ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000486

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000697-001	08/11/2015

Date of Adjudication Hearing: 03/02/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

On Monday 24th August the complainant started his working day by unloading a trailer of 5/6 pallets at the Birr warehouse, then reloaded 50 pallets of cardboard. He left the warehouse and travelled to Portlaoise where he unloaded them and loaded another 5 pallets to be taken back to the yard. During this time, at 9.34 a.m., he received a missed call and a voicemail left from Ms L in the office asking him to call her back. At 9.37 a.m. he returned her call and she asked him what time he thought he would be at the destination in Dublin. He explained to her that he was leaving Portlaoise and had to go and unload at another destination and would then be on his way. Immediately after at 9.40 a.m. he rang his boss BG to ask why the office were chasing him and if it was that important for him to be in Dublin early he should have been given that job first instead of cardboard runs. He proceeded to the next destination where he was unloading and his phone was left in the lorry. At 10.27 a.m. he missed a call from the office, another at 10.28 a.m. where a voicemail was left again by Ms L asking him again what time he would be in Dublin as it was now approaching 10.30. Two more missed calls occurred at 10.44 a.m. and 10.46 a.m. At 11.14 a.m. he proceeded to leave the yard when his phone beeped 5 times alerting him to messages and voicemails as he had picked up a signal on leaving the yard. He thought maybe plans had changed due to so many messages and as he reached over for his phone he swerved and ended up with the lorry in a ditch. He called his boss straight away as he was home next to the yard. He was helped out of the lorry by a neighbour. When BG arrived he was understandably angry, he never once asked the complainant if he was hurt, he shouted and spoke to him like a child, told him to walk away and get out of his sight and that he had taken him back. The complainant walked away at this point as he had been absent from work from October- April due to depression and was upset that BG had bought this up. He would normally get a text every night regarding work schedule for the next day but heard nothing. By lunchtime the next day he decided to ring BG as he had still heard nothing from him. BG told the complainant to come to the office at 4pm to see what they could sort out. The complainant travelled the 30 minute journey to the office and when he arrived he asked if he could speak with BG privately but he said no as what he had to say wouldn’t take long. BG was in the main office with TC (admin) and EG (new employer friend of BG) as witnesses and he handed the complainant a piece of paper to sign. When the complainant read it, it said that he hereby took responsibility for the accident and that as a result he was resigning. The complainant informed BG that he wasn’t resigning and wasn’t signing anything, BG smirked and smiling from behind his desk said if he didn’t resign he would call the guards and report the complainant for criminal damage as speaking on a mobile phone was worse than drink driving. The complainant told him if that’s how he felt to call the guards but that he wasn’t resigning or signing anything and left the office. That night the complainant emailed BG to say that he didn’t like the way BB threatened him on that day and that all communication should now be via email. He told him if he wanted to resign he would follow procedures stated in the employee handbook and put this in writing with the reason himself. He told him that he was still available for work and that if BG wanted rid of him he should follow his own procedures laid out and give him two weeks notice. The complainant heard no more until two days later on Thursday 27th August at 1.30 p.m. when he received an email to ask him to attend a disciplinary hearing at 3 p.m. that day. He emailed back to ask if he could bring a witness with him and they replied and said yes. Some 20 minutes later he received another email to say that upon looking in to things he could only bring a fellow employee or a union official and that the meeting would be with EG now not BG. With an hour to go the complainant had no choice but to go alone. He did ask why EG was now doing the disciplinary hearing and was then told by email that it was actually now an investigation not a disciplinary hearing. The complainant travelled the half hour journey to the office again for 3 p.m. where he was met by EG and TC who was also present and listening in the office. Upon arrival he was handed a letter that said he was now on suspension with full pay. He told EG the events from that day and he took minutes and said he would email them to the complainant afterwards. During the investigation meeting EG produced a written warning that the complainant had received last year for a previous accident. The complainant told EG that accident was the 30th July and the year was gone but he said that the disciplinary hearing last year was the 11th September so the date was from then. The complainant said he thought this was unfair as the meeting had been cancelled by BG last year on numerous occasions and he had been back at work the following day after last year’s accident. On Monday 31st August the complainant received an email asking him to attend a disciplinary hearing on Wednesday 2nd September at 3 p.m. and enclosed were the minutes from the investigation. Upon reading the minutes it was clear that there was a lot of detail and things missing that he had said which had either been missed out or twisted altogether. He emailed back immediately to say he was unhappy with the minutes and added points to them. He also enquired as to what point his disciplinary was for as the investigation findings said that he