UD301/2012, PW99/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                      CASE NO.

Stasys Sadauskas                                                                                                  PW99/2012

- appellant                                                                                                               UD301/2012                  

against the recommendation/decision of the Rights Commissioner in the case of:

DPMK Transport Limited

- respondent

under

PAYMENT OF WAGES ACT, 1991

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr J. Horan

                    Mr J. Maher

heard this appeal at Dublin on 1st November 2013

                                                  and 6th May 2014

Representation:

Appellant:     Richard Grogan & Associates,

                        Solicitors, 16 & 17 College Green, Dublin 2

Respondent:   Mr Tim O'Connell, IBEC, Confederation House, 84/86 Lower

                      Baggot Street, Dublin 2

This case came before the Tribunal by way of an appeal by the employee (appellant) against the recommendation/decision of the Rights Commissioner ref (r-111704-ud-11/RG, r-111703-pw-11/RG) under the Unfair Dismissals Acts, 1977 to 2007 and the Payment of Wages Act, 1991.

The Tribunal also heard a direct claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

Preliminary Issue

The appellant’s representative handed to the Tribunal a copy of the notice sent to the respondent as evidence that they had complied with the provisions of section 7 (2) (b) of the Payments of Wages Act 1991.

Respondent’s Case

The Tribunal heard evidence from the Transport Manager and Human Resources Manager of the respondent haulage company. The appellant (a Lithuanian National) was employed as an articulated truck driver driving a six axle truck since February 2005.The maximum weight of the truck is 44 tonnes. The Tribunal heard evidence that appellant was driving his vehicle in a dangerous manner on two occasions on 17 and 18 May 2011. On the first occasion it was alleged that the appellant crossed a continuous white line over the brow of a hill while completing an overtaking manoeuvre. On the second occasion it was alleged that the appellant was driving his vehicle at excessive speed through a rural village. The incidents were witnessed by directors of the company known as DrMcK and MC. The Tribunal was told that the appellant had already received a warning for using his mobile phone while driving a vehicle.

The appellant attended a meeting on 18 May 2011 and was suspended on full pay pending further investigation into the incidents. The appellant was notified of this by way of letter dated 18 May 2011 and informed that if the allegations were proven disciplinary action, up to and including dismissal may be taken against him. A further investigation meeting took place on 20 May 2011 and the appellant was afforded the right of representation which he declined. He did not seek the use of an interpreter at the meeting. He was provided with a copy of DrMcK and MC’s reports. The appellant accepted that he had crossed a continuous white line during his overtaking manoeuvre on 17 May 2011 but argued that it was not dangerous as he could see over the hill and around the bend from his high position in the truck. He argued that the second incident on 18 May 2011 was a minor incident. He believed that the pay structures in the company were a factor in the driving behaviour of drivers in the company.

A disciplinary meeting followed on 23 May 2011. The appellant declined representation but a translator was present at the meeting. It was the view of the company that after investigating the reports and giving consideration to all the evidence that they had no alternative but to dismiss the appellant with immediate effect. It was their belief that his conduct posed a serious safety risk not only to himself but also to other road users. The appellant was given the right to appeal the decision which he exercised on 25 May 2011. The appeal hearing was heard by DdMcK on 1 June 2011 and the dismissal was upheld.

DdMcK the director who heard the appellant’s appeal of the decision to dismiss him gave evidence. To hear the appeal he first contacted the appellant to arrange a meeting. Then he spoke to the Human Resources Manager and was given a high level of detail on the case. For the appeal meeting the appellant was offered a representative but declined. The appellant was given an interpreter. The appellant was given the opportunity to add anything else to his previous statements. The appellant did not add anything. After the appeal meeting DdMcK spoke to both DrMcK and MC, who had made the complaints against the appellant. He also read the minutes of the meetings leading to the dismissal.

DdMcK based his decision to uphold the appellant’s dismissal primarily on the seriousness of his overtaking on a continuous white line. He told the Tribunal that he visited the location in a truck to ascertain that the appellant could not have seen the junction over the top of the hill while carrying out the manoeuvre.

The pay structure for drivers was revised in February 2011. There were complaints about the new structure but not from the appellant. The appellant’s dismissal was not related to his questioning of his wages.

