UDD1611

This matter came before the Court by way of an appeal referred by Mr Vatalie Vet (“the Complainant”) against a decision of an Adjudication Officer. The appeal was conjoined with appeals under the following enactments: the Payment of Wages Act 1991; the Organisation of Working Time Act 1997; and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations 2012 (SI No. 36 of 2012). All of the appeals were listed for hearing on the same day – 24 May 2016. Each of the appeals other than that referred under the Unfair Dismissals Act 1977 (“the Act”). was withdrawn at the commencement of the appeal hearing.

The Adjudication Officer’s decision is dated 15 December 2015. Notice of the Complainant’s appeal was received by the Court on 20 January 2016.

Preliminary Issues

(a)Correct Name of the Respondent Employer

There was some confusion in relation to the correct legal name of the Respondent in this matter arising from the Adjudication Officer’s decision and the parties’ submissions to the Court. The Adjudication Officer’s decision refers to the Respondent as ‘Kilsaran Concrete, Kilsaran International Limited’. This is also the name used by the Complainant’s solicitors in the notice of appeal. However, the submission filed by the Complainant’s solicitors refers to the Respondent as ‘Kilsaran Concrete Limited trading as Kilsaran International. Ibec, on behalf of the Respondent, in its submission refers to ‘Kilsaran Concrete t/a Kilsaran International Ltd’.

The matter was raised on the Court’s initiative before the commencement of the appeal hearing and both parties agreed that the correct legal name of the Respondent in the within proceedings is ‘Kilsaran Concrete’. This entity bears the Companies Registration Office number 23927 and has a registered address at Piercetown, Dunboyne, Co. Meath. The proceedings were amended accordingly, by agreement.

(b)Date of Termination of Employment & Date of Dismissal for the Purposes of the Act

The Complainant’s submission made reference to two different termination dates: 3 June 2014 and 4 June 2014 respectively. The notice of appeal stated that the Complainant’s employment ended on 4 July 2014. The Respondent, at the commencement of the hearing – consistent with its written submission to the Court – stated its position to be that the Complainant was advised verbally on 3 June 2014 that his employment had ceased with immediate effect from that date. This was confirmed by letter dated 4 June 2014.

On the basis of the foregoing, the Respondent submitted to the Court that the Complainant’s original complaint to the Rights Commissioner (as he then was) was made outside the statutory time limit by one day: the complaint was received by the Rights Commissioner on 3 December 2014. The Respondent further submitted that this matter had been raised at the first instance hearing. The Adjudication Officer does not advert to it, however, in the body of his decision. In any event, as he proceeded to hear the case and issue a decision, it has to be presumed that if the issue was considered by him that he decided against the Respondent on that point. It is undisputed that the Complainant’s employment was terminated summarily. The Court, therefore, informed the parties that having regard to the definition of ‘date of dismissal’ in section 1 of the Act, it would not make a decision on this issue until it had concluded hearing the evidence on the substantive matters that fell to be considered by it on the appeal.

As it transpired, however, the issue of whether the initial complaint was brought within time or not was rendered moot having regard to the following provision in the Respondent’s disciplinary policy which came to the Court’s attention in the course of the hearing. At paragraph 3.1.6 of the aforementioned policy, as recited in the contract of employment issued by the Respondent to the Complainant, the Respondent provides:

• “… and no disciplinary sanction shall take effect until after the time for lodging an Appeal has expired, or until the Appeal has been determined as the case may be.”

Summary of Key Facts and Events

The Complainant is a truck driver with almost 30 years’ experience. He commenced employment with the Respondent on 4 July 2007. Prior to the events that culminated in the Complainant’s dismissal in 2014, the Complainant had one disciplinary sanction imposed on him in 2013 (for a matter unrelated to the reason for his dismissal). The latter had expired before the process under consideration in these proceedings commenced.

The Complainant is required, as a professional driver, to have in his possession at all times while performing his duties a valid and current digital tachograph card (“DTC”). These cards are issued for five year terms by the Road Safety Authority (“RSA”). A driver is required to insert his DTC in the fixed tachograph machine of his truck at the commencement of each journey.

