Complainant

Respondent

Anonymised Parties

Delivery driver

Transport of goods and warehouse provider.

Representatives

SIPTU

Respondent representatives

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-00010898-001

20/04/2017

Background;

Complainant commenced employment with the respondent on 10/6/2014 as a delivery driver.

He was an experienced driver, committed to his job. His gross weekly pay was €490. He worked 39 hours per week

He had received a final written warning from the respondent on 23 November 2016.

He was called to an investigation meeting on 18/1/17 regarding an incident which had occurred on 9/1/17. He was dismissed following a disciplinary meeting on the 3/2/17. He lodged an appeal and attended a meeting to submit his appeal on 28/2/17. His appeal against the dismissal was not upheld

He submitted his complaint to the WRC on 20/4/17.

He is seeking reinstatement.

The complainant’s evidence concerning the incident of the 9/1/17 which was the event leading to his dismissal was that he and a colleague had gone to a hotel to deliver the kegs. En route his colleague telephoned the hotel to announce their delivery. They waited for someone to come out and sign the delivery docket. While waiting, the complainant noticed a good bike in the skip. His colleague climbed into the skip to remove the bike while the complainant stood on an empty keg at the back of the skip and lifted the bike out with his colleague’s assistance. He left the bike alongside the skip, clearly visible. Then they left the hotel premises. Sometime later the kegs were stolen.

The complainant was summoned to attend an investigation meeting by the respondent’s transport manager on 18/2/18. He was asked to address the following charges arising from the incident that occurred on 9/1/17.

1) He failed to obtain a signature from a hotel on delivering goods.

2)He breached health and safety regulations by standing on an empty keg to gain access to a skip at the respondent customer.

3) He willingly engaged in activities that were not part of his duties while delivering kegs

The complainant was shown CCTV footage which the respondent had received from the hotel. He states that he did not give his consent to the hotel to produce this CCTV footage nor to the respondent to use the footage., The complainant was not provided with a copy of the complaint reported to have come from the hotel to the respondent concerning his activities. The respondent’s transport manager advised at this investigative meeting that a person from the hotel had stated “x crew did not look for a signature and they had no authorisation to interfere with the skip”.

On 27/1/17 the transport manager delivered the outcome of the investigation meeting to the complainant in which he re-iterated the 3 charges put to him at the meeting on the 18/1/17 and added a further matter – that the complainant’s actions had brought the respondent into disrepute. He further advised that these actions amounted to gross misconduct. The complainant was suspended with pay and advises that no rationale was provided for this suspension.

On the 2/2/17 the complainant’s wife wrote expressing regret about the incident and asking for leniency.

The complainant was summoned to a disciplinary hearingon 3/2/17. The meeting was chaired by the respondent group HR manager. He was not provided with a copy of the complaint submitted by the hotel to the respondent. At this meeting, he advised the respondent that his wife was 6 months pregnant with their first child, that his tenancy was insecure – the landlord wished to reclaim the property for his own use, they were seeking a mortgage and that anything that endangered his income would be disastrous for them.

On 7/2/17 the respondent’s group HR wrote to the complainant stating that the charges were sufficiently serious to merit the termination of his employment given the previous warnings, one of which was still live. His employment was terminated and he was given 2 weeks’ notice.

The complainant appealed the decision at an appeal meeting, chaired by the MD beverages held on 28/2/17. By this stage the complainant had submitted an apology for his behaviour on the 9/1/17 and advised of his regret that the kegs had been stolen

The MD beverages did not uphold the complainant’s appeal and in a letter dated 9/3/17 advised that because of health and safety breaches and because he had had 2 previous warnings, one of which was live, his dismissal was warranted.

The complainant’s representative addressed the respondent’s stated cause of dismissal. He stated that the warnings previously issued to the complainant were unconnected with the issue driving his dismissal viz health and safety issues or bringing the company into disrepute. The complainant had not offended in relation to how he engaged verbally with the public or customers- the subject matter of the previous warning.

