Complainant

Respondent

Anonymised Parties

Mr. A

An Employer

Representatives

 Consultant

Solicitors

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-00022279-001

01/10/2018

The events leading up to the Complainants dismissal all arose around the retesting of a motor vehicle. During the week commencing 9 July 2018 the Complainant approached his Test Centre Team Leader and enquired whether he could bring his friend’s vehicle into the Deansgrange Test Centre for a retest. He was advised that this would be a breach of the Employer’s Code of Integrity. He then explained that his neighbour was away and he was concerned she would miss her test date. His team leaded directed him not to have anything to do with the vehicle.

On the 18th July the complainant drove the aforementioned car to a nearby garage and asked the garage employee to bring the car to the test centre. Whilst the car was at the test centre the complainant ended up carrying out a visual inspection on the car. He did so because he saw the car there and asked a garage employee standing over to his left to carry out the visual inspection. The employee told him that he would do it shortly. He waited for him to come over, but he did not. It was at that point that the complainant decided to carry out the visual inspection himself. He then went to another employee and asked him to print out the VIR. The garage employee then took the motor vehicle to a nearby recycling centre and the complainant drove it back to his friend's home from there. The complainant was invited to an investigative meeting on the 31st of July 2018. The complainant was accompanied to that meeting by a colleague. Following that meeting the complainant was informed in a letter dated 31st July,2018 that the investigation had concluded and that the file was being sent to the HR department to consider the next step.

By letter dated 1st August,2018 the complainant was invited to a disciplinary meeting which was to be held on 3rd August 2018. Following that meeting the complainant was suspended with pay and was informed of his suspension by letter dated 7th of August 2018. The complainant following the event was suspended on the 8th of August. He was dismissed from his employment by letter dated 10th August,2018.

The complainant accepts that he is not allowed to bring a car that he is linked to, to a test centre for testing. He also accepts that the company take this very seriously. He admits that he was trained in relation to this particular issue and that he signed for that training. Furthermore, he accepts that he didn't notify the respondent that he wasn't fully ofay with all of the rules prior to signing for them. He states that he didn't actually drive the car itself to the test centre. Because of the code of ethics he got somebody else to take the car to the test centre. His understanding was that he couldn’t drive the car to the test centre but that there was nothing preventing him from getting someone else to bring it to the centre for him.

Procedure

The company’s Disciplinary Procedures set out a four- stage process leading to the ultimate sanction of dismissal at stage four:

Stage One - Formal Verbal Warning includes that “… inform the individual of the aspects of his/her work or conduct which is below standard and together with the employee devise an action plan to help meet the required standard”.

Stage Two – First Written Warning includes that “In the event of the required improvement not taking place the employee will be issued with a written warning”.

Stage Three – Final Written Warning includes that “If there is still no improvement or the individual perpetrates another breach of conduct, the matter will be investigated and if upheld the employee will be given a final warning.”

The written warning that he received in May, 2018 related to an accident at work which was the consequence of my human error and is the type of incident that can and does happen on a regular basis to staff. It was the first such accident that I was involved in. As such, it was totally unrelated to the nature of the incident that was the subject of the Disciplinary Meeting of August 3rd.

The complainant submits that it is unfair and inequitable to treat these two incidences as constituting a basis for dismissal. The complainant further submits that the company’s actions in seeking to dismiss him circumvented its own Disciplinary Procedures and amounted to summary dismissal of a loyal and good employee contrary to both the form and the spirit of what was intended by these Disciplinary Procedures.

Severity

As stated above, the complainant fully accepts that he was in technical breach of company procedures on July 18th last. However, the severity of the punishment arising from the Disciplinary Meeting of August 3rd is totally disproportionate. The complainant seeks reinstatement.

The Claimant commenced full-time employment with the Respondent on 19 January 2015 as a Vehicle Inspector. He was initially employed on a series of fixed-term contracts but was made permanent on 17 January 2018.

The terms and conditions of his employment were set out in his Contract of Employment and these were expressly stated to include the Employee Handbook and Code of Ethics. Furthermore, the Complainant confirmed receipt of the Employee Handbook on 15 January 2015 and acknowledged receipt of training on the Code of Integrity on 26 February 2015.

