EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD849/2015
CLAIM OF:
Neil O’Malley
– claimant
against
Comconsult Technologies Limited t/a Fleet Connect
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. MacCarthy SC
Members: Ms A. Gaule
Mr F. Barry
heard this claim Dublin on 5th July and 10th October 2016
Representation
Claimant: Mr William Joyce of Business & Commercial Solicitors, Leeson Chambers, 28 Lower Leeson Street, Dublin 2
Respondent: Ms Jennifer White BL instructed by Gary Irwin Solicitors, Suite 1 Portmarnock Town Centre, Portmarnock, Co. Dublin
The fact of dismissal was not in dispute.
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent’s business is the installation and maintenance of WiFi on public transport. The claimant was dismissed when; following conviction for a driving offence, the respondent’s insurer would no longer provide cover for him. The respondent’s representative argued that the conviction demonstrated that the claimant’s actions amounted to gross misconduct.
The operations manager gave evidence. He did not hire the claimant, who was hired about a year before him. When the operations manager joined the respondent’s business the claimant had a company vehicle. Driving a company van was an essential part of the claimant’s job. The claimant went to client’s depots to install services. The respondent’s major customer insisted on branded vans on site. Private vehicles were not allowed on site. He was clear that the claimant could not travel to jobs on his motor bike.
There were a number of incidents relating to the claimant’s driving over the period he was employed. A HR consultant was brought in to facilitate him in managing the issue. The operations manager gave the claimant a verbal warning. He hoped that that would suffice and that the claimant would cease his unacceptable behaviour behind the wheel.
In November 2014 the claimant was involved in an RTA while driving the respondent’s van. When the operations manager spoke to him, he blamed the other person. At all times the claimant maintained his innocence. However the claimant was convicted arising from his involvement in the incident.
When the claimant lost his insurance cover with the respondent’s insurer, the operations manager tried to facilitate him by allowing him on occasion to travel to sites by motor bike. This was contrary to company policy. He also tried to find administration work for the claimant but the claimant had no IT skills and was not interested in this work.
The managing director gave evidence. He set up the company in 2008 to install WiFi on public transport. It is a small operation. A friend of the claimant’s worked for the respondent and recommended him for the job.
The claimant’s attitude was an issue. There were a number of road rage incidents and despite warnings and advice the incidents continued. The claimant did not accept responsibility for any of the incidents. The managing director was particularly upset by an incident involving an old man near Drogheda.
The operations manager was soft with the claimant and sent him on site when he shouldn’t have. He gave the claimant every chance. The claimant was good at his job and when he went there was a void. Unfortunately the claimant could not work with people.
The managing director took the decision to dismiss the claimant when he was taken off the respondent’s insurance policy. The premium required to put back on the policy was uneconomic. The claimant could not work using his motor bike. It is impossible to carry a ladder on a bike. There was no other position available for the claimant. It is a small company and cannot have a man in the warehouse doing nothing. He did not suggest that the claimant pay the extra cost of his insurance himself.
Claimant’s Case
The claimant gave evidence. He has no formal qualification but he had worked for about 8 years as an auto electrician before commencing with the respondent. In the beginning he worked in the office preparing equipment. He first went on site with the respondent’s major client as an assistant but when it was realised that he was good at the job of installer he was allowed on site as an installer. There were no issues with his work.
He needed some standard issue tools to do his job but he could carry the tool box on his bike.
He was not given a copy of the company handbook. It just appeared and for a while no one took any notice.
After the incident on the M8 the operations manager called him to a meeting. He was not told whether it was an investigation meeting or a disciplinary meeting. He was just told to come. Then after Christmas the operations manager came downstairs to him and said come up now and get the disciplinary out of the way. He said double jeopardy would then apply. The operations manager wanted to sweep the incident under the carpet.
He was accused of dangerous driving but pleaded guilty to careless driving. The judge was lenient on the day. He immediately phoned the operations manager. Within a day or two the managing director showed him the emails confirming that he was no longer insured.
The managing director told him to stand down and work with the lads in the office. There was no mention of his job being in jeopardy. In fact the managing director told him that he would be back on the job in no time. He used his bike to go on site at night. There were no issues with access to the site. This carried on for about two weeks. Then he was told he could not be insured. He was not given an opportunity to offer a solution. Basically it was a case of please leave. He was not given a copy of the disciplinary procedure and was not given an opportunity to appeal.
Determination
The Tribunal carefully considered the evidence adduced. The Tribunal is satisfied that gross misconduct did not arise in this case. The claimant was convicted of careless driving an offence that typically involves an error of judgement only. There were a number of past incidents where the claimant’s driving gave cause for concern, some of a serious nature and the respondent’s response might be seen to have been lenient. However, these incidents were not relied on to justify the claimant’s dismissal and therefore the Tribunal disregards them.
The Tribunal finds that the respondent has not made a case for dismissal under Section 6 (4) (d) of the Unfair Dismissals Act 1977.
The Tribunal finds that the claimant was unfairly dismissed on the grounds that the issue of insuring the claimant was not fully explored. The respondent could have sought other insurance quotes or considered asking the claimant to contribute towards the extra cost.
In making an award the Tribunal takes into account the substantial contribution the claimant’s behaviour made to his circumstances. The claimant is awarded the sum of €12,000.00 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)