Complainant

Respondent

Anonymised Parties

General Operative

Utility Company

Representatives

 SIPTU

 IBEC

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-00015146-001

20/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00015146-002

20/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015146-003

20/10/2017

The Complainant was employed by the Respondent as a General Operative working on refuse collection and recycling services. He contends that he was unfairly dismissed. The complaints under Minimum Notice Act 1973 and Working Time Act 1997 were withdrawn at the hearing.

The Respondent states that the Complainant was not unfairly dismissed. He was the subject of a complaint from a member of the public about his behaviour while working, and he was also found to be driving a vehicle which he was unauthorised to do. It is submitted that this constituted gross misconduct which warranted dismissal. The Complainant commenced employment with the Respondent on 1st July 2012 and his employment was terminated on 3rd May 2017. On 23rd March 2017 a member of the public complained that the Complainant was seen to be “acting like Superman” on the back of a moving truck. When the Supervisor investigated, she found that he had also been driving the vehicle in the yard without authorisation. He knew this to be wrong as he had been warned about moving trucks without licence to drive them. The Complainant was suspended on full pay pending investigation. He was invited to an investigation meeting which was held on 6th April 2017 and he was offered the opportunity to respond and he was advised of his right to representation. Following this, he was invited to a disciplinary hearing and again given an opportunity to respond and be represented. The disciplinary hearing was held on 20th April 2017 and the Complainant was in attendance accompanied by his shop steward.   On 3rd May 2017 the Complainant attended at the meeting convened to inform him of the outcome.   He was given a letter which outlined that the alleged incident on the back of the truck was unfounded however, the unauthorised driving of the company vehicle constituted gross misconduct which warranted dismissal. The letter also outlined his right to appeal. An appeal was heard on 15th June 2017.   The decision to dismiss was upheld.

The Respondent contends that the Complainant was dismissed wholly and mainly by reason of his conduct and thus, by virtue of Section 6 (4) (b) of the Unfair Dismissals Act 1977 (as amended), the dismissal was not unfair. It is argued that the Respondent employed fair procedures, the matter having been fully and fairly investigated and that the dismissal was a proportionate response.             It is the position of the Respondent that they acted like any reasonable employer would act under the circumstances and dismissal was the most appropriate sanction.  

The Complainant arrived at work on 23rd March 2017 at 5am for his shift. However the driver was late and did not arrive until 6am. The Complainant, in an attempt to help, moved the truck ready to go when the driver arrived. He had moved trucks before, when he was on duty washing trucks. On return to the yard that day, he was informed of an allegation made by a member of the public that the truck was speeding and that the Helper (the Complainant) was acting as Superman on the back of the truck.   The Complainant was put on paid suspension that day and an investigation and disciplinary process put in place. It is argued that the process was flawed as the same Manager who conducted the investigation was appointed to carry out the disciplinary. That was changed and the Complainant informed that another Manager would hear the disciplinary. The complainant did not receive the investigation report and no other members of staff interviewed.   It is argued that the Complainant was honest throughout the whole process and consistently protested that he was only trying to help that morning by moving the truck into position. It is argued that the penalty of dismissal was disproportionate given the complainant’s service and his clean record up to then.

The reason for the Complainant’s dismissal was that he had driven a truck in the Company’s yard without authorisation. I note that he had been verbally informed on a previous occasion that he was not authorised to drive the truck. I find that the Company followed fair procedures and allowed the Complainant his rights throughout. However, given the Complainant’s service and his honesty and contriteness throughout, I find that the penalty of dismissal was too harsh and disproportionate.   A written warning would have been more appropriate in the circumstances. Given the fact that he had been advised on one previous occasion that he was not authorised to drive the vehicle, I find that there was a certain degree of contributory negligence on the part of the Complainant to the situation in which he found himself.   I uphold the Complainant’s complaint that he was unfairly dismissed. I consider compensation to be the appropriate remedy and I require the Respondent to pay to the Complainant the sum of €5,640.