ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003899

Complaint:

Date of Adjudication Hearing: 17/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Respondent’s Submission and Presentation:

The respondent disputed the claim for Unfair Dismissal. The complainant was dismissed from his employment on 26 July 2016.

The complainant was employed as a driver of fuel for a Logistics company in February 2001.The respondent submitted that the complainant was fully trained in all safety procedures with refresher training every two years.

On 3, July, 2015, the complainant was involved in fuel deliveries involving petrol and diesel .The Company submitted that that the procedure of fuel delivery involved the driver and the designated employee of the client (competent person). On that day, the diesel was delivered first, followed by three compartments of petrol. Both the complainant and the competent person decided that they could unload the last compartment of petrol. The complainant assumed that this had followed, when in fact, he had failed to pull the necessary button in the master control panel and the petrol remained in the tank.

The respondent submitted that the complainant had not completed the respondent policy on “Offloading "on his return to the Terminal as this would have confirmed the continuing presence of petrol in the tank. Diesel was then mixed with petrol which constituted a “Crossover “resulting in €10,000 loss to the company.

The complainant was immediately retrained in all procedures including:

1 On the Job Assessments

2 Questionnaires and Checklist training

3 One Day training with the Group Driver Trainer followed by a week of supervision by a driver from the local Depot.

The company initiated the company disciplinary procedure and a first written warning was issued on 28 July 2015 for a 12 month duration .The complainant was returned to full duties.

On February 19, 2016, the complainant drove the tanker to Waterford and began unloading diesel .This was a “Driver Controlled Delivery” where the driver holds ultimate control of the delivery and the client is not represented. During the unload , the complainant attached a kerosene hose to a gas oil tank .The next step is for the driver to ensure all hoses are correctly connected before pulling the lever, this is known as the secondary check . The complainant did not complete this check, which would have alerted him to the mistaken hose connection. Consequently, when the complainant pulled the lever a “Crossover “of kerosene and gas occurred. The company sustained a loss of €14,000.

The complainant reported the incident to his line manager and was immediately suspended from work .Given that the facts of the cross over were not in dispute, no investigation took place and none was necessary .The complainant was invited to a disciplinary meeting to take place on February 25, 2016 to answer the allegation that he had failed to follow his secondary checks which directly resulted in the “crossover”.

The complainant was represented at the hearing and advanced a number of submissions in his case, covering:

1 The complainant confirmed that he had not performed the secondary checks on the first hose he connected but did on the second connection; he told the respondent that the second check was automatic.

2 The complainant was aware that he was not following procedure and offered no explanation as to why not.

3 He had agreed to follow procedure following reception of his written warning 7 months before.

The respondent considered the points made and the HR Manager concluded that

1 The “crossover” had been caused by the complainant’s negligence in not following procedures and was not a deliberate act.

2 Five days training had been completed.

3 The respondent was perturbed by the complainant’s statement that given the opportunity, he would not have one anything differently

The respondent issued a letter of dismissal dated February 26, 2016

“…… Considering all of the above, I have lost confidence in your ability to follow procedures and hence prevent accidents like this occurring .As a driver, the company must have trust and confidence in your ability to work unsupervised and follow procedure at all times. Ultimately, I no longer have this confidence in you “

The complainant was offered an appeal which was submitted dated 25 February, 2016 on the grounds of the” severity of the   dismissal being unjust and harsh”.

The Appeal hearing was held on 8 April, 2016 by the Managing Director, Mr MD, who had not been involved in the disciplinary process. The complainant was represented by his Union .Further grounds of appeal were submitted to include:

Agreed minutes of the Disciplinary process were not retained .No formal report on February 19 was sought by the respondent .There was an attempt to scapegoat the complainant. The complainant had a previously good record with the company.

Mr MD considered all points as advanced during the appeal .Mr MD upheld the decision to dismiss having had regard for:

The fairness of the process was not disturbed by the presence of minor flaws in the process.

