Complainant

Respondent

Anonymised Parties

HGV Driver

Fuel Supplier

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-00011612-001

29/05/2017

The complainant was employed by the respondent as driver of a fuel tanker making deliveries to the premises of customers. The complainant commenced employment in September 2015 on a full-time basis with gross pay of €930.00 per week.   The complainant’s employment was terminated on 6 December 2016 following an investigation and disciplinary process arising from a fuel spillage during a delivery conducted by the complainant.

There was a spillage of fuel during a delivery which the customer concerned did not want to be reported.

The complainant advised his line manager of these events and the manager agreed that the spillage should not be reported.

Some weeks later the company began an investigation into reports of a spillage. The line manager was appointed to investigate the matter and instructed the complainant not to involve him (the manager) and advised the complainant on what to say. The line manager also told the complainant that he would receive a “slap on the wrist”.

A disciplinary hearing followed and the complainant acted as instructed. The decision of that hearing was that the complainant be dismissed with immediate effect.

The complainant appealed this decision to the CEO but the dismissal was upheld. Following this the complainant arranged a meeting with the CEO and advised him of the true facts of the case.

The Group HR Manager carried out an investigation but accepted the position of the line manager that he was not informed of the spillage by the complainant.

There was a serious fuel spillage during a delivery effected by the complainant on 7 October 2016. It was not reported but a few weeks later the respondent was advised that fuel had polluted a local river and that the respondent appeared to be responsible for this occurrence.

The complainant’s line manager was tasked with investigating the matter and resulting from this advised that the complainant was aware of the spill but had agreed to the customer’s request not to report same.

A disciplinary hearing was arranged and it was conducted by the respondent’s Financial Controller.   During this hearing the complainant admitted that he was aware of his duty to report the spillage but did not do so. Because of the seriousness of the offence the decision was to dismiss the complainant.

The complainant appealed this decision to the respondent’s CEO. At that hearing the complainant did not dispute facts but appealed against the severity of the sanction. The appeal was rejected on the grounds of breach of trust and confidence.

After the appeal the complainant requested a meeting with the CEO and at that meeting stated that he had in fact informed his line manager of the spillage but was told to adhere to the customer’s request not to report it. Because of the seriousness of the matter the CEO asked the Group HR Manager to investigate the matter. Following a number of interviews, the HR Manager did not uphold the allegation that the complainant had informed his line manager of the spillage.

In seeking to rely on this allegation the complainant is introducing a matter that was not mentioned at any stage during the investigation / disciplinary process.   This cannot undermine or invalidate the decision to dismiss.

The complainant was employed as a driver of a fuel tanker and was involved in delivering oil to the respondent’s customers. On 7 October 2016 the complainant was making a delivery to a particular customer when a significant spillage occurred. The customer requested that the spillage not be reported. The respondent had in place protocols for employees in dealing with deliveries / spillages. A couple of weeks later word reached the respondent that there had been a spillage and that the premises of the customer was identified as being the source of that spillage. The complainant’s line manager was tasked with investigating the matter and in his report stated that the complainant had originally denied being aware of the spillage but later had admitted that there had been a spillage and that he had not reported it at the request of the customer.   It would appear that the spillage was mainly due to incorrect instructions from the customer regarding the amount of fuel to be delivered to each of three tanks on his premises but that a contributory factor was that the complainant did not have a clear line of sight to the tank concerned at the moment of overflow. It was estimated that the spillage was in excess of 1,000 litres but the customer paid for the entire delivery including the spillage.   The investigation included an interview conducted by the line manager with the complainant in the presence of a notetaker the minutes of which were appended to the report.

Following on from this the complainant was instructed to attend a disciplinary meeting to be held on 22 November 2016 and was furnished with all relevant documentation in this regard. He was advised of his right to be accompanied to the meeting but declined.   The meeting was conducted by the respondent’s Financial Controller. The outcome of the hearing was conveyed to the complainant by letter dated 6 December 2016 and the decision was dismissal with immediate effect. In reaching this decision it appears that particular emphasis was laid on the issue that the complainant had lied to his line manager when first asked about the matter.  The complainant was advised of his right to appeal this decision and availed of that right and the right to be accompanied by a work colleague.   The appeal was heard by the respondent’s Managing Director who upheld the decision to dismiss and in doing so emphasised the concern in relation to the complainant lying to his line manager.

