Complainant

Respondent

Anonymised Parties

Warehouse Operative

Logistics company

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-00017776-001

06/03/2018

The complainant commenced employment with the transferor, respondent 2, on 1 /3/2016 and transferred to respondent 1 at the beginning of February 2017 following on a transfer of undertakings. He worked as a warehouse operative earning a monthly, gross salary of €1,650. He worked a 40-hour week.

The respondent terminated his employment on 18 October 2017 due to two incidents on the 24 July and 14 October 2017 involving a forklift and the storage of pharmaceutical products.

He submitted his complaint to the WRC on 6/3/2018.

Jurisdictional issue.

The respondent maintains that the adjudicator does not have jurisdiction to hear the complaint as the complainant does not have the service required as per section 8(2) of the 1977 Act. There was no transfer of undertakings.

The adjudicator advised that she would proceed to hear the substantive complaint without prejudice to the jurisdictional point which would be addressed in the decision.

The complainant contends that he was unfairly and summarily dismissed by the respondent. He commenced work with the alleged transferor on 1/3/2016 and on foot of a transfer of undertakings transferred into the employment of respondent 1 on 1/2/17.

His pay slips with respondent 2 reveal that he continued to earn the same amount on average with the new employer, respondent 1.

All employees with respondent 2 ceased working for that employer on Friday 27 January and transferred into respondent 1 the following Monday. One of the transferor’s directors Mr. T 1, who had been his manager while employed by the transferor told him that the respondent would interview him. Mr T 1, his manager with respondent 2, also transferred and became Operations Manager with the respondent. The complainant was interviewed by the respondent’s Operations Director and advised that he had the same position as he had held with the alleged transferor. The complainant had the same reporting relationship with the same managers. He continued to report to Mr T 1. Respondent 1 carries on the same functions as respondent 2.

It is noteworthy that no one from respondent 2 appeared at the hearing though identified as a respondent and requested by the WRC to attend. Neither did the two witnesses from respondent 1, one of whom was a previous Director of Respondent 2 attend on foot of a witness summons issued by the WRC. Respondent 2 provided drivers to respondent 1.

No written notification issued to staff regarding the transfer.

Dismissal of the complainant.

The complainant submitted evidence regarding the incidents which the respondent relies on to justify the dismissal.

In relation to the July and September 2017 incidents with a forklift, he accepts that they occurred. He states he had never been given forklift training by either respondent 2, the transferor, or by the respondent. Along with all other employees, he did participate in a refresher course in September 2017. He again notes that Mr T 2, a manager with respondent 2 who continues as a manager with the respondent ignored the witness summons sent to him by the WRC to give evidence on the training or lack of it provided to the complainant in either employments.

The complainant referred to the incident of the 14 October, where he was accused of failure to comply with procedures, of failure to refrigerate pharmaceutical products and of an attempt to conceal the fact that the products were above the correct temperature. This occurred on a Saturday. The complainant was working alone. His job was to deal with the packaging/ frozen plates. The complainant is not trained to deal with nor has ever dealt with any product contents of the plates. Neither was he aware that he had done anything wrong on the 14 October. The complainant disputes that he tried to cover up his actions.

He was asked to stay back by the Operations Manager, Mr T 1 on 18/10/17, four days after the incident. The respondent Operations Manager advised that he have to let him go. There was a vague reference to an issue with an order. He was not given any advance notice of the purpose of the meeting nor invited to select someone to accompany him. He was not provided with the opportunity to engage in an investigation. Nor was the disciplinary procedure invoked by the respondent contrary to their own policy and in breach of their own procedures.

He was dismissed on 18 October 2017 without any investigation or disciplinary process or any explanation for his dismissal. The complainant left the employment on the same date.

The explanation for his dismissal arrived in a letter dated 19 October but delivered on 24 October to the complainant’s home. It cited

damage to the shutter door on 24/7/17 at a cost of €2000;

the injury to a fellow employee while driving the forklift in a negligent manner on 12 October 2017;

failure to refrigerate pharmaceutical products on 14 October as directed;

an investigation into cash received for company pallets.

The complainant rejects the inference of impropriety in accepting cash for pallets contained in the letter delivered on the 24 October. He advised that his supervisor, Mr K, advised him the previous day that a person would be calling to collect pallets. When the person called the next day to collect the pallets he asked the complainant for his name. The complainant loaded the pallets on to the person’s truck at the direction of Mr. K a more senior member of staff. His name was on the envelope. He did nothing improper. This was the first mention of this matter. It had never been previously raised with him.