Charges

He was never instructed that he should not stand on the kegs. The complainant stated at the disciplinary hearing and at the adjudication hearing that it was common practice to stand on these containers. The second charge that he failed to collect signatures on delivery of goods to respondent’s customer was something that frequently happened also. Witness x stated that it is common practice to ring in advance to announce your deliver of goods and not to collect a signature. It is not mandatory. Both assertions were corroborated by a union representative and a colleague witness   at the adjudication hearing.

The complainant’s representative asked that the dismissal to be deemed to be unfair as

A. The complainant was not provided with a copy of the complaint which the hotel submitted to the respondent company; he did not know its content or the author of the complaint. He has made an FOI request

B. The complainant’s representative relied on SI 146 of 2000 which states

‘general principles of natural justice and fair procedure…. May require that the allegations or complaints be set out in writing and that the source of the allegations or complaint be given”

In addition the complainant’s representative relied on Frizelle v New Ross Credit Union Ltd.,(1977) IEHC 137 the High Court (Flood J) said that complaints should be set out “factually, clearly and fairly without any innuendo or hidden inference or conclusion”

C. The complainant’s representative stated that the respondent did not produce any evidence of how the complainant had brought the company into disrepute. The charge of bringing the company into disrepute was not identified as a cause of dismissal prior to investigative meeting of 19/1/17    nor was he invited to comment on same.

D. Another colleague who engaged in same behaviour which led to complainant’s dismissal received a final written warning and not dismissal.

E. The complainant did not give his permission to the hotel to send CCTV footage of him to the respondent nor to the respondent to use the footage. The complainant’s representative argued that a breach of Data protection had occurred in that the Disciplinary Procedure does not state that you can use CCTV footage. The complainant’s representative put forward the view that this rendered the proceedings and final decision flawed.

The dismissal was unwarranted and a disproportionate sanction.

The complainant has attended a Solas provided course designed for a job in toolmaking from August to November 2017. He has secured two weeks work experience with a trade union.

The respondent’s case is that the complainant was assigned to deliver kegs to one of the respondent’s customer’s on 9/1/17 in accordance with the normal procedures. These included obtaining the customer’s signature confirming delivery.

What is not disputed is that the complainant delivered the kegs to the assigned premises, did not collect the signature as the respondent required, stood on what the respondent allege is an unstable keg hardly capable of sustaining his weight, thus endangering himself and furthermore undertook an unauthorized exploration of a skip, the removal of a bicycle from same – an action which was outside of his duties. It is accepted that he did not take the cycle for his own use.

The complainant should have delivered the keg, collected signature confirming delivery and left.

None of the actions for which he was dismissed were in dispute. The kegs for which he obtained no

signature were later stolen from the hotel grounds.

The complainant had received a written warning on 21/4/16, a final written warning on 23/11/2016, live until August 2017, for pursuing a member of the public while at work in the mistaken view that this person had wrongly taken his phone, and for unprofessional exchanges with a customer.     He did not appeal this sanction.

A disciplinary process was activated in January 2017 due to the complainant

1.Failing to collect a signature upon delivery of goods to a customer,

2. “Breaching health and safety to gain access to a skip” (letter of 18/1/17 refers)

3. Having engaged in unauthorized actions which were not part of his duties.

An investigative meeting as per the disciplinary procedure –was held on 19/1/17. Each stage of the disciplinary procedure was implemented correctly. He appealed the decision to dismiss. The respondent rejected his appeal because of the breach of health and safety, his bringing of the company into disrepute and a live, final written warning on his file. They were further fortified in their decision because of their belief that he had failed to learn from the previous warnings.

The respondent stated that no objection to the CCTV footage had been submitted during the disciplinary process.

The respondent states that It is self-evident that standing on a keg is a dangerous and risky act irrespective of whether it is included in the Health and Safety policy. No policy could legislate for all of the potential actions of an employee.

