Complainant

Respondent

Parties

Kenneth  McMorrow

Clare Distribution Services.

Representatives

Self- represented

Steve Sands HR Consultant

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-00067361-001

13/11/2024

The complainant submits that he was unfairly dismissed from his position as a van delivery driver with the respondent on 12/8/2024.

He was employed by the respondent from 14/2/2022 until that date.

His gross weekly pay was €648.00.

The complainant submitted his complaint to the WRC on 13/11/2024

The complainant submits that he was unfairly dismissed.

The stated grounds for his dismissal were his failure on appointment in 2022 to disclose convictions which had happened almost twenty years previously. Nobody in the company or amongst the customers had ever complained about his work.

Evidence of complainant given under oath.

On 2/7/2024, a woman colleague in the respondent HR department asked him in Ashbourne to submit his notice as otherwise he would be sacked. He cannot remember her name. Two days later she rang him and asked him to meet her in coffee shop in Dunshaughlin on Wednesday 4/7/2024, where she told him again that it would be better to hand in his notice rather than be sacked. He asked her the reason for this, and she stated that it was due to social media reports about him.

He had been refused information about why, when and on whose prompting a search on social media had been conducted about him.

He went into work on 5/7/2024 and loaded his van and did a delivery. The same HR female colleague rang him on the company phone on 5/7/2024 and asked him to leave the van and phone in the company premises and that he was not to return to the yard. He left the van in the yard and returned home. He asked her again why, and she told him that information had come to light about him on social media.

Thereafter a disciplinary process followed.

Absent without leave in July 2023.

The complainant stated that his brother had been killed in a road crash in July. His funeral was scheduled for 3/7/2023.

While on the one hand the complainant cannot be sure of his telephone calls to the office , he thinks that he rang the office Friday the 30/6/2023 and spoke to one of the operators to advise that he would not attend work. His pay slip confirms that he was paid for 3 days bereavement leave.

The complainant stated that the Gardai had been looking for him and asked him where he had been the night before his brother was buried. The complainant declined to tell them.

The complainant stated that he was arrested and charged in July 2023 for involvement in a fight, which occurred on 2/7/2023, the night before his brother was buried. He is not sure of the date of the Court hearing in Sligo. The court case will resume in November 2025.

Concerning the logs for attendance in the week of 3-7/7/2023, he stated that he did contact the office but was unsure of the dates when he was absent and to whom he made the contact.

He had never been sick or absent from work before then.

Overall, he believes that the dismissal was very unfair. He was pressurised to resign in circumstances where the convictions dated back almost 20 years, and he had never received a complaint about his work from either a colleague or a customer. The respondent had previously told him that he was a great worker. He had been busy trying to build a life for himself and his family.

Mitigation.

The complainant secured another position two weeks after his dismissal. He earns €600 gross a week and works 40 hours a week.

The respondent denies that the complainant was unfairly dismissed from his position as a van driver with the company. The respondent is engaged in the transport of frozen and ambient goods nationwide.

After a disciplinary process conducted in compliance with the principles of fairness and natural justice, the complainant was found to have been guilty of gross misconduct contrary to the provisions of the respondent’s disciplinary procedure.

The conclusion of gross misconduct was based on the complainant’s failure to disclose previous convictions for criminal offences. Answers to this question had been a requirement on the 2022 application form and had been left blank by the complainant.

There was also a period of unexplained absence from 3-7/7/2023.

These matters led to a loss of trust and confidence in the complainant and posed a reputational risk for the respondent.

The respondent HR Generalist gave evidence under affirmation.

He conducted an investigation on 25/7/2024 into the charges levelled against the complainant.

The activation of the disciplinary procedure came about as a result of one of their clients, Dunnes Stores, notifying the respondent Operations Controller in their Baldonnell Headquarters that the Gardai had contacted Dunnes Stores, seeking a vehicle movement report and identity of the driver of the vehicle on specific dates. The witness was unable to identify the exact dates specified by the Gardai or the exact date of the contact to and from Dunnes Stores, but the enquiries preceded the activation of the disciplinary procedure. The Operations Controller supplied the requested details to Dunnes Stores and to the Gardai. The driver on the particular dates was the complainant.

 All drivers are informed that vehicles hold tracker devices.

A Garda enquiry of this nature prompted the respondent to conduct a google search of the complainant. He and other HR personnel would often conduct google searches – approximately once a month. Previous searches never turned up any convictions of employees. This search revealed hitherto unknown previous arrests, convictions and sentences involving the complainant.

 On 19/7/2024, the respondent invited the complainant to attend a disciplinary investigation meeting, om 22/7/2024, listing the reasons for same, and attaching press reports outlining the complaint’s arrests, convictions, prison sentences and pending charges in relation to an alleged assault which had occurred on the 2/7/2023. The disciplinary hearing was postponed until the 25/7/2024.

He was placed on paid suspension for the duration of the disciplinary process.

On being questioned by the adjudicator why the blank spaces on the application form seeking details of previous convictions were not followed up, the witness stated that they usually were and doesn’t know why this didn’t happen on this occasion. The relevant staff member is no longer employed with the respondent.

