ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent | |
| Anonymised Parties | A truck driver | A logistics company |
| Representatives |
Complaint:
| Act | Complaint/Dispute Reference No. | Date of Receipt |
| CA-00022293-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
| The Complainant was a truck driver employed by the Respondent from 18/09/2013 until 11/04/2018.The Complainant earned an average of €696 per week and worked an average of 45 hours per week.This complaint was received by the WRC on 2nd October 2018. |
Summary of Respondent’s Case:
| Background to the Complainant The Complainant was employed as a Driver with the Respondent with a commencement date of 18 September 2013. He worked 45 hours per week and earned an average annual salary of €36,180.00 per annum. On 21 February 2018 an employee of a service provider of the Respondent noticed one of the Respondent's trucks stopped in an unusual place on the R132. He saw that the passenger door was open, so he slowed down as he thought the truck might have broken down. He then saw someone take something out of the passenger side of the vehicle, which was black and looked heavy, went into the bushes and dropped the item there. He reported it to his manager who reported it to the Transport Manager in the Respondent company. The Transport Manager was travelling at the time, so he diverted his trip to travel on the R132 to see what was going on as it would be unusual for a truck to travel that route when there was a more direct route on the motorway. The Transport Manager didn't see anything unusual, so he went back to the client site where he spoke with the Yard Supervisor, and the employee of the service provider who had reported the incident in the first place. The employee of the service provider gave the exact location where he had seen the truck and the Yard Supervisor went to have a look. The Yard Supervisor found a large parcel wrapped in plastic which when he unwrapped it was a 25-litre drum of diesel. He rang the Transport Manager to advise him of same and the Transport Manager arrived and took pictures of the area and the item that had been found. The Transport Manager advised his colleague, the Shift Manager, of the incident and he met with the Complainant to put the information to him. It should be noted that he was able to identify the truck that had been stopped on the R132 through the company's vehicle tracking system and the person that was driving it which was the Complainant. The Shift Manager advised the Complainant that the truck had been stopped in an unusual place on an unusual route which the Complainant denied. The Shift Manager gave the exact route and location of the truck to which the Complainant responded by saying he did take that route as he needed to go to the toilet. The Shift Manager advised that he had received information that the driver of the vehicle had taken an item from the truck and put it in the bushes which the Complainant denied. The Shift Manager then advised the Complainant that he would be suspended on full pay pending a full investigation into the matter. This was confirmed in writing on 27 February 2018. An investigation meeting was originally scheduled for 7 March 2018 but was rescheduled a number of times and took place on 16 March 2018. The Operations Manager conducted the hearing and the Complainant was represented by his Shop Steward. The notes of the meeting can be summarised as follows, the Complainant stated that he did a trip to Wexford on the morning of the alleged incident and that on the way back to he went an indirect route to go to toilet. He denied carrying anything into the bushes. When the Operations Manager pointed out that a drum of diesel was found in the location that the· Complainant had been seen entering the bushes, the Complainant said that he didn't leave the drum there, that he didn’t have anything but that he was wearing a black jacket and maybe it was open. The Operations Manager asked the Complainant if the trucks are filled with fuel by the previous driver to which the Complainant said, "not all the time". He said that he checked the fuel every morning and if it wasn't full, he would fill it even if it was 30 litres or 100 litres. When asked if he did that the morning before he couldn't recall. The Operations Manager asked the Complainant how often he took the route he took on the day of the alleged incident. The Complainant said that he had to stop there sometimes to go to the toilet, but he wasn't sure how often. The Operations Manager asked how far this spot was from the depot to which the Complainant replied that it was 5-10 minutes away. The Operations Manager asked why he wouldn't just go on to depot where there are toilet facilities and the Complainant said that he would have to fill the truck with fuel in the depot, that it would take too long and that he couldn't just go to the toilet in the yard, nor could he wait.The Operations Manager pointed out some other dates to the Complainant where he seemed to stop near this spot-on trips back from Clonmel, Roscrea and Nenagh. The Complainant said that trucks stopped in this area all the time. The Operations Manager pointed out that there was no layby there to which the Complainant said that there was a hard shoulder. The Operations Manager said that it was a bus lane. The Complainant said that he didn't stop long and that he regularly saw trucks stopped there. The Complainant denied taking diesel from trucks at the unusual stops. After a brief adjournment, the Complainant's