ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000635

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

Date of Adjudication Hearing: 04/03/2016

Workplace Relations Commission Adjudication Officer: John Tierney

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). 

Complainant’s Submission and Presentation:

The Claimant was accused of returning home in the course of his working day as a driver which he claimed was to use the toilet.

There are two allegations in the Respondent’s letter to the Claimant; alleged unauthorised use of company property and misuse of the ‘reach’ device. There was no mention of the honesty policy and the allegations were totally different to those outlined on the 24 March meeting and these detailed in the letter issued after the disciplinary meeting which stated; unauthorised personal use of company property and breach of the honesty policy. It is not only fundamentally unfair to continuously change the nature of the allegations; it is contrary to any sense of natural justice and fair procedure.

The Claimant claimed mitigating circumstances but the Respondent never once asked him for medical evidence to substantiate that he had either an ulcer or IBS. The Claimant also raised his concerns of gross inconsistences regarding the actual allegations and the inordinate delay in the investigation.

He has had an exemplary personnel record up to this event.

Respondent’s Submission and Presentation:

The Claimant was employed as a delivery driver. On 24 March the Claimant was called to a routine H&S audit of coaching reports meeting. These reports showed a series of unauthorised stops during working hours at the same location which was not a customer delivery address. It was also as a result of a routine courtesy call to a new customer that discrepancies evolved between the time the customer stated she received her delivery and the time signed as received on the hand held device (Reach). These stops amounted to 17 occasions from February to March 2015 which amounted 9 hours and 33 minutes. The Claimant admitted to these and explained that it was his home and he stopped to use the toilet. He was informed that this could be seen as gross misconduct and could result in disciplinary sanctions up to and including dismissal.

In April the Claimant continued to stop at his home which amounted to 84 minutes of his working day. He was advised that a full investigation would take place into the matter.

In regard to the delay in issuing a decision this was due to the Claimant’s holidays and his availability. There was also the appeal process.

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.

Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]

Issues for Decision:

Were the disciplinary sanctions fair and reasonable in the circumstances?

Legislation involved and requirements of legislation:

Section 13 of the Industrial Relation Act 1946

Decision:

I have considered the submissions of both parties. The original meeting of the parties on 24 March could be regarded as ‘marking the Claimant’s cards’ in regard to his practise of going home during working hours. He was advised that the Respondent regarded it as serious with possible disciplinary consequences. Yet he continued this practise. He therefore forced the Respondent to take action on what they regarded as gross misconduct in the circumstances.

I therefore do not find the claim well founded and it fails.

Dated:   10^th June 2016