The Complainant received periodic training and further acknowledged receipt of the Code of Ethics and agreed to comply with it on 15 January 2015 and 1 March 2017. The Complainant also signed various Performance Agreements which confirmed his compliance with the Employee Handbook and the Employer’s Code of Ethics.

The Employee Handbook provides the Disciplinary Procedure, which sets out a 4-step process of graduated sanctions: (1) Formal Verbal Warning, (2) First Written Warning, (3) Final Written Warning (potential suspension without pay) and (4) Dismissal. The Respondent is permitted to move straight to fourth stage dismissal in cases of serious misconduct. Numerous examples of gross misconduct are provided and they expressly include “wilful violation of Company rules”, “testing policies and procedures” and “breach of NCT Integrity”.

Prior to the matters which led to the Complainant’s dismissal he received a First Written Warning on 29 June 2018 in relation to an incident of carelessness involving damage caused to two vehicles. This sanction stayed live on the Claimant’s personnel file for a period of 6 months.

The Complainant was suspended from pay on 7 August 2018 in relation to the incident which led to his dismissal. He was subsequently dismissed on 10 August 2018. The Respondent was not obliged to pay him any notice period monies given the fact this was an offence that could warrant summary dismissal.

The decision was upheld on appeal.

The Code of Integrity & Employee Handbook

It is submitted that the Employer performs a State contract with respect to the certification of vehicles in order to protect the safety of road users. The contract is monitored and supervised by external independent parties. Test integrity and the vehicle inspectors’ compliance with vehicle testing procedures is of critical importance to the performance of the contract and is central to the Employer’s business model. As a consequence of this vehicle inspectors are repeatedly trained on testing procedures including the Code of Integrity which incorporates the Code of Business Ethics. The Complainant received training on these aspects of the vehicle inspector role on numerous occasions. Moreover, he confirmed he understood the nature and importance of the breach of the Employer’s rules in this case.

The Employee Handbook expressly forms part of each employee’s Contract of Employment. On page 22 of the Employee Handbook it states:

“The individual must be informed before the meeting that they are being asked to attend a disciplinary meeting, what the problem is to be discussed and that they have the right to be accompanied or represented by another employee, union representative or other representative, at each stage of the procedure. During the investigation of allegations, the Company reserves the right to suspend the individual concerned with pay pending a thorough investigation being completed.”

The Employee Handbook further states on page 22 that:

“if the breach of discipline is serious enough, any of the above stages in the Discipline Procedure can apply without having gone through the previous stages”.

On page 23 of the Handbook it states,

“in cases of very serious or gross misconduct an employee may be dismissed without recourse to stages 1, 2 or 3.”

Numerous examples of very serious misconduct are then provided and they expressly include “wilful violation of Company rules”, “testing policies and procedures” and “breach of NCT Integrity”.

It is also submitted that that the Employee Handbook sets out details of the Integrity Programme under “Standard of Business Conduct” on pages 23 and 24. It also refers to the Integrity Programme booklet, which was issued to all employees. That booklet states expressly that:

“All employees shall be required to confirm by signature that they have read and understand the NCTS Integrity Programme, and commit to complying with the regulations set down”,

And under Regulations:

“If you have any history pertaining to a vehicle presented to you for a test, you must disclose this to your TL/Manager, who will organise another inspector to test this vehicle”

“Driving a vehicle that is not your own to the test centre for a test is not permitted”

By letter dated 7 August 2018 the Employer informed the Complainant that they were suspending him from work on full pay with immediate effect pending a further formal investigative meeting into the allegations as outlined. It is submitted that there is nothing unorthodox or unfair about this and it is appropriate to suspend an employee on full pay pending an investigation in circumstances of serious allegations of misconduct.

The Investigation

During the week commencing 9 July 2018 the Complainant approached a Test Centre Team Leader and enquired whether he could bring his friend’s vehicle into the Deansgrange Test Centre for a retest. He was advised that this would be a breach of the Employer’s Code of Integrity. He then explained that his neighbour was away and he was concerned she would miss her test date. Once again the Team Leader explained the rules to the Complainant and directed him not to have anything to do with the vehicle.