The respondent stated that they must demonstrate that they are capable of doing a job professionally. To do otherwise could endanger their contracts with the company. It was the hotel, the customer, who rang the client on whose behalf the respondent was delivering the kegs. That client then telephoned the respondent.

The respondent stated that they cannot be guided by his family circumstances.

The respondent’s kegs director gave evidence that the instruction to delivery drivers in the Leinster area was to get a signature on delivery if someone was available and if not, to forego the signatures. He stated that the complainant would have received training on this matter on initial training. Training was also delivered on dealing with kegs.

Overall the respondent requested that the adjudicator should dismiss the complaint that the complainant was unfairly dismissed.

The Act

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

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

Neither the dismissal or the facts leading to the dismissal are in dispute.

Two questions should inform my decision:

1.Were the “substantial grounds” required by the Act manifested in the conduct of the complainant and

2. If so did they warrant this dismissal?

1.Substantial grounds justifying dismissal.

Grounds for dismissing the complainant in the within case were:

Failure to collect signature from the customer.

The delivery sheet copy of which was provided does include a box for the customer’s signature but the evidence of a witness for the complainant, by the complainant and by a witness for the respondent is that while this is required, instances of non- compliance with this rule have occurred. The respondent did state that hotel staff came out after the complainant had left. The evidence of the kegs director is that it is if nobody is available to sign, the delivery driver can forego this. The absence of certainty about the universal requirement to obtain a signature and evidence of occasional non- compliance across the company with same raises a question as to whether this is of significant substance to meet the requirement set out in section 6(1) of the Act that the grounds for dismissal must be “substantial”.

Standing on a keg as a breach of health and safety.

The respondent submitted their risk assessment sheet and retail delivery operations sheet after the hearing and it sets out the care which must be taken when collecting and delivering kegs. It does not appear to prohibit standing on a keg. Evidence was given by the local union representative that delivery personnel often stood on kegs. The kegs director stated that this would be while they were stabilised in the truck.

Again risky, potentially a breach of an undisclosed health and safety policy, wasteful of company time and unauthorised as it was, I do not believe it reaches the standard of a substantial ground.

Bringing the company into disrepute.

The actions were clearly those of a company employee. I accept that it does not reflect well upon the company, but this is one employee and a judgement on the quality of the respondent’s service is unlikely to be finalised on the basis of one foolish, child-like act for which a sanction was applied. The company did not advise of any contracts lost or any other losses arising from the complainant’s actions.

Previous warnings and failure to give due regard to same.

It is difficult to dispute this or at least the degree to which regard was paid to the warnings

Stage 4 of the respondent’s disciplinary procedure states that   where an employee (in receipt of a final written warning) has failed to make the required improvement or gross misconduct has occurred, the employee may be dismissed. The interval is 2 months. No incident with the public has occurred since then. The respondent did not describe his actions as gross misconduct. The lesser sanction of unpaid suspension was available to the respondent in stage 4 of their disciplinary procedure...

In the decision of Employee v an Employer, UD 2196/2011, where the employee spat at a customer in response to a racial slur, the EAT decided the conduct complained of having regard to all of the circumstances did not amount to “gross misconduct” and declared that

“the tribunal should decide whether the penalty of dismissal is proportionate to the offence. The doctrine of proportionality is now well established     in Irish law since Cox V Ireland (1992 2 I.R and Heaney v Ireland (1994 3 1.R 593) I.R. 50 and elaborated in other cases since then”. They also stated that the adjective “substantial”, contained in section 6(1) of the Act, requires that the matter relied on to dismiss “should be a matter of substance rather than form, and should be a matter of gravity”’. They found she was unfairly dismissed.

The Labour Court in Determination UDD 1623 concluded

“ …the Court is of the view that the sanction of dismissal would have been wholly disproportionate even had the allegations actually raised against the complainant been upheld in a fair and objective disciplinary process. It follows that such a sanction is without justification having regard to the Court’s findings in relation to the manifestly unfair manner in which the disciplinary issues emerged and were treated with in this case.”