The witness recounted that before the investigation hearing he had provided the complainant with reports in the Irish Independent detailing convictions and prison sentences for drug related offences in 2003 and for obstruction of justice in 2008.

The complainant confirmed that he had been imprisoned for criminal offences.

Reputational damage.

The witness stated that the respondent enjoys a close relationship based on trust with all of their clients and that the clients, like the respondent, expect delivery drivers, transporting their products to be of the highest character.

Absence without leave from 3/7/2023- 7/7/2023.

The respondent refutes the complainant’s statement that he had contacted the office on Monday 3/7/2023 to explain his absence. The respondent submitted log- in records showing the pattern of contact between the complainant and the operators. The complainant had been uncontactable.

When in the context of this absence the complainant was provided with press reports detailing his being cautioned, charged with an assault causing harm to an individual and being remanded on bail by the Court in Sligo on 4/7/2023, he was evasive. 

The witness concluded with the agreement of the respondent Managing Director that the matter should proceed to a disciplinary hearing to answer the charges of gross misconduct based on failure to disclose previous convictions and a failure to provide details as to his absence in early July, when set alongside press reports of alleged criminal activity occurring in July 2023, all resulting in loss of trust and confidence in the complainant.

Evidence of external HR Consultant given under affirmation.

The witness stated that the respondent engaged him to conduct a disciplinary hearing on 9/8/2024.

Failure to disclose previous convictions.

At the disciplinary investigative hearing on the 25/7/2024, the complainant had confirmed the previous convictions.

The complainant admitted that he should have disclosed the convictions but asked the respondent to consider that they occurred almost 20 years previously, and that there had never been any complaint about his work from a customer or colleague.

Absent without leave from 3-7 July 2023, a period which coincided with a report of an assault by the complainant on the 2/7/2023.

The complainant failed to confirm the accuracy of the report in the Irish Independent of a court hearing in relation to the assault.

The complainant gave incorrect dates for his brother’s death and bereavement leave to the witness. The witness asked him to ensure that he was providing the witness with correct dates.

The complainant made no comment to the witness when he raised the issue of reputational damage for the respondent.

The witness referred to the notes of the disciplinary hearing which contained a suggestion that the complainant take a few minutes to consider resignation. I advised that I would have to consider this matter.

On being questioned by the adjudicator, the witness confirmed that the complainant did not challenge the notes of the investigation meeting.

Concerning the logs for attendance in the week of 3-7/7/2023, the complainant stated that he did contact the office and was unsure of dates when he was absent.

As per note of the disciplinary hearing of 9/8/2024, in the light of the evidence presented, the witness advised that he would confer with the company and a decision would issue on the following Monday, 12/8/2024.

The Independent HR Consultant advised the complainant of his dismissal in a letter dated 12/8/2024. He notified him of the option of an appeal against the dismissal.

The complainant’s appeal was not upheld.

Conclusion

Given that the respondent had dealt with the charges of gross misconduct which had been upheld through the use of the respondent’s disciplinary procedure which conforms to the standards of fairness and natural justice, this complaint should be dismissed.

I am required to establish if the respondent’s dismissal of the complainant on the 12/8 /2024 contravened the provisions of the Unfair Dismissals Act,1977.

Relevant Law

Section 6(1) of the Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

The substantial grounds advanced by the respondent justifying the dismissal included:

 -loss of confidence and trust owing to the complainant’s failure to disclose, as required and requested on his 2022 application form, previous criminal convictions for drug related offences, a prison sentence from nearly 20 years previously and a prison sentence in 2008.

 -New, current criminal charges facing the complainant.

 -bringing the company into disrepute.

 I find that the failure to disclose the previous convictions in the application form is a serious matter as that form contains a signed undertaking acknowledging that a failure to provide correct information could lead to the termination of his employment. This was left blank though not followed up by the company and the person responsible for this detail is no longer with the company.

At the investigative hearing on 25/7/2024, the complainant was evasive with the respondent HR Generalist who presented him with press reports concerning the 2023 charge of an assault of an individual on the 2/7/2023 in Sligo and a court appearance on the 4/7/2023.

 At the adjudication hearing he did not refute these press reports and did state that he had tried to turn things around for his family’s sake.

Absence without leave in July 2023 coinciding with new criminal charges facing the complainant.

The respondent decided to dismiss the complainant for his inability to provide a plausible explanation for his absence from what they state was the period 3- 7 July 2023. This absence coincided with the complainant being arrested, cautioned, and remanded on bail by the Court in Sligo on 4/7/2023 for his participation in an assault by four men causing harm to a male on 2/7/2023.  The case was back in the Court on 14 February 2024. A press report of same in the Sligo Champion of 15/2/2024 was submitted by the respondent. The complainant accepted that these charges of July 2023 had been levelled against him and that a trial was pending. He did not contest any of the press reports submitted in evidence at the adjudication hearing on 5/8/2025. The complainant confirmed that the trial which commenced in in February 2024 would proceed in November 2025

I find that there is confusion on the respondent’s part regarding the dates when the complainant was absent. I find that the complainant had the same problem recording dates accurately. The logs for the week of the 3-7/7/2023 show that the Operations Manager had provided cover for the complainant on the 3 and 4 of July 2023, presumably aware that he would not be attending work. The complainant’s brother was buried on the 3/7/2023. There was no contact from the complainant on the 5 and 6 July, but there was contact from him on the 7 July. But whatever about the inconsistency in dates, there is an acceptance that the events of the week of 3-7/7/2023, as reported in the press reports, did happen.