When he was recalled by the Tribunal the Transport Manager confirmed that he had gone in a truck to the location where the appellant had overtaken over a continuous white line to confirm that the appellant could not have seen the junction over the top of the hill. The Transport Manager would not himself have overtaken in a car at that location much less in a truck.

Appellant’s Case

The appellant gave evidence. He accepted that he had signed the Safety Acknowledgement Form, the Safety Induction and acknowledgement of receipt of the General Health & Safety Guidelines.

He liked his job and had a good relationship with his employer. The only incident was he was speeding but he paid the fine himself. The respondent knew of the incident but no action was taken as a result.

In February 2011 DrMcK and the Transport Manager held a meeting with the drivers to give details of a revised wage structure. The appellant was annoyed by a change to the assumed average speed because he felt he could not work at the revised speed. When the meeting was over the appellant was asked to stay behind. DrMcK informed the appellant that he had seen him using his phone while driving. DrMcK gave the appellant a Written Warning and told him that if he made two further errors he would be retired. The appellant did not want to sing the Written Warning but the Transport Manager told he that he had to otherwise DrMcK would be angry. After that day, DrMcK did not speak to him.

When the overtaking incident occurred the appellant was driving an unloaded truck to pick up a load. DrMcK was driving a car behind him. A car in front of the appellant was driving very slowly. DrMcK overtook the appellant and then overtook the slow moving car. The appellant overtook the car. When he started the manoeuvre there was a broken white line on the road but when he completed the manoeuvre there was a continuous white line on the road. Nothing happened and there was no risk. DrMcK did not contact him that day.

The following day the appellant was driving through a village carrying a load of dust. The dust was dry and it was a windy day so dust was blowing around. The appellant accepted that there is a filling station, a school and a shop in the village. He was not driving in excess of the speed limit. The appellant was confident that he could stop his loaded truck in 5m to 10m if necessary.

The next day the appellant was suspended with pay. He asked if this was another warning against him and was told that he would not be working again. The appellant attended a meeting with the Transport Manager and MC on 20 May 2011 and he understood a little of what was said. At a meeting on 23 May 2011 the appellant was told that he was being dismissed. The appellant was told that he could bring someone to the meeting with him but he did not know anybody and he could not afford an interpreter. At the second meeting his colleague acted as an interpreter but the appellant did not consider his colleague’s English to be fluent. At no stage was the appellant given the opportunity to question either DrMcK or MC about the allegations made against him.

The appeal of the decision to dismiss was unsuccessful.

The appellant gave evidence of mitigating his loss.

Determination

The Tribunal have carefully considered the evidence adduced over the two day hearing, the documentation submitted and the legal submissions made.

The appellant was observed by a director of the respondent company on the 17^th May 2011 carrying out a dangerous manoeuvre in a vehicle owned by the respondent. He was observed passing out a vehicle where, at least, the latter part of that manoeuvre was on a continuous white line, on the brow of a hill and approaching a corner. On the 18^th May, the appellant was observed driving through a village at a speed which was said to be excessive for the surrounding conditions. Both manoeuvres were deemed serious by the respondent. They stated that not only do they have a duty of care to their drivers but also to all road users in general. As a transport company dangerous driving is something they simply cannot tolerate.

The complaints made against the appellant were fully investigated. He was informed what the complaints were. He was given the opportunity to state his case. He was informed of his right to have representation with him. He was informed of his right to appeal and he did exercise his right to appeal the decision to dismiss.

The appellant alleged that he was in some way targeted by the respondent because of his views on the new pay structure. The Tribunal can find no evidence to support the appellant’s allegations.

Whilst the respondent’s procedures were not perfect they did not in any way prejudice the appellant. On that basis the Tribunal finds that the decision to dismiss was fair. Accordingly the Rights Commissioner’s recommendation is upheld.

The Tribunal does not have jurisdiction to hear the appeal under the Payment of Wages Act 1919 as the appellant did not serve notice as required by Section 7 (2) (b) of the Act, on the respondent. Furthermore the appellant was not compliant with S.I. 351 of 1991. The decision of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)