Complainant

Respondent

Parties

Sean  Mc Kenna

M1 Document Solution Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Shane Kennedy Shane Kennedy & Co Solicitors

Rory O'Neill Mallon Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055681-001

23/03/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The first day of scheduled hearings could not proceed due to technical difficulties.  The complainant and a witness for the respondent undertook to give their evidence under affirmation.  Three further witnesses undertook to give their evidence under oath. Cross examination was facilitated.

The respondent is a confidential data shredding company.

The finalising of this decision was delayed, in part, due to a family bereavement and in part by the impact of Covid 19.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The respondent submitted that the complainant was employed as a driver for 4 years.  He was dismissed on 22 August 2022 for gross misconduct when he did not drive to Macroom with a load of confidential waste as instructed.  He continued to drive despite alleging driver fatigue, contrary to the instruction he received from the respondent.

The respondent submitted that a full disciplinary procedure was undertaken prior to the dismissal and that the complainant was offered and availed of an appeal of the decision.

The respondent's Managing Director gave evidence of what occurred on the day. He outlined how the complainant refused to meet up at a designated location. He stated that once the complainant mentioned driver fatigue, he was instructed not to drive any further, but he drove onwards nonetheless. The witness submitted that he felt the complainant was trying to force the other driver anyway. He noted that there had been interpersonal issues between the two drivers previously. He stated that there was an investigation, there was a disciplinary meeting, and that the complainant was provided with the right of appeal. The witness contested some of the evidence provided by the complainant but confirmed the procedures undertaken and the individuals who undertook various stages of the process.

The second witness was the Operations Manager.  She noted that there was no agreed meeting place for an exchange of confidential documentation but noted that it's up to the drivers themselves to arrange to meet up. She confirmed that there were interpersonal difficulties between the two drivers. Her evidence was tested under cross examination and she noted that they do not book accommodation for drivers, it is a matter for themselves.

The third witness was the person who carried out the investigation. She stated that although she was the Managing Directors wife, she tried to carry out the investigation in an objective manner. She stated that she found that the complainant did not comply with directions from either the Operations Manager nor from the Managing Director and she felt that there was a case to answer. She confirmed that there was no means to cross examine witnesses and that the complainant did not get a copy of the notes, which were only sent to the Managing Director. She noted that a second hearing was also carried out.

The fourth witness, who undertook the appeal, noted that the complainant didn't object to her holding the appeal but brought up matters of justice and fairness at the outset. She noted that she read through all the documentation that was relevant and went through the submission with the complainant. She noted that all documentation was provided to the complainant and that the process was inherently fair. Under cross examination she confirmed that the appeal process was reported to the managing director who was the original complainant. The witness was satisfied that she addressed all the grounds of appeal.

The complainant submitted that he was dismissed following allegations made against him of Gross Misconduct. It was submitted that his dismissal was as it result of his failure to comply with a direction given by an authorised person and his failure to offer any reassurance that he would be compliant going forward leading to a breakdown of the duty of trust and confidence.

The complainant submitted that the investigation and subsequent dismissal were not carried out in accordance with natural justice and fairness. It was also submitted that had no stage was he asked to provide any reassurance that he would be compliant in the future. It was further submitted that the other lorry driver was not asked to confirm details of the tachograph and that he never formed part of the investigation. It was submitted that the complainant had no right to cross examine witnesses and no opportunity to comment on additional submissions.

The complainant submitted the actions of the employer fell under the Safety, Health and Welfare at Work Act 2005 and amounted to penalisation under that Act.

The complainant submitted that he was not given the opportunity to rest up and that the result of the investigation was not proportionate. It was submitted that the complainants conduct may have amounted to misconduct but that it did not amount to gross misconduct.

