager inviting him to an investigation meeting but was eventually persuaded to do so by his union representative. He subsequently pulled out of an arranged meeting on 10 March. Covid then intervened. A meeting on 28 May had to be adjourned as the Complainant objected to the presence of a manager and argued a conflict of interest. At a meeting on 22 June, he confirmed that he had driven the particular truck and stated that he had made the necessary checks. The tachograph results for the Complainant had shown a number of hard braking incidents, which was contrary to his training in defensive driving. The investigation report stated that the Complainant’s written pre trip checks had not identified the hazard, that he had been evasive and had argued, without evidence, that the tyre could have come from a different vehicle. A disciplinary hearing was arranged for July. The Complainant went on sick leave. He returned in October. A meeting on 4 November was adjourned as the Complainant objected to the person conducting the hearing. That person was replaced by Mr. Niall Cotton and a meeting was arranged for 12 November. The Complainant was again on sick leave. In October, the Respondent’s medical advisors, Medmark, had confirmed that the Complainant had not been fit at the time to engage with HR. Following a subsequent referral by the Respondent, they confirmed that he was fit to attend such an engagement. The Complainant disputed this and sought to be referred to a third doctor on the grounds that the medical advice had been compromised by remarks allegedly made by his manager to Medmark to the effect that he had been trying to ‘kick the can down the road’. This request was refused and a new date for a meeting was set for 1 December. The Complainant lodged a grievance regarding this decision on 25 November. The Complainant gave notice the day before the disciplinary meeting that he would not be attending, despite being in work. No medical evidence was submitted by him. The hearing went ahead and considered his submitted written defence. Mr. Cotton found that the Complainant had failed to comply with the Respondent’s health and safety procedures, had failed to complete mandatory tasks, had given inadequate co-operation to the Respondent’s attempts at fact finding and had failed to adhere to his conditions of employment regarding the health and safety requirements of him. He concluded that, combined with the existence of a live Final Written Warning, the Respondent had lost trust in the Complainant and he determined that he should be dismissed. The Complainant availed of his right to appeal. His appeal was not upheld but it is noteworthy that, in the appeal hearing, for the first time the Complainant indicated some remorse for his behaviour. The Respondent denies allegations that the Complainant was under investigation regarding the bald tyre without him being advised. The Respondent did not act on the matter until it received the Michelin report. The Respondent did not withhold any evidence. It is not accurate to say that the Complainant was summarily dismissed while other drivers were just given warnings. The Complainant was given full due process. He was on a Final Written Warning and his response to the situation caused the Respondent to lose confidence in him. It is not the case that there were inconsistencies between the Michelin report and the allegations against the Complainant. The Complainant states that he was not given meaningful work while this matter was ongoing. However, he was on sick leave for much of the time and, when he returned, he needed to undergo outstanding training. It is obvious that a lack of co-operation with the Respondent’s process would have repercussions and there is no onus on the Respondent to point this out. With regard to suggestions that the Complainant’s data protection rights were breached, this is denied. The tachograph is a legal requirement. In any event, the Court’s attention is drawn to case law, (listed for the Court). The issue of data protection is not a matter for the Labour Court. The Respondent had no reason to refer the Complainant for a third medical opinion and was quite reasonable in refusing to do so. While it is accepted that the allegations all relate to the same circumstances, they are separate and distinct wrongdoings. All mitigating factors were considered. It is not true that the Complainant was dismissed for raising safety concerns. In accordance with the Act, there were ‘substantial grounds’ for dismissal, (s.6(1)), it resulted from the ‘conduct of the employee’, (s.6(4)), it was ‘reasonable’,(s.6(7)), and an employee is required to comply with the law, (s.13(1)). The Court’s attention is drawn to the extensive case law, (case titles and references listed for the Court), on the role of the Court under the Act, the tests for reasonableness and proportionality, breach of trust, procedural fairness, compensation and mitigation of loss and the inappropriateness of reinstatement or re-engagement in the circumstances of this case. The Complainant’s remuneration was €72,325 p. a, gross. Summary of Complainant Arguments On or around 17 October 2019, the Complainant raised safety concerns with his Shop Steward. He was called subsequently to a disciplinary meeting, during which