The outcome would not have altered, even if minutes and a formal written report were provided to the complainant.

The sanction was not excessive, given the fact that the complainant was on a written warning of seven months standing for the same offence. He had also undergone comprehensive training.

Consideration was given to an alternative position in the company, given his behaviour and the lack of remorse; it was not felt that the complainant could be trusted in any position.

The complainant’s representative sought an opening for resignation, which the company was happy to accept but the complainant declined this option.

The respondent submitted that there were substantial grounds justifying the dismissal in accordance with Section 6(4) (a) on capability /competence of the complainant for performing the work of the kind which he was employed to do .The respondent submitted that the decision to dismiss was within the honest and reasonable belief of the respondent that the complainant was either incompetent or incapable of conducting his duties in a safe manner. The respondent relied on the case law of Looney V Looney

The respondent sought to reference an extract from Dismissal Law in Ireland: Mary Redmond, 2nd edition, February 2007 on Competence.

“First, it is necessary for the employer to establish a reasonable performance standard prior to the issue becoming a disciplinary one and to communicate this to the employee”

The respondent referenced the contract of employment and job description as forming the basis of this grounding .The complainant had also received refresher training.

The respondent contended that the company had satisfied the test set down in the EAT case law of Richardson V H Williams and Co Ltd UD17/1979.

By providing the complainant

(a) A reasonable time to effect improvement in a reasonable work situation.

The respondent also relied on case law in a determination of a Fair Dismissal from the   EAT in O Connor V Brewster {1992} ELR 10

The claimant was aware of job requirements and knew that neglect of his duties would lead to termination of employment. Such neglect after warnings was intolerable to the employer and amounted to gross misconduct justifying dismissal

The respondent sought application of the facts of the case to the instant case and sought dismissal of the claim for unfair dismissal. The respondent contended that the facts of the substantive issue were never in dispute .The respondent acted reasonably in applying a corrective approach to the complainant’s breach of procedure. Time and effort were expended in retraining the complainant in advance of a repeated breach of procedure, which resulted in considerable financial expense and incalculable damage to the respondent’s reputation.

The respondent submitted that the company focussed on the February 2016 incident as the basis of the decision to dismiss the complainant. They argued that the complainant had overly emphasised the lack of a preparatory period before the disciplinary process. The situation was very grave for the company .The first written warning was not linked to the decision taken to dismiss.

The complainant had 2 “cross –overs” in a six month period amongst 170-180 drivers.

Complainant’s Submission and Presentation:

The complainant commenced work as a Truck Driver on 5 February 2001.He worked without incident until the events of July 3, 2015 when he was present during a delivery on a customer site with a new Manager. The complainant had discharged 5 compartments and was working n the 6^th when he detected a difficulty. He did not detect a pulse on the hose, while seeking to empty the 6^th compartment .The axle weight read 4.5 metric tonnes which indicated that the compartments were all empty. He believed his truck was empty and this was verified by the manager on site.

The complainant reported a “slight power loss” to his line manager. He had experienced this problem before with a different truck, which had an exhaust valve issue needing repair .The complainant returned to the refinery and began to load sulphur free gas oil first .He then attempted to load diesel but the loading system stopped thirty seconds later .The complainant suspected a faulty probe .On inspection, the complainant found fuel already present in the compartment .He was advised to return the truck to the depot.

The complainant co-operated with an internal interview with Mr DT (Driver Trainer) on July 6, 2015.He maintained that the 4.5 metric tonnes indicated that there was no weight on the truck .The complainant worked during the next two days and proceeded on annual leave until July 20, 2015.

On his return he was informed that he was to enter a 5 day retraining period as a result of the incident at the refinery.

The complainant returned to the refinery to learn from staff at the refinery that the respondent had forwarded a damning report about him to the General Manager at the refinery.

