Labour Court Database __________________________________________________________________________________ File Number: CD92114 Case Number: AD92162 Section / Act: S13(9) Parties: TANKFREIGHT IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's recommendation No. S.T. 13/92 concerning alleged unfair dismissal.
Recommendation:
5. The Court has carefully considered all of the views expressed
by both parties in their oral and written submissions together
with the reasoning of the Rights Commissioner.
It is the view of the Court that the accident was extremely
serious and it was fortunate that it did not result in more
serious consequences. The Court considers that given the
experience of the driver and his knowledge of the road he should
have been able to avoid the occurrence
In considering the actions of the driver the Court has taken
account of his clear record as a driver for some fourteen years,
of his experience, and the fact that he had knowledge of the road.
The Court has also taken into account the Company view that their
incentive scheme is so constructed as to require driving at speeds
in excess of the legal limits unnecessary and the workers
perception of advantage in completing journeys in the shortest
possible time. The Court has also considered the worksheets made
available.
In all the circumstances notwithstanding the seriousness of the
occurrence the Court considers dismissal too harsh a penalty.
It is the view of the Court that the driver should be reinstated
with effect from 1st July, 1992 and that the period from the date
of his dismissal to the 1st July, 1992 be considered as a period
of suspension, that his driving thereafter should be monitored for
a period of one year, and that he be issued with a final warning
clearly indicating that any lapse from acceptable driving standard
during the year from the date of reinstatement shall result in his
dismissal.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD92114 APPEAL DECISION NO. AD16292
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: TANKFREIGHT IRELAND LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. S.T. 13/92 concerning alleged unfair dismissal.
BACKGROUND:
2. The Company which was established in 1988 is a subsidiary of
Tankfreight Limited (U.K.). The Company employs 57 people and is
involved in the distribution of oil products. The worker
concerned was employed by the Company as a driver. On 27th
August, 1991 he was involved in an accident when the articulated
lorry he was driving overturned, causing the loss of its cargo of
diesel and petrol, damage to a garden and to the environment. In
the course of the Company's investigation into the accident they
commissioned two independent reports. Basing its decision on
these reports the Company dismissed the worker on 13th January,
1992. The Company claims that the worker drove in a manner and at
a speed that was dangerous to the public. The Union rejected the
claim. The Union referred the matter to a Rights Commissioner for
investigation and recommendation. On 18th January, 1992 the
Rights Commissioner recommended as follows:
"The claimant for all that cannot escape some culpability and
I therefore recommend that dismissal is substituted by a
suspension of one month without pay to expire on 3/2/1992 and
the imposition of a final written warning to expire on
4/2/1993".
The Rights Commissioner's recommendation was rejected by the
Company who appealed it to the Labour Court. The Court heard the
appeal on 11th March, 1992.
COMPANY'S ARGUMENTS:
4. 1. An independent report commissioned by the Company found
that speed was the cause of the accident.
2. The worker failed to keep his vehicle under control. As a
professional articulated lorry driver he should have taken
account of the behaviour of liquid in the tank under the
manner in which he drove the vehicle. As liquid swells from
one end of the Tank to the other it creates forces and
pressures in a truck which need to be controlled properly.
Baffles which counteract such behaviour, work effectively only
within certain speeds. The sudden braking of the vehicle at
excessive speed before the bend caused the liquid bulk to
swell to different parts of the tank, creating imbalances and
pressures which were outside the workers control.
3. The worker was travelling at 37 M.P.H. approaching the
bend where the accident occurred. A speed of 15/18 M.P.H.
would be considered safe for such a bend.
4. The worker drove without due attention or consideration
for other road users. He failed to heed a "slow" sign which
is on the middle of the road on the approach to the bend which
was the scene of the accident.
5. The worker caused damage to properties of the Cork County
Council and others incurring liabilities to the Company of
#.25 million.
6. The Company investigated the crash in detail. It
commissioned two independent reports and fully complied with
agreed disciplinary procedures.
UNION'S ARGUMENTS:
3. 1. The worker was an employee of Texaco for 14 years. He has
an excellent driving record.
2. The Company is making the worker the scapegoat to divert
attention from the root causes of the accident which are the
Company's bonus scheme/driving targets and the road worthiness
of the vehicle.
3. The Company's main reason for dismissing the worker is
that he was speeding. The Company is partly responsible for
the accident because their bonus scheme/driving rates
encourages drivers to exceed the legal speed limit of 40
M.P.H.
4. Based on a study carried out by the Union's industrial
engineer, the Union has disagreed with the Company's driving
targets on the basis that an average speed of 40 M.P.H. is
impossible to achieve within the legal speed limits.
5. The tachograph analysis show that the distance travelled
was approximately 71.5 miles in a time of 1 hour 47 minutes.
This represents an average speed of 40.1 M.P.H. This speed is
in line with what the Company expects and accepts.
6. The truck in question was in the garage for repairs on a
number of occasions prior to the accident because it was
jumping out of gear.
7. The worker observed that the truck was jumping out of gear
and into neutral on the morning of the accident. When this
happens the truck is effectively free-wheeling. If this
happened prior to it going into the bend, the truck would have
been hard to control and would increase the time required for
the driver to take corrective action.
8. The Company has not taken heed of the Union's concerns
regarding driving speed targets.
DECISION:
5. The Court has carefully considered all of the views expressed
by both parties in their oral and written submissions together
with the reasoning of the Rights Commissioner.
It is the view of the Court that the accident was extremely
serious and it was fortunate that it did not result in more
serious consequences. The Court considers that given the
experience of the driver and his knowledge of the road he should
have been able to avoid the occurrence
In considering the actions of the driver the Court has taken
account of his clear record as a driver for some fourteen years,
of his experience, and the fact that he had knowledge of the road.
The Court has also taken into account the Company view that their
incentive scheme is so constructed as to require driving at speeds
in excess of the legal limits unnecessary and the workers
perception of advantage in completing journeys in the shortest
possible time. The Court has also considered the worksheets made
available.
In all the circumstances notwithstanding the seriousness of the
occurrence the Court considers dismissal too harsh a penalty.
It is the view of the Court that the driver should be reinstated
with effect from 1st July, 1992 and that the period from the date
of his dismissal to the 1st July, 1992 be considered as a period
of suspension, that his driving thereafter should be monitored for
a period of one year, and that he be issued with a final warning
clearly indicating that any lapse from acceptable driving standard
during the year from the date of reinstatement shall result in his
dismissal.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
_____________________
Tom McGrath
May, 1992. Deputy Chairman
F.B./J.C.