reference was made to a ‘bald tyre’ incident. This did not mean much to him at the time but with hindsight it is clear that he was being investigated about this matter without being informed. When the Complainant received a Final Written Warning, he did not appeal but would have done so if he had known that he was the subject of a different investigation. When Mr. Roche tried to get him to accept a letter in February 2020, the Complainant initially refused to accept it as he knew nothing about any bald tyre. The meeting fixed for 10 March had to be cancelled as the Complainant’s work roster on the day did not allow him to attend. He was not warned that failure to attend would have consequences and the Respondent agreed to postpone the meeting. Also, the Respondent agreed to adjourn the meeting of 28 May when the Complainant raised concerns about one of the attendees. The Complainant was not warned that his concerns would be used against him. At the meeting of 22 June, no evidence was given to the Complainant and he was not given the chance to view the documentation on which Mr. Roche would base his findings. He was deprived of his right to fair procedure by refusing him the opportunity to reflect on the evidence. The Complainant felt very stressed at his treatment but answered all questions to the best of his ability. On 30 June, the Complainant received a copy of an investigation report and a Michelin report from January 2020. The investigation report stated that there was a number of drivers of the vehicle concerned in the relevant period, stated that the Complainant had been involved in a number of hard braking events and accused the Complainant of having been evasive, despite the fact that no such allegation had been put to him. The specific allegations put to the Complainant overlap, an alleged failure to follow procedures is probably the same as an alleged failure to complete mandatory tests and the other charges of alleged inadequate co-operation and breach of contract terms are vague and unclear. Information requested by the union regarding the allegation against the Complainant was not provided but a statement by the staff member who had brought the matter to attention dated August 2020, 11 months after the incident, was provided. When the Complainant attended the company doctor in November 2020, he was told that Mr. Roche had said that the Complainant was attempting to ‘kick the can down the road’. This was highly prejudicial. The Complainant was compelled to return to work despite not being required for operational reasons and he was left sitting in an office. When the disciplinary hearing was fixed for 1 December, the Complainant availed of the offer to make his case in writing as he did not feel fit to attend. Mr. Cotton upheld all charges against the Complainant and decided that he should be dismissed. The appeal against this decision was not upheld. The decision to dismiss was predetermined, selective evidence was gathered, circumstances were not taken into account and the reasons to dismiss include new serious allegations used to justify that decision. There is not sufficient evidence that there was a bald tyre on the Complainant’s truck. He was never informed of the allegation at the time. No statements were taken at the time and there is no direct evidence linking the Complainant to a bald tyre. Mr. Cotton was involved in the initial proceedings and he took the decision to dismiss. Case law, (provided to the Court), shows that the principles of natural justice must be applied, that fair procedures must show transparency, that an employee must be shown the allegations against him and that proportionality and reasonableness must be exercised. There was a lack of distinction between the processes used, there is no certainty that the tyre in question was on the vehicle claimed, not all evidence was disclosed to the Complainant, no clear allegation was put to him, he was not warned that requests for adjournments would be used against him, personal data was gathered contrary to the Complainant’s data protection rights, the Complainant was called to a meeting while on certified sick leave and the allegations are duplicated. Further, not all circumstances were taken into account. The Complainant’s last tyre check on the vehicle was on 5 September and he did not drive that vehicle on 6 September. The statement linking the tyre to the vehicle was not taken until 11 months later. There is no evidence that the tyre concerned was on the particular vehicle. The scale of the drop in tyre depth on the tyre in question is not matched by any other tyre on the vehicle. Michelin found that the damage to the tyre was due to overinflation but Mr. Cotton seemed to be of the view that it was due to hard braking. If there was a bald tyre on the relevant truck, all other potential causes of same were disregarded, including the possibility of a catastrophic event on 6 September when the Complainant was not driving the vehicle. It is worth noting that the mudguard was missing. The Complainant did not have a chance to refute a charge of falsifying documents as no such allegation was put to him. The Complainant denies hard braking and notes that no other tyre on the alleged vehicle was damaged in the same way. It is inaccurate to