The complainant appealed the decision to dismiss him. He attended an appeal hearing on the 30 November 2017. He had been advised that the Director and the Manager would attend the hearing. The Director and a Customer Service Executive attended the hearing. The complainant read out a statement at the appeal hearing and was accompanied by Mr B, a friend. The Director asked no questions and did not engage in any way with the complainant. The complainant submitted a hard copy of his appeal document to the Director after the hearing.

The complainant received a letter on 8 December rejecting his appeal and upholding the decision to dismiss him.

The complainant denies that he was issued with verbal warnings in July or September 2017 as asserted by the respondent.

His dismissal was in breach of his contract of employment. He was not disciplined prior to the decision to dismiss him – which was not in accordance with his contract of employment and handbook.

The complainant had no verbal or written records on his employment record.

Loss

He took up employment on 1 November 2017. His gross loss from 18 October until 4 July 2017 is €2562. His continuing losses are €2,870. Hence is total loss is €5,433.

The respondent refutes the complaint.

Jurisdictional issue.

The respondent raises a jurisdictional issue and states that the complainant does not have the requisite 12 months service necessary under section 8(2) of the Act to pursue a claim of unfair dismissal. The respondent states that the complainant ‘s start date was the 1 February 2017 as indicated in his p.45 and contract of employment.

There was no transfer. Respondent 1 did not buy respondent 2’s business. The respondent is a courier company who uses the drivers from the alleged transferor, Respondent 2. Some of Respondent 2’s employees did not get jobs, some chose not to join. It was a share sale and so the Regulations do not apply.

Unfair Dismissal Complaint.

Without prejudice to the above, the respondent sets out the incidents which led them to dismiss the complainant.

On 24/7/17 the Operations Manager gave the complainant a verbal warning contrary to what he states, due to the fact that he negligently drove a forklift into a partially lowered shutter at a cost of €2000 to the respondent.

On 12 /10/17 the complainant drove the forklift in a forward direction, not the correct, backwards, direction, with a load at a height which blocked his view. He failed to sound the horn, he hit a trolley which in turn hit a fellow staff member who sustained an injury and was off sick for 6 months. That same injured employee is taking a personal injuries complaint against the respondent. The complainant was given a verbal warning on foot of this incident

The complainant contrary to what he asserts received forklift training from his previous employer. The respondent enrolled the complainant in a refresher course in Sept 2017.

On 24 /10/17 the complainant failed to put some pharmaceutical products into a fridge contrary to instructions given to him. They were temperature sensitive and were left unrefrigerated for two days over the weekend with the risk of degradation of the products. They constituted a risk to consumers of these products. The complainant tried to conceal the fact that they had not been refrigerated and omitted on Monday to advise that they should not be for onward dispatch. A supervisor or fellow employee checked the temperature and found them to be above the specified temperature. The complainant failed to alert the appropriate people that the pharmaceutical products had not been refrigerated for the weekend.

The company maintain that this incident amounts to gross misconduct. An appeal was arranged. The complainant presented no circumstances or evidence which would have allowed the respondent to reverse their decision to dismiss the complainant.

The respondent followed their own procedures.

The first question for determination is whether or not a transfer of undertakings took place. If it did the complainant satisfies section 8(2) of the Act of 1977. If not, I do not have jurisdiction to hear the complaint.

The parties are in dispute regarding whether a transfer of undertakings occurred.

What is not disputed is that

         The complainant finished his employment with the previous employer on a Friday and

         transferred into the employment of respondent in the following week on the 2nd of  February.

       The majority of staff from the previous employer transferred into the respondent’s  

         employment. Some staff chose not to transfer.

       The respondent is carrying on the same or a similar business – the delivery of goods by drivers

       previously employed with respondent 2.

       The complainant is doing the same work and reporting to the same personnel.

The respondent states that a transfer did not occur. The respondent Director stated that he did not buy the alleged transferor’s business in which the complainant had been previously employed. They argue that It is being advanced as a stratagem to bring the complainant within the jurisdiction of the Act. It was a sale of shares and therefore the regulations do not apply.

Mr T 1 who is stated by the complainant to have sold his business to the respondent and upon the transfer, became Operations Manager in the respondent’s business and manager of the complainant was identified as the second respondent in this complaint of unfair dismissal and requested to attend well in advance of any witness summons issuing. The actual witness summons for Mr T 1 issued on foot of a request by the complainant’s solicitor who believed that his evidence was crucial on the matter of the sale of shares vs transfer and other matters. He chose to ignore the summons. The respondent Director stated that he did not buy the alleged transferor’s business in which the complainant had been previously employed.

