UD1083/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                    CASE NO.

Employee        -          claimant                                                 

                                                                                                                             UD1083/2012

against

Employer         -          respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms J. McGovern B.L.

Members:     Mr. J. O'Neill

                   Mr J. Maher

heard this claim at Dublin on 2nd October 2013

                         and 14th November 2013

Representation:

_______________

Claimant(s) :           In Person

Respondent(s) :     Mr Peter Leonard BL instructed by P.C. Moore & Co Solicitors, The

                               Georgian Business Centre, 20 Baggot Street Lower, Dublin 2

Preliminary Point

The claimant was dismissed from his employment by the respondent company on 1 November 2011. The workplace relations complaint form was received in the Tribunal secretariat on 8 July 2012. The Tribunal heard evidence that following his dismissal an internal appeal process took place which was not concluded until April 2012. The Tribunal is satisfied that this process amounted to exceptional circumstances which prevented the claimant from lodging his claim within the prescribed six months’ time limit. Accordingly the Tribunal, pursuant to section 7 (2) (b) of the Unfair Dismissals (Amendment) Act 1993 extends the time period allowed for bringing the claim thus making it a legitimate claim.

Respondent’s Case

The respondent is an international transport company transporting dangerous chemical based products. Accordingly the company has obligations in relation to environmental concerns. Its headquarters are based in Switzerland. The claimant was employed as a driver in the respondent’s Irish based subsidiary in Lusk, Co. Dublin. The Tribunal heard evidence from the manager of the Irish subsidiary (JS) that on the morning of 25 October 2011 the claimant departed the Lusk depot at 7.10am to make a delivery in Navan, Co. Meath at 8am. The claimant was carrying a non-hazardous load however if the chemical in question was exposed to water it could react badly and potentially be an environmental risk. At 7.15am the claimant telephoned the witness informing him that he had been involved in an accident and the truck was now in a ditch off the road. The witness then telephoned the Gardai and made his way to the scene of the accident. A number of photographs of the accident site were shown to the Tribunal. The fire brigade also attended the scene of the accident in order to secure the site should any chemicals leak.

As a result of the accident the vehicle was badly damaged and was subsequently written off because of the damage sustained to the chassis of the vehicle. On the day of the accident the claimant along with the witness returned to the Lusk depot and the claimant provided a written statement in relation to the accident. The claimant made his delivery to the Navan site later that day using an alternative truck. His statement along with the vehicle’s tachograph, photographs of the scene and other relevant papers were forwarded to the company’s headquarters to form part of an investigation. Among the documents forwarded as part of the investigation included a warning received by the claimant that was no longer in effect. Aside from this warning the claimant had a good employment record. The witness had no further part in the investigation. He was then contacted by the owner of the company, who is based in Switzerland, on the following Monday who told him that the claimant was to be dismissed. JS conveyed this decision to the claimant on the following day, 1 November . When questioned as to whether an alternative sanction was considered the Tribunal was referred to correspondence from JS who indicated that he thought a warning might have been appropriate. This was not taken up by the owner of the company.

The witness told the Tribunal that the estimated travel time between Lusk and Navan for the claimant’s journey was one hour and five minutes. He believed that the claimant was running late on the morning in question and was trying to make up time. The taco-graph recorded his traveling speed at 57 km/h. The speed limit was 80 km/h but road conditions were wet, the claimant was driving a large truck on a narrow road with soft verges and the witness believed that 57 km/h was excessive speed on the morning in question. He believed the accident occurred as a result of driver error.

The witness accepted that a manufacturing fault in all of the company’s fleet of trucks including the claimant’s resulted in a collection of water in the seal area around the sunroof on the vehicles. This collection of water only occurred when the vehicles were parked up in heavy rain and there was no such difficulty when the vehicles were driven in rain.. The collection of water amounts to approximately a half a cup-full of water and this water spills into the cab of the vehicle at the gear stick area shortly after the vehicle departs the depot. All of the company’s drivers are aware of this. The spillage of the rain into the cab of the vehicle was put forward by the claimant as to the reason for the accident on the morning in question. While the claimant acknowledged that this sometimes happens on this day he was taken by surprise as the water dropped later in the journey than normal. It woul normally happen either when the truck moves off initially or on the first turn on the road outside of the depot. The company however did not believe that this was a mitigating factor as the claimant was aware of this possibility.

The next witness (IMcD) gave evidence that he is employed as a driver trainer and head driver with the respondent company. He trained the claimant when the claimant was initially recruited by the company. New recruits receive one or two weeks training in Ireland and further training in the UK and he considers this to be a high level of training. He has driven the route from the depot to Navan and confirmed that the estimated travel time for the journey is approximately one hour and 10 minutes. Time must also be allowed to unload the chemical in Navan at 8am as there is only one slot for deliveries. Any lateness would delay other deliveries. In these circumstances he believed that the claimant was late leaving the respondents depot on the day in question and believes that the claimant was travelling too fast when the accident occurred. He has driven the same vehicle for the past 8 years and confirmed that all of the company’s fleet of vehicles have the same manufacturing fault of a leaking sunroof. It is a common fault in all of the vehicles and all of the drivers are aware of it. He told the Tribunal that the total amount of water that leaks into the cab shortly after departure from the depot amounts to an aerosol capful. In the past he has attempted to alleviate the problem on various vehicles by putting silicone around the sunroof. It is not a permanent fix and does not always work.