had breached health and safety rulings but the disciplinary hearing letter said that he had breached driver’s rules and procedures for use of a mobile phone. He pointed out that the rules in the handbook for this offence were listed under a major misconduct but the disciplinary notice was for a gross misconduct. He said he would be attending the hearing that afternoon. An hour and half before the meeting at 1.30 p.m. he received a phone call to say that the meeting now had to be changed and would now be on Thursday the following day at 5 p.m. He went along and made the journey again, this time met in the office by BG and EG, He spoke to BG amicably and told him again how sorry he was. He told him as a driver he was always responsible for his vehicle but felt that the amount of calls from the office that day had meant a change of plan. He also said that for the last year they had also had conversations whilst both of them were driving and not once had it ever been bought up. The complainant said that as a health and safety aspect he should supply Bluetooth in lorries as it stated in the handbook that phones were to be left on at all times. The complainant told him how honest he had been when he said he reached for the phone. He could have said that someone ran out in front of him, He added that the lorries have trackers and the girls in the office could see their location at all times and so should be able to inform clients themselves of their estimated time of arrival by looking at that instead of ringing drivers. He told him he had never had a problem with his work, he’d always been early to jobs, and since returning in April after his depression he had been in a routine and happy with how things were. He also queried his suspension pay as he felt that suspension should be on full pay but was only receiving holiday pay and was 125 euro a week short. BG listened and said he would contact the complainant the next day. The complainant left the meeting feeling that he maybe had a chance of keeping his job and that BG had truly took on board what he had said. He heard nothing until some 11 days later on the 14th September when he received a dismissal letter saying that his actions amount to a gross misconduct and he was dismissed and would not return from suspension. It said he had the right to appeal within seven days. On the 16th September two days later the complainant submitted his appeal on the following grounds: 1] The employer acted in a manner contrary to the purpose and intent of agreed disciplinary procedures in directing its investigation and disciplinary determinations and at all times toward a punitive outcome rather than one which sought to address and correct any conduct or performance issues on the complainant’s part. 2] The employer further acted in a manner contrary to agreed procedures in that they characterised the alleged offence committed as one of "Gross misconduct" rather than "Major misconduct" as it should properly have been categorised under procedural agreement - this having to the effect of being their able to avail of the higher level of sanctions under procedures which would not otherwise have been necessarily appropriate to an offence under the alternative, more appropriate heading. 3] The employer failed in all stages to the process to date to ensure that fair procedures in natural justice were afforded to the complainant at all times. Of particular note in this respect is that the person who brought the initial allegation, the investigator who made findings in relation to that allegation, and the decision maker as to the disciplinary determination based on those findings was one and the same person. 4] In addition to the ground of determination being tainted by pre judgement of the same individual at a previous stage or procedure (above), the offence in this regard on the 25th August prior to either investigation stage or disciplinary procedures being invoked indicated a pre-set position in that he sought to achieve the termination of the complainant’s contract ( albeit thorough his acquiescence, at that stage) 5] without prejudice to the above, it is submitted that the employer did not adequately consider alternative sanctions available to dismissal and that the dismissal was disproportionate to the alleged offence in consideration of all the facts and circumstances of the case. 6] any other grounds that may be adduced at hearing. Meanwhile the complainant discovered that his job was being advertised on Donedeal jobs on the 14th September the day his dismissal letter arrived before any appeal time was up. On 25th September he received a notice of appeal hearing letter to come to the office in Birr on Tuesday 29th September at 10am from TC the wages lady. He attended the meeting with TC alone. The complainant did not answer any of the questions put to him during the meeting as he wasn't expecting to be asked any on that day. He thought he was going to be hearing their thoughts on his grounds of appeal. TC said they would be in touch. On Thursday 15th October he still had heard nothing and he emailed and asked for an update. He also said if it helped he would answer the questions put to him that day, which he did. At this stage he asked if he could collect his P45 as he had still not been sent it. He got a reply to say his P45 was not ready and that he would hear soon. He was told by the doctor after the accident he was suffering stress again, but he needed to work as he has a family and three young children. He managed to get work in Kildare a long travelling distance from home. After two weeks he suffered another breakdown and could feel his depression coming back. He is now awaiting counselling and cannot get over the way he has been treated. He has a full working record his whole life and feels that a gross misconduct on his file will ruin his driving career. He feels procedures were not followed throughout the investigation.