The Complainant’s then DTC expired on 23 February 2014. It is common case between the parties that the Respondent had informed the Complainant on at least two occasions in 2014, prior to that date, that his card was due to expire and that he should take the necessary steps to renew it in a timely fashion. The Complainant’s evidence was that he attempted to do so on a number of occasions using the RSA’s online facility. The system did not permit him to renew his DTC and indicated that he should try again later. Eventually, he made telephone contact directly with the RSA and was informed that there was an issue with his driving licence and the system had recorded that he had been disqualified from driving by a court in 2013 arising from a road traffic offence that had occurred in August 2011. In fact, although the District Court had handed down a penalty of disqualification, the Complainant successfully appealed that sanction to the Circuit Court which instead imposed a fine of €500.00 on the Complainant. The original sanction was stayed as a matter of law pending the outcome of the Complainant’s appeal to the Circuit Court.

The Complainant submitted that he contacted his solicitors on 25 February 2014 in relation to the difficulty he was having in renewing his DTC. On making enquires, his solicitors discovered that the problem was caused by the Courts Service’s failure to update their database which continued to reflect the original sanction of disqualification that had been imposed by the District Court. It was not until 21 March 2014 that the RSA finally confirmed to the Complainant’s solicitors that it had removed the reference to the disqualification sanction from the Complainant’s profile. The Complainant thereafter promptly and successfully renewed his DTC. He was issued with a new DTC by the RSA, backdated to 23 February 2014.

However, certain events occurred in the meantime which ultimately culminated in the Complainant’s dismissal. On 14 April (by which date the Complainant had a valid DTC), the vehicle he was driving was stopped by the RSA for a random inspection. The RSA Inspector examined the data held by the truck’s tachograph recorder and ascertained that the truck had been driven between 18 March and 4 April 2014 without a valid DTC. The Inspector contacted the Respondent’s Transport Manager (Mr Roy Hegarty) by telephone and email on 20 May 2014 to inform him of its finding in this regard and to inform him that the RSA intended to visit the company’s premises in order to conduct an inspection of driver records.

Mr Hegarty immediately initiated an investigation to determine which driver(s) may have been responsible for driving the truck identified by the RSA on the dates in question without a valid DTC as to do so is regarded as a serious breach of legislation. The Respondent uses an e-tag system which records which driver is driving each truck at any particular time. From this system, Mr Hegarty confirmed the Complainant as the driver in charge of the relevant truck on the dates identified by the RSA Inspector. He also spoke with the Complainant’s Plant Manager and suspended the Complainant on full pay with effect from 21 May 2014 pending an investigation of the issue. It appears that the Complainant admitted to Mr Hegarty on that date that he had driven the vehicle without a valid DTC. He claimed that he had used his expired DTC while driving. The Complainant was provided with a copy of the Respondent’s Disciplinary Policy both in English and Russian along with his letter of suspension.

On 23 May 2014, the Complainant received written notification from Ms Lennon, the Respondent’s HR Manager, that a formal disciplinary hearing would take place on 27 May 2014 to be conducted by Ms Lennon and Mr Hegarty. The letter identified the subject matter of the disciplinary investigation in the following terms:

• “… it would appear that you committed a serious breach of both your legal and contractual obligations as a Truck Driver by failing to use a valid Digital Tachograph Card in your truck for several periods between 18^thMarch 2014 and 04^thApril 2014.”

At the aforementioned meeting, Mr Hegarty put the allegation to the Complainant that he had driven his company vehicle on the stated dates without a valid DTC and asked him for an explanation. Mr Hegarty’s evidence to the Court was that the Complainant was unforthcoming in response. He continued to maintain that he had been able to insert his old DTC into the tachograph and that it had been accepted. Mr Hegarty was adamant that this is not possible. His evidence in this regard was not challenged on cross-examination. Mr Hegarty also told the Court that the Complainant referred to his efforts to renew his DTC online in February 2014 and the difficulties he encountered at that time – but only in general terms. The Complainant did not inform Mr Hegarty about the systems error in the Courts Service database that was ultimately the root cause of his difficulty with the RSA.