accuse the Complainant of non co-operation when his requests for changes in meeting dates were agreed. The Complainant carried out the checks required of him and never saw a bald tyre. While not accepting that there was a bald tyre on the vehicle in question, the Complainant wishes the Court to note that, even if there had been, a decision to dismiss him was outside the band of reasonable responses. Two other drivers were just given verbal warnings. Witness Evidence Mr. Jonathan Roche Mr. Roche is the Transport Manager for the Respondent. The witness said that, because of the loads carried, safety is of high priority and that drivers are fully trained, including on the conduct of pre trip inspections, for which they are allowed 10-15 minutes prior to each trip. These involve checks of the cab, wheels and tyres. Any issues identified must be reported. Issues with tyres are reported to the tyre company who come to the premises to deal with same. On 6 September 2019, a production operative spotted a bald tyre on vehicle no. 7155 and drew it to attention. The witness did not see this tyre but has seen the report from Michelin to which the tyre had been sent for analysis. It was the only time that the witness had ever seen a report of this type. On 17 October 2019, the witness said that the Complainant had walked off the job and had refused the request from the witness that he return. The Complainant expressed frustration at how his vehicle was loaded. An investigation fact finding meeting was conducted by the witness on 18 October, in the course of which the witness made reference to a ‘bald tyre’ incident. The issue had been referred to at a meeting of drivers on 19 September on a Driver Safety Day. It was common knowledge. The Michelin report was received in January 2020. It showed that the rubber had worn away due to the way the vehicle had been driven. A total of 5 drivers had driven the vehicle from 22 August, when the tyre had been checked by the tyre company, to 6 September when the baldness had been noted, 2 were employees and 2 were agency workers. An investigation was conducted. Initially, the Complainant refused to accept a letter from the witness as he said that he knew nothing about a bald tyre. Eventually, after much delay and postponed meetings, the witness met the Complainant in June 2020, after a meeting in May was adjourned because the Complainant cited a conflict of interest with another manager present. At the meeting, the Complainant said that he had done the checks. He did not accept that it was his truck. He argued that the tyre might have come off another vehicle. As the witness noted that the tyre was worn over the period in question and that this had not been noted by the drivers, he issued verbal warnings to the other 2 drivers, who admitted that they had not followed the correct procedure. The witness noted that the Michelin report had not identified any structural defects. He noted also that the tachograph data showed that the Complainant had been involved in a number of hard braking events, contrary to his training in defensive driving. He explained that hard braking was defined as a reduction of at least 24 km ph in 3 seconds or less. The investigation did not rely on the Tom Tom GPS system. The Complainant was on sick leave and the witness, as his manager, referred him to Medmark for assessment. In October, they confirmed that the Complainant was unfit to engage with HR. In November, they stated that he was then fit to engage. The witness denied that he had told Medmark that the Complainant had been ‘kicking the can down the road’ by seeking to avoid engagement through use of sick leave. In cross examination, the witness said that he did not send the tyre to Michelin, that this was arranged by the Garage Manager. The witness had not seen the tyre but it had been seen by Mr. Niall Cotton. The witness saw pictures of the tyre. The witness had been with the company for just a few months at that point. The witness did not remember anything further being done before the information came back from Michelin. The witness was assigned to carry out a fact finding exercise by Mr. Tony Galvin. He spoke to BOC drivers but not to the agency drivers who had driven the truck. He administered the verbal warning sanction to the two other employees involved who had admitted that they had not followed process. The witness said that he had undertaken one other such exercise in a previous employment. The witness agreed that the Complainant had asked for all communications on the matter. These had not been provided. He had asked for the book relating to the truck, No. 7155. This had not been provided. He had disputed that the tyre was on the particular truck but multiple witnesses had said that it was on that truck and the witness was satisfied on that matter. He listed Mr. Keith Wyse, Mr. Niall Cotton and Mr. Ian Smith. The witness had not spoken to Mr. Wyse but he had seen his statement. When it was put to him that this statement was dated August 2020 and he could not have seen it during his fact finding, the witness said that he had been told about the statement by either Mr. Cotton or Mr. Galvin. He accepted that he had not asked for a written statement. The witness had not interviewed Mr. Cotton or Mr. Smith but