The complainant gave evidence that he was driving in accordance with the schedule that was assigned to him on the day.  There was an issue with a contact point for the handover of the confidential waste where he was to meet another driver. He was informed that he needed to drive to Macroom but noted that the original meet up location was in Tralee or killarney. He had accommodation booked in that direction. He outlined that he was suffering from driver fatigue and that there was neither a data breach nor a possibility of one as he was sitting in the house looking at the van, waiting on the Managing Director to arrive. He stated that he declined to go to Clonakilty and that when he was asked to drive to Macroom, he was already beside Killarney.

In relation to the mitigation of his loss the complainant outlined that he was working since the end of October 2023 but had been working in a voluntary role from March of that year. He stated that he didn't apply for any jobs because he didn't have a reference. It was put to him that there was a critical shortage of drivers at the time. He noted that he was not on job seekers allowance. He outlined that his loss was for the period from his dismissal until he obtained a comparable position in October 2023.

Preliminary issue – Scope of the Complaint

The submission on the part of the complainant that his actions fell under the Safety, Health and Welfare at Work Act 2005, and that the respondents’ actions amounted penalisation under that Act was made at a late stage and only as part of written submissions. It did not feature on the original complaint form which was made with the benefit of legal advice. No specific complaint was made to the Workplace Relations Commission regarding the Safety, Health and Welfare at Work Act 2005, the case referred to the WRC and delegated to the Adjudication Officer was that of Unfair Dismissal. Closing submissions on the part of the complainant did not refer to the Safety, Health and Welfare at Work Act 2005 either. Accordingly, this complaint is being considered under the Unfair Dismissals legislation alone.

Consideration of the Substantive Complaint

The complainant was dismissed from his position for Gross Misconduct.  The respondent pointed out that a full disciplinary process was undertaken by it, including an appeal.  However, the complainant pointed out the failings of the process – that he was not afforded the opportunity to question the parties making the disciplinary allegations against him, and that there were familial connections between the parties involved in the investigation, disciplinary process and appeal that meant that it lacked transparency and or independence. In that regard it was pointed out that the director who carried out the disciplinary investigation was married to the managing director who made the allegations against the complainant and that the director who conducted the appeal was his sister.

Considering the degree of familial relationship between the various staff who made the complaint, conducted the investigation, held the disciplinary meeting and undertook the appeal process, I am satisfied that a reasonable employer would conclude that there was either bias or the perception of bias in relation to the procedures followed and the close familial connections of the main parties. 

I also note that it was conceded by the respondent that there was no possibility to cross examine the people who made the complaint, that certain documentation was not given to the complainant but was provided to the person who raised the complaints against him, and that the complainant raised the issue of fairness and natural justice during the appeal process.

Arising from the foregoing I am satisfied that the disciplinary process was not conducted in accordance with the principles of natural justice and fairness, at the very least a person has a right to test the allegations being made against them.  On the basis of all of the above, I find that the complainant was unfairly dismissed.

Although the complainant outlined a financial loss from the time of his dismissal until October 2023, noting that this amounted to €12,636, he did not apply for any jobs in the period after his dismissal.   He stated that this was because he did not have a reference, but he noted that he did not make any efforts to do so.  I note that he undertook voluntary work from March until October when he found paid employment. I accept that the lack of a reference provides a challenge to finding work however the complainant stated that he did not make efforts to find work.

The respondent noted that there was a critical shortage of drivers at this time and this fact is borne out by the inclusion of driving roles on the Critical Skills Occupations List operated by the Employment Permits section of the Department of Enterprise at that time. That list is contributed to on a regular basis by the Expert Group on Future Skills Needs (EGFSN) and is agile enough to respond to shortages in the labour market for various occupations.  Accordingly, I am satisfied that this supports the respondent’s contention that it would have been easy enough to secure alternative employment.

Having regard to all of the foregoing, I consider that an award of 25% of the financial loss is appropriate in all the circumstances of this case. Therefore, I award the complainant €3159.

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was unfairly dismissed.  I award the complainant compensation of €3159 which I consider to be just an equitable having regard to all the circumstances of this case.

Unfair Dismissal – lack of justice and fairness in procedures – evidence supportive of contention – unfair dismissal established – award of compensation