Complainant

Respondent

Anonymised Parties

Driver

Food Services Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006307-001

05/08/2016

The Complainant was employed from 31^st August 2004 until the employment was terminated with notice on 21^st March 2016. The Complainant was paid €2672.00 gross per month and he worked 44 hours a week. The Complainant was provided with a written statement of his terms and conditions of employment, including the grievance and disciplinary procedures of the Company.

The Complainant referred a dispute to the Workplace Relations Commission on 5^th August 2016 alleging he had been unfairly dismissed.

The Complainant had also lodged a complaint with the Workplace Relations Commission under the Unfair Dismissals Act, 1977 – 2015, on 9^th November 2016 (ADJ 5945) and a further complaint on 16^th November 2016 (ADJ 6085) alleging he had been unfairly dismissed. These two complaints were withdrawn at the Hearing.

The Complainant was employed as a Driver for some 11 years and during that time he had never been involved in a motor traffic accident which resulted in serious bodily injuries and although involved in accidents these involved accidental damage to the truck he was driving or to stationary cars when reversing or manoeuvring the truck in tight spaces.

In 2015 the Complainant stated he was involved in a number of disciplinary hearings after which he was issued with a verbal warning, a first written warning and second and final written warning. His first written warning was issued on 9^th July 2015 in relation to his accident record comprising 4 incidents in 2014/2015. .

He was issued with a second and final written warning on 22^nd September 2015 in relation to another incident involving damage to his truck. He was then invited to attend an investigation meeting on 27^th November 2015 in relation to an alleged incident on 20^th November 2015. He was furnished with the accident report. He was invited to attend a Disciplinary Hearing with a named Manager on 10^th December 2015. The Complainant was accompanies by a colleague and he asserted that the photograph evidence of the incident does not support the contention of the Respondent that the bumper came off his truck. He was issued with a letter dated 8^th February 2016 in which he was informed that on the balance of probability that the incident of 20^th November 2015 occurred as reported by a witness to the incident. The damage to the car was €1035 and was not proportionate with his dismissal. He stated that the Respondent could have considered an alternative to his dismissal.

The Complainant stated that following his disciplinary sanction of September 2015 he had been instructed to attend three driving lessons however he had not been offered any further training before the incident of 20^th November 2015 and he was absent on sick leave from 29^th September to 29^th October 2015. He accepted it was his responsibility to arrange these lessons and he alleged he had not been given the proper or appropriate support to improve. He was dismissed withn notice.

The Complainant was afforded a right of appeal to his dismissal. He was invited to attend an Appeal Hearing on 1^st March 2016. He received confirmation by letter dated 5^th May 2016 that the decision to dismiss was upheld.

The Complainant also stated that during this period he had been issued with a verbal warning on 8^th December 2015, following a Disciplinary Hearing in relation to his absence record. These were all certified periods of sick leave.

The Respondent queried the jurisdiction to hear the complaint as the Complainant had cited an incorrect Employer on his complaint form despite all the correspondence which had issued to the Complainant citing the correct Employer.

The Respondent outlined a series of motor accidents, involving the Complainant on three separate occasions over a four month period. Following a Disciplinary Hearing on 9^th July 2015 the Complainant was issued with a First Written Warning to remain on his file for a period of 12 months. He was also informed that any further incidents would lead to disciplinary action and sanction, up to and including dismissal. He was also instructed to attend for a full driver’s assessment at the Airport School of Motoring, to be paid for by the Respondent but to be arranged in the Employee’s time. This was done by the Complainant in August 2015. The Complainant’s truck was also fitted with a reversing camera. He did appeal and the sanction was upheld.

In August 2015 the Complainant was involved in a further incident and following, investigation and Disciplinary Process he was issued with a Final Written Warning. He was also instructed to undergo three driving sessions with a designated training company and to be paid for by the Respondent but to be undertaken in his own time. This was not organised by the Complainant. He was afforded a right of appeal but he did not avail of this right.

A subsequent incident occurred on 20^th November 2015 where it was alleged he had struck a car as he was exited a gateway in a named location. An Investigation meeting took place on 27thNovember 2015 and the investigation report was issued to the Complainant on 8^th December 20215. He was invited to attend a Disciplinary Hearing. A number of meetings took place and the Complainant was informed of the outcome by letter dated 8^th February 2016. The decision was to dismiss the Complainant. The decision was appealed and the outcome was to uphold his dismissal.

The dismissal of the Complainant was conducted in strict accordance with the Disciplinary Procedures of the Company. The dismissal was both appropriate and necessary in the circumstances given that he was a professional driver operating a heavy goods vehicle while on public roads and the fact that the Complainant was on a Final Written Warning in relation to a number of serious incidents.

The Respondent queried the Adjudication Officers jurisdiction to hear the complaint given that the Complainant had cited the incorrect Employer on his Complaint Form. I have considered the issue and decide that while the Complainant did cite the incorrect Employer in his complaint form I accept this was a genuine error on the part of the Complainant.

The evidence provided by the Respondent, and not disputed by the Complainant, shows that the Complainant had been the subject of investigation, disciplinary sanction in relation to four motor accidents between April and August 2015. The evidence also shows that the Complainant was on a final written warning for a period of 12 months effective from September 2015. The evidence also was that the Complainant was required to attend a full driving assessment at the Airport School of Motoring which he did in August 2015and he was also required to attend 3 driving sessions with a designated training company following the final written warning issued in September 2015. Both Parties confirmed that these were to be paid for by the Respondent in the Complainant’s own time. Both Parries confirmed that between September 2015 and his dismissal in February 2016 the Complainant did not attend these three driving sessions.

There was another incident in November 2015 and he was invited to attend an Investigation Meeting with a named Manager on 27^th November. He was advised of his right to be accompanied by a colleague or employee representative. He was provided with an Investigation Report. The investigation involved attendance at the site of the accident with the Complainant and also an interview with a witness to the incident. The Complainant was requested to attend a Disciplinary Hearing with another named Manager on 10^th December 2015 and a further Disciplinary Hearing on 8^th January 2016 and again on 29^th January 2016. He was afforded a right of representation. He was invited to attend a Disciplinary Outcome meeting on 8^th February 2016 at which he was informed of the decision to terminate his employment. He was also informed in writing the same day. He was afforded a right of appeal. The Complainant appealed on 12^th February 2016 and the appeal hearing took place with another named Director on 1^st March 2016. Again he was afforded a right of representation. The appeal was delayed due to the absence of a party to the investigation which the Director wished to interview and the Complainant was informed of the delay. The Complainant was informed of the outcome by letter dated 5^th May 2016

I find that the investigation, disciplinary and appeals process was conducted in accordance with the Disciplinary Procedures of the Company – copy provided to the Hearing. I also find that the process was conducted with due regard to fair procedures and natural justice and in accordance with S.I. 146/2000. I Note that the Respondent paid for a Driver Assessment with the Airport School of Motoring which the Complainant did organise. However I note that following his Final Written Waring in September 2015 the Complainant was instructed to partake in 3 driving sessions again paid for by the Respondent. The evidence was that the Complainant did not attend these between September 2015 and February 2016 when he was dismissed. I also note that the Complainant was dismissed with notice and the actual date of dismissal is 21^st March 2016

In view of my Findings above I find that the Respondent applied fair procedures to the Investigation, Disciplinary and Appeals Process. In accordance with Section 13 of the Act, I do not recommend in favour of the Complainant that he was unfairly dismissed.

Dismissal – Industrial Relations