The complainant raised the matter with his line manager and was invited to a Disciplinary meeting on 22 July 2015. He attended the meeting with a representative and received a first written warning .The complainant had sought to raise the incomplete report completed by Mr DT .On 24 July; Mr DT visited the site where the complainant was delivering fuel. The complainant demonstrated the fault that he had previously spoken about and he contended that he had been proved correct.

The complainant was disappointed that this development had not been taken into account when he received his first written warning dated 28 July, 2015 on 5 August, 2015. He did not appeal as he was advised by his line manager to “Just sign it and keep your head down, it will be gone in 12 months “.

On 19 February, 2016, the complainant was involved in another “crossover of fuel” incident. The complainant was suspended on full pay pending an investigation by his line manager, Mr LM.

On 22 February, the complainant participated on a conference call from his work base at 5 am .He learned that 18 different crossovers had occurred within the company over an 18 month period .After the conference call the complainant was advised by his line Manager, Mr LM that he was required to go to Dublin to meet with Mr MD and was furnished with a company car to assist his journey. When he arrived in Dublin, he learned that he was not to meet with Mr MD but with Mr DT and Mr TM, Transport manager, in the format of a disciplinary meeting.

The complainant requested representation and this was provided by an employee of the company, a SIPTU shop steward .Mr TM took minutes but these were not forwarded. The complainant was advised that he might be in receipt of a final written warning. He left deeply upset.

The next day, he received a letter from the company inviting him to a Disciplinary Hearing on 25 February to be conducted by the Human Resource Manager and Mr LM (as note taker). He was advised that:

1 He failed to perform secondary checks before off loading.

2 He incorrectly off loaded a full pot of gas oil into a kerosene tank causing a crossover.

3 He had reported the incident and was suspended.

At this point, the complainant drew the attention of the hearing to a report in the format of an email sent from the Transport Manager, Mr TM to the Human Resource Manager, Ms HRM after 4 pm on February 24. This email linked the failure of the complainant to complete the secondary check as the cause of the “ crossover “ on 19 February .The complainants representative was very dissatisfied that this email pointed to an investigatory meeting being held with his client for which he was not permitted notification or preparation .

The complainant attended the Disciplinary meeting on February 25, 2016 with representation in the form of an employee who was a former shop steward. Minutes were completed by Mr LM .The complainant was unhappy with the meeting. He was advised that an outcome would issue the next day and pressed for a decision .He understood that he had been dismissed.

On February 26, 2016, a letter issued from the respondent confirming his dismissal .He submitted an appeal based on the severity of the company decision being unjust and harsh.

The appeal was heard by Mr MD on 7 April 2016 and the complainant was represented by a Union Official .The Union objected to the respondent proposal that Mr DT join the meeting .The appeal upheld the dismissal.

The Complainants Solicitor relied on the company disciplinary procedures to make the argument that the stated purpose of the procedures was to assist “an employee whose performance or conduct falls below company requirements “. He relied on the clause that employees are to have the right to state their case and receive a fair and impartial hearing. He submitted that an appeal is then heard by a “member of management who has not been previously involved, to ensure continuity of fairness “The complainant submitted that he had been denied fair procedures and impartiality by the respondent. Hennessy V Read and Write UD 192/1978 considered.

1 The first written warning was wrongly applied given that the complainant had subsequently proved the company’s assertions as incorrect.

2 The complainants training regime had predated the disciplinary process in July 2015.

3 The company had not placed due regard on his good record with the company .Witnesses to the circumstances of the “crossover “were not interviewed in 2015.

4 The complainant submitted that the company fast tracked his dismissal and while 18 crossovers were reported over an 18 month period, he believed that he was the sole employee disciplined.

5 The complainant submitted that the decision making process on his dismissal occurred during the disciplinary meeting .He believed that the respondent jumped the steps of the disciplinary process to make an example of him.

6 The complainant contended that Mr MD was wrongly appointed as Appeals Manager given his previous involvement in the complainant’s disciplinary record.

