EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Aidan Moylan UD153/2013
against
Roache Transport Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. W. O'Carroll
Ms H. Henry
heard this claim at Galway on 11th July 2014
Representation:
_______________
Claimant: John Nash Solicitor, Abbey Street, Loughrea, Co Galway
Respondent: Kemple Gormley Solicitors, 12 University Road, Galway
Respondent’s case:
The claimant was a truck driver employed by the respondent. On 29th August 2012 the claimant drove a truck and trailer to a sandpit and loaded sand onto the trailer, the total load weighing 44 tons. A director of the respondent company told the Tribunal that at 9.40am. approx. on that same morning he received a phone from the claimant advising him that he had an accident while he was turning into a quarry, that the trailer with a load of sand, weighing 22 tons, separated from the truck. The witness and his father, also a director of the respondent company, travelled to the location and were alarmed at the discovery of the truck inside the quarry entrance and the 30 foot trailer on the road. Their concern was the health and safety implication and the potential risk of fatalities.
The truck and trailer were brought back to the respondent’s yard. On the 3rd September 2012 at a meeting with the respondent, the claimant signed an accident report from. It was put to him that the truck and trailer would not fully connect up. The claimant was adamant that he had connected the trailer to the truck using the correct method with the clasp and pin, before he moved off. The respondent disagreed stating that this could not have been the case if the pin had been correctly engaged and that a driver must always engage the pin as a “must do” safety check prior to driving. Investigations carried out by the two directors and respondent’s mechanic found that the truck would not fully hook the trailer and the clasp would not go into position. Five people, in total, found it impossible to properly connect the trailer to the truck.
On 6th September 2012, the results of the investigations were put to the claimant who again insisted that he had connected the trailer to the truck in the correct manner with the clasp and pin. He requested that his own engineer examine the truck. Arrangements were made for a further independent assessor to inspect the vehicles, and for the claimant to demonstrate how he had connected the trailer to the truck. The claimant failed to attend on the date of the arranged inspection, stating that he was sick and subsequently went on certified sick leave.
The respondent arranged for an independent assessor from Volvo who found that the truck would not fully hook to the trailer and the clasp would not go into position. Three attempts at hooking the vehicles were unsuccessful.
The witness went on to state that he claimant never accepted that it was his fault and that the company was very fortunate that there were no fatalities as a result of the accident. Due to the gravity of the situation, the respondent felt that there was no other option but to dismiss the claimant.
JR, a mechanic with the respondent, reiterated that “the trailer and cab would not marry up”. He stated that if the trailer and truck had been correctly attached, the trailer could not have separated and that he had never seen a faulty pin in his 35 years of experience. Trucks were inspected every year and he didn’t consider that a fault had occurred.
Claimant’s case:
The claimant told the Tribunal that he was driving with the respondent company for 2 years and that he had driven trucks all his adult life. He went on to state that he had driven 41kilometers the morning of 29th August 2012. He said he did not know why the trailer came off. He claimed that he had checked the pin/clasp and that “no driver would leave the yard without checking first” and that he refused to show how he had hooked on the trailer because he “did not know what was wrong”. He told the Tribunal that he was an experienced safe driver and “still believed he was right, to this day”.
Determination:
The Tribunal, having heard the evidence adduced, determines that on the balance of probability the respondent’s evidence to be more credible. It is satisfied that the respondent’s decision to dismiss the claimant on grounds that his conduct constituted gross misconduct was reasonable in the circumstances.
Accordingly, the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)