The issues raised in this case included alleged breach of time and attendance policy, continuous insubordination, abusive language and defamatory tone. What is noteworthy here is that even had the allegations been upheld they would not have been assessed as being of sufficient substance to warrant dismissal.

The above cases deal with either examples of a breach of trust or conflictual or oppositional relationships with the employer, or failure to comply with policies-, yet none of these behaviours were seen as deserving of the characterisation of gross misconduct meriting dismissal.

2.Did the conduct complained of merit dismissal ; proportionality of sanction

The guiding principles informing a decision as to whether misconduct occurred and whether dismissal should follow on foot of misconduct were set out in several decisions. The High Court in Samuel J Frizelle v New Ross Credit Union Ltd, IEHC 137, stated that

“where unfair dismissal is in issue, certain premises must be established to support the decision to terminate the employment for misconduct”. One such premise is cited thus:

“the actual decision as to whether a dismissal should follow misconduct should be a decision proportionate to the gravity of the complaint and of the gravity and effect of dismissal on the employee. Put very simply principles of natural justice must apply”.

This case involved a credit union manager who re-phased his mortgage repayments without the authority of the lender, his employer. He told no one in authority. He was found to have been unfairly dismissed due to a procedural flaws and grounds of insufficient substance.

In Governor and Company of Bank of Ireland v James Reilly, (2015) IEHC 241, Noonan J. stated

“The court cannot substitute its own judgement on the reasonableness of dismissal for that of the employer; the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

The employee in that case was found to have been unfairly dismissed in circumstances where in circulating what was termed pornographic, indecent material he breached the email policy. Others engaged in the same activity were not dismissed.

Section 5 of the 1993 Act   allows for an examination of the

“reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.” This has been interpreted as a requirement for decisions to be in line with constitutional principles, natural justice and fair procedures which includes the requirement for proportionality.

Alleged flaws in the disciplinary process

Though not provided with a copy of the complaint submitted by the hotel to the respondent, this complaint was relayed to the complainant by the respondent and he did not dispute the facts. He was therefore not prevented from answering the charge. The charge of bringing the company into disrepute was put to the complainant after the investigative meeting so he was on notice that this was complaint to be defended

Decision to dismiss within the band of reasonableness?

The proportionality of the sanction of dismissal was considered in Sadowska v Players Leisure Ltd.t/a/ Players Leisure Ltd., UD 1658/2013.In that case the employee had received a final written warning for photographing rosters and cash sheets in the respondent’s office and now faced the charge of taking €20 from the respondent’s till, an action in breach of company policies and procedures. She advised the respondent a few days later. The Eat found the dismissal to be unfair as the employer had failed to consider a lesser sanction and the employee had worked with the respondent for a period of 7 seven years.

The respondent believed that the complainant in the within case misconducted himself. There were reasonable grounds to sustain that belief. Was the action proportionate to the alleged misconduct? The complainant’s conduct was foolish, ill-judged and wasteful of company time and not in keeping with the respondent’s procedures and valid expectations. It was conduct which merited a sanction. The lesser sanction of suspension without pay for a longer period than previously applied was available to the respondent. The complainant had expressed regret over what had happened

Based on the reasons cited above, I decide that the decision to dismiss was not within the band of reasonableness required of an employer. The sanction of dismissal was disproportionate to the gravity of the conduct complained of. Therefore, he was unfairly dismissed.

Remedy.

His preferred remedy is reinstatement. Given the attitude of the parties, I do not consider this to be feasible.

Loss

The complainant gave evidence that he had not applied for any jobs. He therefore failed to mitigate his loss. He did pursue a training course.

The complainant’s actions contributed to a very significant degree to his dismissal.

I find that the complainant was unfairly dismissed contrary to section 6(1) of the Act.

I decide that the respondent should pay the sum of €5000 to the complainant.

Unfair dismissal; live final written warning; proportionality of sanction.