Respondent’s Submission and Presentation:

The claimant was employed by the respondent from 14^th July 2014 until 11^th September 2015. He was hired on the basis that he held the required licences to drive the various company vehicles and had completed ADR driver training and had undergone his driver CPC training. On Monday 24^th August he was involved in an accident whereby he lost control of his vehicle carrying waste, causing it to enter a ditch and flip on its side. The complainant contacted BG who met him at the scene in accordance with company practice. Having established that the complainant was ok he asked him to assist directing traffic and managing crowd control. The claimant continued to sit on the road and BG instructed him to go home. At this time the complainant stated he was finished with driving as it was too stressful. He was placed on paid suspension pending an investigation into the matter. The suspension was confirmed in writing on 27^th August.

The claimant was invited to attend an investigation meeting with EG, Operations Manager, and TC, Office Manager taking minutes on 27^th August. During the course of the meeting the reason for the meeting was confirmed to the claimant; that being whether the claimant had breached employee safety rules by using his mobile while driving. The claimant outlined what had happened on the day of the accident. He stated that he felt under pressure to get his work done on the day but agreed that he had not been asked to change his plans or get to the next destination earlier than originally planned. The claimant was advised that in determining whether or not the matter should proceed to a disciplinary hearing EG would have to look at previous warnings. EG was of the opinion that the matter should be considered under the disciplinary procedure as he felt there was a serious breach of the driver’s rules and procedures. The claimant was issued with a copy of the minutes of the meeting and made some amendments.

A disciplinary meeting was conducted on 3^rd September by BG with EG present as note taker. The claimant was advised of his right to representation but did not avail of this right. The amended minutes of the investigation meeting were accepted as part of the process. The claimant reiterated that he received numerous calls prior to the accident and at the time he was loading the truck. He further advised that he had in the past made calls while driving but others had too. He maintained that if he had a Bluetooth device he would not have to pick up his phone. He stated that he felt responsible for the accident and he would have been distraught had anyone been injured.

By letter dated 11^th September the claimant was advised of the outcome of the disciplinary hearing. In the letter the respondent stated that the claimant’s explanations were unsatisfactory for the following reasons;

The accident could have caused serious injury to both him and members of the public
At the time the calls were made the Fleetmatics report indicated that the claimant’s vehicle was parked at the yard and the claimant advised he was loading the truck and as such there was no need for the claimant to be on his phone at the time of the accident
This was not the first time the claimant was involved in an accident in breach of the driver’s rules and procedures. On 11^th September 2014 the claimant was issued with a written warning for failing to carry out his duties to the required standard, which caused a serious accident on the road.

BG advised the claimant that his actions amounted to gross misconduct and as a result he was summarily dismissed. The claimant was advised that he was not entitled to notice pay but he had 7 days to lodge an appeal should he believe the sanction of dismissal to be too severe. The claimant lodged an appeal by letter dated 16^th September and was invited by letter dated 23^rd September to an appeal hearing to take place on 29^th September. He was again written to on 24^th September stating that the appeal was to be heard by TC as she had not been involved in the process.

During the appeal hearing TC asked the claimant to answer questions so she could review the situation and make a decision. The complainant stated that everything he needed to say was contained in his appeal letter dated 16^th September. TC asked the questions anyway but did not get any answers from the claimant. The claimant wrote to TC on 13^th October, 10 working days after the appeal hearing, with replies to the questions TC had asked during the hearing and asked her to consider his responses as part of the appeal hearing.

By letter dated 11^th November, TC confirmed the claimant’s dismissal giving the following reasons;

Corrective measures in this particular case would involve nothing more than advising the claimant not to use his phone while driving as it is a legal obligation on every driver
There is a written policy on mobile phone usage contained within the handbook of which the claimant was fully aware and understood
The sanction of dismissal was not disproportionate in circumstances whereby using a mobile phone amounts to a major misconduct as per the employee handbook and serious breaches to health and safety rules that endanger the lives of employees or any other person amounts to gross misconduct. Taken together the claimant’s conduct amounts to a serious breach of health and safety rules
The assertion that the decision to dismiss was pre-determined held no validity as EG conducted the investigation and BG conducted the disciplinary hearing. During the investigation the claimant was invited to go through the events off 24^th August. During the course of the disciplinary hearing the claimant was invited to provide an explanation. He was also advised that all evidence would be considered before any decision was taken. EG was only present at the disciplinary hearing to take notes and had no involvement.
The claimant was advised that all evidence would be considered before a decision made. In making a determination regarding sanction, it goes without saying that the respondent considered all options available to them at the time. In the circumstances, it was concluded that using a mobile phone while driving a truck on a public road, which resulted in an accident must fall within the remit of gross misconduct.

The company handbook in paragraph D of the disciplinary procedures identifies a non-exhaustive list of rules governing major misconduct of which failure to comply with rules for the use of mobile phones whilst driving is one, in addition to a breach of driver’s rules and procedures. Paragraph E identifies a non-exhaustive list of rules governing gross misconduct of which serious breaches of health and safety rules that endanger the lives of employees or any other person is one and serious breach of driver’s rules and procedures is another.

