UD364/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

Eamonn Coleman                                                                                           UD364/2013

                                                             - Appellant                                       

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

NVD Limited

                                                             - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. N. Russell

Members:       Mr. J. Browne

                        Mr. F. Dorgan

heard this claim at Wexford on 20^th November 2014

        and 20^th January 2015

        and 21^st January 2015

Representation:

Appellant:       Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    John Farrell, IBEC Regional Director, Cork Road, Waterford

This case came before the Tribunal by way of an appeal by an employee against the recommendation of a Rights’ Commissioner References:  r-126753-ud-12/EH.

Background:

The appellant was employed as a HGV driver from the 17^th February 2001 until the 31^st July 2012 and was paid a weekly wage of €730.00.

He filed a claim for unfair dismissal to the Rights Commissioner.  Both parties attended.  The Rights Commissioner found the appellant was unfairly dismissed and awarded him the sum of €5,000.00.

The appellant filed an appeal to the Employment Appeals Tribunal to state the quantum of the sum awarded to him by the Rights Commissioner did not address his loss of earnings adequately.

Respondent’s Case

The HR Manager (DC), the Transport Manager (TN) and the independent person who issued a recommendation (EW) following the appeal hearing gave evidence.

The HR Manager (DC) outlined the appellant’s employment history. There were no issues until July 2010 where a vehicle was damaged causing excessive costs to the company and consequently the appellant was issued a warning.  In June 2011 further incidents of damage were discovered and daily safety audits were only being carried out 55% of the time by the appellant. As a result the appellant was issued with a final written warning on the 24^th of June 2011.

In February 2012 further incidents arose with the appellant. It was decided to council the appellant and help him improve his performance. The respondent was hopeful his performance would improve as he was aware that his job was at risk.

In June 2012 two issues arose that led to the appellant’s dismissal.  The first was further damage to a car being transported and secondly, the appellant failed to leave the car key after he delivered a car.

A meeting was convened with the appellant and his representative on the 7^th of June 2012.  All the issues were explained and the appellant had the opportunity to respond. After considering everything it was decided that all confidence was lost in the appellant and they would have to dismiss him. Due to his record no lesser sanction could be considered.  The appellant was informed of this decision at a meeting on the 18^th of June 2012, he was also informed that he could appeal this decision.

Following the appeal with EW, the recommendation was to re-instate the appellant under certain conditions.  DC and TN came up with the conditions which were outlined to the appellant on the 7^th of September 2012.  As part of this meeting weekend work and working abroad was discussed and agreed upon.  As far as DC was concerned the only thing remaining was for the appellant to get a medical and he would be re-instated.  During a conversation between the appellant and DC on the 10^th of September, the appellant informed DC that although he worked under the new conditions he would not officially sign up to them.  DC told the appellant how reasonable the respondent was being to which the claimant replied, ‘why would you want me back anyway.’ After further discussions the appellant’s representative informed the respondent that he would not be signing up to the new terms and conditions.  Consequently the respondent reverted to the original decision to dismiss the appellant.

On the second day of the hearing TN gave evidence.  TN commenced employment with the respondent as Transport Manager in June 2011.  On his commencement he undertook a complete review of the respondent system.  On reviewing the appellant’s employment history TN discovered a number of discrepancies. 

TN explained that the appellant had been given a written warning in July 2010 due to damage caused to a car.  This warning was to remain on his file for a period of six months. 

Following a disciplinary meeting on the 24^th June 2011 with DC, TN and the appellant’s Union Representative the appellant was issued with a final written warning.  At this meeting damage records were discussed which included 5 incidents in 2010 and 8 in 2011 with a total cost to the respondent of €5,451.00.  The lack of the appellant’s transport audit requirements were also discussed – 13 in 2010 and 9 in 2011.  This letter informed the appellant that the respondent’s disciplinary policy refers to “the fact serious negligence can be grounds for dismissal”.  He was informed his position was in jeopardy and that any further breaches in company policies or procedures would result in further disciplinary action up to and including dismissal.

On the 15^th November 2011 he was written to regarding fuel usage.  On the 16^th February 2012 TN again wrote to the appellant regarding performance issues and failing to follow instructions.  There were no further incidents until June 2012 which was an incident regarding some damage to an Opel Astra and an oversight in leaving a customer short of a key for a vehicle delivered as part of a large consignment.  Two meetings took place on the 7^th and 18^th June 2012.   Following this meeting on the 18^th June a letter of termination, dated the 19^th June 2012, was submitted to the appellant.  He was given the right to appeal the decision.

TN told the Tribunal that there was no other sanction but to dismiss the appellant and he had not made this decision lightly.  The appellant appealed the decision to EW. 

EW gave evidence.  The appellant attended the appeal hearing with him on the 6^th July 2012.  The appellant was represented by his Union Representative. EW issued a recommendation in respect of the appeal of the decision to termination the appellant’s employment.  These recommendations were issued to both parties for their comments and / or acceptance of same which would result in re-instatement of the appellant.  At first this recommendation was agreed, however, following a meeting between DC and the appellant a decision was made to dismiss the appellant because of his refusal to accept certain conditions. 

