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-00023825-001

06/12/2018

The complainant was employed on a full-time basis as a HGV Driver commencing employment with the respondent in September 2014. In September 2018 the complainant was nearing the end of a holiday in his native country when a family member died. There was verbal communication between the parties in this regard the outcome of which is disputed. The complaint is in relation to the decision of the respondent to dismiss the complainant for failure to return to work as instructed by the respondent.

The complainant was nearing the end of his annual leave in his native country in August 2018 when he learned that a cousin had died.

The complainant was due to return to Ireland on a Sunday but the funeral was on the Monday.

The complainant contacted his line manager on Monday morning to advise that he had remained for the funeral and requested further time off to deal with another family matter.

The manager agreed to this request but the following day the complainant got a phone call instructing him to report for work on Wednesday.

The complainant explained that he had air tickets for Friday but the manager again insisted that he report for work on Wednesday.

The complainant could not break arrangements already made and on Thursday the manager informed the complainant that he was suspended.

The complainant was brought through a disciplinary process that resulted in his dismissal which he did not think was fair having regard to his explanation and his service and work record.

The complainant’s behaviour amounted to gross misconduct.

The complainant actions represented a fundamental breakdown in the trust relationship between employer and employee.

The complainant failed to follow the instructions of his manager and report for work as requested.

The respondent carried out a full investigation which showed that the complainant had never intended to return to work on the due date.

The complainant had failed to discuss this with his manager and follow due process and had also failed to apply for an extension of his leave.

The complainant was afforded full and fair procedures after which the respondent decided to dismiss the complainant with immediate effect.

The respondent company is a large organisation employing around 146 drivers. The operation involves complex scheduling and all drivers are issued with mobile phones on which is installed a holiday app which drivers can use when choosing annual leave. The respondent also invests significant resources in driver training.

In 2018 the complainant took annual leave in August and went to visit his family in his native country. The complainant was due to return to work on Monday, 20 August and had been informed by email to report for training at a specific location on his return. The complainant had acknowledged receipt of this email.

According to the complainant he learned of the death of a cousin on Sunday, 19 August and that the funeral was to take place on the Monday. On Monday morning the complainant phoned the Driver Manager and informed him about the funeral. The complainant also requested extra time off as he needed to arrange accommodation for his daughter who was commencing a course in a university and therefore the complainant would not return to Ireland until Friday. According to the complainant the manager agreed to this arrangement. The manager then contacted the complainant on the Tuesday and told him that he (the complainant) was required to return to work on Wednesday and the complainant responded stating that he had booked his flight for Friday and still had to meet people regarding his daughter’s accommodation. The complainant did not attend work on Wednesday and on Thursday received a further phone call from the manager during which he was informed that he was being suspended with pay pending an investigation into the matter.

According to the manager he was informed that the complainant had not reported for training on the Monday and attempted to contact him by phone. Sometime later that morning the complainant phoned the manager and explained about the funeral and then went on to state that he would not be returning until the Friday as he had to sort out accommodation for his daughter to attend university. The manager said that he had initially replied “O.K.” to the complainant and indicated that he would talk to him later. Having considered the matter further the manager decided that he required the complainant to attend training on Wednesday and tried to contact him on Monday evening. Eventually contact was made about 10pm (Irish time) when the manager requested the complainant to report for work on Wednesday. A further phone call was made on Tuesday and a conversation took place between the parties during which the manager explained that the complainant was required to attend training on a new item of equipment and the complainant stated that he had still to sort out his daughter’s accommodation and would return on Friday. The manager informed the complainant that this was not satisfactory and that failure to report for work on Wednesday as requested could result in disciplinary action. The complainant did not report for work on Wednesday and on Thursday the manager phoned the complainant and informed him that he was being suspended with pay and that there would be an investigation. The manager reported the matter to the HR Dept. and an outside consultant was appointed to carry out the investigation.

The consultant interviewed both the manager and the complainant. The interview with the complainant was conducted by phone after all documentation in respect of the process had been emailed to him. In his report the consultant concluded that the complainant had not booked his return flight to Ireland even though he had confirmed attendance at training on the morning of Monday, 20 August.   He found that the failure of the complainant to contact his manager on Sunday was very unreasonable and was a breach of contractual terms and conditions. The consultant further found that the complainant had excused the complainant’s absence for two further days but expected him back at work on Wednesday, 22 August. The consultant went on to state that it was clear from the timings and dates of flight bookings that the complainant had set his own agenda without consultation with his managers and observed that the accommodation requirements of the complainant’s daughter could have been foreseen and that arrangements could have been made in this regard. In his recommendations the consultant refers to the respondent’s Staff Handbook and in particular the absence procedures and stated that the complainant did not follow those absence procedures. He concludes by recommending that disciplinary action “should be considered and appropriate to the offence outlined above” and observed that the complainant’s good employment record should be taken into account. The appendices to the report include evidence to the effect that the complainant required to travel via Eindhoven in order to return to Dublin and that the first flight from his home airport to Eindhoven on Friday 24 August was booked on the morning of Sunday 19 August.