representative, stated that there were no reports of a smell of diesel in the truck or off the Complainant. He said that if someone was taking fuel from a truck that they would get covered in it. He said that this incident seemed like an unfortunate coincidence. The Operations Manager asked the Complainant if he had a condition with his bladder to which the Complainant responded that he didn't. the Operations Manager then read from the witness statement of the driver who reported the incident, where he said that he saw the driver of the stopped truck carrying something black into the bushes and dropping it. The Complainant said that he had his jacket open which looked like there was something in his hand. The meeting ended, and the notes were signed off by all parties. On 22 March 2018 the Operations Manager met with the employee of the service provider who reported the incident. In summary, the witness said that on 21 February 2018 he was driving to the airport when he saw a Respondent truck pulled over on the other side of the road. He slowed down to get a better look as he thought it may have been broken down. He saw the passenger door open and the driver take something out. He said that it looked black and heavy. He saw the driver take a few steps into the bushes, drop the item, and walk back to the truck quickly. On 23 March 2018 the investigation outcome meeting was held. The Complainant was again represented by his Shop Steward. In summary, the Transport Manager concluded that a witness saw a driver put a black item into the bushes on the side of the R132, that the company identified the vehicle as the one that the Complainant was driving and that the Complainant confirmed he had stopped there. The Transport Manager confirmed that following a search of the area a black container was found with a length of tubing. A report showed that the Complainant had fuelled up that morning, putting an extra 27.4 litres of diesel into the truck. Furthermore, there was a pattern of the Complainant putting in extra fuel and stopping at unplanned locations on the same day, giving him the opportunity to siphon fuel. The Operations Manager therefore felt that there was a case to answer and that the matter should proceed to a disciplinary hearing. On 26 March 2018 the Complainant was invited to attend a disciplinary hearing which took place on 29 March 2018. Mr Tony MacNamee, General Manager, conducted the disciplinary hearing and the Complainant was again represented by Mr Doolin. Notes of the meeting may be summarised as follows: The Complainant stated that he never took diesel from a truck, that he stopped in unusual places but not to take diesel. The General Manager pointed out a pattern of the Complainant topping up the tank with diesel for every trip before leaving the site even when the tank was full. The Complainant said he didn't fill the tank every time. He stated that it was a former company policy to have a full tank. The General Manager asked if that was Respondent policy to which the Complainant said maybe. When asked if he fills the tank on return from a trip the Complainant confirmed that he did. The Complainant was asked about the unscheduled stops he was making, and he said that he was stopping to go to the toilet. When asked if he thought it was acceptable to go to the toilet on the side of the road the Complainant said it may not have been acceptable, but it was what he had to do. The General Manager highlighted some unscheduled stops the Complainant made and the nearby facilities that the Complainant could avail of. The General Manager asked about the stop that the Complainant made on 21 February and pointed out that he took a 2-3-minute detour to do so rather than going to the depot and using the facilities there. The Complainant argued that if went to depot he would have to fuel up the tank before going to the toilet and that he couldn't wait to do that. When asked about the witness seeing the truck stopped and the driver carrying something into the bushes, the Complainant said that he wasn't carrying anything. When the Transport Manager highlighted that the area was searched, and a container was found with tubing, the Complainant said it was a coincidence. The Shop Steward, on behalf of the Complainant, asked how the Complainant was supposed to get a 25-litre container into the cab? He also stated that the truck would have an anti-siphoning mechanism which would prevent siphoning fuel from the tank. The General Manager set out that a test had been carried out on a truck and that if extra fuel had been put into the tank it could be siphoned. Before the meeting ended, the General Manager set out that there were things raised at the meeting that he would clarify. He read back the notes and asked if anyone had anything to add, which they didn't. The disciplinary meeting was reconvened on 11 April 2018. The Complainant was again in attendance with his Shop Steward as his representative. The General Manager advised that an independent laboratory had conducted a fuel analysis on the fuel found in the bushes which determined that the fuel was clean standard diesel and was not contaminated. The General Manager set out that as there was nothing else to add or consider, they would adjourn the meeting and on return he would issue his decision. The disciplinary outcome was issued on 11th April 2018: · The Complainant made 2 unscheduled stops which he stated were in order to use the toilet although there were no toilet facilities at these locations. · He stated that