UDD163

In a recommendation dated 17^thSeptember 2015 and bearing reference number r-148677-ud-14/JW the Rights Commissioner / Adjudication Officer found that the Complainant had not been unfairly dismissed.

Written submissions were received from both parties and the Court heard the appeal on 21^stMarch 2016.

Background
The Respondent operates a refuse collection service for both commercial and domestic waste. The Complainant was employed by the Respondent as a driver of a refuse truck. He commenced his employment with the Respondent in or about May 2007 and he was dismissed on 21^stJuly 2014. The grounds relied upon to justify the dismissal was that the Complainant was found to have engaged in lifting waste from a premises that was not a client of the Respondent, in return for payments.

Dismissal as a Fact
The fact of dismissal is not in dispute and the Respondent caries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal.

Justification Relied Upon
The Respondent contends that the dismissal was justified on grounds of the Complainant’s misconduct.

Position of the Parties

The Respondent

The Respondent contends that the impugned dismissal resulted from an investigation undertaken into activity of the Complainant in the course of his employment involving the collection of refuse from a person or persons who were not paying customers of the Respondent, in return for payment. It was the Respondent’s case that this resulted in a financial loss to the business and constituted gross misconduct warranting dismissal. The Respondent further submitted that the Complainant was afforded a fair and independent investigation of the allegations against him and that he admitted to the misconduct alleged against him.

The Complainant
The Complainant accepts that he engaged in the activity for which he was dismissed. However, he claims that he did so at the instigation of a co-employee of the Respondent, one JW, who is a brother of the owner of the Respondent. JW previously drove a refuse truck on the route in question and had arranged to collect waste from a business located on the route in return for payments. It is the Complainant’s case that when he commenced working on that route JW told him of the arrangement and told him to continue with that arrangement. It is the Complainant’s case that JW, as the brother of the owner of the business, commanded considerable authority amongst employees of the Respondent and he readily complied with what JW had instructed him to do. The gist of the Complainant’s case is that no disciplinary action had been taken against JW for engaging in similar activity and that the Respondent had failed to take any, or any adequate, account of the circumstances in which he came to engage in the impugned activity in deciding to impose the sanction of dismissal.

The evidence
Oral evidence was given by Mr Dermot Dunne who is Commercial Manager with the Respondent and who conducted the disciplinary hearing into the Complainant’s conduct. Mr Dunne decided to dismiss the Complainant. Evidence was also given by Mr Nicholas McGrath, who is Group Compliance and Investigations Manager with the Respondent and by Mr Damien Murray, who is Head of Finance with the Respondent and who heard the Complainant’s appeal against his dismissal.

The Complainant also gave evidence.

Facts
Arising from the evidence adduced the facts, as admitted or as found by the Court, are as follows:-

• • Between April and June 2014 Mr McGrath undertook an investigation into activity involving three trucks operated by the Respondent. He told the Court that all of the Respondent’s trucks were fitted with a tracking device known as a fleetmatics tracking system. This is a GPS device which can establish the location of the vehicle in which it is fitted. The movement and location of the vehicle can then be recorded. The device can also record when the truck is operating and when its ignition is closed down and restarted.

    In the case of the truck operated by the Complainant, Mr McGrath discovered that it had deviated from the route to which it was assigned and that it had been operated at two premises which were not customers of the Respondent. He identified one of the premises as belonging to a business known as Kennedys Motorcycle. The other premises was a domestic dwelling located where the Complainant occasionally lived.

    On or about 29^thMay 2014, the Complainant was observed removing waste from a business known as Kennedys’ Motorcycles and placing it in his truck. He was assisted in this operation by the owner of the business. Mr McGrath and a Mr PW, subsequently interviewed Mr Kennedy, the owner of this business, in relation to his involvement with the Complainant. There was some confusion as to the date on which this interview was held. In a memorandum recording the outcome of this meeting the date on which it occurred is given as 15^thJuly 2014. However the memo is dated has having been signed on 29^thMay 2014. Mr McGrath was unable to fully explain this discrepancy.

    This memorandum recorded Mr Kennedy as having stated that some years previously he had asked JW to quote a price to remove cardboard and other waste from his premises. At that time JW was the driver and operator of one of the Respondent’s trucks in the area. The memorandum further recorded that, according to Mr Kennedy, JW agreed to remove the waste and that it would be a cash transaction. Mr Kennedy said that thereafter he paid JW in cash for removing waste from his premises. The memorandum went on to record Mr Kennedy as saying that when the Complainant took over the route from JW he continued the arrangement with him.

    Mr McGrath told the Court that the Complainant had taken over the route from JW some four years previously.

