EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD813/2011
- Claimant MN874/2011
Against
EMPLOYER
- Respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr C. Lucey
Mr N. Dowling
heard this claim at Dublin on17th September 2012, 27th November 2012,
27th March 2013 and 16th September 2013.
Representation:
Claimant: Mr. Cian Moloney, B.L., instructed by Barra O’Cochlain, John Glynn & Company, Solicitors, Law Chambers, The Village Square, Tallaght, Dublin 24
Respondent: Mr Michael McGrath, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
On 17th September 2012, 27th November 2012 and 27th March 2013
Mr. Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
On 16th September 2013.
It was agreed at the outset of the hearing on 27th November 2012 that the claimant received his statutory notice entitlement. The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was officially withdrawn.
Respondent’s Case
The Tribunal heard evidence from (WG), Human Resource Generalist, that the claimant was employed as an articulated driver delivering products countrywide for the respondent company. The claimant was involved in a number of incidents in April and November 2010 while driving his own vehicle to work and driving the respondent’s truck. He failed a Garda breathalyser test in April 2010 while driving his own car and was involved in an accident while driving the respondent’s vehicle in November 2010 causing €1,700 damage to the vehicle.
The claimant’s failure of a breathalyser test resulted in a Court proceeding which was ultimately dismissed. The claimant had received a final written warning in September 2010 as a result of previous incidents relating to lack of proper observation while driving his vehicle and non-collection of associated delivery paperwork. He had received his first written warning in relation to these issues in April 2010.
The respondent carried out an investigation into the November accident on a number of dates in December 2010. On 14 December 2010 at a second disciplinary meeting a dispute arose between the parties as to the speed of the claimant’s vehicle when it struck a bollard in November 2010. This meeting was adjourned for 35 minutes and when the meeting reconvened it was explained to the claimant that the meeting was now a disciplinary hearing. The claimant was advised of the severity of the situation and was reminded that he was on a final written warning. The claimant confirmed that he understood the position. WG maintained he was unbiased in conducting the disciplinary hearing even though it was conducted within half an hour of the investigation meeting.
A decision was ultimately made to dismiss the claimant on the health and safety aspects of the observational issues, not the damage to the company vehicle. WG told the Tribunal that he was satisfied that correct procedures had been followed during the investigation and disciplinary process. He confirmed that the fact finding meeting, labelled accident investigation was held to decide if there was enough reason to progress to a disciplinary investigation. The outcome of the disciplinary investigation dictates if and what sanction may be imposed.
The claimant was issued with a letter terminating his employment on 17 December 2010. WG confirmed that dismissal was the only sanction to be imposed because the claimant was already on a final written warning as a result of lack of observation. The accident investigation showed that the claimant was negligent which led to the disciplinary hearing and ultimately to the claimant’s dismissal.
AM, transport manager gave evidence that a reconstruction of the claimant’s accident was carried out in the respondent’s yard as part of the investigation process. He told the Tribunal that it was reasonable for the respondent to carry out this reconstruction and the claimant had a full input into the reconstruction. The claimant was remorseful, apologised and sought a second chance.
AM confirmed that he had made the decision to issue the first written warning to the claimant in April 2010. He also confirmed that the claimant was reminded that he was on a final written warning at the outset of the disciplinary hearing. The claimant’s colleague was in attendance at that meeting providing translation for the claimant. AM could not confirm if the colleague translated “you are on a warning” or “you are on a final warning”. AM also stated that the claimant was asked, at a previous meeting, if he wanted to consider his position.
The next witness SH gave evidence that she was the Human Resources manager for the respondent company. She worked for the respondent from 2001 to 2011. She gave evidence that all articulated truck drivers operated to a high level of health & safety. The company were very conscious of the dangers involved in driving an articulated truck and provided a high level of training to all drivers.
She told the Tribunal that in April 2010 the Gardai contacted a transport controller in the respondent company informing them that the claimant had been arrested and charged following a failed breathalyser test. The witness viewed this as a very serious issue as she had an obligation to ensure the health & safety of the claimant and other road users. She met with the claimant on the following day, 19 April 2010 and discussed the allegation with him. The claimant told her that he did not know if he was going to plead guilty to the charge in Court until he had consulted with his solicitor. This was of concern to her but she did not draw an inference from this. She suspended the claimant on full pay for ten days. This was a precautionary action on her behalf not a disciplinary sanction. She confirmed that she asked the claimant if he would consider his position as an articulated truck driver. She did not do so in a threatening manner and did not tell him he could resign or be dismissed. She told the Tribunal that the claimant replied that he would take advice from his solicitor.