Section 6(4)(b) of the Unfair Dismissals Act 1977 states, ‘the dismissal of an employee shall be deemed, for the purposes of this Act, ,not to be an unfair dismissal, if it results wholly or mainly from..the conduct of the employee’

In the case of Purcell v Last Passive Limited t/a Aircoach (UD1223/2014) the Tribunal held that ‘the respondent company acted reasonably at all times and that substantial grounds existed justifying dismissal, that is, that the appellant’s actions constituted a serious safety risk and were in clear breach of company policies’

In the present case the claimant was afforded fair procedures and an impartial investigation was conducted by the respondent. The respondent having reviewed the situation through an investigation meeting, disciplinary hearing and an appeal hearing felt the sanction was reasonable in circumstances where the danger imposed to the claimant and the public was so great, the claimant’s conduct could not be seen as anything other than gross misconduct in these particular circumstances. The respondents acted reasonably and proportionately in dismissing the claimant having adhered to fair procedures and the principles of natural justice.

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.

Issues for Decision:

There are two issues to be decided. Firstly, whether or not the disciplinary procedures applied were fair and if so if the decision to dismiss was proportionate.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

That details of any allegations or complaints are put to the employee concerned
That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Conclusions:

The general facts in relation to the accident which occurred on 24^th August are not in dispute.

The claimant has argued that the misconduct causing the accident involving reaching for the mobile phone while driving was a breach of driver’s rules and procedures and as such should be treated as Major Misconduct and not Gross Misconduct in accordance with Sections D and E of the respondent’s disciplinary procedures. Section N of the respondent’s procedures entitled ‘Rules for the use of Company Vehicles’ clearly prohibits the holding of a mobile phone while driving. If the driver needs to deal with a call the same instruction requires him to ‘stop and park the vehicle where it is safe and lawful to do so and switch the engine off. A failure to comply with this policy will lead to disciplinary action’.

In Section E of the disciplinary procedures examples are given of what constitutes gross misconduct. One such example is ‘serious breaches of health and safety rules that endanger the lives of employees or any other person’. I therefore conclude that the respondent was justified in considering the actions of the complainant under the heading of gross misconduct.

The principle procedural points raised by the complainant were detailed in his letter appealing the decision to dismiss. In summary these were;

The employer acted in a manner contrary to the purpose and intent of agreed disciplinary procedures in directing its investigation and disciplinary determinations and at all times toward a punitive outcome rather than one which sought to address and correct any conduct or performance issues on the complainant’s part.
The employer failed in all stages to the process to date to ensure that fair procedures in natural justice were afforded to the complainant at all times. Of particular note in this respect is that the person who brought the initial allegation, the investigator who made findings in relation to that allegation, and the decision maker as to the disciplinary determination based on those findings was one and the same person.
In addition to the ground of determination being tainted by pre judgement of the same individual at a previous stage or procedure (above), the offence in this regard on the 25th August prior to either investigation stage or disciplinary procedures being invoked indicated a pre-set position in that he sought to achieve the termination of the complainant’s contract ( albeit thorough his acquiescence, at that stage)

It is clear from the evidence presented that the respondent, through BG, attempted on 25^th August to get the claimant to resign under threat of informing the Garda of the details surrounding the accident. Subsequently, the respondent followed the correct procedure in investigating the issue and in the use of the appropriate disciplinary procedure. However, in light of the interaction which took place on 25^th August, it was not appropriate for BG to conduct the disciplinary hearing as it is clear that he already had determined the outcome i.e. the termination of the complainant’s employment.

In considering the appropriate format of an appeal the employer must consider the grounds when deciding the extent of any new investigation or re-hearing in order to remedy any possible previous defects in the disciplinary process. The appeal process should be impartial. It should be dealt with by a manager who has not been involved previously in the case and who is senior to the manager who made the decision. If this is not possible it may be necessary to use someone who is not part of the organisation. The respondent’s Disciplinary Appeal Procedure provides for this eventuality in paragraph 4 which states; ‘Where possible, a person may be appointed to hear the appeal who is not part of the organisation in the interest of fairness to the employee’. The appeal in this case was conducted by TC, the Office Manager who, in addition to having had some administrative involvement in the case throughout, was considerably more junior in the organisation to BG. It is unrealistic to expect a person more junior in the organisation than the original decision maker, to overturn that more senior person’s decision. I therefore, conclude that the appeal process was flawed.

In light of the foregoing, I find that the complainant was dismissed in breach of his rights to natural justice and fair procedures. The complainant, for his part, has not been available for work since his dismissal and furthermore, contributed significantly to his dismissal and this will be reflected in the quantum of the award.

Decision

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

the Complainant was unfairly dismissed

In accordance with s.7 of the Act, I order the Respondent pay the Complainant:

The sum of € 5,000 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Dated: 2^nd June 2016