 The complainant’s dates about the date of his brother’s death and his contact with the respondent in the first week of July are inconsistent and unreliable.

I accept that the ongoing charges against the complainant for an assault, his reoccurring failure to avoid situations resulting in criminal charges -aside from his previous convictions- eroded the respondent’s confidence and trust in the complainant’s character and his employability in a customer facing role. The basic test at all stages in a dismissal procedure is “what would a reasonable employer do in the circumstances”.

I accept that reputational damage arises for the company deploying a van driver with a public criminal record, and facing current charges of assault, to deliver goods in branded vehicles and to private homes. I accept that client confidence in the respondent could be damaged with this driver transporting goods for the client. I accept that the respondent must enjoy the trust and confidence of their clients.  I accept that the complainant’s conduct has sundered that trust.

These charges of loss of trust and confidence and reputational damage all come within the ambit of what the respondent ‘s disciplinary process identifies as gross misconduct permitting dismissal. The issuing of the letter of dismissal on 12/9/2024 was outsourced to the external HR consultant who notified the complainant of the right of an appeal to the respondent Managing Director.

I find that there were substantial grounds justifying the dismissal.

Procedural aspect of the dismissal process.

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

S.I 146/2000 regulates the conduct of disciplinary and grievance hearings. It exists to protect the rights of the complainant to fairness and justice.

Section 1 of S.I 146/2000 specifies that disciplinary procedures should be handled in accordance with the principles of natural justice and fairness

Section 6 states:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

”that the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

An impartial determination?

However much the complainant’s previous convictions and ongoing charges eliminated the trust between him and the respondent, the complainant was still entitled to a fair and impartial process.

The mystery woman, a HR colleague whose name the complainant could not remember suggested to him on 2 and 4/7/2024 that he should resign. None of this evidence given by the complainant was challenged or questioned by the respondent at the hearing. When asked by the adjudicator about this envoy, reportedly dispatched to encourage the complaint to resign, the respondent did not deny that this had happened, merely saying that they had no comment to make about this woman.

The suggestion of resignation without sanctions and 2 weeks’ notice during the course of the disciplinary hearing as evidenced in the notes of the hearing, prior to the complainant being given an opportunity to complete his evidence or to address why the sanction of dismissal should not apply, and in  advance of the company having sight of the disciplinary hearing notes,  report , or conclusions, is contrary to what the complainant was told at  the  disciplinary hearing. The external HR Consultant advised him at the hearing that he would confer with the company on the evidence submitted by the complainant and get back to him on Monday 12/8/2024. I find that this short circuiting of the stated procedure by way of nudging him into the resignation ’lane’ prior to the completion of the hearing deprived the complainant of an impartial determination as opposed to proceeding with the hearing and bringing its conclusions based on the complainant’s submission for an impartial determination by the company. It suggests a pre-determined outcome which deprived the complainant of entitlements found in S.1 146/200o. This rendered his dismissal unfair. However, this did not invalidate the right of the respondent to conclude as they did regarding his future with the company.

No evidence was presented of the complainant being provided with the disciplinary policy prior to the investigation hearing on 2/8/2024.

I find that the respondent’s disciplinary and dismissal policy conformed in general with the guidelines in SI 146/2000.

However, the evidence does not allow me to conclude that the disciplinary hearing was devoid of prejudgment. This must lead me to conclude that the dismissal was unfair on this basis.

 Loss

The complainant secured employment two weeks following his dismissal.

His loss was €3698.

While the employer’s conduct does not alter my finding that the dismissal was unfair, section 7(f)of the Act, as amended, allows an adjudicator, assessing redress, to consider

“ the extent to which the conduct of the employee (whether by act or omission0 contributed to the dismissal “.

The evidence reveals that the complainant contributed to a very large extent to his dismissal.

In the case of Scoil Aine Naofa v-Mr. Michael Hughes, UDD2330, the Labour Court considered the possibility that the complainant contributed 100% to his dismissal. The Court reduced the award made by the WRC from €10,000 to €2,000, representing four weeks’ pay. The breaches by the employer in that case were more significant than those in the instant case.

Given the complainant’s contribution to his dismissal, I consider the sum of €648 to be fair and reasonable in all of the circumstances of this case.

I find this complaint to be well founded, and I direct the respondent to pay the complainant the sum €648 being an amount which I consider to be just and equitable having regard to all the circumstances.

Prejudgment of disciplinary sanction