ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00006035
Parties:
| Complainant | Respondent |
Anonymised Parties | Complainant | Motor Trade |
Complaint:
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-00008313-001 | 22/11/2016 |
Venue: Ardboyne Hotel, Navan, Co. Meath.
Date of Adjudication Hearing: 21/09/2017
Workplace Relations Commission Adjudication Officer: John Walsh
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 as a vehicle inspector from the 1st of October 2007 to the 2nd of June 2016. He alleges that he was unfairly dismissed by the Respondent contrary to the terms of the Unfair Dismissals Act, 1977. He filed a complaint with the Workplace Relations Commission on the 22nd of November 2016. |
Summary of Respondent’s Case:
On the 18th of January 2016, the Respondent received a complaint from an independent vehicle repair business through the Respondent’s e-mail integrity line. The complaint related to the fact that he had been asked to examine a vehicle that a member of the public had purchased the day before and which had been tested by the Complainant at the test centre on the 15th of January 2016 and re-tested at the same test centre on the next day. In his opinion. “both the front lower ball joints had excessive play especially the near side which had an extreme amount of play to the point that I would consider the car to be unroadworthy.” He had contacted the Respondent to enquire whether the NCT certificate was genuine and expressed concern that that “vehicle was passed when it should not even have been allowed to leave the test centre.” On the foot of this complaint the Respondent immediately started an investigation and requested the vehicle owner for permission to examine the vehicle. Mr T.M. auditor, remained the vehicle on the 21st of January 2016 and he provided the Respondent with his report dated the 22nd of January 2016. Mr. M concluded that the “2 front ball joints were badly work, there was an oil leak, the exhaust pipe was broken and a rear brake pipe was corroded” with the ball joints “showing a large amount of lateral movement at the road wheel” and these should have caused a fail of the test three days earlier. Mr. M also considered the vehicles previous test results and noted that after a test on the 31st of July 2015, the vehicle had failed because of suspension and mileage was noted as being 199,641, whereas it had been noted as 137,446 during the test 3 days earlier. By letter dated the 11th of February 2016, Mr. McH wrote to the Complainant outlining his concerns and enclosing the VIR test report, the complaint from the independent garage owner and the internal auditor documents and report. The Complainant was interviewed on the 19th of February 2016 during which Mr. J McH put the test issues to him. The Complainant claimed that he remembered the specific vehicle and denied that there was any connection between him and the vehicle presenter or that he had any prior association with the vehicle. By letter dated the 1st of March 2016, Mr.McH provided the Complainant with the notes of the meeting. By letter dated the 4th of April 2016, Mr.McH informed the Complainant that he conducted further investigations on foot of the first meeting and deemed it appropriate to convene meetings with two other members of staff on the 24th of March 2016 and on the 30th of March 2016 respectively and a second investigation meeting with the Complainant on the 8th of April 2016. On the 3rd of May 2016, mr.MH further called to the independent repairer, Mr. L to confirm details of his complaint. The issues discussed at this subsequent meeting included the assignment of 8 vehicles (including the subject matter vehicle) to the Complainant in breach of company procedures. However the Respondent chose not to proceed further in relation to these issues. At the second investigation meeting, the Complainant denied that he had anything to do with the vehicle or the garage owner. By letter dated the 3rd of May 2016, Mr. McH wrote to the Complianant and informed him that the investigation had concluded and that the file was being passed to Mr. M.S. in order to assess whether any disciplinary sanction was necessary. By letter dated the 4th of May 2016, Mr. S wrote to the Complainant and convened a disciplinary meeting, which was rescheduled to the 26th of May 2016. The disciplinary meeting proceeded on the 26th of May 2016. The Complainant denied that the ball joints on the vehicle were worn and in fact there “were brand new shocks on the vehicle”. It must be noted that the Complainant actually confirmed checking the ball joints and noting that they were apparently not defective at that stage. Mr. S put it to him that “yet within three days it was proven different and prior to inspection also”. Mr. S concluded the meeting and wrote to Ms. E.B, HR manager by e-mail dated 31st of May 2016, in which he concluded that the content of the complaint was confirmed by the internal auditor and that he had, “…confirmed with TG that such defects are obvious to the inspector, unlikely to be concealable by the presented and represent a serious roadworthiness concern and on this basis it is my decision that Mr. W’s contract of employment be terminated in light of his negligence in carrying out the test.” He further