    In the memorandum Mr Kennedy is recorded as referring to JW as “Mr Panda”

    The Complainant was then suspended on 16^thJuly 2014. He was served with a notice particularising the allegations against him. And he was instructed to attend a disciplinary hearing into his conduct. Mr Dunne was appointed to conduct this hearing.

    By letter dated 17^thJuly 2014 the Complainant wrote to McGrath in response to the allegations that had been made against him. He admitted collecting waste from the motorcycle premises and to having received payment of €50 from Mr Kennedy, which he shared with the helper on the truck. He went on to claim that JW had instigated this arrangement, which he had taken over when JW’s route was changed.

    In his letter the Complainant also admitted collecting domestic waste from a house occupied by a friend with whom he often stayed.

    Mr McGrath told the Court that he had checked the fleetmatics report of the truck operated by JW and he had not found any irregular activity. According to Mr MrGrath JW last worked on the route in question some four years previously and the fleetmatics system was not then in operation. Mr McGrath did not interview JW in relation to what was alleged against him and JW was not the subject of any disciplinary investigation in relation to his involvement in this matter.
    
    

    The Disciplinary Hearing
    A disciplinary hearing into the Complainant’s conduct was conducted on 21^stJuly 2014. This hearing was conducted by Mr Dunne who was accompanied by another employee of the Respondent who took notes.

    A file containing all relevant documents relating to the case was compiled by Mr McGrath and given to Mr Dunne prior to the hearing. Mr McGrath told the Court that on the day prior to the hearing that he met with Mr Dunne and that he discussed the case with him. The Complainant was unaware of these discussions and their content was not put to him.

    The Complainant accepted that he had undertaken unauthorised collections but he at all times claimed that he had done so at the instigation of JW.

    Mr Dunne took the view that the circumstances in which the Complainant came to this arrangement was irrelevant. He did not enquire as to whether disciplinary action was in contemplation against JW. While Mr McGrath told the Court that the memorandum that he prepared on his meeting with Mr Kennedy was included in the file that he gave to Mr Dunne, in his evidence to the Court Mr Dunne had no recollection of seeing that memo.

    Mr Dunne decided that the Complainant should be dismissed for gross misconduct. The Complainant appealed against that decision. The appeal hearing was conducted by Mr Murray. According to Mr Murray’s evidence he asked Mr McGrath if any action was in contemplation against JW. He was told by Mr McGrath that JW’s activity was being investigated.

    However no investigation was undertaken against JW in respect to the matters raised by the Complainant nor was he subjected to any disciplinary sanction.

  
  
  

At its most basic level the requirements of fairness in employment dictate that similar situations be treated similarly. It follows that where an employer acts inconsistently in responding to misconduct, a dismissal can be rendered unfair. The EAT so held inKelly v Powers Supermarket Ltd[1990] ELR 141. A similar approach was recently taken by Noonan J inBank of Ireland v Reilly[2015] IEHC 241. In this case the conduct of the Complainant was treated as sufficiently serious as to warrant dismissal. In the case of JW, allegations of similar misconduct were not even investigated and were clearly overlooked by the Respondent. The reason proffered by the Respondent for this difference in approach, namely, that there was no proof of wrongdoing on the part of JW and that his involvement had been some time previously, lacks credibility.

In these circumstances the Court has come to the conclusion that the decision to dismiss the Complainant was tainted with unfairness. Accordingly he is entitled to succeed in his appeal.

Redress
The Complainant was unemployed from 21^stJuly 2014 until 1^stJanuary 2015 when he obtained part-time employment for one or two days per week. He commenced working full time in that employment in July 2015. While employed by the Respondent the Complainant was paid €11.40 per hour. He was also received a subsistence payment of up to €168 per week. In his current employment he is paid at the national minimum wage. The Court is satisfied that there is no prospect in the foreseeable future of the Complainant obtaining employment at a rate of pay that corresponds to that which he received before his dismissal.

In all the circumstances of this case the Court considers that the appropriate redress is an award of compensation. The Court has taken account of the actual and prospective financial loss suffered by the Complainant arising from his dismissal. The Court has also taken into account, as it is required to do by s.7(2)(b) of the Act, the extent to which the Complainant’s conduct contributed to the loss that he suffered. In that regard, the Court is satisfied that the Complainant, by his conduct, contributed to some degree to the dismissal and this is had been taken into account in measuring the quantum of compensation that should be awarded.

Having regard to all of these considerations the Court awards the Complainant compensation under the Act in the amount of €35,000.

Disposal
The Complainant’s appeal is allowed and the recommendation of the Rights Commissioner /Adjudication Officer is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
30th March 2016______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.