7 The complainant contended that the events of July 2015 and February 2016 were assessed by the respondent as “medium” in severity terms on the company log.

The complainant submitted that he had been unfairly dismissed and submitted evidence of mitigation accompanied by a table of loss. He sought the remedy of compensation.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have listened carefully to both parties oral presentation and I have considered the written submissions presented.

The Unfair Dismissals Act sets down a clear algorithm to be followed in considering the case presented by the parties:

Section 6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(a) Capability, competence, or qualifications of the employee for performing work of the kind which he was employed to do.

(b) Conduct

(c) Redundancy

Section 6 (6) places an onus on the respondent to show that the dismissal resulted wholly or mainly from one or more of the matters specified in 6(4).

Section 6(7) The Adjudication Officer is permitted to have regarded for

1. The reasonableness or otherwise of the conduct (whether by Act or Omission) of the employer in relation to the dismissal.

Both parties presented earnest accounts of their respective perspectives. The complainant held a very strong belief that that he had been wronged after 15 years loyal service. The respondent presented as genuinely concerned at the negative impact of the repeated cross overs and poor work performance of the complainant on the reputation of the business. The respondent advanced the premise that the decision in the case should be based on whether the decision taken to dismiss the complainant was within the range of reasonable responses of a reasonable employer to the conduct concerned rather than the Adjudicators own judgement . I have no difficulty following this doctrine as it has been embraced in case law:

Royal Bank of Scotland V Lindsay UK EAT /0506/09/DM and applied by way of a precise test in Noritake ( Ireland) Ltd V Kenna Employment Appeals Tribunal UD/88/1983 and latterly in Bank Of Ireland V James Reilly [2015] IEHC 241,where Noonan J stated :

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken? .”

The complainant concentrated a large part of his presentation on the events surrounding the first incident of cross over in July 2015. It is of note that the complainant retained a strong sense of injustice in relation to this issue. However, I find that it was open to the complainant to appeal this decision and he chose not to, preferring instead to take the advice of his line manager, Mr LM to move forward. I appreciate that it forms a vital context and   background to the case, and I do not wish to elevate it beyond that sphere. Suffice to say, it was clear from the first written warning that the complainant was on notice that a failure by him to improve and maintain his performance at a level acceptable to the company may be liable for either:

Second Written warning /Final Written warning / Dismissal.

The case before me is in relation to the decision taken by the respondent to dismiss the complainant and whether this is to be found fair or unfair?

Findings:

1 The complainant was 6 months into a 12 month written warning at the time of the second “cross over” on February 19, 2016. The issue of the repeat cross over was of primal importance and disappointment to the respondent business.

2 The complainant was placed on paid suspension without recourse to formal written notification. I find that this action resulted in a lack of procedural clarity to the complainant. He told the hearing that he placed himself on the conference call on the morning of February 22. This does not fit with the supposed profile of a worker on suspension. The company policy on suspension explains that it is a pre-cursor to an investigation rather than a re-alignment with the business.

3 The respondent submitted that an investigation into the events was unnecessary as the facts of the crossover were not in contention. The complainant’s job description detailed that crossovers must be reported to the line manager who will initiate any investigation into the incident.

4 The respondent did not place a weighting on the meeting attended by the complainant on February 23 in Dublin via the company car some days in advance of the disciplinary hearing.

5 The respondent announced a disciplinary hearing on February 23 ,2016 .The lay out and content of the letter virtually mirrored that handed to the complainant on 20 July 2015. If the respondent intended to action the letter under the gross misconduct aspect of the Disciplinary procedure, there were no visible clues to this, nor was there a reference that the complainants’ job was at stake .I am mindful of the complainants evidence from the meeting where he heard that “he might be in receipt of a final written warning “on February 23, 2016.

6 The complainant was permitted representation throughout the process. The invitation cited that that the line manager was to be a “note taker “. The appeal process referred to conjoint decision makers at the meeting which resulted in dismissal.