the reason for not waiting until returning to the depot to use the toilet was that upon return to the depot he would have to fill up the truck which would take too long. However, it was noted that the route he took was a 2-3-minute detour and the stop was only 5km from the depot. · On the day in question, a truck was observed stopped in a specific location on the R132 and the driver seen removing an item from the passenger side of the truck and leaving it in the bushes. The truck was identified, and the Complainant confirmed as being the driver that day. A search of the exact location found a 25-litre container of diesel. The Complainant submitted that that was a coincidence. The General Manager found that based on the balance of probability, the Complainant siphoned fuel from the company vehicle which constituted theft which amounted to gross misconduct. The General Manager set out that he had examined options short of dismissal including redeploying the Complainant to a non-driving role but there were no positions available. The Complainant was summarily dismissed as of 11 April 2018. The Complainant was offered the right to appeal and did so by email on 16 April 2018. The Operations Director was appointed to hear the appeal which took place on 8 June 2018. The Complainant was represented by a full-time official from SIPTU. Notes of the appeal hearing are in summary, The Siptu Official set out from the outset that they did not believe the company could substantiate the evidence that the Complainant did what he was alleged to have done and that dismissing the Complainant without sufficient evidence was unfair. The Complainant said that the witness could not have seen what he alleged to have seen from the other side of the road. The Operations Director pointed out that the witness was in a truck so would have been elevated. In relation to the filling of the fuel tank, the Complainant confirmed that normal procedure was to fill the tank at the end of the day, so it was full for the next person, however, on the day of the incident he topped up the tank at the beginning of the shift even though the tank was full. At the end of the appeal hearing, the notes were signed off by both parties and the Operations Director advised that he take time to consider his decision before issuing it. On 29 August 2018, the Operations Director issues his decision. Taking everything into consideration, the Operations Director decided, on the balance of probabilities, to uphold the decision to dismiss the Complainant. Company Arguments Section 6(4) of the Unfair Dismissals Acts 1977 states; (4) 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:b) the conduct of the employee, The Respondent acted in accordance with Section 6(4) and terminated the Complainant's employment as a result of gross misconduct. In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, the Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden which must be demonstrated by the Respondent in the matter at hand today: "The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act[...]. The Tribunal's function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established the Tribunal must be satisfied that the alleged act[...] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer." Each of these criteria outlined by the Tribunal will be examined in turn. Fair procedures Firstly, the matters were "fully and fairly investigated" and at all times in the process the Complainant's rights were upheld. Drawing on SI 146/2000, the rights which are in question here today have all clearly been upheld: · The Complainant was made fully aware of the allegations against him and was aware at all times that the matter being considered was that he had parked at an unusual location and was seen removing an item from the vehicle and that on inspection of the area, a 25-liter drum of fuel was found. · the Complainant was provided with a full and fair opportunity to present his case and to influence the decision. · The Complainant was at all times advised of his right to representation which he availed of at each stage of the process. · The Complainant was afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter was taken into consideration and the Respondent considered the situation thoroughly before reaching a conclusion. Furthermore, the parties who were involved in the decision making process were impartial and not previously involved with the process. · The Complainant was advised of, and availed of, his right to appeal. (B) Conclusion based on the "balance of probabilities" · It was "reasonable on the balance of probabilities" for the Respondent to conclude that the Complainant had carried out an act of gross misconduct. · The Complainant did not have a credible reason for stopping where he did on Rl32. He said he stopped to use the toilet, but he was a mere 5km from the depot where he could have used the facilities. Instead, he claimed that he detoured from the standard route to go to the toilet in the bushes. · On inspection of the area where he had been spotted removing something from the vehicle, a 25-litre drum of diesel was found with tubing. · Thus, in light of the above, the Respondent believes that, on the balance of probabilities, it was reasonable to conclude that the Complainant had placed the fuel drum in the bushes. (C} A "proportionate response" · Finally, the dismissal was "a proportionate response within the band of sanctions which could be imposed by a reasonable employer." The Respondent contends that this