The Complainant was invited by letter dated 29 May 2014 to a second disciplinary meeting to take place on 3 June 2014. The subject matter of the disciplinary hearing was again recited in identical terms to those stated in the original disciplinary letter quoted from earlier in this determination. However, the letter went on to advise the Complainant as follows:

• “I must advise you that unless new information or evidence comes to light, you will be informed of the company’s decision into this matter at the meeting on the 3^rdJune 2014. I must also advise you that if our decision deems your actions to be of Gross Misconduct, this may lead to your instant dismissal. Our decision will be confirmed to you in writing following our meeting on 03^rdJune 2014.”

The meeting took place as scheduled and the Complainant once again waived his right to representation. Mr Hegarty’s evidence to the Court was that the Complainant provided no further information to explain his decision to drive the company’s vehicle without a valid and current DTC. He further told the Court that, in his view, the Complainant was reluctant to accept the seriousness of the matter. When questioned by the Court as to when he had made the decision to dismiss the Complainant, Mr Hegarty stated that following the first disciplinary meeting, and having considered what the Complainant had offered in the course of it by way of explanation for his behaviour, he (Mr Hegarty) “had decided what he thought the action would be if no new evidence came to light at the second meeting”. Mr Hegarty was categorical in his evidence to the Court that the Complainant “had not shown good judgement and couldn’t, therefore, be trusted.”

The Complainant was informed at the conclusion of the meeting on 3 June 2014 that his employment was being terminated with immediate effect on that date for gross misconduct. This was confirmed to him by letter dated 4 June 2014. He was advised in the letter of his right to appeal the Respondent’s decision within 5 working days.

In cross-examination, counsel for the Complainant – Ms Sarah O’Mahoney BL – put it to Mr Hegarty that the Respondent’s letter of 4 June 2014 (which is signed by Mr Hegarty himself) recites additional allegations over and above the singular allegation which was stated in the disciplinary invitation letters of 23 May 2014 and 29 May 2014, respectively. The additional allegation is formulated as follows:

• “You failed to notify your Manager and/or myself that you had been stopped on 14^thApril 2014 by An Garda and an Inspector of the Road Safety Authority. You also failed to inform management of the infringement recorded on the Roadside Check Form on 14^thApril, and you did not present a copy of this Form to an appropriate member of management until the Company was contacted by the Road Safety Authority regarding your breach of the regulations. As a result of your failings, both you and the Company are facing potential prosecution and fines of at least €5,000.00 each.”

The Complainant availed himself of the opportunity to appeal the decision to summarily dismiss him. He set out his grounds of appeal in a 2-page hand-written letter dated 6 June 2014 and addressed to the HR Manager. In his letter of appeal, the Complainant reiterates his admission that he had driven with an expired DTC and he accepts that his Plant Manger had asked him on a number of occasions to renew the DTC. He listed the dates on which he had tried to telephone the RSA about the difficulty he had accessing their online system and advised the Respondent (it would appear for the first time) the RSA’s online service had displayed a message on his computer screen to the effect that a problem with his driving licence was the reason why his DTC was not being renewed. He went to outline that he had availed of the assistance of his solicitors to get this issue resolved and that he did in fact have a valid and current DTC when he was stopped by An Garda and the RSA Inspector on 14 April 2014. He also offered an explanation as to why he hadn’t handed the RSA incident form given to him on that date into the Respondent. His explanation in this regard was that he had been sick and taking medication. In mitigation, he also stated that the Respondent’s management was aware that he had been driving the company vehicle while his DTC was expired and was allowed to leave the garage with the vehicle in those circumstances. He supported his statement of appeal with copies of his mobile phone records which demonstrated that he had telephoned the RSA on 25 February 2014 and again on 14 March 2014. He also supplied copy correspondence dated 27 March 2014 from his solicitors to him confirming that the RSA had advised that their computer system had been updated following the solicitors’ intervention with the Courts Service. The letter of appeal was followed by a number of requests by the Respondent for additional supporting documentation. The Complainant’s solicitors wrote to the Respondent on 27 June 2014 setting out in some detail the background to the Complainant’s conviction in the District Court and his subsequent successful appeal to the Circuit Court for mitigation of sanction.

