EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Nerijus Raguckas MN810/2014
-claimant UD1646/2014
Against
Stobart (Ireland) Driver Services Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr. J. O'Neill
Mr P. Trehy
heard this claim at Dublin on 4th January 2016
and 22nd February 2016
Representation:
_______________
Claimant: Mr. Hugh Hegarty, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent: Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway
Respondent’s Case
The transport manager (CB), of respondent company gave evidence that the company operates from two depots in Donabate and Ballymun. The company employs approximately 100 drivers between the two depots. Drivers are also required to carry out shunting duties which the witness described as moving trailers on/off loading bays. This procedure is conducted in a private yard, not on a public road.
The witness told the Tribunal that the claimant (a Lithuanian national) drove a HGV but refused to carry out shunting training in April 2014 and was suspended on full pay pending an investigation into the matter. The witness conducted an investigation meeting on 8 April 2014 and the claimant was accompanied by an employee representative at the meeting. She asked the claimant why he had refused to carry out shunter training and he stated that he would not do it because of a language barrier. She told the Tribunal that the claimant had answered all questions at the meeting (minutes of which were opened to the Tribunal) and she concluded that there was no language barrier. Following the hearing she concluded that the matter should proceed to a disciplinary hearing and the claimant received a written warning. The claimant subsequently carried out shunter training but refused to sign off on documentation for the training undertaken.
On 25 July 2014 the witness then conducted a disciplinary hearing into the refusal to sign off on documentation relating to the shunter training provided. A translator was present at the meeting. The witness gave evidence that the claimant still refused to sign off on the training received even though he had a translator present at the meeting. If he had signed off on the documentation that would have concluded the matter and he could return to work. She gave further evidence that the claimant had completed numerous courses during his tenure of employment, all of which had been conducted in English, and had never requested a translator. These courses included approved driver training, company drug & alcohol policy, safe systems of work, induction programme, delivery operations, and working procedures. He had also conducted his job interview in English.
Following the conclusion of the disciplinary hearing she wrote to the claimant by way of letter dated 7 August 2014 informing him that she had decided to terminate his contract with immediate effect on the grounds of gross misconduct. Her letter stated inter alia:
“You have worked in the company since July 2011 and have not informed the company of any language issues prior to April 2014. During this time you completed an induction, 17 Safe Systems of Work and your legally required CPC courses with no known issues and no request for a translator. As a company we believe that you understand English Language and therefore we can train you using English Language and therefore there is no requirement for an interpreter to be available for the shunter training or to translate these documents.
On Thursday 11th July 2014 you advised the trainer that you would complete the shunter training but once completed that you would not sign off the documentation. Once again we have tried to facilitate you by training you again but once again you have decided to reject this support.”
The claimant was afforded the right to appeal her decision.
The Operations Manager at the Ballymun depot (BD) gave evidence. He is responsible for looking after all of the drivers and any problems that may arise. When this witness asked the claimant to do the shunter training on the 4th of April 2014 he refused. BD informed his manager (DM) of this. The claimant refused to complete the training as he said there was no shunter work mentioned in his contract; a language barrier was not mentioned at this time. DM then called the claimant to a meeting at which BD was present in case there was a language issue he could communicate with the claimant (BD is polish and the claimant can speak polish). The claimant was shown the part of his contract that covers shunter work and his obligations under the Safety, Health and Welfare Act 2005 were reiterated to him. The claimant still refused to complete the training so was suspended pending an investigation.
The result of the investigation was a first written warning dated the 17th of April 2014. Following this BD organised the shunter training for the claimant. BD intentionally put another Lithuanian national in training with the claimant in case there were any communication problems. The claimant completed the training on the 2nd of May but refused to sign the documentation stating that he had completed the training. He also refused to sit with his Lithuanian colleague on the 5th of May when it was organised for them to go through the training documentation. The claimant was given the documentation to take away with him for consideration/translation.
This incident was investigated and a disciplinary meeting was held by the National Planning Manager (JC) on the 23rd of May. The result was that the claimant received a final written warning dated the 30th of May 2014. This sanction was based on the following;
You have worked for the company since July 2011 and have not informed the company of any language issues prior to April 2014. During this time you completed an induction, 17 Safe Systems of Work and your legally required CPC courses with no known issues and no request for a translator.
After a previous disciplinary process you advised the company that you were going to complete the shunter training but once again you did not complete this full process and the training has still not been signed off. To add to that the trainer reported that he was confident in your abilities to operate all the equipment that you were trained in during shunter training.
After (your SIPTU representative) confirmed in the disciplinary hearing that the shunter training issue was of a serious nature you have not taken the time to translate the sign off documentation so that you had a good understanding of the content.
The claimant contended that if he needed clarification while out on deliveries he would get the customer to communicate with the respondent. JC spoke to all of the respondent point of contacts and none of them had ever received a call from a customer on the claimant’s behalf needing clarification.
The Driver trainer (MS) gave evidence that the shunting vehicle is actually easier to drive than the claimant’s regular vehicle. MS is satisfied that the claimant understood the training and is competent to drive the shunting vehicle.
The General Manager (SD) heard the claimant’s appeal of the final written warning on the 13th of June 2013. The sanction was upheld for the same reasons it was given. During this meeting the claimant communicated by himself and also with the aid of a translator. The claimant did not take the process seriously and had a bad attitude (laughing and smirking throughout.)
The fourth shunter training session was organised for the 24th of June 2014. The claimant refused to take part. A further training session was organised for the 23rd of July 2014, again the claimant did not participate. The invitation to the investigation letter was produced to the Tribunal which has 15 lines hand written in clear articulate English by the claimant disputing the contents of the letter. The investigation led to a disciplinary meeting at which the claimant was dismissed for Gross Misconduct.
The appeal of this decision was held on the 8th of September 2014 by SD. At this meeting the claimant said he would sign the training documentation even though he had serious Health and Safety concerns. This was a new approach for the claimant; H&S had never been raised as an issue before this. The claimant said he was surprised to be in that position even though there had been 8 meetings leading up to his dismissal and he had ample opportunity to complete the training with the aid of a colleague and get the document translated if that was necessary. The claimant had completed the CCP (external) training in English, if he is now saying he did not understand it he would not be legal to drive. Again the claimant was disrespectful to SD, his translator and his representative. SD upheld the decision to dismiss the claimant.
DM, the transport manager gave evidence that on the first two occasions the claimant refused to complete the training it was a contractual issue. All of the other drivers are trained in shunting. DM never had an issue communicating with the claimant or his language skills.
Claimant’s Case
At the outset of the hearing the claimant said he is no longer making an issue of the shunter training and documentation. The claimant had been working with the respondent since 2011 and before that he had been a driver in Lithuania since 1994.
The claimant wanted the shunter training to be carried out in Lithuanian, not the documents to be translated. He had already undertaken CCP training in Lithuania so he could follow the English version; he had never completed shunter training before. The claimant maintains that he made it clear it was a language issue from the very first meeting. The claimant did not accept the assistance of his colleague as he was unsure of his qualifications as a translator.
The claimant gave evidence of his Loss and attempts to mitigate his Loss.
Determination
The Tribunal find that the respondent successfully discharged the onus of proof in this case. The claimant was fairly dismissed in all the circumstances.
The claims under the Unfair Dismissals Acts 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)