ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000051

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

Date of Adjudication Hearing: 15/12/2015

Workplace Relations Commission Adjudication Officer: Roger McGrath

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). 

Preliminary Matters

At the outset of the hearing the details contained in the Complaint Form were confirmed by both parties. The parties agreed that the gross weekly rate of pay of the Complainant was €511.30. It was also agreed that employment commenced, inclusive of a transfer of undertakings, on 13 January 2003. The preferred redress of the Respondent was compensation. The preferred redress of the Complainant was re-instatement.

Respondent’s Submission and Presentation:

The Respondent had tendered a detailed submission in advance of the hearing and supplied supporting documentation on the day. The submission contained a short background and chronological summary of events.  The Respondent read through the submission and referenced the appropriate supporting documentation.

The Respondent opened his evidence by stating that the Complainant was employed as a HGV driver with the company until his dismissal on 1^st July 2015, in various company plants.

In October 2014 the Complainant was subject to disciplinary proceedings and was issued with a Final Written Warning relating to his driving. The Complainant appealed the decision to issue him with a Final Written Warning but he did not succeed in this appeal.

The Respondent went on to outline the events which lead to the dismissal. The Complainant was suspended with pay on 4^th June 2015 following an incident the previous day in which there had been a spillage from his truck onto a public road.  A letter was issued to the Complainant on 4^th June confirming details of the suspension and potential next steps in the process.  Enclosed with this letter were copies of the company's Disciplinary and Grievance policies in English and Russian.

An investigation was carried out by the HR Manager, into the matter. Written statements were obtained from the manager of the plant and a company director.

On 5^th June 2015 the HR Manager wrote to the Complainant inviting him to a disciplinary hearing which was scheduled to take place on 9^th June 2015. 

On 9^th June 2015 the Complainant attended at the scheduled time for the disciplinary hearing.  He was reminded of his right to representation and given copies of the statements obtained during the investigation.  The Complainant requested an adjournment as he wished to speak to his legal advisor, which had been arranged for 5.00pm that evening.  An adjournment was agreed until the following day.

Om 10^th June the Complainant contacted the HR Manager by phone requesting that the hearing be postponed until after the 29^th June 2015. The HR Manager said she would not postpone the hearing until after the 29^th June.  A friend of the Complainant, then came on the line and stated that it was the legal advisor who had suggested a postponement until after 29^th June.   A subsequent phone call from the Complainant's friend advised they were both willing to attend the hearing scheduled for the following day. 

At 11.45 on 10^th June 2015 the Complainant, accompanied by his friend attended head office for the hearing.  At this hearing the Complainant said that he would not make any comment on the matter until he had spoken with his legal advisor.  This meant he would not answer any questions or discuss the incident until after 29^th June.  The meeting was adjourned. On 11^th June 2015 the company wrote to the Complainant confirming that the hearing would reconvene on 29^th June 2015.

On 29^th June 2015 the Complainant attended for the hearing and was accompanied by a work colleague.  The Complainant had a prepared statement regarding the incident of 3^rd June, which was written in Lithuanian, his colleague translated the statement.  The Complainant also supplied some photographs of the materials in his truck on the day the spillage occurred.

The Complainant's manager wrote to him in on 1^st July 2015 informing him that a decision had been taken to terminate his employment.  The letter included information on the right of appeal and a copy of the minutes from the disciplinary hearing. 

On 3^rd July 2015 the Complainant wrote to the HR Manager appealing the decision to terminate his employment. 

The appeal hearing took place on 16^th July 2015 at which the decision to terminate the Complainant's employment was upheld.  The Complainant was informed of this in a letter dated 21^st July 2015.  The Complainant's P45 and final payslip were posted to his address some time after this.