On 18 July 2018 the Team Leader noticed that the Complainant was not driving his own vehicle to work at the Arklow Test Centre. He enquired where are his vehicle was and the complainant confirmed it was at home and that he had driven his friend’s vehicle to work that day. The Team Leader asked him why he was driving his friend’s vehicle and he said that he needed to get a visual test done on it. The Team Leader asked him whether this was the same vehicle that he had made enquiries of the previous week and the Complainant confirmed that it was. He confirmed that he had done the visual re-test on the vehicle (which had previous failed it test) and that he had asked another vehicle inspector, Mr. B, to generate a vehicle certificate for the vehicle. The Team Leader asked him to recall their conversation the previous week about his being directed not to take the vehicle to the Deansgrange Test Centre.

The Complainant then purported to explain his conduct by stating that he had not taken the vehicle to the Test Centre but had brought it to a garage who then presented it at the Test Centre. The Team Leader stated that he was obliged to report this incident to the Test Centre Manager. The Complainant then contacts The Test Centre Manager and reported the incident on 19 July 2018. The Test Centre Manager then spoke to The Team Leader, Mr. B and the Complainant and by email dated 26 July 2018 The Test Centre Manager reported the incident to the HR Department.

On foot of this complaint the Employer immediately started an investigation. By letter dated 26 July 2018 The Test Centre Manager wrote to the Complainant and invited him to an Investigation Meeting.

The Complainant was advised of his right to be accompanied. The Investigation Meeting proceeded on 31 July 2018 and notes were taken. At the meeting the Complainant admitted that he had brought the vehicle in question, which had been booked for a re-test at the Deansgrange Test Centre (having previously failed), from his friend’s house to a local garage, whereupon a garage employee presented it to the Arklow Test Centre. He then performed a visual re-test on the vehicle and asked a colleague, Mr.B, to issue a certificate for the vehicle. It also later transpired that the vehicle was then driven by the garage employee to a local recycling centre where the Complainant picked it up and drove it back to his friend’s house.

By letter dated 31 July 2018 the Employer wrote to the Complainant and informed him that the investigation had concluded and the file had been passed to the HR Department to consider what next steps were appropriate.

The Disciplinary Process

By letter dated 1 August 2018, the Regional Manager, wrote to the Complainant and informed him that a Disciplinary Meeting would take place on foot of the investigation. The Disciplinary Meeting proceeded on 3 August 2018 and notes were taken. At the meeting the Complainant confirmed that the Team Leader had previously told him to have nothing to do with the vehicle but he had proceeded anyway. He Regional Manager informed him that he was suspending him on full pay pending the outcome.

The Regional Manager informed The Team Leader that the Complainant had been suspended and directed him to explain to Mr B and the other testers that they should not issue certificates in respect of vehicles that they have not tested. The suspension was confirmed to the Complainant by letter dated 7 August 2018.

By email dated 9 August 2018 The Regional Manager informed the HR Department that he had decided to terminate the Complainant’s contract of employment,

“…due to the fact that he intentionally put in a process where the vehicle was driven to the test centre from a local garage where he dropped the vehicle off, the garage subsequently drove the vehicle to the test centre where Ivan removed the defects and asked another VI to process the pass cert knowing that the pass certificate could not be attributed to himself and then proceeded to drive the vehicle home and deliver to the owner of the vehicle.”

By letter dated 10 August 2018 the Employer wrote to the Complainant and informed him of the decision to terminate his contract of employment.

The Complainant was advised of his right to appeal the decision. By letter dated 16 August 2018, he appealed the decision. An appeal hearing was held on 22 August 2018. By letter dated 29 August 2018 the CEO of the Employer informed the Complainant that he had decided to uphold the decision to dismiss the Complainant.