sanction was proportionate in light of the severity of the incident. Any reasonable employer could not be expected to continue to trust an employee who carried out an act like this. · This incident irrevocably broke down the relationship between the Respondent and the employee. This was a serious breach of the trust and confidence that the Respondent had in the Complainant to carry out his role. It is the Respondent's position that any lesser sanction would not be appropriate for an incident as severe as this one. · The Disciplinary Policy clearly states that "deliberate or serious breaches of conduct, standards/rules and regulations", "theft of money or property", and/or "any action which can be construed as an intention to defraud/deceive the business" amounts to gross misconduct. It is the Respondent's position that the Complainant's behaviour did amount to gross misconduct, and they would not be in the position to trust the Complainant to continue to work for them. · This position has been upheld by the Tribunal on a number of occasions as justifying dismissal as a reasonable sanction, including in Moore v Knox Hotel and Resort Ltd, UD 27/2004, (Appendix 21) where the Tribunal stated that: "{The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of that employment relationship impossible, thereby justifying her […] dismissal”. |
Summary of Complainant’s Case:
| Background The Complainant was employed as a driver with the Respondent since 18th of September 2013. It is important to note that during his employment there were a few TUPE’s situation. His main duties were to drive a big delivery truck from one place to another, as required by the Respondent. His working hours per week were usually more than 40. He was a very good employee, with a clear record, no previous warnings on his file, prudent and diligent, hard working person. On 21st of February 2018 the Complainant was suspended with pay pending a full investigation into an allegation that he, allegedly, was involved in theft of diesel from a company vehicle. The allegation was that “On the 21st of February 2019 (…) you were witnessed parking your vehicle in an unusual location on the hard shoulder on the R132. You were witnessed exiting the vehicle with an item of black color and you proceeded into the bushes. A 25-litre drum filled with the diesel and wrapped in black plastic bags and a length of piping were found in the bushes at that location. We are investigating the potential theft of diesel from a company vehicle” It happened that on that day in question our member was scheduled to drive, with a heavy delivery, from his own depot to Wexford. He came to work at 4am. He prepared the truck for the journey, inter alia, by ensuring that the diesel tank is filled with fuel. That was the standard practice he followed over the last number of years. MORNING JOURNEY FROM DEPOT TO WEXFORD, 21st of JANUARY 2018 As per the tachograph records he left the depot at around 4:44. He made a short stop 33 minutes later at around Rockview roundabout/Sandyford for about 4 minutes. Then he continued with his journey to Wexford. When the truck was unloaded, he embarked on his return journey at 11:22am. He drove for 87 minutes, then he took a short stop for about 6 minutes and continued to drive for the next 65 minutes until he arrived at depot in at 2pm. Subsequently he made another trip to Balbriggan. At this point we wish to note that the whole journey from the Depot to Wexford takes approximately 2.5 hours of continuous driving. The estimate time could vary and depends on traffic and the truck’s load, the fuel consumption could vary in connection with these two factors. INCIDENT On the same day, a work colleague was driving his truck on the R132. As per his statement, at approximately 1:50pm, “I saw one of the Respondent’s trucks pulled over on the other side of the road going with the passenger side door of the truck open. I saw the driver carrying something heavy wrapped in black plastic walking fast from the passenger side of the truck into the bushes on the side of the road. I slowed down to see what he was doing and saw him dropping the black container in the bush and walk back to the passenger side of the truck”. He did not see anything else, but rang his manager, to inform him about the incident. Shortly after he received a call from another manager, the Yard Supervisor and was asked for the exact location of where the truck was parked. Subsequently two people got involved in searching of the area – the Yard Supervisor and Transport Manager, it was the Yard Supervisor who found a 25litre drum filled with diesel along with a length of piping, in the bushes, in the location described On the same day, the Shift Manager, using vehicle tracking system, identified the vehicle as HD219 which was being driven by the Complainant at the time. Later that day, when our member returned from his second journey, to Balbriggan, he was briefly interviewed by the Shift Manager and told that he was suspended with pay pending the investigation. Investigation and disciplinary Process An investigation was carried out by the Operations Manager. The first meeting took place on 16th of March 2018 and the Operations Manager was accompanied by a HR Representative. The Complainant confirmed that on his way to Wexford he stopped in Rockview roundabout (Sandyford) for 4 minutes and travelled continuously to Wexford. On the return journey he stopped for 6 minutes (that was an hour before arrival at the depot). However, the Respondent was of the view