7 The complainant learned of the decision to dismiss him when he pressed the Human Resource Manager for a verdict. He wrote his appeal prior to receiving formal confirmation on February 26, 2016.

8 The respondent gave serious consideration to scoping out another role for the complainant within the company, during the appeal, but this was decided as unviable. The respondent genuinely believed that they had done their best to assist the complainant through training and a structured warning.

Conclusions:

From the outset, I was struck by the inconsistent approach adopted by the respondent in respect of the disciplinary procedures of July 2015 and February 2016, not withstanding the complainants annual leave in 2015.It took one month to conclude a first written warning inclusive of internal investigation. Following the incident in February 2016, the complainant was dismissed within a seven day window in time.

I accept the application of Richardson to the case. The complainant was given a reasonable time to effect improvements in a reasonable work situation. Richardson was found to have contributed 60% to his loss and was held to have an attitude problem. I found the complainant to be very cogent and appreciative of his time with the company and the dispute between the parties was confined to these two reported incidents of July 2015 and February 2016. I can also conclude that the respondent held an honest belief into the complainant’s lack of competence with regard to the omission of the second check.

However, I must now look at the procedural framework surrounding the dismissal. Reilly describes suspension as “a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”.

The complainant was suspended orally which negated the opportunity to explain what exactly was to happen next. The complainant attended the workplace three days later and found himself travelling by company car to Dublin assuming he was meeting the MD. I have found that this action lack clarity and was short on allowing the complainant prior notice of an investigatory meeting to facilitate preparation to present his case.

I could not establish just how or when the respondent determined the second cross over as gross misconduct? It was not referenced in the invitation to attend the disciplinary meeting or in the letter of dismissal or indeed on appeal. The respondent referred to the incident as gross misconduct during the hearing.

I find it necessary to remark on the importance of a person’s job being their livelihood and in the event that an employer seeks to remove an employee from that job, the duty of care, endemic in any employment relationship should not dissipate.

The respondent also, in my opinion held a duty of candour towards the complainant from the outset of the disciplinary process. I find that the complainant was denied the protection of the company disciplinary process, when both the personnel on the investigation and the personnel on the disciplinary meeting were misrepresented to the complainant. In addition, there was a certain level of mistake in the conducting of the disciplinary process by the respondent. It is vital that disciplinary procedures are “fit for purpose “and are live working documents, regardless of their rare episodic use.

I accept completely that the complainant’s error on February 19 was grave and damaging for the company, who were unable to recoup the loss of product through insurance.

In Brennan V IT Carlow [2012] ELR 49, a Care taker locked a student in a building. The EAT held that the misconduct did not constitute “ gross misconduct “ and the word gross can be overused .The respondent confirmed that the company accepted that the complainant did not act deliberately , yet still proceeded with a summary dismissal.

I find that the complainant acted to his detriment by pressing the HR Manager for a verdict at the disciplinary meeting.

Given that there was a clear sequential pathway provided in the respondent own disciplinary procedure in the case of a stage 3 written warning to follow a Stage 2 written warning and given that the charge of gross misconduct was not properly placed before the complainant , I must find that not withstanding the gravity and disruption of the complainants error on February 19^th ,that the respondent has not discharged the onus of “ establishing that there were substantial grounds justifying the dismissal in this case “.Reilly considered . I find the dismissal to be substantively and procedurally unfair.

Redress

The complainant was engaged in additional training on the day of the hearing .He submitted evidence of mitigation and loss. It is of note that in calculating financial loss under S7 (1) of the Act, payments made under Social Welfare Acts 1981-1993 are disregarded. I have considered the options of redress open to me; I have canvassed the party’s views on the options also. I find compensation to be the sole practical option of redress.

In light of the complainant’s contributory conduct to the dismissal, I order the respondent to pay the complainant €9,384.00 in compensation.

Patsy Doyle, Adjudicator.

Dated:   12/04/2017