UDD1759

The Appellant was employed by the Respondent from 5^thDecember 2005 until the termination of his employment on 23^rdSeptember 2015. The fact of dismissal is not in dispute.

The Appellant made a complaint to the Workplace Relations Commission on 21^stOctober 2015 and the Adjudication Officer, in a decision dated 16^thJanuary 2017, found that the Appellant had not been unfairly dismissed.

The Appellant, in his appeal, sought compensation and re-instatement.

Background

The Appellant was employed as a ramp agent by the Respondent. An element of his role required him to drive company vehicles. In the main his driving duties were confined to areas of the airport property to which the public had no access. It is common case however that, occasionally, he was required to drive company vehicles on roadways adjacent to but outside the airport ‘airside’ but which were accessible to the public. The company vehicles driven by the Appellant did not carry NCT, road tax or insurance discs.

The Appellant raised concerns as regards what he perceived were issues arising from the requirement to drive the company’s vehicles on roads which were in his view public roads and which were accessible as a matter of course by the public. Several interactions took place on this matter and the Appellant, when asked by his supervisor on 20^thAugust 2015 to drive a company vehicle on a roadway to which the public had access, declined to do so.

The Appellant was suspended on pay by letter dated 20^thAugust and ultimately, following an investigation and disciplinary procedure, he was dismissed by letter dated 22^ndSeptember 2015 which identified the reason for dismissal as ‘gross misconduct for your failure to follow reasonable instruction from your supervisor / manager’. The decision to dismiss was upheld on appeal by Mr M, Regional General Manager Ireland and Scotland of the Respondent. The letter confirming the dismissal was dated 14^thOctober 2015.

Position of the Respondent.

The Respondent submitted that the Appellant was properly dismissed from his employment as he failed to carry out reasonable instructions from his employer in specific breach of his contract of employment.

The Respondent submitted that on or about 27^thJune 2015 the Appellant raised an issue as regards the driving of the company’s vehicles in public places without tax, insurance, NCT and proper licence. The Respondent submitted that the Appellant’s manager, M McD, assured him that there was no difficulty in this regard. The Respondent submitted that the Appellant’s manager undertook to investigate the matter further and that a letter would be forthcoming from Mr P McC, the Respondent’s station manager. That letter issued on 16^thJuly 2015 and stated as follows

‘I can confirm that you are perfectly correct when you state that the works vehicles we operate at Swissport during the regular course of the day to carry out our commitments to our customers have no requirement to be licensed, NCT’d or taxed while operating on airport grounds. This includes all roads and access points within the airport boundaries.

Swissport have no requirement to operate outside the airport grounds so no agent should be requested to drive a works vehicle beyond the airport grounds’.

The Respondent submitted that the Appellant continued to raise concerns thereafter and advised the Respondent that he had raised the matter with An Garda Siochana, the Health and Safety Authority and the Airport Authority.

The Respondent submitted that on the 20^thAugust 2015 the Ramp Duty Manager, Mr M S, requested the Appellant to move containers from one location to another. The Appellant refused to do so and raised the issue of driving company vehicles on roadways to which the public had access notwithstanding his receipt of a letter from the station manager dated 16^thJuly.

The Appellant was immediately suspended under the provisions of the employee handbook and an investigation was carried out by Ms GO’C, the operations duty manager, on dates including 20^thAugust, 21^stAugust and 26^thAugust 2015. That investigation recommended initiation of disciplinary proceedings.

MR JL, Cargo Manager of the Respondent, convened a disciplinary hearing on 16^thSeptember 2015 and a follow up meeting was held on 18^thSeptember 2015. The disciplinary hearing resulted in a decision to dismiss the Appellant.

The Respondent submitted to the Court that the disciplinary process had found that, prior to issuing his letter to the Appellant on 16^thJuly 2015, the Respondent’s manager, Mr Mcc, had fully investigated the matters raised earlier by the Appellant. The Respondent submitted that no further clarification was necessary.

The Respondent submitted that the decision to dismiss was appealed by the Appellant and that he had stated his grounds for appeal as follows

‘I do not deny the finding that I refused to drive or that I would in the future refuse to drive under the above circumstances but I state that I was correct to refuse and continue to refuse in such circumstances’

The Respondent submitted that Mr CM, who convened the appeal hearing, invited the Appellant to present further documentation or information to support his appeal and the basis of his refusal to drive a vehicle of the Respondent and the Appellant was unable to do so. The decision to dismiss was upheld.

