ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001367
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001933-001 | 14/01/2016 |
Date of Adjudication Hearing: 28/09/2016
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.
Attendance at Hearing:
A Driver V A Logistics Company
Respondent’s Submission and Presentation:
The respondent outlined the background to the case. The complainant was employed as a courier driver with the respondent from 2 September, 2002. He worked a 40 hour week. He earned a performance bonus in addition to the base salary.
The respondent submitted that the complainant was dismissed from the company following a thorough, detailed investigation and disciplinary process on 24 November, 2015. The dismissal was on the grounds of gross misconduct.
The respondent disputed that the dismissal was unfair. Instead, they contended that that the dismissal was fair and reasonable in the circumstances and in accordance with the Company’s Disciplinary procedure.
The company operates across a number of bases around Ireland and has 350 employees based in Ireland. It is part of a global enterprise.
The complainant attended an investigation meeting on 4 November, 2015. This was required following an incident on 19 October, where the complainant caused significant damage to a company delivery truck when collided with a fence in the company depot yard. The damage was estimated at €2,500 euro.
During the investigation meeting attended by Mr U, ( employee representative )Mr M, (service centre manager) and supported by phone by Ms Hr, the company highlighted that there was an
“ extra degree of seriousness” to this incident due to previous incidents with the complainants driving.
The complainant was suspended on full pay pending the completion of the disciplinary investigation .The company convened a Disciplinary meeting on 16 November .The complainant was informed of his termination of employment by letter on 24 November, 2015.
The complainant appealed the decision and the appeal was not upheld .The dismissal was confirmed on 15 December, 2015.
The respondent sought the application of Looney and Co Ltd V Looney UD 834/1984, citing the EAT determination:
“…..It was not the Tribunals role to establish innocence or guilt or to substitute its views or opinions for that of the employer .The Tribunals responsibility is to consider against the facts what a reasonable employers position and circumstances at that time, would have done and decided and to set this up as a standard against which the employers actions and decisions be judge “
The complainant had damaged company vehicles on 6 previous occasions since 2012.He was investigated under the company policy for all these incidents and was issued with a Final written warning, stop short of dismissal in December 2013.
As a result of these incidents, the complainant was provided with Driver training .It was stated in the Final Written warning that any further incident would result in dismissal from the company.
The respondent told the hearing that the complainant had vetoed a severance package offered by the company in the wake of a previous incident in 2013. The company also offered an option for the complainant to relocate within the service. This was not accepted by the complainant. The respondent regretted that the 2013 options put to the complainant were not workable .
The company vehicles were insured for third party incidents alone and the company did not adopt the policy of charging employees for misdemeanours while driving. Consequently, they had not sought to recoup the cost of rectifying the door of the vehicle.
The company contended that the complainants continued employment with the company was untenable as his driving skills, even following retraining, were such that his own safety, the safety of the public, other road users and the safety of property were at risk.
Complainant’s Submission and Presentation:
The complainant commenced work with the respondent, as a driver in 2002.On 19, October, 2015, the complainant accidentally damaged a company van when entering a gateway. He understood that he was safe to undertake the manoeuvre as he was responding to a contractors signal that he had enough room to enter the yard.
Following an investigation process, the respondent deemed the accident to be gross misconduct and dismissed the complainant. The Appeal was unsuccessful.
The Union on behalf of the complainant took issue with the disciplinary process, stating that a final written warning, which had expired in December, 2014 had been taken into account in the deliberative process. In addition, the complainants P45 had been issued prior to the appeal; hearing, which the Union contended rendered the appeal process pointless.
The Union contended that the incident which resulted in the complainants dismissal in November, 2015, was a lesser incident that the incident of 2013, which has attracted the sanction of final written warning. The damage was not malicious in origin. The final written warning had expired in December 2014.
The complainant had been loyal to the company for thirteen years and had worked hard over this period .He had an arthritic condition and had been unable to secure employment since his dismissal and had sustained a 44 week loss ,up to the day of hearing which amounted to €30,490.68. Evidence was given on mitigation and loss.
The complainant sought the redress option of re-instatement.
Decision:
The hearing in this case was first set at 4 August 2016. The respondent presented on that day . The complainant had not received notification of the hearing . I decided to resume the hearing to do justice to the parties and I apologised to the respondent for the inconvenience associated with a second day of hearing .This hearing resumed on 28 September, 2016.
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. Legislation involved and requirements of legislation:
Unfair Dismissals Act 1977
Section 6
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.
Section 6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.
The respondent submitted that the complainant had been fairly dismissed on the grounds of gross misconduct for the breach of the company procedures on the following grounds .
1 Malicious damage to company or client’s property or failure to protect and safeguard company property.
2 Flagrant disregard or serious breach of company rules or conditions of employment.
(As provided for in the company disciplinary procedure)
The date of dismissal was November, 24th ,2015.