he had spoken to the latter. There were no minutes of that discussion. The witness accepted that he had not attempted to link the tyre number with truck No. 7155. With regard to the over inflation of the tyre, the witness said that this was not ok but that damage should have been picked up in inspections. He had not spoken to the tyre company. With regard to harsh braking, the witness said that he had checked the tachograph. Harsh braking was defined as a drop in speed of at least 24km ph in 3 seconds or less. The witness said that he did not believe this was defined in any documentation but that the Complainant would have done defensive driving training. The tachograph showed a number of incidents in a 3 day period involving the Complainant. The evidence re tyre depth showed the tyre had gone from 4 mm to zero depth after the check on 22 August. The witness believed that harsh braking could have possibly caused this. He could not comment on why other tyres were not affected. He had not checked the tachographs for any of the other drivers. When asked if the others could have contributed, the witness said that he concentrated on BOC drivers. When asked why the Complainant was not given a verbal warning like the others, the witness said that it was because they had admitted that they had not done what they were supposed to do but the Complainant had not and had made it difficult by refusing to take a letter regarding a meeting and causing a meeting to be stopped. It was the witness’s decision to put the report on the Complainant together and to pass it on. It was put to the witness and accepted that two thirds of his report was about the Complainant ‘being difficult’. He cited the refusal to take the initial letter asking him to meet; the fact that he texted on the day of a scheduled meeting to say that he was in Dundalk, had calls left to make and could not attend; further ‘to-ing and fro-ing; the adjournment of a meeting so that the Complainant could get ‘legal advice’; the difficulties in getting answers and the attempt to try to mislead regarding the association of the particular tyre with truck no. 7155. The witness accepted that he had agreed to postpone the meeting and to adjourn the meeting when requested as he felt that he had no other choice. He said that the Complainant had not been given the documents requested, including the book of defects, as these were not relevant in the opinion of the witness. In response to questions from the Court, the witness did not accept that he had been unreasonable. The witness said that one of the agency workers concerned was, for unrelated reasons, no longer engaged by the Respondent. No action had been taken against the other agency worker and he continued to do work for the Respondent. On re direct, the witness said that he did not rely on the defects book to link the tyre to the vehicle, the tyre records showed that the depth had gone down as described and that the particular tyre had been replaced on the vehicle. It was explained by the witness that the tyre concerned would not touch the road at all times but would do so when fully loaded. The witness said that the Complainant had been aware in advance that a Mr. Fay would attend a meeting with the witness in May. No objection had been received in advance but he had objected on the day causing the meeting to be adjourned. It was not the witness’s decision to proceed to a disciplinary process, he had just submitted his report. The witness confirmed that he had never heard any suggestion in the company that there was a conspiracy to link falsely the tyre to the particular truck. He confirmed that the two other sanctioned drivers were also SIPTU members. Mr. Niall Cotton Mr. Cotton is Director of Operations for the Respondent. At the time under consideration he was Head of Operations. He has 26 years’ experience with the company. The witness has ultimate responsibility for safety standards and policies for the Respondent. The witness told how on 6 September 2019, he was the senior manager on site when he was asked by the Transport Manager to look at a tyre on a truck. The truck was No. 7155. The near side tyre on the lift axle was completely bald. He was astounded at its state. The garage made arrangements to have it changed. The witness was surprised to learn that the state of the tyre had been spotted by a fork-lift driver but not by drivers of the truck. The garage sent the tyre to Michelin for a report. This was not common but there had been previous incidents with tyres. The tyre was sent to France but the contract was with Michelin UK and the report came back from them. The witness told Mr. Roche what he had seen some time in the following week. It was decided to highlight the incident at a drivers’ meeting to encourage drivers to be vigilant. This occurred in the same month. He was not sure if the Complainant was present. The witness could not be sure that it was him who had taken the photo of the tyre but the photo showed a wheel from which the mudguard was missing, as on No. 7155, which made it easier to see the damage. When the Michelin report came back, Mr. Roche was asked by his manager, Mr. Galvin, to carry out a fact finding exercise. The witness’s next direct involvement was in November 2020. Mr. Galvin had convened a disciplinary meeting with the Complainant. At the meeting, it had emerged that Mr. Galvin had been involved in giving the Complainant a Final Written Warning. He had paused the hearing and asked the witness to replace him. He agreed that the Complainant had been aware since July that Mr. Galvin was to conduct the meeting. The witness received the evidence and correspondence and issued an invitation to a meeting. The letter cited four disciplinary issues;