The Respondent submitted that it had fully investigated the concerns of the Appellant when raised and that ultimately a fair and appropriate investigation and disciplinary process followed the incident of 20^thAugust 2015.

The Respondent submitted that the Appellant had carried out his duties for the Respondent without complaint from 2005 to 2015. The Respondent further submitted that, albeit the Appellant has produced a letter and map from Clare County Council as part of the within complaint and appeal accompanied by an unclear map dated 2017, such material was not available at the time of the decision to dismiss and should not be considered by the Court.

Evidence of Mr Mc C, Station Manager of the Respondent.

The Respondent called Mr Mc C, station manager, into evidence. Mr McC confirmed in evidence that he wrote the letter of 16^thJuly 2015. He confirmed that in preparation for that letter he had discussed the matter with the director of operations of the Airport Authority and with a staff member of the Airport Police and Fire Service. He stated in evidence that those persons had advised him that as far as they were aware no breach of legislation was involved. Mr McC confirmed that he had no reason to believe that either of the persons he consulted were expert in road traffic legislation as regards insurance, motor tax, NCT legislation or licencing. Mr McC in evidence accepted when questioned that his letter of 16^thJuly 2015 made no mention of the concern raised by the Appellant as regards insurance. He stated that there was an insurance policy in the company and that it was displayed on company notice boards. Mr McC stated that the entire airport community used the roads in question. Mr McC confirmed in evidence when questioned that he had raised no enquiry with the Respondent’s insurance company or the Garda Siochana as part of his investigation into the concerns raised by the Appellant. Mr McC stated in evidence that the Respondent’s vehicles used roads which were used also by the public and that the Appellant was required to drive such vehicles on such roadways.

Mr McC confirmed in evidence that he had no involvement in the investigation or disciplinary procedures carried out by the Respondent other than a phone call he received from Mr JL who carried out the initial disciplinary hearing. He stated in evidence that nobody conducting any part of the investigation or disciplinary procedures had asked him for any detail of his investigation of the Appellant’s concerns carried out prior to his issue of a letter on 16^thJuly 2015.

Position of the Appellant

The Appellant submitted that on 27^thJune 2015 he was driving a vehicle of the Respondent which did not carry certificates or discs for Road Tax, Insurance, NCT nor insurance but which did carry a certificate on its windscreen with the Respondent’s name on it and with the words ‘Access permissions’.

The Appellant submitted, including in evidence, that on that day he drove a ‘lav’ truck through a checkpoint between the ‘airside’ and ‘landside’ at which an officer of the Airport Police and Fire Service (APFS) functioned. The Appellant submitted that one side of the checkpoint was ‘airside’, known as the ramp area, to which only authorised personnel and vehicles have access. On the other side was an area comprising a road to which the public have full access. The Appellant submitted and stated in evidence that on that day the APFS officer operating the checkpoint stated that the Appellant did not have the proper licence to drive a vehicle of the nature he was driving on a public road. The Appellant submitted, including in evidence, that the APFS Officer clarified that he was offering advice only, because the jurisdiction of the APFS did not extend to policing of the public roadway.

The Appellant submitted that on the 27^thJune 2015 he brought his concerns to his manager, MrMcD, who advised him that the issue was not a problem. He submitted that he asked his manager for a letter to that effect.

The Appellant submitted that on 27^thJune 2015 he attended the Garda station in Shannon and left his details in order that the Gardai would contact him in relation to his concerns. The Appellant submitted that on 30^thJune 2015 his solicitor wrote to the Respondent’s HR manager, Ms SM, setting out his concerns but that no reply was received to that letter.

The Appellant submitted that he repeatedly raised his concerns as regards driving on a roadway to which the public had access throughout July 2015 including with (1) his manager Mr M S who conveyed the concern to the general ramp Manager, Mr D A, (2) with Shannon Airport Operations (SAO) who advised him that SAO had spoken to the Respondent’s general Manager, Mr McC who, the Appellant submitted, was reported by SAO as having stated that the issue was an internal company matter and not a matter for SAO, and (3) with a person from SAO on site and (4) with Mr M McD of Swissport.

The Appellant submitted that he reported the matter to the Health and Safety Authority on 15^thJuly who responded to the effect that the HSA had no role in the matter. The Appellant submitted that on 17^thJuly 2015 he again attended at Shannon Garda Station where Garda D L advised him that not only would he be required to hold the correct licence but that any vehicle being driven on the public roadway or on any road to which the public had access would have to be taxed, insured and NCT’d (or CRW’d for commercial vehicles) and the driver would require to hold an appropriate licence.

