EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD390/2011
EMPLOYEE -claimant
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Wallace
Members: Mr. G. Andrews
Mr. O. Wills
heard this claim at Limerick on 19th October 2012
and 24th January 2013
Representation:
Claimant: In person
Respondent: Ms Sinead Mullins, IR/HR Executive, IBEC,
Gardner House, Bank Place, Charlotte Quay, Limerick
Respondent’s case:
The respondent is a distributor of kegs of beer to public houses and employed the claimant as a truck driver from 17th June 2004 until his dismissal on 18th November 2010. The claimant had received a first written warning and two final written warnings along with 2 days suspension before he was eventually dismissed.
A booklet was submitted to the Tribunal which outlined the investigatory, disciplinary and appeal process invoked by the respondent. The four separate incidents which ultimately led to the claimant’s dismissal were outlined by the Depot Manager (ML) who investigated each incident. ML issued the first written warning to the claimant. However the subsequent final warnings were issued by the Business Unit Manager (SC) and it was his decision to ultimately dismiss the claimant.
SC told the Tribunal that he held a disciplinary hearing in respect of an incident that occurred on 5th November 2010 and having taken into account the claimant’s previous record he had no alternative but to dismiss him. A letter to this affect was issued to the claimant on 18th November 2010. The claimant appealed this decision and an appeal hearing was arranged.
Hearing adjourned to 24th Jan 2013:
The Tribunal heard evidence from a witness (OS) for the respondent. For the last ten years he inducted the drivers. If a person applied for a driving position he assessed that person. If the person was not good enough they would not be passed to go to a further interview. So if a person applied for a driving position they would drive for 15 to 20 minutes around a set route and if they were good enough they went on for an interview. In 2006 to 2007 the process became more formal. Also in 2006/2007 the insurance company had an input into the respondent’s driver handbook for example what procedure to do in case of an accident.
The witness described a Camera or Road Traffic Accident kit/pack (RTA pack) that was in the vehicles. In the pack there was a camera pack, accident report form, to report weather conditions, name witnesses etc. Eventually the RTA pack was issued directly to each driver and the drivers signed for the pack. If the drivers used the pack they would hand it back to the respondent and be issued with a new one. The drivers received a training book and also got CPC training. Seven hours of CPC training per annum was required by law. When the drivers arrive into the company they are qualified driver. The respondent does not give driving lessons, the respondent train the drivers in other aspects of the job.
The claimant had received disciplinary sanctions one was for a driver error/ windscreen incident. The other was for hitting a pillar in Cork. The witness said that he was not involved in those matters.
The Tribunal heard from a director of the respondent. He and an external HR person heard the claimant’s appeal of his dismissal. Regarding the sanction for disobeying instructions they overturned that sanction. They upheld the sanction regarding early deliveries. They upheld the decision to dismiss. The witness told the Tribunal that the respondent’s position was also that they had given the claimant second chances.
Claimant’s case:
The claimant was representing himself and therefore had cross-examined witnesses / put his side of the case to the respondent; the claimant was cross-examined.
The claimant agreed that the wind deflector was his “doing”. He accepted the early delivery policies. Regarding the accident at Argalin, he had knocked at the door of the residence and the person did not answer the door. This type of incident had not happened before. When asked if he accepted that it was a number of sanctions that led to his dismissal he stated that he did but that he “disputed some of them”. Regarding another incident about attendance he explained that “I said that if I was a dishonest person I would phone I sick, but I didn’t and I came in and organised deliveries”. He accepted that a final written warning is the “last stage” (penultimate stage) of disciplinary however he maintains the FWW was for something that he did not do; i.e he did not do an early delivery.
In answering clarifications asked by the Tribunal the claimant stated that he was not aware anyone had been dismissed because of early deliveries. He had not been told that anyone had been dismissed because of early deliveries.
Determination:
Having considered the evidence adduced, the Tribunal unanimously determines that the claimant was unfairly dismissed. The incidents that the claimant was sanctioned for were minor, or certainly not major, in of themselves. The company did have disciplinary procedures but it “jumped up” the incidents on the scale of things and escalated the applied sanctions disproportionately which lead to dismissal. However, the Tribunal finds that the claimant contributed to his dismissal in that he did not pay a fuller strict attention to the rules.
The Tribunal determines that compensation be the most appropriate remedy and awards the claimant the sum of €28,800.00, as being just and equitable having regard to all the circumstances, under the terms of the Unfair Dismissals Acts, 1977 To 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)