The appeal hearing took place on 30 June 2014 and was conducted by Mr Derry McKeown, a director of the Respondent. Mr McKeown wrote to the Complainant on 7 July 2014 setting the outcome from the appeal meeting “which was held under the Company’s Disciplinary procedure”. Mr McKeown upheld the decision to summarily dismiss the Complainant.

The following is an extract from that outcome letter:

• 4. In your Appeal Letter dated 06^thJune you state that the reason for the on-line application difficulties was due to the fact that you had previously been disqualified from driving. Whilst you successfully appealed this disqualification through the courts, the Road Safety Authority had not updated their records to reflect this fact and as a result this affected your on-line application process. Having spoken with Roy Hegarty and Mary Lennon, they advise me that at no stage during previous meetings with them did you disclose the reason why your on-line application attempts had failed. You simply told them that you received an error message stating that there was a problem with your Driver’s Licence.

  This raises serious concerns for me on two levels. Firstly, you were disqualified from driving for a period of time whilst employed by the Company as a Truck Driver. I find it totally unacceptable that an employee of the Company, whose job it is to drive a Company vehicle, would do so without a valid Driver’s Licence.

  Secondly, you did not inform any member of Company management about your disqualification. It was a sufficiently serious matter for you to engage the services of your solicitor however you failed to consider the potential serious consequences for the Company for having a disqualified driver on the road. During our meeting on 30^thJune when I asked you why you did not inform the Company at the time, you made no comment other than to confirm that you had not informed anyone within the Company.

  5. Regarding your failure to inform your manager that you were stopped by the Gardaí and the Road Safety Authority on 14^thApril 2014, up until your Appeal letter dated 06^thJune you led Roy Hegarty and Mary Lennon to believe that you had simply forgotten to inform Ronan Barry and that you had also forgotten to hand him the Roadside Check Form. However in your Appeal Letter you claim that the reason you did not hand in the form or inform Ronan Barry was because you were on medication that affected your ‘mental skills’.

  Again, this raises a serious concern with me. It leads me to question your ability, at the time, to drive a Truck in a safety conscious manner. If you felt that your concentration levels and/or ‘mental skills’ were reduced as a result of taking medication then you should have informed your manager. Again, during our meeting on 30^thJune when I asked you if you thought it was safe for you to drive whilst taking this medication you refused to answer and made no comment ….

  Your failure to have a valid DTC whilst driving a Company truck is a serious offence and whilst it may not be specifically included in the examples of Gross Misconduct, this does not lessen its seriousness and it is a clear breach of company policy.

  In addition, your failure to inform management that you were driving with an expired DTC, your failure to inform your manager about the RSA Roadside Check on 14^thApril, your failure to inform management of your previous disqualification, and finally the fact that you were on medication that was potentially affecting your mental skills, all lead me to fully agree with the decision to terminate your employment.”

The Respondent’s disciplinary policy included in the contract of employment issued to the Respondent (a copy of which was submitted to the Court) provides at paragraph 3.1.6:

• “Appeals

  Appeals will be heard by the HR Manager or (at the Company’s election) by any other suitable person who has had no previous involvement in the case. Within 5 days of the receipt of such a notice of appeal the Company will write to the employee and his/her representative, giving not less than 3 working days notice of the hearing.

  The proceedings will normally take the following form:

  • 
    •The Company representative who sanctioned or dismissed the employee shall briefly outline the grounds for sanction or dismissal. They will then submit any documentary evidence and call any witnesses necessary in support of his/her action, and after questioning them, the employee and person conducting the proceedings may question them further.

    •The employee or their representative will briefly state the grounds of appeal.

    •The employee will submit any documentary evidence and call any witnesses necessary to support their appeal.

    •The Company representative will summarise the evidence for the disciplinary sanction.

    •The employee will summarise the grounds for their appeal.

    •The person conducting the proceedings will consider their conclusions and write to the employee to convey the Company’s decision, following the hearing.