that he also stopped for unspecified amount of time at 1:48pm at R132. The Complainant confirmed that sometimes he did drive on R132 on his way back to the depot to use bushes along the road for a toilet. He explained that it quite often that upon arriving in the depot he can’t go to the toilet for some time and it is easier to use nearby bushes along R132 before arriving at the depot. He confirmed that he used road R132 on his way back from Wexford and he stopped there to go to the toilet. The Complainant was called to disciplinary meeting which was chaired by the General Manager, who was accompanied by the same HR representative who attended the investigation meeting. A number of points were raised by the shop steward who represented our member at the disciplinary meeting: a) That the practice of filling up the tank before the departure was a standard practice amongst many employees who previously worked for another company prior to the TUPE transfer to the Respondent. b) That there was anti-siphoning system in trucks, which is usually triggered after first 25-28 litres c) That whole drum (or almost whole) was filled with diesel (the one which was found in the bushes) d) That the only possibility for the Complainant to siphon the fuel out was at the Rockview stop (4 minutes); however, it was highly possible that truck driven by the Complainant burned around 20 liters between the depot and Rockview. That would mean there was around 8-10 liters ‘available’ to take. It was put forward whether it is even possible to siphon out 25 liters within 4 minutes (although it was obviously not possible due to anti- siphoning system) e) That it is extremely difficult, if not impossible, to imagine how 25-liter drum was stashed by the Complainant, whether the Complainant had it along with him for the whole trip to Wexford, back, or not, especially as the Complainant lives in Slane, Co Meath. f) That given all the above, it is impossible that the Complainant siphoned out diesel from the Respondent’s truck and if he parked in the same area where a 25-liter drum full of diesel was subsequently found – it was a coincidence. On the 11th of April the Complainant received the outcome – the General Manager, on the balance of probabilities found him to be involved in theft. However, it seems that the trust between employer and employee was not completely damaged, as the General Manager considered relocating him to a different, non-driving position. However, given there was no such a role available at the time, he summarily dismissed him from the employment. The Complainant appealed the decision. The appeal hearing took place on 8th of June, but our member had to wait almost three months to receive the decision. His appeal was not upheld, and our member referred the matter to WRC. Legislation Section 6(1) of the Act states “subject to the provisions of this section, the dismissal of the employee shall be deemed for the purpose of this Act to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal.” Section 6(7) provides “without prejudice to the generality of subsection 1 of this section, in determining whether a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Tribunal or the Circuit Court or as the case may be considers it appropriate to do so – a) to the reasonableness or otherwise to the conduct (whether by act or omission) of the employer in relation to the dismissal and b) to the extent (if any) of the compliance or failure to comply with the employer in relation to the employee, in relation to the procedures referred to in section 14(1) of this Act, with the provisions of any Code of Practice referred to.” In Concepta Brebner v Clann Mor Residential and Respite Limited UD1613/2014, the Court stated: ‘One of the most serious issues facing a person with significant consequences for that person is being dismissed from his / her employment. The person may never be able to work again and in certain circumstances be ostracized by the community. An employee may be unable to secure employment again. It therefore behooves an employer to take great care before dismissing an employee especially where that employee will be looking for employment again in a specialized employment sector’. On page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC 1996), the Tribunal stated: ‘We have always held this exemption [of summary dismissal] applies only to cases of very bad behavior of such kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behavior in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where behavior fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words as negligence, slovenly workmanship, bad timekeeping etc. They did not do so.’ In Connaught Gold v Connor Rafter UD 48/2014, it was held that “the role of the Tribunal in unfair dismissal cases is not to establish an objective standard but to ask that the decision to dismiss comes within the band of reasonable responses that an employer might take having regard to the particular circumstances of the case.” In terms of the standard of proof - in Georgopoulos v Beaumont Hospital Board [1998] 3 IR 132, the Supreme Court expressly approved of the following passage from Sir William Wade’s textbook on Administrative Law: “But the civil standard is flexible, so that the degree of probability required is proportionate to the nature and gravity of the issue. Where personal liberty is at stake the court will require a high degree of proof…; and the matter will not be much lower in matters affecting reputation and livelihood.” (6th