The Appellant submitted that he received a letter dated 16^thJuly 2015 from the Respondent’s Station Manager, Mr P McC which advised that the vehicles of the Respondent did not require to be licenced, NCT’d or taxed while operating on the Airport Grounds and that no agent should be requested to drive a works vehicle beyond the airport grounds. The Appellant submitted that the matter of insurance was not addressed in the Respondent’s letter.

The Appellant submitted that he met with Ms SM, the HR manager of the Respondent, on 21^stJuly 2015 and set out his concerns. The Appellant submitted that Ms SM stated at that meeting that she would take legal advice on the matters raised by him and revert to him. The Appellant submitted that he received no further contact from Ms SM in advance of his suspension on 20^thAugust 2015.

The Appellant submitted that on 20^thAugust his supervisor, Mr M S, ordered him to drive a vehicle outside the ramp area and over a roadway to which the public have access. The Appellant submitted that he advised Mr M S that he was awaiting documentation to address his concerns and would not drive over such a roadway until that was received. The Appellant was suspended on 20^thAugust 2015. The Respondent, by letter dated 20^thAugust advised the Appellant that he was suspended pending an investigation of his “alleged refusal to carry out a reasonable request this morning which is classified as gross misconduct as stated in your contract”.

Following an investigation and disciplinary hearing the Respondent advised the Appellant by letter dated 22^ndSeptember 2015 that he was being dismissed without notice as a result of his “failure to follow reasonable instruction from your supervisor / manager”. The Appellant appealed that decision and an appeal hearing was held on 8^thOctober 2015. The appeal was heard by the Respondent’s Regional General manager Ireland and Scotland, Mr C M, and the decision to dismiss was upheld,

The Appellant submitted that at no stage in the investigation, disciplinary or appeals process did the Respondent clarify how it concluded that the concerns of the Appellant as regards driving on a public roadway were not of substance. The Appellant submitted that the Respondent relied upon the letter dated 16^thJuly 2015 but did not establish how that letter was to be taken as a factual statement of the matters over which the Appellant had raised concerns.

Evidence of Garda Sergeant D L

The Appellant called Sergeant D L into evidence. The witness confirmed in evidence that the Appellant had met with him on 17^thJuly 2015 and that at that meeting he had advised the Appellant that , as a matter of law, any vehicle being driven on a roadway to which the public had access required to be Insured and carry a disc to that effect, be NCT’s or CRW’d and carry a disc to that effect, be taxed and carry a disc to that effect, and that any person driving such a vehicle in such a place was required to hold an appropriate licence to do so.

The Witness stated in evidence that there was no alternative to the insurance and disc display requirements of the law as regards vehicle insurance, NCT and tax and that no exceptions to the requirement upon a driver to hold an appropriate licence exist.

The witness stated in evidence that following his meeting with the Appellant he had inspected the roadway at issue and was satisfied that it was a roadway to which the public had access and as such all the legal requirements as regards driving on such roadways applied.

Discussion and conclusions

There is no dispute between the parties as regards the fundamental facts of this case. It is common case that on 20^thAugust the Appellant did not agree to drive the company vehicle on the roadway in question. It is also common case that the Appellant had raised concerns on numerous occasions as regards the legality of his driving company vehicles on that roadway.

The Respondent dismissed the Appellant for refusing to carry out a reasonable instruction of his supervisor / manager. It is to be assumed therefore that the Respondent views an instruction to an employee to drive a company vehicle without an NCT disc, a Tax disc, or an insurance disc on a roadway to which the public have access as reasonable.

In this case the Appellant had, in June, raised concerns as regards the legality of the work instructions he was being asked to carry out. That concern was dealt with by letter from Mr McC dated 16^thJuly 2015. Mr McC, who appeared before the Court, stated in evidence that he had spoken only to an official of the SAO and the APFS in the course of his considering the concerns of the Appellant. Mr McC stated in evidence that he had no knowledge as to whether either of these people had any particular knowledge of road traffic legislation or expertise therein. He also stated in evidence that he did not consult with the Respondent’s insurer or An Garda Siochana when investigating the matter. Mr McC also stated in evidence that he received no contact from the person who conducted the investigation into the Appellant’s alleged disciplinary breach on 20^thAugust 2015 but that he was asked, by phone, by Mr JL who was conducting the disciplinary hearing, whether he had issued the letter in question. He also stated that Mr D L had not inquired into the basis for his assertions in the letter of 16^thJuly 2015. He stated that he received no contact from the person who conducted the appeal of the decision to dismiss.

