Complainant

Respondent

Anonymised Parties

A Fridge Mechanic

A Refrigeration Company

Representatives

 IWU Official

 Head Of Service

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012713-001

21/07/2017

This is a claim for Unfair Dismissal on behalf of the complainant , a Polish national . The Respondent disputes the claim and contends that the decision was couched in commercial viability and protection of customer contracts .

The Respondent rejected the claim. The Respondent, who had 100 employees was represented by the Head of Service and submitted a written statement in defence of the claim on 14 August 2017. He submitted that on 21 April 2017, the complainant was driving a vehicle belonging to a customer, a home delivery van.

Over the course of two hours the vehicle was driven over the speed limit 8 times within the ranges of 20 km a 34 km over the speed limit. This was accompanied by harsh cornering, acceleration and braking, which were picked up on the vehicle tracking system. details were presented at the hearing via an audit report. This record formed the basis of a next day notification. This placed the Respondent in a vulnerable position in their customer’s eyes as driving over the speed limit was both illegal and dangerous and did not constitute acceptable behaviour at the company.

The Respondent wrote to the complainant on April 26, 2017 and informed of the allegations. The allegations were investigated and concluded that as the customer did not want the complainant driving their vehicles again, the respondent had no option but to dismiss him as it would have been impossible for him to carry out normal duties if he could not drive a customer’s vehicle. On May 26, He was dismissed with immediate effect by the Respondents General manager.

The Respondents Representative told the hearing that the Tracking system had confirmed that the complainant had 8 speeding events in less than half an hour. The Drivers, including the complainant had been spoken to on safety within the previous month. The Complainant was stood down from driving company vehicles and the investigation ensued.

The Senior Management Team looked at the material and the facts and the General manager met with the complainant and informed him of his dismissal. This meeting lasted 10-15 mins. The head of service submitted that the issues complained of were not acceptable to the company.

The Respondent also submitted that the offence was at a level of gross misconduct and the company had thought long and hard before deciding on the dismissal.

The customer vehicle was part of a fleet but the respondent had other customers. The Complainant had received an overpayment and the Respondent submitted that his loss was somewhat diminished by this fact.

The Complainant is a Polish National. A Polish Interpreter attended the hearing. He commenced work as a Fridge Mechanic on November 1 2015 and worked until his dismissal on 23 May 2017.He worked a 40-hour week in return for nett pay of 430.00 euro per week. He was represented by the Independent Workers Union who presented the case via written and oral submissions. The Complainant had not attained sufficient contributions to secure a Job Seekers payment post dismissal. The Complainant sought the remedy of compensation.

The Complainants Representative outlined that he had been employed for the best part of 18 months and had worked at a satisfactory level. He was shocked to learn of his dismissal.

The Complainant received a letter from the Respondent dated 26 April, 2017. He was informed that “a serious allegation had been made in respect of you driving customer vehicle” He was alerted to a forthcoming investigation where his side of the story would be heard. He was asked to refrain from driving any vehicle belonging to any of the Respondents customers.

The allegation referred a Home Delivery van which had been driven over the speed limit on 8 occasions over the course of 2 hrs and there was no dispute on fact .The allegation also encompassed a reference to aggressive driving , which had been picked up on a vehicle tracking device .The Complainant was denied any chance of natural justice, a fair disciplinary process or appeals procedure .The Incident had occurred on April 21, 2017 and the complainant worked continuously until May 26, 2017 .He was not party to the Investigation .

He learned of the outcome of the investigation at a meeting with the Respondent on May 23 ,2017 and was let go. the Union requested reasons for the dismissal on May 26, 2017.

The Complainant told the hearing that he received a letter dated April 21 and was informed that an Investigation would follow. He was removed from on call during the investigation. One month later, he was told that the Boss had arrived and wanted to talk to him. He was let go with immediate effect and did not access to appeal. He had no knowledge of grievance or disciplinary procedures. The meeting lasted 5 minutes. He gave evidence of loss and had secured new work on June 26,2017.

I have given careful consideration the submissions as raised by the parties. I have considered the evidence adduced but note that the decision maker on the dismissal was not in attendance at the hearing.

