EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Kevin Sheane UD320/2013
against the recommendation of the Rights Commissioner in the case of:
Reynolds Logistics Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. D. Moore
Mr. S. Mackell
heard this appeal in Dublin on 28 March 2014 and 18 September 2014
Representation:
_______________
Appellant(s):
Ms. Mary Duffy-King and Ms.Bernadette Thornton
for Mr. Graham Macken, S.I.P.T.U.,
Wholesale, Retail & Distribution Sector,
Liberty Hall, Dublin 1
Respondent(s):
Mr David Farrell, I.B.E.C.,
Confederation House,
84/86 Lr. Baggot Street,
Dublin 2
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal against Rights Commissioner Recommendation r-124394-ud-12/JC under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal has carefully considered the evidence adduced.
The Appellant was dismissed for gross misconduct following a disciplinary process in and around January 2012.
The Appellant is a driver with some thirty years’ experience and had worked with the Respondent logistics company for 9 years. Amongst the Respondent company’s contracts were contracts for the delivery of fuel and other hazardous substances. The Respondent presented compelling evidence as to the need to observe and apply the best possible practice for the movement of product and, in particular, hazardous product around the country.
In evidence, the Tribunal heard about the good working relationship between the Company and the Road Safety Authority and the Company prided itself on not falling foul of the R.S.A. and the policing authorities with respect to the driving patterns of their 140 drivers.
The R.S.A. had conducted one of its regular audits in and around October 2011. As part of this process a number of tachograph infractions were noted and, whilst none were significant, the company was anxious to regularise such breaches and conducted its own comprehensive review of the driving patterns being operated in its workforce.
The Appellant was an experienced driver and had been with the Respondent for the last 9 or 10 years and, before that, had been driving with other employers. The Appellant underwent the usual annual revision of the rules applicable to long-haul drivers and there is no suggestion that he did not know what his obligations were under the relevant legislation.
On foot of the review aforementioned a number of matters came to light which were of some concern to the employer. In short, the tachograph reports indicated that, on up to two occasions in the recent past, the Appellant had been operating a company truck and doing work-related runs on behalf of the Company without taking sufficient rest periods.
The Appellant was called to a meeting with a Mr. D.T. who was the director of operations. The Appellant accepted that the incidents, and, especially, the driving pattern of the 24th and 25th of November 2011 were contrary to best practice and, objectively speaking, posed a risk to road users and, therefore, were not acceptable. That said, the Appellant has always maintained that back to back shifts were not unheard of in the workplace and the practice of submitting two separate claim forms for each day is perfectly in order as otherwise there would be a claim for overtime which would not be acceptable.
There can be no doubt that the rest-break requirements are complicated and the Tribunal notes that the independent evidence of Mr. J.C., another driver in the company, presented a picture of a long working day (in his case up to 14 hours) which is deemed acceptable because he had taken appropriate short 20 or 15 or 45 minute breaks during the course of the back to back shifts.
Mr. J.C. too would have submitted two worksheets for the two shifts he had completed back to back and this practice does not seem to have been criticised in him and, therefore, the Tribunal would wonder at the Company’s insistence that the Appellant’s action in filling out the two timesheets was the act of deception and fraud that it was made out to be.
It is surprising to note that, in a company the size of the Respondent company, DT, having conducted a preliminary investigation meeting, at which the Appellant was suspended, went on then to conduct the disciplinary meeting.
It is noted that there are no notes of either the investigative and/or disciplinary meeting conducted although the letter of dismissal of the 24th of January 2012 does purport to synopsise the thrust of the meetings though the Tribunal must be mindful of the fact of the fact that Mr. D.T., without casting aspersions, can only have a subjective view as to how these meetings were conducted.
In his evidence the Appellant said again and again that he never believed he was going to be fired for what had happened and that he would never have acted the way he did had he known his very livelihood had been at risk.
Determination:
The Tribunal cannot determine whether or not the Appellant had any concept of the gravity of the situation when he came before Mr. D.T on the two separate occasions. At no point were the allegations put into a written format and presented to the Appellant and, whilst they have been included in the letter of dismissal, the Tribunal cannot know the emphasis placed on each allegation and the opportunity given to the Appellant. It was submitted to the Tribunal that the Appellant had what was described as a “representative” but the Tribunal could not describe the presence of Mr. J.R. as anything other than as a witness. The Appellant did not attempt to protect himself or his position and the Tribunal believes this is consistent with his somewhat naïve belief that this process would not result in his dismissal.
It is interesting to note that at the Appeal stage there was some suggestion that some of the Appellant’s colleagues were prepared and indeed anxious to give evidence declaring that they too worked back to back shifts (which the Tribunal heard through the evidence of J.C. and J.R.) but this was never explored by A.R. on hearing the appeal.
Whilst the Appellant has never resiled from the fact that his actions were inappropriate and contrary to company policy and indeed all safety standards it does seem to the Tribunal that others in the company were sanctioned to do back to back shifts which result in being up to 24 hours on the go (including breaks).
Whilst the Tribunal may not ultimately have difficulty with the decision made the Tribunal finds the route to getting to their point to be wholly unfair and lacking in proper procedure. In the circumstances the Tribunal will agree with the Rights Commissioner’s finding of an unfair dismissal and will increase the award of compensation to €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)