By letter dared 7 September 2018 the complainant was invited to attend a disciplinary hearing to beheld on Thursday, 13 September and was advised of the right of representation. There are no agreed minutes of the hearing. The hearing was conducted by the Driver Manager accompanied by a HR Partner. The complainant was not represented. In the outcome letter, dated 19 September 2018, the issues discussed were outlined.   These issues included:

Failure to turn up for training on Monday, 20 August and failure to notify his manager accordingly

Having been excused because of attendance at a funeral, refusal to comply with the request to report for work on Wednesday, 22 August

Evidence from flight bookings that the complainant never intended returning to work on Monday, 20 August

The letter then went on to state:

In summary, it is my conclusion that you did not attend for work on 20th August 2018 nor did you communicate with your manager, me or the planning office, with the intention of taking another week off work without permission. You were aware of the implications of the actions you took and had a total disregard for the company.

Having considered all the facts, including your email following the meeting, your actions and failure to attend for work following a reasonable request is a clear breach of the bond of trust necessary to have a reasonable employer / employee relationship. In addition to this, it is also a breach of your contract with (Respondent).

Therefore, I find that you should be dismissed with immediate effect for grave misconduct.

The complainant was also advised of his right of appeal to the Head of HR.

The complainant exercised his right of appeal. It appears that the complainant concentrated his appeal on his belief that the decision to dismiss was linked to an issue that had arisen in 2017 when a number of drivers, including the complainant, had got a solicitor to send a letter to management in relation to changes in their terms and conditions of employment and, in particular, changes to their subsistence payments which it was believed impacted negatively on the drivers. The complainant felt that his association with this action was the motive behind his dismissal. The appeal was actually heard by another outside consultant who upheld the decision to dismiss. The complainant lodged his complaint with the WRC on 6 December 2018.

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

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 states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following;

(a)    the capability, competence or qualifications of the employee for performing work of the kind which he was employed by his employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee….

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)    to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

In the case before me the respondent dismissed the complainant on the grounds of grave misconduct. This charge of misconduct arose from the respondent’s finding that the complainant had failed to attend for work after being requested to do so.

In considering the evidence before me it appears that the complainant contacted the manager about 9.15am (Irish time) on Monday 20 August and informed him about attending the funeral and requested further time off to organise accommodation for his daughter. It is accepted that the initial response of the manager was to reply “OK” to this. It then appears that the manager reflected on the situation and decided that he required the complainant to report for work on Wednesday morning.   There is divergent evidence as to when this change was first communicated to the complainant but there was definitely a conversation on Tuesday in this regard between the parties during which the complainant told the manager that he could not return on Wednesday as he had flights booked for Friday and had arranged appointments regarding his daughter’s accommodation on Thursday. The manager reiterated the request to attend at work on Wednesday. The complainant did not do so and was subsequently suspended by the manager.

The investigation carried out by the consultant looked into the details of the bookings for the flights back to Dublin and discovered that the first leg to Eindhoven (on Friday, 24 August) was booked on the morning of Sunday 19 August, that is before any conversation had taken place regarding extending the complainant’s stay. The manager took this as indicating that the complainant had decided to remain on in his native country despite indicating that he would report for training on Monday 20 August.

The issue regarding the bookings was not put to the complainant during the investigative interview but did form a major part of the disciplinary hearing. I note that the consultant who carried out the investigation also recommended that the complainant’s good employment record, which included no disciplinary action and an excellent operational record, should be taken into account during the disciplinary process.

The matter that arises is that the Driver Manager was involved in issuing the instructions to the complainant, suspending the complainant and then carrying out the disciplinary process and imposing the severest sanction. There is a fundamental element in natural justice that you should not be a judge in your own cause. Indeed, the manager accepted in evidence that it might not have been best policy for him personally to have conducted the disciplinary process. The High Court in commenting on this matter in Mooney v An Post said:

“where, however, natural justice requires a hearing by an impartial tribunal before an employee is dismissed, the presence on the tribunal of somebody who has hitherto being in a prosecution role may be a violation of the principles”.

This is particularly relevant given that the respondent company is a relatively large organisation with a professional HR Department. Another issue that arises directly from this is that a person imposing a disciplinary sanction should demonstrate that in deciding on the sanction of dismissal they had considered the alternatives available in this regard and had reasons to choose the ultimate sanction. There was no evidence that the manager had taken on board the recommendation of the investigating consultant that regard be given to the complainant’s good employment and operational record. I therefore find that the process by which the disciplinary sanction was imposed was fundamentally flawed.

That said, I find that the actions of the complainant contributed to this situation. The evidence certainly indicates that a decision had been made by the complainant to remain in his native country until Friday 24 August before he sought any permission in this regard. Whilst the unfortunate death of a cousin could not have been foreseen the requirements of arranging his daughter’s accommodation certainly could have been. I accept that the manager had initially approved the extension but the fact that the complainant obviously stuck with his arrangements despite being requested to return to work does amount to a failure to carry out a legitimate request.

I note that the complainant got alternative employment as a driver within a short period of time. From information supplied it is obvious that the terms and conditions of employment are different and it would appear that the remuneration is somewhat less than what the complainant earned with the respondent but not significantly so.

For the reasons set out above I find that the procedures utilised in the dismissal of the complainant were flawed and that as a consequence I find the dismissal to be an unfair dismissal. I also find that the complainant through his actions contributed significantly to his dismissal. I therefore require that the respondent pat to the complainant the sum of €3,500.00 as compensation in this regard.