I have listened carefully to both parties submissions in this case. On the respondent’s side, I was struck by the company fatigue in relation to an accumulation of incidents involving their vans, which involved the complainant over a 5-6 year period. The company contended that they had acted responsibly by focussing on re-training for the complainant.
For the complainant’s part, he accepted that the incident of October 19th had followed a two year period free of accidents. He accepted that it was a mistake, which he had apologised for, but he wanted the Adjudicator to appreciate that he had acted in good faith in response to an understanding that he had a clear passage to manoeuvre the vehicle and by his immediate reportage.
There are a number of issues arising in this case.
The respondent issued a letter to the complainant on 11 December, 2013; this confirmed a 12 month final written warning on his employment file. It also confirmed that if
“There were any issues within this time frame; this could result in your dismissal”
The letter concluded with the following paragraph
“ You must understand that into the future, there cannot be any repetition of the above or conduct of a similar type, or the company will have no other option but to dismiss you ,as the disciplinary procedure will be exhausted “
This, in essence amounts to a zero tolerance clause .
The investigation meeting held on 4th November, 2015 was submitted a fact finding exercise. The respondent told the hearing that the company preferred the version of events submitted by the sub contractor who was placed outside the vehicle to that given by the complainant. They submitted that the CC TV footage was inconclusive and of no assistance in their determination. It is of note, that no reasoning accompanied this preference. There was no reliance on statements or further probing when both recollections of events varied considerably .
I was struck by the inconsistency in the company’s handling of the vehicle incident in 2013 and 2015
In 2013, the respondent relied on CC TV footage, the damage was higher in quantum and the spirit and intention of an effective disciplinary procedure was upheld i.e. to support, guide and redirect an employee in the face of mistakes or serious incidents.
In 2015, the investigation was concluded in a four point action plan
1 Take information away
2 Reviews CC TV
3 Get quote
4 Respond within a week detailing next steps
The meeting referred to a declaration by the HR Manager that the incident was” serious considering previous damage”.
I am not satisfied that an investigation could be said to be properly conducted if one of the parties is present by telephone alone. I appreciate that the respondent is a multi-locational employer, however, the adherence to fair procedures and due process are the hall marks of fair disciplinary procedures and no stage of the process is exempt in this regard.
The letter which followed on November 12, inviting the complainant to a disciplinary meeting referred to a company consideration that the incident of October 19th could be considered Gross Misconduct under the company disciplinary procedure.
The complainant disputed the reference to gross misconduct. I found some inconsistencies in the written record of the disciplinary meeting and the evidence given by Mr O in the hearing. From the notes of the meeting, I considered a summary of conclusion points from the disciplinary hearing.
1 Previous Incident not in equation
2 Return to work process signed off
3 Clean period
Yet, Mr O did not recall the reference to previous incidents not being in the equation at the hearing.
The complainant was suspended on full pay during the disciplinary meeting .I found this unusual as it was not reflected in any specific documentation placed before me outside an extract from the minutes of the disciplinary meeting “ wrong of me ,to allow you back on road”.
The outcome of the appeal meeting upheld the dismissal .It made reference to seeing the need to consider the other serious incidents over recent years.
I can understand that the respondent may have run out of patience with the complainant’s continuum of incidents which became adverse events. I accept that they invested heavily in retraining. This was not disputed by the complainant.
Both parties viewed the context of the October 19th differently. For the respondent, it was clearly the last straw in a protracted continuum, for the complainant it amounted to a single, unfortunate episode, following a two year clean sheet, within which period he had served 1 year rehabilitation via the final written warning.
The term gross misconduct is not specifically referenced in the Act and has evolved in case law over many years.
In Brennan V IT Carlow [2012]23ELR 49, the EAT made a useful reference:
“Gross negligence means negligence of a very high degree and quite different from ordinary negligence which can happen quite easily. Similarly, gross misconduct must be something very serious indeed, perhaps criminal or quasi criminal in nature “
The respondent applied the umbrella term of” gross misconduct “to a number of 12 potential scenarios which were neither exhaustive nor exclusive in the company disciplinary procedure.They relied on 2 out of 12 for the purposes of this case .
I have found that this case centres on the disciplinary status of the complainant in the wake of the October 19th incident. I am satisfied that the complainant understood that he was facing a fresh activation of the disciplinary procedure based on a episodic incident .Whereas, I am equally satisfied that the respondent treated this incident as a continuum which permitted an understanding at appeal stage, in any regard that a continuum approach was permitted .
In the EAT case ,Richardson v H Williams & Co. LtdUD /17/1979 , the claimant was dismissed because the company had been dissatisfied with his work performance over a period, in particular in relation to his authorising payment of accounts by cheque while not following the company procedure. He was also lacking in carrying out freshness checks (i.e. on perishable items). The EAT noted that the claimant was not given an opportunity to defend himself and the tribunal applied the following principles:
(a)
Where an employee has been given a justified warning that, unless his or her work improved in a specific area, his or her job would be in jeopardy, then it follows that such employee must be given:
(i)
a reasonable time within which to effect such improvement; and
(ii)
a reasonable work situation within which to concentrate on such defects.