The law covering Unfair Dismissal is to be found in Section 6 of the presiding Act. Unfair dismissal.

6

6.— (1) 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.

I have also considered the parameters of Section 6(7) (a) and (b) in this case on the reasonableness or otherwise of the conduct (whether by act or omission) of the Employer. It is not my role to step into the shoes of the decision-making process but to consider the facts under the overarching mechanism of reasonableness.

It is important to commence with the back drop of the commercial reality for the respondent. The van at the centre of the allegation was the property of their largest customer and while the respondent had other customers, the largest customer featured as being highly centric to the case. I accept that the Respondent felt obliged to protect their business with the largest customer. However, the Respondent was also obliged to balance this against the right so the employee to access to natural justice and fair procedures in the face of allegations. There is no such thing as an open and shut case. As Walsh J stated in Glover V BLN ltd [1973] IR 388

The Obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent.

The Complainant did not dispute the facts of the case. Instead, his arguments surrounded a vacuum of natural justice and a breach in terms of fair procedures in relation to how the complaint was dealt with. I will like to incorporate a brief analysis of this contention.

The allegation was first brought to the attention of the complainant by way of letter dated April 26, 2017. A reference to “serious allegation “was set out but not expanded on. I have found that the complainant was not appraised of exactly what he was meant to be accused of.

Neither party presented copies of the company procedures in relation to Disciplinary procedure. The complainant was simultaneously stood from driving any vehicles. There was no reference to any procedures in this regard. The company then went on to hold an investigation which did not invite a response from the complainant. He was not permitted sight of all the evidence, the right to cross examine his accusers or to rebut the evidence.RE Haughty  1971

The complainant was entitled to state his case and be heard in own defence with a chosen representative. The unilateral investigation constituted a major omission in this case which goes to the heart of unreasonableness. As I have stated previously, I comprehend the commercial sensitivities to preserve customer contracts, however, this should have been balanced with the Respondents duty of case to the complainant. This was crudely omitted and replaced by a summary dismissal which was not remedied on Appeal.

In circumstances, such as these the Code of Practice on Disciplinary Procedures S.I 146/2000 is a very useful document as it sets out a road map of procedures required.

I appreciate that the Complainant was in possession of 5 penalty points at the time of the incidents referred to and this was a cause for concern for the Respondent .I accept the point made by the Complainants Representative that with the exception of the complainants step back from driving , he was permitted to remain at work until the date of the dismissal .It is of particular note that the complainant was a Polish National and best practice would indicate that he should have been treated more sensitively .

Activation of a Disciplinary procedure is meant to be recognised as corrective rather than punitive and I note that the Complainant had a clean record in that regard at the time of the incident said did not meet the Dismissal decision maker but I am clear from the evidence given by the management team that no sanctions short of dismissal were actively considered the respondent did not furnish a response to the Union letter seeking reasons for dismissal dated May 26.

The Labour Court in Swiss port Ireland ltd and Pejazyr Cakolli, UDD 1759, determined that the dismissal on grounds of “gross misconduct “in relation to an alleged failure to carry out reasonable instructions was unfair. In that case, the Court awarded maximum compensation in respect of serious procedural deficits identified in the case. It is of note that the complainant contributed to the investigation, dismissal and appeal process in that case.

In the instant case, I could not establish just when the complainant was placed on notice of being considered for gross misconduct. I can only assume that it was at dismissal stage, which is too late.

Having taken account of all the circumstances advanced, I have found that the complainant was unfairly dismissed on a substantive and procedural basis. I must, however find that he made a 10% contribution to the dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was substantively and procedurally unfairly dismissed. I recommend that the Respondent undertakes an immediate review of their policies and procedures on Grievance and Disciplinary procedures to activate them into live and relevant documents.

I order the Respondent to pay the complainant 6,000 euro in compensation in respect of the   financial loss associated with his dismissal. This amount is to take account of notice, compensation and an element of prospective loss and takes account of the complainant’s contribution to his dismissal.

Claim for Unfair Dismissal