ADJ-00003772

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003772

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

Date of Adjudication Hearing: 02/02/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee 

Procedure: 

In accordance Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

Attendance at Hearing: 

Complainant’s Submission and Presentation:

Summary of Respondent’s Submission and Presentation:

Following internal investigation by the Respondent it became clear that the Complainant was driving other vehicles (without permission) in breach of Tachograph Regulations / RSA Regulations. Double Jobbing is strictly prohibited in Respondent Company rules.

The Complainant was offered the opportunity to attend an Investigative meeting on the 4^th February 2016 accompanied by a witness of his choosing. The Complainant was advised that the subject of the meeting is “Gross Misconduct”.

The Complainant refused to offer any explanations at the meeting. Full evidence was presented to the Complainant and he was afforded a full opportunity to explain and rebut all the issues raised.

After a brief adjournment the meeting is reconvened. The Complainant is then dismissed for Gross Misconduct.

An Appeal was offered but was not availed of. The Respondent followed all proper procedures and the Dismissal is fair and proper.

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.

Issues for Decision:

Did an Unfair Dismissal take place? Was SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures complied with?

Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 and SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures

Decision:

It is necessary to look at the pertinent facts as given in evidence and to reflect on SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures

The evidence (Tachograph Records) as presented by the Respondent demonstrated that the Complainant had been driving other goods vehicles belonging to other Companies in breach of Company policy and in contravention of Tachograph EU regulations.

The evidence was presented to the Hearing and was open to cross examination.

The Complainant was not able to offer any satisfactory explanations other than to state that “he had to make a living” and that the Company policy on outside work was lax and open to misinterpretation by employees. He did not deny driving the other vehicles. He maintained that the Manager, Mr. C, had “an agenda” against him. The previous disciplinary warnings were evidence of this negative agenda. The Complainant had been accompanied at the Investigative/Disciplinary meeting of the 4^th February by a friend. The only detail that seemed to be available on this person was his forename and he did not attend the Hearing. On balance I found that the Complainant’s evidence was not helpful to his case.
Mr. CA. and Mr. CX for the Respondent gave oral evidence which in conjunction with extensive written evidence I found to be professional and well founded. The absolute emphasis that the Respondent placed on strict compliance with the EU and Tachograph Driving Regulations was repeatedly emphasised as were the requirements of the Respondents insurers in this regard.

The Respondent had well documented Road Driving and Employment procedures. Full evidence in this regard (with Complainant signatures) was presented.

Minutes of meetings were presented and were open to cross examination by the Complainant’s legal Representative. Good evidence was presented of proper Notification procedures to the Complainant for meetings and the key meeting of the 4^th February had been rescheduled to facilitate the Complainant. Opportunities to have a Representative or a Friend present were clearly afforded and notified in advance of meetings. One of the reasons advanced for the difficulty in scheduling the 4^th February meeting was difficulties in getting the friend of the Complainant to find the time to attend.

It was never satisfactorily explained by the Complainant why he had effectively made no comment at the Investigative meeting and had declined to make a formal Appeal against his dismissal.

In terms of procedures and Si 146 of 2000 the “Investigative” meeting of the 4^th February that after a 15 minute adjournment reconvened as a “Disciplinary” meeting was not helpful to the Respondent’s case. A more prolonged adjournment to another day might well have been better. However the diary difficulties of the Complainant in getting to the first meeting and the equal attendance difficulties of the “Accompanying Friend” could possible offer some Respondent mitigation here.

The failure of the Complainant to avail of the internal Appeal procedures was unexplained which when taken with the effective non participation in the meetings of the 4^th February 2016 was most unhelpful to his case.

Evidence was also presented in a closing remark by the Respondent (but which was open to cross examination by the Complainant’s legal representative) that the Complainant was closely involved with a Complainant’s family owned Freight company at this time. This could possibly have explained some of his actions regarding the 4^th February meeting and his failure to appeal.

In overall conclusion it is important to note ,however, that the Respondent , while otherwise having good procedures, did not help his case with the procedural handling of the meeting of the 4^th February 2016 but I was prepared to allow some leeway here in the light of the overall weight of the evidence against the Complainant, his non participation in the meeting and his failure to Appeal.

On overall balance and on the basis of the evidence presented both orally and in writing I found that the claim for Unfair Dismissal fails. 

Dated:   03 May 2017