It is respectfully submitted that the conduct of the Complainant represents a fundamental breach of the Contract of Employment. It should also be noted that the Respondent’s operation of the State National Car Testing contract is subject to rigorous and on-going supervision by the Road Safety Authority and the testing involved is directly related to the safety of road users. The training and competence of testers is of paramount importance to the Respondent.   

Without prejudice to the Employer’s submission that the dismissal in this case was not unfair, it is respectfully submitted that the Adjudicator ought to have regard for the conduct of the Complainant and the manner in which he contributed to his own dismissal.

Relevant Case-Law

The employer is entitled to rely on previous decisions of the Employment Appeals Tribunal, proceedings which they were a party to, which found that a breach of the company’s code of integrity programme could lead to dismissal and that such a sanction was not disproportionate.

In Hennessy v Read & Write Shop Ltd UD 192/1978 the Tribunal set out the general approach in cases of dismissal for conduct:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to (1) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and (2) the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

It is respectfully submitted that the investigation meetings presented facts from which the Employer was unable to continue to employ the Claimant.

In Frizelle v New Ross Credit Union Ltd., 1997 IEHC 137 Flood J. found:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

-        The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

-        Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

-        The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

-        The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

-        The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

In the case of Da Silva v Kepak UD1378/2011 the employee was a boner in the employer’s meat processing plant. The employee was dismissed for taking a photograph with his mobile phone of a ‘pile-up’ of work that had built up while he took a break. The employee argued that his dismissal had been unnecessary. The Tribunal was unanimous in their decision that the employee was fairly dismissed because there was a clear breach of company procedures by the claimant and the claimant was aware of those procedures at the material time.

Substantive & Procedural Fairness

In Bunyan v United Dominions Trust [1982] ILRM 404 the EAT endorsed the view that:

“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would done and/or concluded.”

It is respectfully submitted that as Mary Redmond finds in Dismissal Law in Ireland at paragraph 12.16:

“Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice. However, procedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee. The correctness of this proposition was tested inMeath County Council v Creighton UD 11/1977 “by an extreme example of a purely hypothetical case”:

“…two employees are proved to go to the end of a remote field and one comes back seriously and bodily injured and complains to his employer that he was brutally assaulted by his fellow employee and the employer dismisses his fellow employee on the spot without waiting for an explanation.”

If, having been convicted of causing grievous bodily harm to his workmate, the dismissed employee claims under the 1977 Act:

“does that employee, who has been proved beyond all doubt to be guilty of misconduct, have a right to claim compensation for an unfair dismissal merely because his employer failed to give him a hearing in accordance with natural justice? We think not”.

The Circuit Court endorsed this view:

“That the mere fact that some failing in due or agreed procedures is not a final a decisive matter for the Court on an appeal is clear from the provision of section 6(1) [of the 1977 Act], that regard must be had ‘to all the circumstances’, and not to one circumstance to the exclusion of all others. This is further borne out by section 7(2)(a), where compliance or failure to comply, by employer or employee, with certain agreed procedures is made a factor to be considered in determining compensation where a dismissal has been held to be an ‘unfair dismissal’ under the Act”.

The Circuit Court in that case derived support from a judgment of the High Court where Barron J in Loftus and Healy v An Bord Telecom dealt with an allegation that a lack of fair procedures was fatal to the employer’s case and found that it was not a question of whether ex-employees were deprived of fair procedures to which they were entitled but:

“whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish…[the basis if its dismissal] as the whole or the main reason for and justifying the dismissal.”

It is respectfully submitted that the Employer’s decision in this case was reasonable in all the circumstances and any procedural shortcoming was not such to (a) change the character of the conduct alleged or (b) to have prevented the dismissal being valid in the circumstances.

In the Supreme Court case of Charles Mooney v An Post [1988] 4 IR 288 Barrington J. held that:

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case… If the contract or the statute governing a person's employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the Employer to show that he has complied with this procedure… Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.”

It is respectfully submitted that the Disciplinary Procedure is clear in its terms and the Respondent was permitted to dismiss the Claimant given the fact that the conduct is expressly identified as being serious misconduct and the Complainant had to admit the conduct.