The meeting was re-scheduled on several occasions and there was correspondence regarding referrals to a further doctor in order to get a third opinion. Finally, when the meeting was confirmed by the witness, the Complainant did not attend, citing his health, although he was at work. The witness had offered the opportunity to the Complainant if he was unable to attend to set out his position in writing. The Complainant availed of that suggestion in the form of a submission from SIPTU . The witness and Mr. Trevor Kendrick considered everything. The witness did not accept the Complainant’s assertion that there was a ‘stitch up’. While he did consider the existence of a Final Written Warning, he did so having considered the evidence regarding the incident with the tyre separately. The witness considered the question of penalty and, in particular, the suggestion from SIPTU that penalties other than dismissal be considered. The witness said that he was very conscious of the seriousness of the matter. This was reflected in the fact that his decision letter runs to six pages. Ultimately, his decision to dismiss was based on the breakdown of trust. The Complainant did not own up and refused to accept responsibility. He then made allegations and attempted to frustrate the process as much as possible. It might have been the case that if the Final Written Warning had not existed, the witness could have inclined towards a lesser penalty. The witness said that, without being critical, if it had been up to him, he would probably have imposed more severe penalties on the other drivers also. With regard to the specific charges, the witness said that he was satisfied regarding health and safety failures as he had seen the tyre on the relevant truck. There was no doubt that either the required checks had not been done or, if they had been, the check forms had been completed incorrectly. There was also the statement from Mr. Wyse and there had been no suggestion that this was in any way untrue. He had examined the tachograph evidence which showed, despite defensive driving training, the Complainant had a number of incidents of harsh braking. With regard to the necessary checks, the witness formed the view that these had not been carried out as, if they had been, the defects could not have been missed. With regard to non co-operation, the witness said that he examined tachograph records for the day that the Complainant was in Dundalk and that he found unexplained delays when his schedule would have allowed him to return in time. The witness said that he never established the basis for the objection to the attendance of Mr. Fay at a meeting and he concluded that it was an attempt to delay. When a fact finding meeting did happen, he regarded the Complainant’s answers as ‘evasive’, so much so that it appeared as if his own representative grew frustrated. In relation to the charge of breaching his contract, the witness was of the view that the Complainant’s failure to complete mandatory checks and the falsification of records was a serious matter. When asked if it was fair to dismiss the Complainant while others were given lesser penalties, the witness said that he spent a lot of time on the case but that there was a breakdown in trust as the Complainant would not accept that the tyre was on the particular truck and the witness could not get past the accusation against management that there was a conspiracy. The findings were those of the witness having followed the process and he was satisfied that it was the right decision. Under cross examination, the witness said that he did not know who had taken the photograph produced as evidence to the Court. He accepted that it was a digital photograph that did not contain a time and date. The witness said that a number of people had witnessed the tyre on the truck and that there was a statement from Mr. Wyse. The witness had observed the tyre on the relevant truck. The witness acknowledged that Mr. Wyse’s statement had only been given some 11 months or so following the incident but said that he had reported the tyre verbally at the relevant time. The witness acknowledged that he had not advised the Complainant, prior to giving evidence to the Court, that he had witnessed the tyre but noted that the Complainant had refused to engage with him. He said that he would have put this to the Complainant if he had been given the chance. It was put to the witness that he had received a written statement and that it was open to him to have responded with this clarification, to which the witness responded that he had received the statement on the evening before the scheduled hearing, that many people had seen the tyre and he did not believe that his failure to provide this response was relevant. He added that the evidence was provided when sought and that