stated; “It should be noted that the vehicle in question saw a reduction in its odometer reading of over 60,000 miles between the test carried out in September versus the test carried out by Mr. W in January and that the vehicle had recently changed ownership with the purchaser of the vehicle of the belief that the vehicle was a good purchase on the basis of the recently passing NCT. It appears that the seller of the vehicle provided an inaccurate address to the purchaser.” By letter dated the 2nd of January 2016, Mr. S wrote to the Complainant and he explained his decision; “I wish to advise you that unfortunately it is my decision to terminate your contract of employment with the company with effect from the 30th of June 2016 (4 weeks notice) in light of your failure to identify the serious defects on the above mentioned vehicle on the 15th of January 2016. Your failure to identify the serious defects on this vehicle is regarded as nothing other than negligence by the company.” The Complainant appealed the decision to dismiss him but this decision was upheld on appeal. This Disciplinary Procedure is clear in its terms and the Respondent was permitted to dismiss the Complainant given the fact that if it is accepted that the vehicle had the same ball joints in situ during the test and then during the independent garage owner’s test and the Respondent’s internal auditor test, then the vehicle was passed by the Complainant on ball joints when it was patently dangerous and negligent to do so. It should be noted that the Complainant states in the WRC Complaint Form that he believes that the vehicle presented to him had good ball joints in place. He also stated in his investigation meetings that he remembered the specific vehicle and that it had brand new joints in place. If this were correct, and given the fact that the vehicle was tested on 15th January 2016, re-tested on 16th January 2016, sold to the new owner on 17th January 2016 and tested by the independent garage owner on 18th January 2016, the Complainant is contending that the seller of the vehicle took out the ball joints from the vehicle, replaced them with brand new ones and then took these out again within 24 hours before selling the vehicle on with newly-installed defective ball joints. It is respectfully submitted that this is entirely implausible. It should be borne in mind that the vehicle was a 2004 BMW 3-series with in excess of 100,000 miles. Without prejudice to the Company’s contention that the dismissal was not unfair it is respectfully submitted that the sanction was proportionate in the circumstances of the case where the safety and / or integrity of the Company’s testing services test could be seriously undermined. It should be noted that the Complainant had a live Final Written Warning on his personnel file at the time of the dismissal. |
Summary of Complainant’s Case:
The following is a summary of the Complainant’s submission: The employer stated that the termination of his employment was due to a failure to identify defects during a test. It was stated that he allowed a vehicle to pass a test with faulty ball joints in the front suspension on the 15th January 2016. Subsequently, the vehicle was sold on the 18th January 2016 and a complaint was made shortly thereafter. The vehicle was inspected by a company internal auditor on 22nd 2016. The Disciplinary Process commenced on 11th February 2016. He was dismissed from his employment and the decision on termination of his contract was unsuccessfully appealed. It is his view that the vehicle was definitely tampered with because the mileage was approx. 137,400 at the test on the 22nd January 2016 and on the previous text on the 10th September 2015 the mileage reading was 199,961. Therefore, it is highly possible and highly likely that the ball joints were tampered and were swapped back after the test. It is common practice that cars are sometimes prepped for the test and later returned to their original poor condition. Therefore, having regard to all the circumstances there was no substantial ground justifying the dismissal and he believes that the dismissal was unfair. |
Findings and Conclusions:
The vehicle was tested by the Complainant on the 15th January 2016. It was re-tested again on the 16th January 2016. It was sold to the new owner on the 17th January 2016 and tested by an independent garage on the 18th January 2016. I do not accept the explanation provided by the Complainant that the vehicle presented to him on the 15th January 2016 had good new ball joints in it and that the most likely explanation was that the seller of the vehicle took out the worn ball joints from the vehicle, replaced with brand new ball joints and took them out again within 24 hours before selling the vehicle with newly installed defective ball joints. This explanation is implausible. |
Recommendation:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a recommendation in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Based on the evidence presented at the hearing and on the balance of probability I recommend that he complaint is not well-founded and therefore fails. |
Dated: 21st November 2017
Workplace Relations Commission Adjudication Officer: John Walsh
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