The Respondent submitted the following documents:

1. A letter from the Head of HR to the Complainant dated 5^th November 2014 informing him of the decision to issue him with a Final Written Warning.
2. A letter from a company director to the Complainant dated 24^th November 2014 informing him of the decision to uphold his Final Written Warning.
3. A letter from the company to the Complainant dated 4^th June, suspending him from duty.
4. A copy of the company’s Disciplinary Policy in English and Russian.
5. A copy of a witness (1) statement dated 4^th June.
6. A copy of a witness (2) statement dated 4^th June.
7. Photos taken of the spillage.
8. A letter from the HR Manager to the Complainant dated 5^th June inviting the Complainant to a disciplinary hearing to be held on 9^th June.
9. Handwritten notes from the meeting held on 9^th June.
10. A letter from the HR Manager to the Complainant dated 9^th June regarding the adjournment of the hearing and a provisional rescheduled date.
11. Handwritten notes of phone conversation regarding the rescheduled hearing.
12. Letter from the HR Manager to the Complainant dated 10^th June, agreeing to reschedule the disciplinary hearing to 29^th June.
13. A handwritten letter in Lithuanian from the Complainant to the HR Manager dated 29^th June.
14. Notes of the disciplinary hearing held on 29^th June.
15. Copies of SOP Training exams completed by the Complainant.
16. Letter from the Technical and Operations Manager to the Complainant dated 1^st July confirming the outcome of the disciplinary Hearing held on 29^th June.
17. Handwritten letter from the Complainant to the HR Manager dated 3^rd July appealing the decision to dismiss.
18. Letter from a company director to the Complainant dated 8^th July informing him of the date for the appeal hearing.
19. Notes of the appeal hearing held on 16^th July.
20. Letter from the company director to the Complainant confirming the outcome of the Appeal Hearing held on 16^th July.
21. Copy of Complainant’s P45.

Complainant’s Submission and Presentation:

The Complainant tendered a written submission on the day of the Adjudication Hearing. The Complainant's representative read through the submission. 

He opened his evidence by stating that English is not the Complainant's first language and that all documentation, other than the disciplinary policy, sent to the Complainant had been in English.

In relation to the disciplinary process itself the Complainant had not been given an opportunity to challenge the evidence of the two other witnesses whose statements were referred to at the disciplinary hearing which took place on 29^th June 2015, as they were not present at the hearing. 

The fact that statements were made by these witnesses and that this evidence was relied upon as part of the process was unfair to the Complainant; he should have had the opportunity to challenge this evidence and question the witnesses. This did not happen and thus fair procedures were not applied.

With the regard to the substantive issue it was accepted that a spillage had taken place however the Complainant was not responsible for making the load and it was due to water being included in the load that the spillage occurred. The compliant contended that spillage from a truck was a normal issue arising in any haulage company hauling building materials.  The Complainant was of the view that such a spillage was not a matter that should lead to dismissal.

Since his dismissal the Complainant has been applying for work and has recently obtained a job starting at the beginning of January.

In summary the Complainant’s representative argued that the decision to dismiss the Complainant relied on witness evidence which the Complainant had no opportunity to question. Language was also an issue in the hearing and that there had not been a proper interpreter in attendance.  Fair procedures had not applied at the time, the decision was flawed and it could not be rectified at this stage. 

Documents Submitted by the Complainant

The Complainant did not submit any documents.

Respondent’s Response to Complainant’s Submission

In response to the Complainant’s submission the Respondent’s representative stated that fair procedures had been applied, that the Complainant was supplied with copies of the witness statements and if he had sought to question the witnesses he would have been allowed. Any issues in relation to translation were always dealt with and at no point had the Complainant been denied the opportunity to bring a representative with him.

Respondent’s Witnesses and Summary of their Evidence

HR Manager

The HR Manager asked for witness statements from the two witnesses when she became aware of the incident. In reply to questions from the Complainant’s representative the HR Manager stated that the Complainant had never experienced a problem with the English language, that he had always brought his own translator and that if he had asked for an interpreter one would have been arranged.  She had no reason to think he did not understand English.

The Technical and Operations Manager

The Technical and Operations Manager stated that it was his decision to dismiss the Complainant. He did this as the believed the critical nature of the incident warranted it.  He said that the Complainant did not deny that the spillage had taken place.