Appellant’s Position:

The appellant gave evidence.

He stated that prior to 2010 he had no disciplinary issues.  In July 2010 he was requested to attend a meeting of which he had no prior knowledge or knowledge of its content.  He was not offered the opportunity to attend with a representative.  DC informed him of damage caused to a car he had transported.  He offered his explanation which was not accepted and received a written warning.  He was not advised he could appeal this decision. 

In June 2011 he received a call from TN to attend a meeting with him and DC.  The issue of his performance relating to damage incidents and his failure to submit the required number of transporter audits was raised.  He appealed the decision of a final written warning he was issued but the decision was upheld.

There were no further issues until February 2012 when two issues were raised regarding the failure to carry out instructions and another incident regarding one of the trucks.  TN wrote to him on the 16^th February 2012 regarding these issues.

On the 7^th June 2012 and the 18^th June 2012 he attended two meetings with DC and TN, his Union Representative also attended.  The appellant stated that he gave valid responses to the issues raised.  At the meeting of the 18^th June 2012 he was informed that he was dismissed.  A letter of termination was issued the following day citing the reason for his dismissal:      

            “Unfortunately, there has been a pattern of poor standards of performance over the last two years and the company has lost confidence in your ability to achieve the performance standards associated with your job.  This is disappointing for the company considering your tenure and experience.  After much consideration I have decided that the level of disciplinary action that is to be taken against you and appropriate to your recent incompetence is dismissal.”

He was given the opportunity to appeal the decision.  He attended the appeal hearing with EW and a list of recommendations issued to both parties. Following this an agreement was reached for the appellant to return to work under certain conditions.  However, this agreement broke down and the decision to dismiss was upheld.

The appellant gave evidence of loss.

Determination:

The Tribunal would like to first address the issue of the Appellant’s Internal Appeal in respect of which considerable evidence was heard.  The Appellant’s Contract of Employment provided him with a right to Appeal his dismissal.  The Appellant appealed the decision to dismiss him. This is where the clarity around this aspect ceases.  What followed was a period of confusion where there appears to the Tribunal to have been uncertainly as to how precisely the Appeal process was to work and as to the status of any decision/ recommendation issuing for EW who heard the Appeal.  The Tribunal is of the opinion that EW’s role was not entirely clear to those involved and was not clearly advised to EW himself.

From the evidence heard on this aspect the Tribunal accepts the evidence of the Appellant on cross-examination that he believed that, arising out of the hearing of his Appeal, EW was to issue recommendations that could be accepted or rejected by either Party.  The actions of the Respondent would appear to support this perception and to that extent the two principal parties seem to have had a shared view of the process.

The Tribunal in its deliberations has focussed on the Dismissal itself and on the lead up to same. Entering into the process, the Appellant was already on a Final Written Warning.  The Appellant believed that he should not have been on this Warning.  He had appealed it internally when imposed but his Appeal was unsuccessful.  The fact that the Appellant was on a Final Written Warning was a significant factor in the decision to dismiss.

After a Disciplinary Hearing the Final Written Warning issued on the 24^th June 2011 in respect of vehicle damage and failure to comply with transporter Audit requirements.  In considering the later decision to dismiss, the Tribunal is entitled to review this Final Written Warning.  The Tribunal is satisfied that this Warning was issued in good faith and that there was nothing manifestly inappropriate nor, indeed, unreasonable in the issuing on this Warning in circumstances where an integral aspect of the Appellant’s job was not enjoying his full attention.

TN, the Respondent’s Transport Manager, was resolute in his evidence that the failure to conduct the Audits was the principal reason for issuing the Final Written Warning.

Thereafter, there was substantial improvement in the performance of the Appellant on both of the issues governed by the Final Written Warning.  There were some minor issues in February 2012 but the Respondent did not consider these to warrant any Disciplinary action.

We then arrive at the Disciplinary Process in June 2012 which related to some damage to an Opel Astra and an oversight in leaving a Customer short of a key for a vehicle delivered as part of a larger consignment. The Tribunal does not consider that Dismissal was warranted for these offences which were relatively minor.  No weight was given by the Respondent to the significant improvements in the Appellant’s performance and these incidents did not represent the continuation of the trend which had led to the Final Written Warning.  The Respondent was harsh in the manner in which it dealt with the Appellant.  There were other and far more appropriate sanctions available to the Respondent and the Tribunal is of the view that a reasonable Employer would have dealt with the issue in a manner that would have fallen short of the ultimate sanction of dismissing the Appellant.

In saying that, the Tribunal believes the Respondent to be a responsible Company with excellent standards which, unfortunately, got it wrong on this occasion.  The Respondent’s Executive staff were impressive before the Tribunal and were clearly not motivated by any hidden agendas or malice towards the Appellant in the actions taken.  Even good people get it wrong.

Equally, the Tribunal was impressed by the Appellant.   His ability to quickly secure alternative employment and to mitigate his losses is a testament to his work ethic.

In holding the Appellant’s Dismissal to be unfair, the Tribunal upholds the Rights Commissioner’s finding that the Appellant was unfairly dismissed but increases the award to €15,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)