a statement was taken from Mr. Wyse. The witness said that after the tyre was sent to Michelin, he did not discuss any possible investigation with any colleague. He clarified that he had not sent the tyre to Michelin but they had responded to him as he was the contract manager. The witness said that he knew the report related to the relevant tyre as no other tyre had been sent for this analysis by Michelin. In relation to a report provided to the Court, the witness said that it did not necessarily show that lots of tyres had been replaced as the report was of re-fitting of wheels. He accepted that other tyres might have been replaced. The witness denied that there was a duplication in allegations or that there was any significance in differences in explanation of the allegations between those given by his colleague, Mr. Galvin, and himself. The witness said that if the Complainant had done the required checks he would have noticed the damage to the tyre. He had ticked the boxes but, clearly, had not carried out the required checks. It was put to the witness that an allegation of harsh braking had never been put to the Complainant, to which the witness replied that it was in the book of evidence. It was put to the witness that he had taken issue with SIPTU’s assertion that insufficient information had been provided but SIPTU had asked who had taken the photograph of the tyre and when had it been taken but had not been told. The witness said he did not know the answers to those questions but in the book of evidence it said that a garage technician had taken the picture. The witness agreed that the defect book and driver data had not been provided to the Complainant but said that there was no information in the book that would have helped the Complainant. The witness said that the Complainant had not attended a meeting because of delays in returning from a run although the meeting had been scheduled for a time when he would normally expect to be back in Dublin. The tachograph showed unexplained delays. He said that he had no chance to ask the Complainant about this. When asked why the Complainant had been dismissed, the witness said that it was due to a breakdown in trust. He said that the Complainant had ticked boxes without carrying out the required checks. Two other drivers had openly admitted wrongdoing and had received a lesser penalty. When it was put to the witness that Michelin had not mentioned harsh braking, he noted that they did not have the benefit of seeing the tachograph. He agreed that he had not looked at this information for other drivers as they had been spoken to and had ‘put their hands up’. The witness said that it was not necessary to warn the Complainant about the consequences of his lack of co-operation as he had representatives to advise him throughout the processes. The Complainant had refused to accept an official letter, had accused a manager of a conflict of interest and had made allegations of a conspiracy against him. The witness said that he refused a request for a referral to a third doctor as the company doctor was familiar with the Complainant and he did not believe that there was any evidence of bias on the part of that doctor, an allegation that had been found to have no basis following an investigation by the HR Manager. The witness denied that he wanted the disciplinary meeting while there was a Final Written Warning on file or that his decision was pre determined. The witness said that the Complainant received back to work training and that this can be delayed if a trainer is unavailable. The witness denied that the fact he was President of the Trade Transport Association was relevant to the issue before the Court. In questions from the Court, it was put to the witness that frustration with the Complainant’s lack of co-operation might have coloured the outcome. The witness accepted this as a fair point but said that he had looked at the matter in detail, he had stuck to the facts, he had reflected overnight and that his decision was based on the evidence. The witness said that it was not part of a driver’s job to measure tyre inflation but, if the check had been carried out properly, any over inflation would have been picked up. The witness said that once or twice a day there might be instances of harsh braking. The witness said that awareness of the fact that the Complainant was on a Final Written Warning formed some part of his consideration. He accepted that there was a contrast with how other drivers had been treated but noted that there had been a loss of trust in the Complainant who had withheld co-operation and had made unfounded allegations about a conspiracy against him. On re-direct, the witness noted that it had been recorded that a ‘garage technician’ had taken the photograph used in evidence. He noted that no other tyre had been sent to Michelin. He confirmed that no request to cross examine Mr. Wyse had been received nor had there been any suggestion that Mr. Wyse was a liar. The witness said that he had not made any decision not to assign the Complainant to driving duties when he returned to work. The witness said that no evidence of a ‘stitch up’ had ever been put to him. He stated that he was not part of a conspiracy. Mr. Dermot Browne Mr. Browne is Sales Director, Merchant