She gave further evidence that she had a follow up meeting with the claimant on 29 April 2010. She agreed to allow the claimant return to work on the basis that he agreed to update her on all developments of his charge and Court dates from this day on, and he agreed to an alcohol breathalyser test at the start of every shift and randomly at the end of his shifts. A document outlining this position was signed by the parties and a copy of same was opened to the Tribunal. The claimant was allowed to return to work on that basis which she believed was a fair method of moving the issue forward. The charge against the claimant did not subsequently proceed in Court and the claimant resumed his normal duties in September 2010. She confirmed that she had no part in the process that led to the claimant’s dismissal. She gave further evidence that the stages in the company’s disciplinary procedures do not have to be followed strictly as outlined from stage 1 through to stage 4. It is dependent on the nature of a particular instance.
Following an appeal lodged by the claimant on 20th December 2010 GG, Commercial Director, conducted the claimant’s appeal hearing on 2nd March 2011. VOM took notes and a translator was provided. The claimant was accompanied by his union representative.
The claimant’s grounds for his appeal were:
· He felt the decision made was too severe
· He had been a driver for 25 years, almost four of these with the company, with no road accidents
· He had worked over the legal number of hours permitted in the three weeks directly preceding the incident
· He had a first written warning on his file, not a final written warning.
GG considered and responded to all of the claimant’s grounds of appeal. By letter dated 14th March 2011 he upheld the decision to dismiss the claimant.
Claimant’s Case:
The claimant was employed as an articulated truck driver and commenced employment on 1st March 2007. He had been driving trucks for twenty five years and driving for the respondent for over four years. He had no road accident prior to March 2010. On 17th March 2010 while making a delivery to a store in Tallaght he reversed his trailer on to the loading bay and did not observe that the lip of the bay loading ramp was extended. There was slight damage to the vehicle and he immediately notified the company about this accident.
On 18th March 2010 following a delivery to a store in Mayo he neglected to check that his paperwork was in order when he departed.
Following a disciplinary meeting held on 25th March 2010 the claimant was issued with a first written warning. The claimant accepted this warning and did not appeal it.
In April 2010 the claimant was arrested and charged following a failed breathalyser test. He was driving his own car at this time. SH invited the claimant to a meeting. She stressed that it was a serious matter and either he leave the company or she would dismiss him. The claimant did not resign. Subsequently, his charge was struck out. He agreed to being breathalysed every morning at work and randomly after work.
In August 2010 the claimant made deliveries to two stores in Cork. Some of the pallets had been delivered to the wrong store. It became apparent the pallets had been incorrectly loaded on to the vehicle. He did not lodge a complaint about this issue. He rectified matters.
He was surprised to be invited to a disciplinary meeting on 7th September 2010. At that meeting the respondent told the claimant this his failure to check the pallets was not acceptable and that he acted negligently in his duties. He was not furnished with a final written warning at this meeting.
In late November 2010 the claimant had an accident with his vehicle. He had parked close to a concrete bollard and then took a forty five minutes break. Just as he was leaving he turned the wheel about 30 cm and struck a bollard. He immediately drove back to the company’s premises and reported the incident to AM. He had already taken a photo of the damage.
The claimant attended a disciplinary meeting on 14th December 2010. His employment was terminated on 17th December 2010. He appealed the decision to dismiss him. The decision to dismiss him was upheld.
Following the termination of his employment he sought alternative work. He secured work in October 2011.
Determination:
The Tribunal carefully considered all of the evidence adduced. It is common case that the dismissal of the claimant took place as a direct result of alleged acts of misconduct which the respondent addressed by reference to its disciplinary procedure. The addressing of these resulted in the respondent issuing both a first and subsequently a final written warning followed by the implementation of a disciplinary procedure which led to dismissal and a subsequent appeal which followed the decision to dismiss.
The Tribunal has therefore closely considered the circumstances in which these procedures were applied. It firstly is satisfied that no verbal warning was issued to the claimant in respect of any alleged misconduct as is required before the issue of any written warning. Secondly having examined the circumstances surrounding the incident in respect of which the respondent issued their final written warning, it is clear (a) that the manner in which the claimant discharged his duties on the occasion in question did not amount to misconduct (b) that the warning issued should not therefore have issued and (c) that it thus had no effect.
It is clearly evident from the afore-mentioned that there was present in the disciplinary process implemented by the respondent a procedural deficit, a deficit which the Tribunal has considered and which it finds to be of sufficient consequence so as to invalidate this process and therefore also to invalidate the dismissal which resulted from it.
It is therefore found and determined that the claimant was unfairly dismissed. In respect of the obligation of the claimant to mitigate his loss it is accepted that he made a reasonable and sustained attempt to do so.
The Tribunal awards the claimant €40,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)