In response to questioning from the Complainant’s representative the Technical and Operations Manager stated that the material in the truck at the time of the incident could have damaged cars. That he had been given advice from HR in advance of the disciplinary hearing about how it should be run.  He agreed that he had relied on the witness statements at the hearing and that the witnesses were not present, however he stated that the Complainant was asked if he wanted to add anything but said that he did not.   A fellow colleague had acted as translator for the Complainant, that this colleague had very good English and was brought by the Complainant.

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.

Legislation involved and requirements of legislation:

Unfair Dismissals Acts, 1977 to 2007

Section 6(1) of the Unfair Dismissals Act provides:

 “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act provides that regard may be had:

“ to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

Issues for Decision:

In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.

1. Were there substantial grounds to justify the dismissal?

In my view there were; the Respondent places great emphasis on its driving safety and the rules and regulations pertaining to driving. In was not in dispute that an incident had taken place on 3 June.  The Respondent deemed the incident to be a safety critical incident and that the Complainant had not adhered to the laid down procedures relating to such incidents, thus exacerbating the matter. The Respondent was of the view that the safety of other road users was put at risk and that this could not be tolerated.

2. Was the sanction of dismissal proportionate?

The Complainant was on a Final Written Warning at the time of the incident in question for a previous driving offence. He was aware that a breach of conduct such as that which took place on 3 June would have serious consequences.  The fact that he failed to stop when he first noticed the problem was deemed to be a serious misjudgement by the Respondent.   In the circumstances outlined I do not believe the Respondent acted unreasonably.

3. Were the procedures used in the disciplinary process fair?

An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In relation to procedures a number of questions need to be answered.

(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?

From the evidence adduced it is my belief that the Respondent did follow the company Disciplinary Policy and having reviewed that policy I believe it to be fair. The Complainant was furnished with a copy of the policy in Russian.

(ii) Was the Complainant given adequate details of the allegations so as to be in a position to adequately address them?

The Complainant was made aware of the allegations against him as these were outlined to him both verbally and in writing. He was also given copies of the two witness statements and of the photographs taken of the spillages.   

(iii) Was the Complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the Respondent in relation to the threat to his employment?

The Complainant was given opportunity to answer and make submissions on the allegations made. The Respondent agreed to adjourn the disciplinary hearing on two occasions, the second adjournment amounting to a period of 18 days, in order to allow the Complainant time to get legal advice.

At the disciplinary hearing which took place on 29^th June the Complainant was given the opportunity to defend himself and his actions relating to the incidents on 3^rd June.  Although no interpreter was present, the Complainant was accompanied by a colleague who acted as a translator.  At no time was a difficulty in relation to translation raised by the Complainant at the hearing.  The evidence of the HR Manager was that there were never issues in relation to language.

The Complainant had also been made aware of his right to representation but other than his colleague he did not have a representative with him, which was his own choice.

The Respondent has also argued that he did not get the opportunity to cross examine the witnesses whose statements were relied upon in reaching the decision to dismiss; this was not denied by the Respondent. However, the Complainant had not sought to cross examine the witnesses at the disciplinary hearing.

 S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) referring to the general principles of natural justice and fair procedures states that, "these principles may require" among other things "that the employee concerned be allowed to confront or question witnesses."   The use of the word "may" in the Code is pertinent.  From the evidence adduced there was little discrepancy between the statements given by the witnesses and the Complainant so it is probable that any cross examination of these witnesses would not have altered the Respondent's  decision to dismiss in any significant way. 

(iv) Was the Complainant informed of his right to appeal the decision to dismiss?

Yes he was and he did appeal the decision but the decision to dismiss was upheld.

Decision:

It is my view that the Complainant was afforded due process and that in the circumstances the decision to dismiss was reasonable and proportionate.   For these reasons I do not believe that the Complainant was unfairly dismissed and therefore his claim under the Unfair Dismissals Act, 1977, fails.

Dated:   24 February 2016