and Package Gases, with the Respondent, for whom he has worked for 23 years. He conducted the appeal with Mr. David Condon. Prior to the appeal, the witness had no involvement in this matter. There was a delay in hearing the appeal due to Christmas and Covid. The appeals board had gone through the grounds of appeal. They were satisfied that the fact-finding exercise had been thorough and its outcome provided to the Complainant well in advance of the disciplinary process. They were satisfied that the issue of a third doctor had been dealt with by the HR Manager. They were satisfied that tachograph evidence could be used to examine possible harsh braking. In relation to the meeting, which the Complainant had failed to get back in time to attend, they were satisfied that the tachograph showed anomalies. It was accepted that lesser penalties had been applied to other drivers but account had to be taken of the non co-operation of the Complainant and his accusations of a ‘stitch up’. The board had noted that the Complainant had apologised at the appeal and had said that he was willing to change, which they saw as a plea for leniency. He still maintained that the tyre was not on the relevant truck. The board was satisfied that the tyre was on the truck, this had been accepted by the other drivers and no evidence had been put forward to contradict this. The board did not accept the argument of double jeopardy, rather it was simply a question of timing and it had taken some time to establish facts. The board did not consider dismissal to be disproportionate and were very conscious that the Complainant was on a Final Written Warning. The witness stated that he was not part of a conspiracy, was comfortable with the decision and had no reason to question it. In cross examination, the witness said that he was Customer Services Manager at the time and was at the same level as Mr. Cotton. He denied that Mr. Cotton’s position with the Trade Transport body would cause him to hesitate to challenge Mr. Cotton’s findings. He said that he had been asked by HR to do a job, before which he had no involvement in the matter. He had entered with an open mind. The witness said this was his first time to deal with a dismissal appeal. The witness did not know the situation regarding the other drivers involved. The witness said that account had been taken of the apology but that account also had to be taken of other factors, including the fact that the Complainant was on a Final Written Warning. The board had taken the view that timing could not be a factor in its consideration. In response to questions from the Court in which it was noted that the Respondent’s procedures make no reference to Final written Warnings or to time limits in respect of the expiry of warnings, the witness stated that the fact that the Complainant was on a Final Written Warning was a consideration but was not determinative. Summaries At the request of the parties, the Court agreed to allow brief concluding summaries to be made. Respondent Summary There is zero evidence offered of any conspiracy and there is no admission of wrongdoing by the Complainant. There is ample evidence that the tyre in question was on the relevant vehicle. The evidence of Mr. Wyse was never challenged. Mr. Roche’s fact gathering made no adverse findings and subsequently all evidence was tested. On the question of proportionality, it is for the Court to apply the ‘reasonable employer’ test. The other drivers admitted their failures. The Final Written Warning is an important but not decisive factor. The Complainant damaged the Respondent’s trust, which the other drivers sought to repair. On the question of timing, the Complainant cannot be better off simply because of the delay in finalising information. There are lots of examples where the Complainant failed to engage. The process does not have to be perfect and there are no flaws that imperil the Complainant’s rights. He was given ample opportunity to make his case, was represented throughout and was even afforded the right to make a written submission, which the Respondent was not obliged to facilitate. He was given detailed reasons for decisions. While the Complainant is entitled not to give evidence, it is sub optimal in denying the opportunity for cross examination. He contributed 100% to his dismissal. On mitigation, the available evidence suggests that he applied for an average of 3 jobs per month, which is totally inadequate and he only applied for his first job three months after his dismissal. Complainant Summary The Complainant believed that he was the subject of a conspiracy. If there was a bald tyre on the relevant truck, it is possible that this was a result of a ‘one off’ incident. The person who took the photo used in evidence was never identified. Nothing in the Michelin report identifies the tyre in question. The Complainant did, in fact, challenge Mr. Wyse’s statement as is evident from the documents supplied. Evidence gathered was not disclosed during the fact finding and was provided only at the end. The allegations made were not clear and they mutated over time. Allegations that the Complainant was obstructive fail to acknowledge that he requested that meetings be changed and that this was agreed. With regard to the meeting for which he could not return on time, perhaps he could have been told to forego some deliveries in order to return. Other relevant drivers received only verbal warnings. No statements were taken from them. The Respondent’s procedures provide for an investigation after a written warning before there can be a further penalty. Was there a full investigation? The alleged chain of events was not backed up with documents and it was only revealed, conveniently, in the course of his evidence that Mr. Cotton had seen the bald tyre on the relevant day. It was Mr. Cotton who then received the letter from Michelin and he was the decision maker for the dismissal. The Applicable Law Unfair Dismissals Act 1. “dismissal”, in relation to an employee, means—
