ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004347

Complaints for Resolution:

Date of Adjudication Hearing: 01/02/2017          

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

The Complaint CA-00006263-002 was withdrawn at the Hearing

Procedure:

In accordance with Section8 (1B) of the Unfair Dismissals Act, 1977 and 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.

Background

The Complainant was employed in Bus Maintenance from 28^th September 2008 until the employment was terminated with notice on 29^th June 2016. The Complainant was paid €600.00 gross per week and he worked 40 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 complaint to the Workplace Relations Commission on 4^th August 2016 alleging he had been unfairly dismissed. The dismissal was not disputed.

Summary of Respondent’s Position.

The Complainant was employed as an Engineering Operative in a named Depot of the Company. He was dismissed for driving without a Driving Licence. He was charged with Gross Misconduct in that he had infringed the Company’s rules by not informing the Company that he had been disqualified from driving in December 2013 for a period of 2 years and he had been disqualified again in February 2016 for four years. During this second period when he was disqualified he was caught driving and the matter came to the attention of the Company when the Complainant appeared in Court in February 2016 and the matter appeared in newspapers. The Complainant did not advice the Company of either event.

An Investigation Meeting was conducted on 13^th May 2016, following which he was suspended, with pay, The Complainant was issued with a Form A informing him he was charged with gross misconduct in that he had failed to inform the Company he had been disqualified in December 2013 and again in February 2016 and that he had failed to maintain a valid driving licence in breach of Company rules. He was informed that in accordance with the Disciplinary Procedure he had a right to call witnesses and to be accompanied. The Complainant responded on 24^th May 2016 stating as follows: “I write to accept the charges of gross misconduct in that I have failed to inform the Company of any of its officers of my disqualification from driving”.

The Complainant was informed by letter dated 31^st May 2016 as follows: “As from 1^st June 2016 you are hereby given 7 days’ notice of termination of your employment”. The Complainant was afforded a right of appeal. Siptu appealed the termination of employment on behalf of the Complainant on the grounds that “it is an excessive punishment”. The Appeal was scheduled for 28^th June 2016. The outcome was to uphold the dismissal. The Complainant also made a mercy appeal to the Chief Executive of the Company which was disallowed.

Summary of Complainant’s Position.

On 13^th May 2016 the Complainant and his Union Representative were called into a meeting with the Engineering Manager in relation to newspaper article in a named newspaper published on the 27^th April 2016. The Complainant confirmed the article was about him and that he had been disqualified from driving. He also explained that he had been disqualified from driving for 2 years in December 2013 and had been disqualified from driving for 4 years in February 2016. The Complainant apologised for not informing the Company on both occasions. He was worried he would lose his job. He was placed on suspension.

He received a Form A charging him with gross misconduct and the Complainant confirmed his acceptance of the charges. H received a letter on 31^st May 2016 dismissing him with 7 days’ notice. He was afforded a right of appeal which SIPTU did on his behalf on grounds of severity of the sanction. The Decision of the Appeals Board was to uphold his dismissal. He did make an Ad-Misericordiam Appeal to the CEO which was held on 6^th July 2016 which disallowed the appeal.

SIPTU argued that the sanction was disproportionate and that it was open to the Company to impose a lesser sanction for an employee in such good standing.

The Complainant stated that he has not worked since his dismissal but is in full-time education since September 2016.

Findings

I was provided with a copy of the Disciplinary Procedures of the Company. The evidence from both Parties was that the Respondent applied the agreed Procedures to the investigation, Disciplinary and Appeals process.

Point 13 of the Terms of Employment of Engineering Operatives states as follows: - “Category D Licence Holders who fail to maintain a valid driving licence will be in breach of the Company’s regulations. This breach will be treated as grave misconduct and will entail disciplinary procedures which could result in dismissal”.

The Complainant was charged that on two occasions, once in December 2013 he was disqualified from driving for two years and again in February 2016 he was disqualified from driving for a period of 4 years.

I note the submission of SIPTU, on behalf of the Complainant that “it is not a contractual requirement that the claimant hold a valid driving licence”. However this is not supported by Point 13 of the Terms of Employment of an Engineering Operative, in which Category the Complainant was employed.

I also note the submission of the Respondent that as an Engineering Operative he could be required to drive a Bus between Garages and this was not disputed by the Complainant or his Representative.

Decision. CA.00006263 - 001 - Unfair Dismissals Act, 1977

On the basis of the evidence and my Findings above and in accordance with Section 8 (1(c) of the Unfair Dismissals Act, 1977 I declare this complaint is not well founded.

Payment of Wages Act, 1991 – CA-00006263-002

This complaint was withdrawn at the Hearing.

Rosaleen Glackin

Adjudication Officer

Date: 2^nd May 2017 __