(b)
If an employee improves in the complained-of area to the reasonable satisfaction of the employer, and such defect is not repeated, then such a warning cannot be solely relied on in relation to a dismissal for other reasons.
It is clear to me that the incidents of 2013 and before hand were fresh in the mind of the Hr Manager at the investigation hearing . The same HR Manager participated in the disciplinary hearing , where the message given to the complainant was recorded as not encompassing the previous incidents . This was not reflected in the letter of dismissal or letter of appeal which referred to the past continuum of events. These mixed messages remained unclarified at the conclusion of the hearing
A person subject to any disciplinary procedure is entitled to an unbiased process and to be met by unbiased decision makers. In the instant case, the process fell short of this in the operation of the investigation, the disciplinary hearing and during the appeal. The Union asked me to consider the high level of pre –judgement of the complainant by the respondent in this case. The Respondent asked me to consider that the company had lost confidence in the complainant’s capacity to drive safely and had considered measures short of dismissal, but was certain that dismissal was the only viable option for the company.
I have reflected on both these submissions. I have taken guidance in the EAT authority of Gustave Bigaignon V Powerteam Electrical Services ltd [2012]23 ELR 195 ,where a complainant submitted that a dismissal involving a breach of the respondent drug policy was unreasonable .
The Tribunal referred to the test cited in Noritake Ltd V Kenna Employment Appeals Tribunal UD88/1983
Did the company believe that the employee misconducted himself as alleged? , If so,
Did the company have reasonable grounds to sustain that belief? If so,
Was the penalty of dismissal proportionate to the alleged misconduct?
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.
I have applied the Noritake ltd test to the facts of the present case.
While I accept that the company believed that the employee misconducted himself as alleged .However, I do not accept that they had reasonable grounds to sustain that belief, given the unresolved conflict relating to the two witness account of the presiding incident on October 19th, the precipitous rush to judgement and the deliberative process being tainted by a continuum rather than a fresh disciplinary procedure. I was taken aback that no effort was made to seek a repayment from the complainant. The damage stood at a modest €2,500 .The respondent did not seek to mitigate this figure by a contribution from the complainant as restitution.I found this to be unreasonable .
However, I was most struck by the lack of a clear roadmap within the complainant’s procedures to cover the events as recounted in this case. The case of a sequential need by the respondent for recourse to a disciplinary procedure once one process has concluded. The respondent did not address the October 19th incident as a green field site. The letter of dismissal outlined that the company could not accept behaviour that constitutes Gross Misconduct manifesting itself on an ongoing basis .This clearly delineated a continuum approach rather a sequential arrangement separated by a two year window
I have considered the Code of Practice established under Statutory Instrument 146/2000 .In particular point No.14.
Warnings should be removed from an employee's record after a specified period and the employee advised accordingly. The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records. As already stated, it also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms.
The warning of December 2013 was truly spent by October 19, 2015. There was insufficient weighting applied to this in the respondent determinative process. I have also found that the respondent did not give sufficient weighting to the complainant’s internal representation at the Investigation or disciplinary hearing .The complainant was not provided with an adequate opportunity to make a defence due to the rush to judgement in the case.
The respondent acknowledged that they had not submitted notes of the appeal hearing.
Based on the answers to the three questions above, I find that the sanction of dismissal for gross misconduct was disproportionate having regard to all the circumstances .The dismissal was unfair.
Redress:
At the conclusion of the hearing, the respondent requested that the Adjudicator take cognisance of the Irish Pharmaceutical Union V EAT (Notice Party, Maria Dalton) [1987] ILRM 36 on the position of the respondent on redress options. The respondent opposed all options of redress, but in particular opposed the redress option submitted by the complainant, that of re-instatement.
I have reflected on both parties statements in this regard and I have considered the reasoning contained in Bank of Ireland V Reilly [2015] IEHC 241, where Justice Noonan ordered re-instatement
“….. However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked .At the end of the day, the court has to grant the remedy which will do justice between the parties.”
I have found that the complainant was unfairly dismissed. I do not find that the option of re-instatement to be a practical option in this case. There would be a requirement for a sizeable rebuilding of trust from both parties before an employment relationship of worth or viability could spring back into being. I have therefore elected to apply the redress option of re-engagement to the unique circumstances of this case to allow for this bridge building ..
I order the respondent to re-engage the complainant on his terms of conditions prevalent on the date of dismissal, November 24th 2015. The date of re-engagement to be the date of hearing of 28 September, 2016.
Patsy Doyle, Adjudicator.
Dated: 30th January 2017