The Tribunal heard further evidence from the Transport Planning Manager (IS) that he conducted an appeal hearing into the claimant’s dismissal. In this regard the company was contacted by the claimant’s solicitor by way of letter dated 9 November 2011 seeking documentation in relation to the claimant’s employment and his dismissal. The company provided all the documentation sought and allowed the appeal hearing even though the five day time limit for bringing such an appeal had elapsed. They did so as they knew that the investigation/disciplinary process was flawed and they wanted to be fair to the claimant in allowing such an appeal. When questioned by the Tribunal as to whether or not the claimant was made aware that the respondent considered its own disciplinary process flawed and the ‘extended’ appeal was supposed to reflect that, the respondent clarified that the claimant was not made aware of this. It was presumed the claimant understood this as he had his own legal advisor who had engaged in correspondence with the respondent. The respondent considered that they had gone ‘over and above’ for the claimant in allowing him have this extended appeal and have legal representation present. The claimant’s solicitor set out the terms of reference for the appeal by way of letter dated 12 January 2012 and the company agreed to those terms. Four points of appeal were set out by the claimant’s solicitor who also attended the appeal hearing. The claimant was given every opportunity to put forward his case at the appeal hearing on 11 April 2012. The Transport Planning Manager told the Tribunal that no new evidence was put forward at the appeal hearing and he upheld the decision to dismiss the claimant. When questioned, he told the Tribunal that he had the authority to overturn the decision made by the owner of the respondent (based in Switzerland) to dismiss the claimant but saw no reason to do so. He did not feel constrained by the owner’s decision to dismiss the claimant. He believed that the accident was caused by the claimant’s inattention and the actions of the claimant amounted to gross recklessness. He did not accept that there was a defect in the truck but rather there is an intermittent fault in the sunroof. All drivers are aware of it and it is not a major issue.

Claimant’s Case

The claimant gave evidence that he reported for work at 7am on the morning of 25 October 2011. He completed his walk around check of his vehicle as per company requirements. He departed from the depot and commenced on his journey to Navan which he believes takes 50/55 minutes. He was due in Navan at 8am to make his delivery. Shortly after leaving the depot water spilled from the sunroof onto the centre console of the cab where his mobile phone was stored. It was dark and he reached for his mobile phone. When he could not find it he momentarily took his eyes off the road and lost control of the truck. The back axle and trailer then went onto the verge and the vehicle ended up in the ditch. The whole incident took about 6/7 seconds.

On leaving the cab of the truck the claimant contacted his manager and reported the accident. The Gardai and fire brigade attended the scene and the road was closed. He returned to the depot and was asked to provide a quick report of the accident by his manager who also removed the taco-graph from the truck. He provided a report of the accident from a blank piece of paper taking about 3/4 minutes to do so. He did not complete an accident report form and was not asked to do so. He then made a delivery in another truck and presumed that the company would carry out an investigation into the accident. He heard nothing further from the company until the following Tuesday, 1 November 2011, when he was informed of his dismissal. He told the Tribunal that he was not given the opportunity to attend any investigation/disciplinary meeting. He was not aware that an investigation had taken place prior to his dismissal and it was his understanding that no disciplinary process took place at all as per his contract. It was his opinion that the first opportunity to engage in a disciplinary process occurred in April 2012 when the appeal took place. Following his dismissal he contacted a solicitor and an appeal hearing was arranged which he attended with his solicitor. He did not believe that this process was going to change anything and it was only due diligence on behalf of the company. He was not allowed to raise further points at the appeal hearing outside of the four issues raised in his solicitor’s letter of appeal. He denied that he was late for work on the morning of the accident and was not under any pressure to make up time. He does not accept that his speed of 57 km/h was too fast. He was aware of the problem of the collection of water in the sunroof area of the truck as he had encountered it previously. He accepts that the spillage of water can happen but you cannot anticipate when it will happen. He does not accept that his behaviour was negligent on the morning in question. He told the Tribunal that the only mitigating factor he offered into the accident was the fact that there was an ingress of water into his cab. The claimant gave evidence of his loss.

Determination

The Tribunal considered all of the evidence carefully and must decide whether the decision to dismiss in this case was fair and reasonable in all of the circumstances.

There is no doubt that the accident that occurred was serious and could have had disastrous results but thankfully nobody was injured and there was no environmental incident. In all of the circumstances the Tribunal considers that it was not unreasonable for the respondent to react as they did given the potential consequences. Notwithstanding the seriousness of the incident the claimant is still entitled to the benefit of fair procedures in terms of his employment.

The respondent considered that a flawed disciplinary process took place. The Tribunal does not agree; we believe that no disciplinary process took place. The claimant received a letter of dismissal on the 1^st November 2011 having heard nothing from his employer concerning the incident between the 25^th October 2011 and 1^st November 2011. An investigation was conducted without involving him and the owner of the company based in Switzerland made the decision to dismiss based on documents presented to him.

Following the dismissal and on receipt of correspondence from the claimant’s solicitor, the respondent, in order to ameliorate the situation subsequently allowed what they considered an ‘all encompassing’ appeal which would fix the flaws in what they considered a disciplinary process and allow all matters be dealt with. The claimant was dismissed at this stage and the appeal took place in April 2012. The claimant was allowed legal representation who set the terms of reference of the appeal. A particularly unusual feature of this appeal is that the Transport Planning Manager for the respondent would conduct the appeal i.e. review the decision of the owner of the company. The decision to dismiss was upheld.

In all of the circumstances we believe that the claimant was unfairly dismissed and it was the lack of proper procedures that formed the basis for the Tribunals decision in this regard. However, if the respondent had conducted an appropriate and correct investigation and disciplinary hearing, the decision to dismiss may have been justified. The incident on 25^th October 2011 was very serious and had the potential to be disastrous. Having heard the evidence concerning, inter alia, the conditions on the day and the time the claimant left the depot we believe that it was not unreasonable for the employer to attribute the accident to driver error on the part of the plaintiff and therefore the Tribunal will reduce the award based on this contributing factor.

Accordingly, the Tribunal awards the claimant the sum of €18,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)