  
  An appeal can be made on the following grounds:
  • 
    a) Where the employee believes that the disciplinary decision is unjust or;

    b) Where the employee contends that a matter of fact has been omitted or, if referred to at the disciplinary meeting, that fact has not been properly taken into account in reaching the decision or;

    c) Where the employee contests the appropriateness of the type of disciplinary action decided upon.”

Discussion

Section 6(7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

• (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

  (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.”

Walsh J, giving the majority judgment for the Supreme Court inGlover v. BLN Limited[1973] IR 388, said:-

• "This court inIn re Haughey[1971] IR 217held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.

(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s). (Preston v. Standard Piping[1999] ELR 233 refers.) It is abundantly clear to the Court – and admitted by the Respondent’s witnesses – that the Respondent’s disciplinary investigation dealt with allegations that had not been formally put in writing to the Complainant either at the outset of the investigation or in the course thereof. The Respondent’s witnesses also accepted, and the Court finds, that those additional allegations were material to the decision taken to summarily dismiss the Complainant and the subsequent decision taken at the appeal stage to confirm that sanction.

(ii) The procedures provided for in the Company’s Disciplinary Policy, it is clear, envisage a hearing type situation at the appeal stage, in the course of which the person who made the disciplinary decision would be present and would make a statement outlining the grounds for the disciplinary sanction; would exhibit any relevant documentation and present any witnesses for questioning by the employee who is the subject of the disciplinary sanction. The procedures, likewise, envisage the employee as having a similar opportunity to present evidence and witnesses in support of his appeal. None of this happened in this case. It follows that the Respondent failed to comply with its own stated procedures in relation to the manner in which an appeal of a disciplinary sanction should be conducted.

It appears also to be the case – as discussed in detail above – that the Respondent failed to apply that provision stated in its own written disciplinary policy that deems any disciplinary sanction to be stayed and without effect until the outcome of any appeal stage has been communicated to the employee in question.

(iii) One of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality:McCurdy v. Adelphi[1992] ELR 14. The principle is a component of the general section 6(7)(a) principle of reasonableness. It is also a component of SI 146 of 2000, imported by section 6(7)(b) of the Act.

Summary dismissal is the nuclear weapon in the employer’s arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct. Commenting on section 8, the Employment Appeals Tribunal inLennon v BredinM160/1978 stated:

• “We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

When the Respondent commenced the disciplinary process that culminated in the Complainant’s summary dismissal, the Complainant did not have any live warnings on his personnel file. He had one previous warning which had expired. No evidence was presented on behalf of the Respondent’s witnesses that any serious consideration was given to a sanction other than summary dismissal at either the disciplinary or appeal stages. The Court accepts that the Complainant’s reticence during the disciplinary investigation stages about the origin of his difficulties with the RSA did not help his cause. However, at the appeal stage he had been far more forthright and submitted correspondence from his solicitors which confirmed the true facts. In those circumstances, the Respondent ought to have been more alive to the question of whether summary dismissal was a proportionate sanction in the light of what they then knew about the Respondent’s situation in February 2014.

Having regard to the foregoing, and the evidence proffered by the Respondent’s witnesses, the Court finds that the sanction of summary dismissal was disproportionate and too severe in all the circumstances.

Conclusion

Accordingly, the Court is of the view that the Complainant must succeed in these proceedings, both on the basis that the sanction imposed by the Respondent was disproportionate to the complaints made and also on the basis that the Complainant was deprived of a fair hearing by not being made aware at the outset of the disciplinary process of the entirety of the allegations against him. The Respondent also failed to comply with its own stated procedures at the internal appeal stage. The Court finds, for the foregoing reasons, that the principles of natural justice were not complied with.

Decision

The Court enquired of the parties what their preferred remedy would be under the Act in the event that it determined the appeal were to succeed. Both parties expressed their preference for an award of compensation. Having regard to the Complainant’s financial loss, arising from his dismissal and to the date of the hearing of the appeal, the Court awards the Complainant compensation of €40,500.00. This amount takes account of the Complainant’s contribution to his own dismissal arising from his lack of forthrightness about the true reason explaining his difficulty with the RSA.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
8 June 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.