ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001864

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

Date of Adjudication Hearing: 25/05/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, 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 complainant submits that his dismissal was disproportionate, unfair substantively and procedurally and that it may be connected to a recent workplace injury or a refusal by him to accept a promotion. He was in employment as a driver from 10^th of October 2011 until the 25^th of December 2015. He worked 45-50 hours per week and was paid €2608.24 per month prior to his dismissal. On the morning of the 22^nd of September 2015 he for the first time during the employment forgot to insert his tachograph card which is connected to the respondent’s system. He noticed his error when he had driven 26 km’s (15 minutes) and immediately contacted his supervisor by mobile telephone from his vehicle to report the matter. He was summoned to a meeting on the following day which was attended by the DSM and his manager/supervisor. “He received no advance notice of the subject of the meeting nor that it was investigatory and he had no opportunity to prepare therefor, nor was he accompanied by a witness nor afforded any details of the allegations that would be put to him. To this extent, there was a patent failure to adhere to the principles of natural justice and it is submitted, the process was thereby tainted by unfairness from the outset.” He freely admitted the breach – he had reported the same himself. Coincidentally the complainant suffered an injury at work on the 24^th inst. (he was struck by a fork-truck) and ultimately never had the opportunity to return to work. He was never suspended and not paid during his certified sick leave. On the 16^th of October he received a letter from the respondent notifying him that he was being investigated for misconduct arising from “driving a Brakes truck without the use of digital tacho card, during this investigation a further allegation has also been brought to light in that it is alleged you had been driving for approx. 45 minutes whilst using a mobile phone.” An investigatory report issued on he 14^th of November (not provided spontaneously but secured on foot of a data access request) which recommended disciplinary action. The matters relating to the 18^th of September contained in the report were investigated on the 18^th of November. He was summoned to a disciplinary hearing on the 25^th of November which alleged three acts of gross misconduct and two of misconduct. This was the first time that the complainant was copied with the evidence and advised that he had a right to be accompanied. He was dismissed despite giving satisfactory explanation for the breaches and having informed the disciplinary officer that he knew of a colleague who had driven without a tacho card for two – three days in Dublin. The disciplinary officer concluded that the use of mobile while driving without a seat belt on the 22^nd of September and driving without a seatbelt on the 18^th inst. amounted to gross misconduct. Furthermore he concluded that the failure to use the tacho card amounted to misconduct. He stated that considered in isolation the acts of gross misconduct would individually warrant a final written warning and that the act of misconduct would warrant a written warning however when considered collectively they demonstrated a wholly unacceptable attitude towards safe driving and consequently he would dismiss the complainant with immediate effect. The dismissal was subsequently appealed without success. The appeals officer noted in his letter of rejection that the use of a mobile phone while driving and failure to wear a seat belt were criminal offences. He further noted that failure to adhere to correct health and safety standards is a criminal offence. The respondent’s policy in respect of discipline makes no references to either breach as amounting to gross misconduct warranting dismissal nor does it refer to failure to use the tacho card other than to state in a memo to staff on the subject that “failure to comply with your responsibilities will lead to your details being reported to management for corrective action.” The respondent has not been consistent in its application of the disciplinary policy as it relates to two other incidents involving colleagues of the complainant (details provided). He submits that he brought numerous significant health and safety issues/breaches to the attention of the respondent without response. He suggests that the respondent is itself guilty of what it accused him of in rejecting the appeal of his dismissal. The complainant relied upon a number of authorities to advance his submission.

Respondent’s Submission and Presentation:

The respondent submits that the complainant failed to ensure the correct insertion of the Tacho card in his vehicle on the 22^nd of September 2015. He drove for 26 km’s in breach of the law and the company rules. When questioned by the distribution shift manager in connection with the matter he admitted the failure and excused it on he basis that he forgot to insert the card. When the manager returned to Dublin he examined the CCTV footage from the truck and discovered other breaches of safety requirement and the law. Specifically the complainant was on his mobile phone while driving on the 18^th of September and he failed to wear his seat belt on the same day. The complainant was on sick leave from the 24^th of September until the 16^th of November and on his return the manager informed him that a further interview as part of the investigation would be convened on the 18^th of November. He again admitted to using his mobile phone while driving and failing to use his seat belt on the 22^nd of September but could not recall similar incidents on the 18^th inst. He was invited to a disciplinary meeting on the 25^th of November and offered an opportunity to review the CCTV footage relied upon. He declined the offer on the basis that he was happy enough having seen the stills. The disciplinary meeting was concluded on the basis that he was dismissed. His subsequent appeal of the dismissal was unsuccessful. The complainant demonstrated by his actions his disregard for road safety legislation despite the training provided by the company and it was therefore left with no alternative but to dismiss him in all the circumstances. The complainant will have received extensive training in road safety and will be aware that the mobile phone policy refers to the fact that breaches may lead to dismissal. When any incident occurs in respect of breaches of Safe System of Work Driving/Vehicle Use a review of CCTV is undertaken as standard. Additionally 20% of the fleet is spot checked every month. The complainant self reported the failure to use the tacho card after he had completed his shift.

Decision:

The herein dismissal is replete with procedural flaw and failure. As a primary example the investigation officer issues a report on the 14^th of November which refers to alleged breaches of “Safe Systems at Work” relating to incidents on the 18^th and 22^nd of September 2015. The complainant had not been interviewed in relation to the allegations arising from the review of CCTV footage of the 18^th of September at that stage. The relevant interview took place on the 18^th of November in circumstances where the investigator had already made a recommendation in respect of disciplinary hearing arising from the 18^th of September allegations.

I agree with the complainant that clarity and consistency are fundamental when it comes to the application of discipline. The respondent’s disciplinary policy is comprehensive and reasonable. The lists of infringements while not exhaustive are extensive and envisage breaches of the road traffic regulations in that they refer inter alia to professional disqualification by virtue of which it is not reasonably practicable for an employee to continue in their job role. I accept that the respondent failed to provide consistency in this case and that dismissal in the circumstances was disproportionate.

I find that the complaint is well founded and I am satisfied that this was an unfair dismissal. There was an element of contribution on the part of the complainant. The appropriate remedy therefore is compensation in the amount of €20,000 (say twenty thousand euro).

Dated:   14/11/2016