ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001674

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

The claimant was employed as a driver with the respondent from the 6^th.July 2004 to the 9^th.Nov. 2015 when he submitted he was unfairly dismissed.

The claimant had been well regarded within the company and enjoyed an unblemished record. On the 13^th.October 2015 he was involved in an accident when his vehicle came into contact with a level crossing barrier, causing damage to the barrier. As the claimant crossed the level crossing he recalled hearing a thud – he checked his mirrors, braked slightly and believed there was nothing amiss. He received a call from the office later that day enquiring if he had been involved in an accident – he replied in the negative and was directed to the website where the incident could be viewed .He admitted it must have been him as he was driving the truck but was adamant that he was unaware that any damage had been caused. He was placed on suspension and his representative set out the chronology of the ensuing investigation and disciplinary process. During the interviews that took place the claimant asserted that upon hearing the noise as he crossed the dart line , he looked in the mirrors and believed he saw the barrier rising – he expressed remorse and was adamant that he had not intentionally not reported the incident. The respondent decided to dismiss the claimant – he appealed the decision to dismiss – contending that the decision to dismiss was disproportionate and the respondent had failed to take account of mitigating factors as well as the weight attached to the non-reporting of the incident. Additionally it was contended that the claimant’s significant experience as a driver was seen by the company as an aggravating rather than a mitigating factor.

It was submitted that the claimant should not have been dismissed for making a mistake that was out of character and the respondent had failed to take account of the claimant’s unblemished record. It was advanced that the decision to dismiss was disproportionate and Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 was invoked in support of that position. It was submitted that the action of the respondent was unreasonable – it was asserted that the objective pursued by the company must be legitimate and the sanction doing no more than necessary to achieve that objective. It was advanced that the company had failed to give consideration to a lesser sanction. It was submitted that the claimant was penalised for his length of service , that the termination of his employment was disproportionate and that in such circumstances the dismissal must be deemed unfair.

Respondent’s Submission and Presentation:

The respondent set out the claimant’s employment history with the company and gave a chronological account of events since the incident at the level crossing on the 13^th.October 2015.It was submitted that the claimant failed to report the incident that evening – the truck leasing company notified the respondent that evening having been contacted by the Gardai and been advised that the Irish Rail Line had to be closed for 2 hours for repairs.

It was submitted that the claimant was suspended (on full pay )due to the severity of the allegations against him.

It was submitted that during the investigation the claimant maintained that the light was green , that the barrier wasn’t moving at all and that he didn’t realise there was any issue.It was submitted that the claimant believed that the second barrier only tipped the top of the truck and went back up.The respondent asserted that the cctv footage illustrated that the claimant hit both barriers as the truck went through – the claimant had accepted that he was the driver and that it was his truck that was involved in the accident. It was submitted that the investigation also showed that the claimant drove through a red light at the crossing. It was advanced that this was a clear breach of the law and that it was unacceptable for a professional driver to break basic traffic rules. The disciplinary process found that the claimant was guilty of gross misconduct due to his serious breach of health and safety and failure to obey basic traffic and road safety law. It was submitted that his failure to report the incident , despite acknowledging that he was aware that the barrier touched the truck alongside his failure to stop and assess potential damage amounted to a dismissible offence.

It was submitted that the dismissal was not unfair as it resulted wholly from the conduct of the employee. It was contended that his actions amounted to serious breaches of health and safety procedures – impacting on the respondent’s reputation and business and breach of trust by failing to report the incident. It was submitted that these breaches are specified in the company’s procedure as “immediately dismissible offences”.

It was submitted that the respondent had acted as a reasonable employer and the provisions of Looney & Co Ltd v Looney (UD843/1984) were invoked in support of this position. It was submitted that it was imperative that the respondent can trust its employees to act with integrity and the provisions of Audrey Burtchaell v Premier recruitment International Ltd T/A Premier Group were invoked in support of this position. It was submitted that the sanction was proportionate and the claimant had been afforded all of his rights under natural justice and the company procedures.IT was submitted that by virtue of his misconduct, the claimant was summarily dismissed with no entitlement to payment in lieu of notice.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have reviewed the evidence presented at the hearings and noted the follow up documentation submitted by the respondent. While I acknowledge the respondent’s contention that the claimant was guilty of gross misconduct, I find that insufficient evidence has been advanced by the respondent to demonstrate that the respondent company operated a zero tolerance approach to traffic accidents. Additionally I am not satisfied that sufficient evidence was advanced to support the respondent’s contention that the reporting in procedure on return from duty was observed strictly to the letter .While I acknowledge the respondent’s contention that the claimant by virtue of his experience should have known better, I accept the claimant’s representative contention that experience should have been a mitigating rather than an aggravating factor in determining the sanction.In this regard , I am taking account of the provisions of paragraph 3of the “Principles of Disciplinary Policy which states “Where appropriate the disciplinary action will take into account the employee’s previous record and warnings , as well as the gravity of the immediate offence”.In light of the foregoing findings and given the fact that the Gardai did not initiate proceedings against the claimant , I find the sanction of dismissal was disproportionate and that consequently the dismissal was unfair .However , I have concluded that through his actions and his failure to report the incident, the claimant contributed significantly to his own dismissal and accordingly I am limiting the award of compensation to €5,000 which should be paid within 4 weeks of the date of this decision.

Payment of Wages Act 1991

Claimant’ s Submission

The claimant submitted that the non-payment of notice on termination of employment constituted a breach of the Payment of Wages Act 1991.

Respondent’s Submission

The respondent submitted that the claimant had no entitlement to notice in circumstances where he was dismissed for gross misconduct.

Decision

In light of my finding that the claimant was unfairly dismissed, I uphold the complaint of a breach of the Payment of Wages Act 1991 and require the respondent to pay the claimant 6 weeks remuneration within 4 weeks of the date of this decision.

Dated:   22^nd August 2016