The Court heard no evidence from the Respondent’s Operations Duty manager, Ms GO’C, who carried out the initial investigation after 20^thAugust, Mr JL who carried out the disciplinary hearing into the matter and made the decision to dismiss or from Mr CM who conducted the appeal hearing.

It is not for the Court to establish the legitimacy or otherwise of the Appellant’s concerns as regards the applicability of Road Traffic Legislation to the driving of the Respondent’s vehicles on a roadway to which the public have access. The evidence of Sergeant D L however suggests that there is, at minimum, a matter of law underpinning the issues raised by the Appellant with his employer, the Respondent in June 2015.

The Appellant in this case raised with his employer issues as regards the legality of the instructions he was being given in the course of his work. The Respondent took no steps to take qualified advice on such matters and in fact did not make an enquiry of An Garda Siochana or its insurer to establish the perspective of those expert sources on the matters at issue. The Respondent instead sought the opinion of two persons who may not have had any knowledge or expertise in the area of road traffic legislation or motor insurance. The Appellant, as a result of Mr McC’s letter of 16^thJuly 2017, was left with guidances from An Garda Siochana on the one hand and his employer on the other and which guidances were irreconcilable. It is noted that the employer in the letter of 16^thJuly, made no comment as regards the concerns the Appellant had raised in relation to vehicle insurance while driving on a roadway to which the pubic have access.

It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

The Court has established that the Respondent concluded, following the inquiry of Mr McC, that an instruction to drive the Respondent’s vehicles on a roadway to which the public have access was a reasonable instruction. The Court is satisfied that the Respondent’s efforts, comprised as they were of the inquiry of Mr McC into the concerns raised by the Appellant as regards the legality of the instructions which the Respondent was giving him, were inadequate.

Where an employee raises a question as regards the legality of instructions being given to him or her there is, in the Court’s view, a responsibility upon that employer to properly establish the legal facts and, where the concern is unfounded, to provide sufficient information to the employee to allow him to understand that fact. The response of the Respondent to the raising of concerns by the Appellant, initially on 27^thJune 2015, could not be held to be an appropriate effort to establish the legal position as regards the driving of vehicles on a roadway to which the public have access or to satisfy the concerns of the Appellant.

The Court notes that at no time during the investigation, disciplinary or appeal process was Mr McC asked to share the basis for his assertion in the letter of 16^thJuly that no road tax, insurance, NCT / CRW or licence issues arose in the context of driving the Respondent’s vehicles on roadways to which the public have access.

The decision to dismiss was effectively based upon an assumption that the instruction to drive a company vehicle on a roadway to which the public have access was reasonable. The Court finds that the Respondent, for the reasons outlined above, had no adequate basis for that assumption. The Court finds that the investigation process was deficient insofar as it did not take adequate steps to establish the basis for Mr McC’s assertion in his letter of 16^thJuly which directly underpinned the Respondent’s assumption that the instruction being given to the Appellant on 20^thAugust was reasonable. The disciplinary and appeal processes which followed that investigation were consequently flawed. The Court finds that at no stage during the investigation, disciplinary or appeal processes was the reasonableness of the instruction given to the Appellant on 20^thAugust adequately evaluated.

In all of those circumstances the Court finds that the decision to dismiss the Appellant was not within the range of responses which one would expect from a reasonable employer to the events of 20^thAugust 2015. The Court finds that the Appellant was unfairly dismissed by the Respondent.

The Court has been provided by the Appellant with extensive evidence of his efforts to find alternative employment following his dismissal and has been provided with evidence that he has, to date, failed to find such employment.

In the circumstances of this case, and noting the submission of the Respondent as regards its view of the relationship between the parties, the Court does not consider that re-instatement or re-engagement is appropriate remedy in this case. In the view of the Court compensation in respect of financial loss is the appropriate remedy. Noting that the Appellant’s rate of pay exceeded €25,000 per annum the Court measures the amount of compensation which is just and equitable in the circumstances of this matter as €50,000.

Determination.

The Appellant was unfairly dismissed by the Respondent. The Court orders the Respondent to pay compensation in the amount of €50,000. The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
18 December 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.