In Overpass Ltd, T/A Ocean Property Management v Susan Clancy, TUD 1713, the Labour Court had to consider if a transfer had occurred. They decided that a transfer had not occurred based on the facts of that case which included amongst many matters that there was no transfer of staff but observed that

“The aim of the Regulations is to safeguard the rights and entitlements of employees arising from their employment relationship when the business or part of the business in which they are employed transfers from one employer to another employer. The Court of Justice has consistently stated that the decisive criterion for establishing the existence of a transfer within the meaning of the EU Directive known as the ‘Acquired Rights Directive’ (which the Regulations give effect to) is whether the entity in question retains is identity, as indicated by the fact that its operation is actually continued or resumed. (See, inter alia, Case 24/85Spijkers, paragraphs 11 and 12; Case C-13/95Suzen, paragraph 10; and Case 340/01Abler and Others, paragraph 29).”

So, the essential test as to whether a transfer occurs is the retention by the entity of its identity, as manifest in the continuation of the business. The business here is the distribution and transport of goods, one element of which was the transport of goods by drivers. Applying the above decision on the Regulations to the instant case, respondent 1, the transferee continues the same or similar business which is the storage and delivery of goods as respondent 2, the transferor. The same activities existed pre and post- transfer. Respondent 2 retains its identity.

I find that the respondent did continue on with a similar business to respondent 2 and they stated that they engaged the drivers from respondent 2.

I find that a transfer of undertakings did occur in February 2017.

Substantive complaint of Unfair Dismissal.

Having found that a transfer of undertakings occurred, I find that the complainant has the requisite service and I am not precluded from hearing his complaint.

I find that the complainant was not alerted in advance of the meeting on Thursday 18 October 2017 of his impending dismissal, nor given the right to be represented at the meeting. This was in breach of the respondent’s procedures. Their disciplinary policy states at 4.d.

“You will only be disciplined after careful investigation of the facts and the opportunity to present your side of the case. On some occasions temporary suspension on full pay may be necessary in order that an uninterrupted investigation can take place”.

The complainant was not invited to participate in an investigation into the events of the 14 October, the primary cause of his dismissal. The complainant was presented with the decision after it had already been made without any investigation or without any investigation into which he had an input.

The disciplinary policy allows for a graduated system of sanctions.

The WRC issued witness summons to two witnesses to attend the hearing. One issued to Mr T1 who dismissed the complainant on the 18 October. He chose no to attend. The respondent does not challenge the chain of events as presented by the complainant. The respondent obviously sets out a justification for his actions which is at odds with the complainant’s explanation for his actions on the 18 October.

The WRC also issued a witness summons to Mr. T 2 who was asked to attend to give evidence on the provision or not of training which the complainant received. He ignored the summons.

I accept that the complainant was extremely careless in driving a forklift through a partially closed shutter and driving a forklift without ensuring that his vison was not impeded.

I note from the respondent’s documents – “Training Matrix” that he was given training in the storage and refrigeration of pharmaceutical goods. I accept that the failure to ensure the refrigeration of these products exposed the users of these products and the respondent to extremely serious consequences. This behaviour would seem, at a minimum, to match the description of serious misconduct which is described in paragraph D of the respondent’s disciplinary procedure as instances of” extreme carelessness “or an action “which has a serious or substantial effect upon our operation or reputation” Dangerous behaviour is included as one instance of gross misconduct in paragraph E 1 of the respondent’s disciplinary procedure but is linked   to threatening behaviour towards another. The respondent’s disciplinary procedure allows for a final written warning and or suspension while an investigation into serious misconduct is ongoing.

The EAT in O ‘Halloran v Ballykisteen Hotel Ltd, UD 625/2013, a case involving a manager dismissed for allegedly interfering with company property and which ultimately led to a finding of no wrongdoing on his part, criticised the lack of fair procedures. They stated that

“Where was the investigation? At what point was the claimant given an opportunity to be heard and defend himself? Where were the principles of natural justice adhered to?”

Irrespective of the actions of the complainant or the degree of wrongdoing, the respondent must follow fair procedures. Just as in the latter case, the complainant in the instant case was deprived of any process conforming to the requirements of natural justice. There was no notice that dismissal was being contemplated, no process, no right of representation offered. I find that the respondent deprived the complainant of his right to be treated in accordance with the principles of natural justice.

On the basis of the evidence tendered and the law, I find the dismissal to be unfair.

Redress.

I find that the complainant contributed to his own dismissal by his own actions.

Based on the uncontested evidence concerning his loss, I require the respondent to pay him the sum of €1,500.

I find the complaint to be well founded. I direct the respondent to pay the complainant the sum of €1,500.

Unfair Dismissal; jurisdiction to hear the complaint.