Proportionality

Without prejudice to the Employer’s contention that the dismissal was not unfair it is respectfully submitted that the sanction was proportionate in the circumstances of the case where the safety and/or integrity of the National Car Testing Services tests could be seriously undermined. It should be noted that the Claimant had a live First Written Warning on his personnel file at the time of the dismissal.

In Employee v Employer UD847/2009 the Tribunal determined that it was not satisfied that the investigative and disciplinary process that the respondent invoked and implemented was fair and reasonable and that the procedural defects were “significant”. However, in finding that the dismissal was unfair the Tribunal also had regard to the finding, on the balance of probabilities, that the claimant was guilty of misconduct and as a result of the misconduct contributed substantially to his own dismissal. A sum of €1,000 compensation was awarded.

In Allied Irish Banks PLC v Purcell UD1068/2009 the claimant was an employee of the respondent bank since 1993 and on several occasions allegedly accessed the bank accounts of a number of work colleagues. In the disciplinary process which followed, the employee accepted he had accessed these accounts but stated he had the objective of finding out whether the colleagues were paid a bonus and what bonuses they got. The Employer claimed this was gross misconduct and dismissed the employee. The employee’s two appeals against dismissal failed. The EAT found that the decision to dismiss was a disproportionate response to the claimant’s actions and therefore unfair. It determined he be re-engaged backdated to six months after the dismissal and paid at the same salary as he had at the date of dismissal, although one dissenting member of the Division found that reinstatement was not appropriate and recommended compensation instead. The Bank appealed and the matter came before the Circuit Court. In the Circuit Court it was agreed that the only issue was the employee’s accessing the accounts of his colleagues, to which he had admitted. Linnane J. concluded:

“Taking into account the circumstances here and the position of trust [the claimant] as an employee of the Bank was in, in my view the decision made by the Bank to dismiss [the claimant] was a reasonable one and the dismissal was fair.”

Accordingly, the Bank’s appeal against the EAT Determination was allowed. It is respectfully submitted that the actions of the Claimant in this case go to the very heart of the Employer’s business model. The alleged conduct is a clear breach of the express terms of the Contract of Employment, the Employee Handbook and in clear contravention of the training, practices and procedures of the Respondent. The dismissal was a rational and reasonable reaction to these serious and coordinated breaches of company rules. 

Section 6 (1) of the Unfair Dismissals Act 1977 (“the 1977 Act”) provides:

“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 7(2)(f) of the Unfair Dismissals Act 1977 (as amended) provides:

“Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(f)he extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

And Section 6(6) of the 1977 Act provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Hennessy v Read & Write Shop Ltd UD 192/1978 the Tribunal set out the general approach in cases of dismissal for conduct:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to (1) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and (2) the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In Frizelle v New Ross Credit Union Ltd., 1997 IEHC 137 Flood J. found:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

-        The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

-        Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

-        The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

-        The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

-        The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

I am satisfied that the complaint against the complainant was a bona fide complaint. Immediately prior to the breach of the code, the complainant was specifically told by the Centre Team Leader that he should have nothing to do with his friends car. He ignored that advice. The complainant was informed of the compliant and was given an opportunity to defend the complaint both verbally and in writing. He was allowed to have representation with him at the investigation meeting, the disciplinary hearing and the appeal hearing. He was given all of the documentation relied on by the respondent. He accepts that he was trained in relation to the code of ethics and that he signed for them. He admits that he never told the respondent that he didn’t completely understand every aspect of them. He further admits that he understands why the respondent has such rules in place. The complainant’s submission that he knew he could not drive a friend’s car to the test centre but thought it would be okay to get someone else to drive it in for him is quite simply not creditable. Whatever about that, there was no doubt in the complainant’s mind that he should not have carried out the inspection of the vehicle. I find that he did that with full knowledge that it was in contravention of the respondent’s code of ethics. In circumstances where the respondent carries out this State contract under the watchful eye of various internal and external auditors, it is fully justified in treating a wilful breach of the rules as very serious and a breach of same as dismissible offence.

In all of the circumstances I find that the complainant’s claim fails.

The complaint fails.