Unfair dismissal.
Redress for unfair dismissal. 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49[the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, Deliberation In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall within the ‘band of reasonableness’? InPanasov v Pottle PigFarm UDD1735 this Court concluded; ‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’ Walsh J, giving the majority judgment for the Supreme Court inGlover v. BLN Limited[1973] IR 388, said:-
The case ofFrizelle v New Ross Credit Union(1997) IEHC137 established that the failure to apply fair procedures put a dismissal outside of the band of responses of a reasonable employer. In this regard, the Court notes the point made by the Respondent’s representative that procedures need not be perfect to meet the test of fairness. As noted on p.281 in ‘Redmond on Dismissal Law’ ( Bloomsbury, 3rdEdition), by reference to the cases ofMeath County Council v. Creighton UD 11/1977andCarr v. Alexander Russell Ltd (1976) IRLR220,‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’. Therefore, the Court has to consider, if there were procedural imperfections, whether they were or not they were such as to render the dismissal unfair. In this regard, the Court notes the following;
In determining the appropriate remedy, it seems self evident to the Court that, in circumstances where the Complainant has accused the Respondent of a ‘stitch up’ and, in part as a consequence of this accusation, the Respondent has lost trust in the Complainant, it would not be in the interests of the parties to restore the employment relationship either through re-engagement or re-instatement and that compensation is the appropriate remedy. In determining the level of compensation to be applied, the Court is required to take into account the extent to which the Complainant contributed to his dismissal. In circumstances where the Respondent identified a bald tyre on a truck that carries highly combustible gas, it would be irresponsible of them not to carry out a thorough investigation to determine the cause. In doing so, the Respondent is entitled to expect the very fullest co-operation possible from all of its employees. The actions of the Complainant in refusing to take a letter regarding a meeting and in failing to co-operate with arranged meetings and failure even to attend the relevant disciplinary hearing, fall far short of what the Respondent was entitled to expect, notwithstanding comments above about the Respondent’s response to same. Furthermore, to accuse the Respondent of engaging in a ‘stitch up’ conspiracy, without the slightest shred of evidence and to persist with this position throughout the various processes was bound to undermine the confidence of the Respondent in the Complainant, irrespective of the significant procedural failures outlined above. In addition, the Court is required to consider the efforts made by the Complainant to mitigate his financial losses. In this regard, the Court and the Respondent were hampered in evaluating these efforts by virtue of the fact that the Complainant declined the opportunity to give evidence in the matter and, thereby, avoided cross examination and possible questions from the Court. All that is available to the Court are untested claims by the Complainant to have first sought alternative employment in the month of March, having been dismissed the previous December, then to have made a total of 35 applications up to November, i.e. over an 11 month period, then, subsequently, to have secured temporary employment in November, followed by permanent employment some months later. The absence of the availability of the Complainant to be questioned about this record has to be taken into account by the Court. In addition, as has often been noted in case law, including inSheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. In that regard, the Complainant falls well short of what is required. Taking account of the considerable contribution of the Complainant to his dismissal, the unsatisfactory nature of the evidence regarding mitigation of losses and the fact that he did not meet the test of devoting part of each working day to securing alternative employment, the Court is satisfied that the appropriate compensation amount to be paid to the Complainant for his unfair dismissal is €3,000. The Court directs that this amount be paid by the Respondent to the Complainant. The Decision of the Adjudication Officer is over-turned.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |