Complainant

Respondent

Anonymised Parties

Driver

Limited Company

Representatives

Cormac Ó Daláigh Communications Workers Union

Niamh Daly 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-00018567-001

18/04/2018

The Complainant was employed as a Driver by the Respondent Company from 7th January 2008 until the employment was terminated without notice on 29th November 2017. The Complainant was paid €2800.00 gross per month and he worked 40 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment which the Respondent stated also included the employee Handbook but the Complainant disputed he had been provided with the Employee Handbook.

The Respondent stated that the Complainant was on an annual gross salary of €32,302.68. On 23rd October 2017 a named Driver Trainer was completing on-road training with a new named employee. They still had a number of deliveries to complete and as such requested assistance. This is normal practice. Following a call with Dispatch he was informed that the Complainant could assist. The Trainer contacted the Complainant and they arranged to meet at middle abbey street in Dublin. During this meeting the Trainer alleged the Complainant became aggressive and threw a padlock at him. The Trainer submitted a complaint to the Respondent on 24th October 2017 under the Company Grievance Procedure. On 25th October 2017 the Complainant lodged a Grievance against the Trainer alleging the Trainer went against normal working procedures when the Trainer insisted he drive from the south side of the City to City Centre to collect four drops. An investigation into the two complaints carried out by the named Centre Manager and he met with the Trainer on 26th October, 2017. The Trainer alleged the Complainant became aggressive and he threw the padlock, from the Trainers van, at the Trainer when he, the Trainer, was approximately 4 feet into the truck. The Trainer confirmed he wasn’t struck by the padlock.

The Investigator met with the only named witness to the incident on 26th October 2017.

The Complainant was invited to attend an investigation meeting on 13th November 2017 and he was accompanied by his Union Official from the CWU. The Complainant confirmed that he was annoyed when he met the Trainer in Abbey Street but he denied he had thrown the padlock at the Trainer. He confirmed he had thrown the padlock into the Trainers truck. He confirmed that he did ring the Trainer when he observed the Trainer driving the same direction behind him in circumstances where the Complainant had been requested to drive from the south side to the north side of the city when it was plain the Trainer was going in the same direction as him. The Investigator issued the outcome to the Complainant on 22nd November 2017, the complaint against him was upheld, he was suspended on full pay pending the outcome of a Disciplinary Hearing.

The Complainant was invited to attend a Disciplinary meeting on 29thNovmber 2017, outlining the allegations against him, advising him that his actions constituted gross misconduct, he was advised of his right to representation and all relevant documentation was forwarded to him. The Complainant was accompanied by his Union Representative. At this meeting the Complainant admitted to “shouting and roaring” but denied that he threw the padlock at the Trainer but stated that he did throw the padlock into the Trainers van. The Disciplinary Manager concluded the actions of the Complainant constituted gross misconduct and he considered the proportionality and reasonableness of a sanction of dismissal prior to implementing same. The Complainant was informed of the decision to dismiss by letter dated 6th December 2017. He was afforded a right of appeal.

The Complainant appealed the decision to dismiss on 7th December 2017 and he set out his grounds of appeal – the severity of dismissal was excessive and that the investigation should not have been carried out by this employee as the Complainant had lodged a grievance against him the previous year. The decision to dismiss was upheld.

The Respondent argued that Section 6(4)(b) was applicable to this complaint and they identified numerous decisions in support of their argument that they acted in a reasonable manner.

The Complainant had been working for the Respondent for over 10 years. He had never been subject to any Disciplinary Sanction during his employment. There was an incident on 23rd October 2017 when he was working as a backup driver when he was contacted by the Trainer who informed him that he had some extra deliveries for him to do and they should meet in Middle Abbey Street. The Complainant asked the Trainer where the items had to be delivered and the Trainer stated he didn’t know even though they were in his van. The Complainant made his way from the southside of Dublin to the location. The Trainer noticed that he the Complainant was wearing the Trainers padlock and he tossed it into the back of the Trainers van and proceeded. He then noticed the Trainers van behind him. He rang him and asked why the Trainer had requested him to drive from the southside to the city centre. The Trainer stated that if he had a problem he should speak to the named Operations Manager. The Trainer did not mention anything in relation to the padlock.

On 24th October 2017 he was approached by the On Road Supervisor, named, who asked him for his recollection of the incident the previous day. He gave his account. He was suspended the following day 25th October 2017, pending the outcome of an investigation. He was dismissed on 29th November with a right of appeal which was finally heard on 7th February 2018. The Complainant argued that it was wrong for the named Investigator to be appointed as there was a history between the Complainant and him when the Complainant had made a complaint against him which had been upheld and the Complainant contended the Investigator held a grudge against him. The outcome of the appeal was to uphold the dismissal.

The Complainant is seeking reinstatement.

The Complainant stated he had commenced employment on 27th May 2018, was paid €276.95 gross per week and he worked 29 hours per week. (Payslips provided). The Complainant stated he did not claim jobseekers Benefit and this was confirmed by the Department of Social Protection.

On the basis of the evidence, written submissions from both Parties with accompanying documentation and on questioning by the Adjudication Officer at the Hearing, I find as follows –

Both Parties confirmed that the Complainant had been employed with the Respondent for some 10 years and that this was the first complaint and Disciplinary Hearing the Complainant had been subject to in those 10 years.

Both Parties also confirmed that the Complainant had lodged a complaint against the Operations Manager, named , on 20th June 2016. This complaint involved two issues, one which was upheld and the second neither upheld or dismissed.

In these circumstances, it would have been prudent for the Respondent to appoint another Investigator to conduct the investigation into the complaint against the Complainant. However I note the Complainant did not raise any objection to the named Investigator either before or during the Investigation. I have read the minutes of the Investigation and the appeal Hearing where it was acknowledged that “there has been a history with manager”.

I have reads the Disciplinary Motes of 29th November 2017 and I note that the Complainant did offer an apology to the Employee who had lodged the complaint but this was rejected by this employee. I also note that these notes state as follows –“he (the Complainant) wants to be more professional in the future and explained that in the past he never had a problem with (named)…….and that there was no intent to injure (named) by throwing the lock”. Both Parties confirmed that the lock which both Parties confirmed was thrown, did not hit (named).

I note that the Disciplinary Meeting was adjourned at 10am and resumed at 10.42 during which the Complainant was informed that a decision had been made to terminate his employment. In their submission to the Hearing the Respondent stated that they considered the proportionality and reasonableness of the sanction of dismissal.

I find that the Respondent conducted the Disciplinary and Appeal process in accordance with S.I. 146/2000. I have noted my observations in relation to the named Manager who conducted the Investigation.

I find that the acknowledged conduct of the Complainant did contribute to his dismissal.

Having given due consideration to the submissions of both Parties and to my findings above, and to the fact that this was a first incident involving the Complainant during his 10 years of employment with the Respondent, in all the circumstances of this case I believe a lesser Disciplinary sanction may have been more appropriate.

The Complainant is seeking reinstatement while the Respondent contends that the most appropriate form of redress is compensation and not reinstatement.

I note from the evidence at the Hearing that the Complainant stated that he did not claim Benefits from the Department of Social Protection and no explanation was provided for this. This was confirmed by the Department in a statement dated 3rd September 2018. I note that the Complainant commenced employment on 27th May 2018, earning €276.95 per week. There was no evidence presented to the Hearing or post the Hearing of the Complainant’s attempts to mitigate his losses.

On the basis of the evidence, my findings above and in accordance with Section 8(1)(c ) of the Act I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €8,000, within 42 days of the date of this Decision.

Unfair Dismissal – well founded – Complainant by his actions contribute to his dismissal – compensation of €8,000.00