Some days later the complainant contacted the Managing Director and requested a meeting to discuss a confidential matter. That meeting took place on 5 January 2017 and the complainant advised that he had not been entirely truthful during the disciplinary process insofar as he now stated that he had informed his line manager about the spillage about 2 days after the occurrence and that in the course of that conversation the line manager had agreed that he should act as agreed with the customer. The Managing Director decided to have this matter investigated by a Group HR Manager who, as part of this process, interviewed both the complainant and the line manager. The line manager denied having any conversation in relation to the spillage. The complainant, as well as stating that the conversation had occurred, further alleged that he had not disclosed this during the disciplinary process as he was advised by the line manager to stick with his story and everything would be all right. The HR Manager concluded that, on the balance of probabilities, the complainant’s allegations could not be upheld.

On the day of the first hearing the representative for the respondent, in outlining the case, referred to the fact that the complainant had been in contact a few days previously to advise that he had now managed to retrieve a recording of the alleged phone call between himself (the complainant) and his line manager that occurred a couple of days after the spillage and which confirmed his allegation that he had informed the manager regarding the spill and that the manager had agreed that the matter not be reported. The representative sought an adjournment because of the potentially serious nature of this allegation and the requirement to verify the material handed over by the complainant. The request for an adjournment was granted and the complainant subsequently forwarded the copy of the recording and transcript to the WRC.

At the resumed hearing the representative advised that the line manager who had carried out the investigation and the Managing Director who had dismissed the complainant were no longer employed by the respondent and were not present to give evidence.    

Section 6(1) of the Unfair Dismissals Act, 1977, states:

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.

The onus therefore is on the respondent to prove that there were substantial grounds justifying the decision to dismiss. The main witnesses generally are those that were involved in the investigatory / disciplinary process. Not only do they provide direct evidence of the procedures used in these processes but they are available to be cross examined by the complainant in respect of that evidence. I cannot agree with the argument of the respondent’s representative that the events that form the background to this case are not in dispute and therefore can be accepted as facts. This would appear to remove the onus that is specifically placed by law on the employer to prove their case. There are other questions which only the person directly concerned in the dismissal can answer such as the reason why they chose the ultimate sanction of dismissal over the other disciplinary sanctions available to them. In addition, it is clear in this case that the bona fides of the investigation carried out by the line manager is in question and that elements of his report very much influenced the decision to dismiss. The necessity of the availability of that person to give evidence and to be questioned on same is obvious. In the circumstances I do not accept that the respondent has discharged the onus of proof placed upon them.

Section 7(2) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard may be had to –

(a)    the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct on or on behalf of the employer,

(b)    the extent (if any) to which the said financial loss was attributable to an action, omission or conduct on behalf of the employee…

The one witness that gave evidence on behalf of the respondent was the Group HR Manager who conducted an investigation into aspects of the issue when requested to do so by the respondent’s Managing Director after the disciplinary / appeal process was concluded.   As part of that investigation she interviewed both the complainant and the line manager. The complainant at that stage told her about the spillage, the reporting of same to the line manager, the agreement that it not be formally reported and the withholding of this information at both the disciplinary and appeal hearings. There is therefore evidence of the complainant’s actions and conduct with regard to the issue which led to his dismissal. The consequences of a serious fuel spillage should be obvious to everyone, particularly a trained delivery driver. I fail to understand why the complainant agreed to the request of the customer not to report same, particularly in view of the fact that the customer accepted that he had given wrong instructions regarding the amount of fuel to be delivered to each tank. The subsequent withholding of information at the disciplinary and appeals hearings, albeit through some misplaced sense of loyalty, cannot be condoned either. I accept that the complainant operated on the basis that once he had given his word he would not break it but there were more important principles involved in this matter. I have no doubt therefore that the complainant by his conduct contributed significantly to his dismissal.

I note that the complainant was unemployed for a few weeks before getting part-time employment and finally being employed full-time but on a lesser wage.

I find, for the reasons outlined above, that the respondent has failed to discharge the onus of proof that led to the decision to dismiss and that consequently the complainant was unfairly dismissed under the Unfair Dismissals Acts, 1977 – 2015.   I further find that by his conduct the complainant contributed significantly to his dismissal. I therefore order the respondent to pay to the complainant the sum of €3,750.00 as compensation in this regard.