edn, Oxford University Press, 1988, at p.341) The Court continued: "The standard of proving a case beyond all reasonable doubt is confined to criminal trials and has no application in proceedings not of a criminal nature. It is true that the charges against the plaintiff involved charges of great seriousness and with serious implications for the plaintiff's reputation. This does not, however, require that the facts upon which the allegations are based must be established beyond all reasonable doubt. They can be dealt with on the balance of probabilities bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the case to be investigated [1998] 3 IR 132, 150). Thus, where an allegation is one of serious criminal misconduct, or is highly damaging, an employee is entitled to proof to a high degree of probability. Our case It is our position that the investigation was not sufficiently thorough, the overall process was not fair and that all circumstances of the case were not properly taken into account. There was not sufficient evidence to indicate that our member was involved in theft. The accuracy of the reporting driver’s statement is questionable: given the nature of the road R132, the size of the vehicle he drove versus the size of the Complainant’s vehicle a number of factors should have been considered - distance between two cars and speed along with the height of bushes between two opposite lanes on the road, the size of the Complainant’s vehicle’s door. All these factors combined could quite well have obscured the clear view, and thus the proper and reliable assessment of the situation by the reporting driver witness. It had been requested to cross examine the reporting witness, this request was rejected by the Respondent. The Respondent relied on a statement signed by one of the managers, who initially interviewed our member on 21st of February. This interview was done without telling the Complainant about the nature of the allegation and that there will be a formal investigation. During this interview our member was told that he is suspended. The Respondent examined the content of the drum some six weeks after the incident. Furthermore, it is our position that it was not possible for the Complainant to steal the fuel – there would have been a number of conditions to be met in order to, as per the allegation, steal and stash a 25-litre drum full of diesel on R132: • Siphoning-out diesel from the truck’s tank in order to fill the 25-litre drum should have been done before anti-siphoning system would be triggered. • In case of our member, the only possibility to do such thing would have been at the Rockview roundabout, (Sandyford) – 4 minutes stop • However, the Complainant already drove his car for about 33 minutes with a heavy load. It is estimated that for such a journey his truck would burn at least 15-20 litres, therefore, at that Roundabout there was no more than 10 litres left in the tank above the anti-siphoning mechanism • It was not established during the overall process how long does it take to siphon out 25 litres of diesel and/or 10 litres • If only 10 litres were siphoned out – the amount won’t match the amount of diesel found in the drum • It was established that a drum was filled with diesel in full • It is highly questionable if 4 minutes at the Rockview roundabout stop would have been sufficient time to prepare 25liter drum and a pipe, and to fill it with diesel from the truck’s tank and to put it back into the car. • There was no attempt to explain or create any realistic hypothesis how the Complainant possibly could have stored in his car the ’25 litre drum’ in order to ‘stash it in bushes on R132’. Given the above, it is our position that it was unreasonable to find that the Complainant was involved in any theft. It is our position that it is a mere coincidence that a driver stopped the truck and went into the bushes for ‘a toilet’ in an area where subsequently a 25-litre drum and a pipe was found. Such a drum could have been left by somebody else etc. Such coincidence would be similar to a situation where a driver, while driving his car, would spot another driver on the opposite lane disembarking his truck. Finally, we wish to highlight that the General Manager, the person who dismissed our member, on the balance of probabilities found him to be involved in theft. However, it seems that the trust between employer and employee was not damaged, as the General Manager considered relocating him to a different, non-driving position. However, given there was no such a role available at the time, he summarily dismissed him from the employment. Given all the above, the dismissal of our member was unreasonable and unwarranted, and could not be regarded as falling within the range of reasonable response of a reasonable employer. |
Findings and Conclusions:
| The incident took place on 21st February 2018 and the outcome of the appeal was communicated to the Complainant by letter dated 29th August 2018, a time span of just over six months, why did it take so long to complete this process? One of the major delays appears to be the time between the appeal hearing (8th June 2018) and the appeal outcome (29th August 2018). Investigation Meeting – 16th March 2018. It was put to the Complainant at this hearing that “There is a pattern of you putting in extra fuel and stopping at unplanned locations on the same day giving you the opportunity to siphon off fuel and place container in bushes at the side of the road” The investigation shows that on the following dates the Complainant had taken a detour through one or two destinations and these were all dates he had topped up his fuel level prior to leaving the depot in the morning: 12th January 2018; 6th January 2018; 5th January 2018; 3rd January 2018; 29th December 2017 and 28th December 2017. It was put to the Complainant at this meeting that the most fuel he would use in a day was 150 litres and yet he was topping up a tank with a 500 – 650 litre capacity. The meeting was adjourned and re-convened on 23/03/2018. I also note the Respondent submission states that these notes were signed by all present, this does not appear to be the case, the copy attached to the decision is not signed. Disciplinary Meeting. A disciplinary hearing was held on 29/03/2018 – no decision made at this meeting. Management wanted to conduct a few more checks including the analysis of the diesel found in the 25-litre drum. The sample was sent to the independent laboratory on 4th April and the results were provided to the Respondent on 6th April. The outcome of the Disciplinary meeting was communicated to the Complainant by letter dated 11th April. The Complainant was summarily dismissed on 11th April 2018. One point from this letter should be focussed on: “We have examined all options short of dismissal including redeploying you to a non-driving role. Unfortunately, there are no positions available due to a redundancy as a result of a site closure and the loss of a contract at another one of the company’s sites”. Does this imply that if a job had been available they would have placed the Complainant into it? When asked this question at hearing it was the Respondent position that they had lost trust and confidence in the Complainant. Appeal Hearing. The Appeals Hearing was conducted by the Operations Director on 08/06/2018. The Complainant was represented by his Siptu Official. At the investigation the Siptu official raised his concerns in relation to the investigation and asked could the reporting witness be cross examined. The fuelling process was also questioned and when was the proper time to fuel the truck. The union official asked was there a policy in writing. The Operations Director said he needed time to consider and would communicate outcome as soon as possible. As already stated the outcome of the appeal was not communicated until 29th August 2018, some two and half months after the appeal hearing – this is far too long. The outcome of the appeal upheld the decision to dismiss the Complainant. The incident took place on 21st February 2018 and the outcome of the appeal was communicated to the Complainant by letter dated 29th August 2018, a time span of just over six months, why did it take so long to complete this process? One of the major delays appears to be the time between the appeal hearing (8th June 2018) and the appeal outcome (29th August 2018). Case Law. The Complainant’s representative has focussed on three case all of which look at the possible consequences for an employee being dismissed, one of these was:Concepta Brebner v Clann Mor Residential and Respite Limited UD1613/2014, the Court stated: ‘One of the most serious issues facing a person with significant consequences for that person is being dismissed from his / her employment. The person may never be able to work again and in certain circumstances be ostracized by the community. An employee may be unable to secure employment again. It therefore behooves an employer to take great care before dismissing an employee especially where that employee will be looking for employment again in a specialized employment sector’. The Respondent has cited in the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, the Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden which must be demonstrated by the Respondent in the matter at hand today: "The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act[...]. The Tribunal's function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established the Tribunal must be satisfied that the alleged act[...] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer." In the same regardLooney & Co v Looney UD 843/1984providestwo important points : The first being the role or duty of the Tribunal, in the instant case the Adjudication Officer and the second relates to a reasonably held belief: ‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’ The second being: “The decision to dismiss the claimant on the basis of his reasonably held belief in the claimant’s culpability was a decision which a reasonable employer in the circumstances could have reached”In the instant case I do believe that the Respondent used a fair procedure and adhered to the policies in place within the organisation. I do have some misgivings in relation to how long this took. The Complainant has been represented at every stage in the process and has been afforded every opportunity to state his case.I do believe that the Respondent’s decision to dismiss the Complainant on the basis that having gone through a full investigation of the facts came to a belief that on the balance of probabilities the Complainant was guilty of stealing fuel from the truck. These, I believe were the actions of a reasonable employer.I have to conclude that the complaint as presented is not well found and therefore fails. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
| For the reasons outlined above I find the complaint is not well found and therefore fails. |
Dated: June 6th 2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
| Unfair Dismissal |