Complainant

Respondent

Anonymised Parties

A Truck Driver

A Distribution Company

Representatives

CoraHeagneyMalcomson Law

Catherine O'FlynnWilliam Fry

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-00022908-001

29/10/2018

The Complainant, a lorry driver, commenced employment with the Respondent on 1^st January 1984.  The Respondent is among other things, a fuel and oil distributor.  The Complainant's employment ceased on 27^th July 2018.  The Complainant's gross weekly pay at the date of termination of his employment was €656.56.  A complaint was lodged with the WRC on 29 October 2018.  The fact of dismissal was not in dispute.

The Respondent submits that the Complainant was fairly dismissed and that his dismissal was reasonable and proportionate in the circumstances.  By his actions, in breaching company policies, the Respondent had lost its trust and confidence in the Complainant to fulfil his duties.

The Respondent, in the main, relied on direct evidence of witnesses to make its case.

The Respondent submitted that the complainant had not been unfairly dismissed.

The Respondent put forward documentary evidence:

(i)                  Letter of 2^th or 4^th July 2018 inviting the complainant to an investigatory meeting

(ii)                The Investigation Report (6^th July 2018)

(iii)               Letter of 9^th July inviting the complainant to a disciplinary hearing

(iv)               Notes of the disciplinary hearing (13^th July 2018)

(v)                Letter of dismissal, 27^th July 2018.

The Respondent highlighted the view, expressed in the letter of dismissal, that through his actions the Complainant had breached company procedures constituting gross incompetence/negligence and in failing to acknowledge that the incident occurred, the Company had lost all trust and confidence in the complainant.

Mr A, the company Operations Manager, was called to give evidence on behalf of the Respondent. MR A stated that he only became aware of the spillage the day after it had happened. He reckoned the spillage was of about 400 or 500 litres.  He stated that he had sent a letter inviting the Complainant to an investigation meeting.  He said the notes of the investigation meeting he had with the Complainant were accurate.  Once he had submitted his Investigation Report his involvement in the matter ended.

In cross examination Mr A agreed that he had not asked the Complainant to review the notes of their meeting.  He also agreed that no one sets out to have a spillage and that he did not think there was any malice in the Complainant’s actions.  Mr A stated that he had not spoken to the two garage employees who were around the shed in which the tank was housed, at the time the fuel was being delivered.

Mr B, the Respondent’s Regional sales Manager for the area gave evidence at the hearing. He stated that he was the Complainant’s line manager. He stated that he had received a call from the owner of the garage on 28^th June, the day after the spillage.  The garage owner was annoyed he had not been informed of the spillage.    Mr B stated that he had considered options other than dismissal but due to the seriousness of the matter he decided that dismissal was warranted. 

In cross examination, Mr B stated that it was the company’s Human Resources dept who would have sent the letter of 9^th July 2018 to the Complainant inviting him to a disciplinary hearing.  When asked if he was surprised that the Complainant maintained he had never got this letter Mr B responded by saying yes, he was surprised as the Complainant had turned up for the hearing.  Mr B said he had not warned the Complainant at the outset of the Disciplinary Hearing that it could lead to his dismissal.

The Complainant submits that he was unfairly dismissed by the Respondent following a defective disciplinary process that also failed to have proper regard to the matters set forth by the complainant in his defence. The Respondent nonetheless decided to dismiss the Complainant which of itself was an entirely disproportionate step to the offences contended.

Throughout his career the Complainant enjoyed an exemplary work record making thousands of deliveries with no road traffic offences in over 35 years.

In May 2018 while making a delivery of oil to a new customer, a relatively small oil spillage occurred at a customer's premises when oil escaped through an overflow valve at the rear of the tank. The customer did not make a complaint about this spillage rather they contacted the Respondent requesting the delivery of two bags of pellets to treat the affected area.

Subsequently the Complainant was approached by management for what transpired as being an investigation meeting. He was later asked to attend a meeting with the Regional Sales Manager to discuss what happened. It appears this was in fact a disciplinary meeting which ultimately resulted in his dismissal for gross misconduct. The Complainant's appeal of this decision was refused.

The Complainant submits the following:

(i) That the reason for which he was dismissed from his position was unfair and disproportionate.

(ii) That he was dismissed in breach of the principles of fair procedures and natural justice.

(iii) That the Respondent failed to properly consider all matters.

(iv) That the Respondent failed to ensure a fair process in all of the circumstances.

The Complainant submits that the disciplinary process failed to properly ascertain a more appropriate sanction in relation to the breach contended. In circumstances where the Complainant has not received any prior written or verbal warnings in relation to any other matter and given his exemplary and loyal work record up to that date, the Complainant submits that a sanction of dismissal was inappropriate, disproportionate and unfair in all of the circumstances.

In relation to proportionality of the decision, the Complainant submits that the act leading to the Complainant's dismissal did not involve any acts of criminality or aggression, nor did it come in succession to a range of other complaints of failings in respect to the Complainant. At all times, the Respondent had a suite of options available to it to impose a sanction if proven necessary. However, it is submitted that the Respondent failed to have regard to any alternative sanctions and failed to consider any other alternative that would address their apparent concerns as an alternative to dismissal.

Regarding the proportionality of the sanction the complainant cites the case of Samuel J Firzelle V New Ross Credit Union [1977] IEHC 137.

The Complainant submits that an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of the dismissal. In an attempt to mitigate his losses, the Complainant submits that he was immediately proactive in seeking new employment. Ultimately, he managed to find new work within weeks of his dismissal, however, he submits he has incurred significant losses as a result of his unfair dismissal.

In direct evidence at the hearing, the Complainant stated that this was only his second visit to the garage at which the spill took place. On the day in question he had noticed a small spill and had turned off the supply to the tank.  It was only the following day that he became aware that there had been bigger spill.  He stated that two garage employees were present when he cut off the fuel supply to the tank but neither of them said anything to him about the spill.  The Complainant accepted that there had been a more serious spill than he realised at the time.  He didn’t think what came out was worth reporting.

The Complainant accepted he did get a letter dated 4^th July inviting him to an investigatory meeting with Mr A.

The Complainant stated that when he met with Mr A to discuss what had happened, he did not realise the seriousness of the situation, he did not think it could lead to his dismissal. He did not get the notes of this meeting at any stage.

The Complainant could not recall if he had received a letter dated 9^th July inviting him to a Disciplinary Hearing.

The Complainant met with Mr A but again he did not realise that this meeting could lead to his dismissal.   He was not shown the photos of the site after the incident at this meeting. 

About a week later the Complainant stated that he was contacted by Mr A who arranged a meeting.  At this meeting the Complainant was handed a letter of dismissal and asked to hand back his phone and keys.  The Complainant was dumbfounded and shocked. 

At the Appeal hearing the Complainant explained that he had not been distracted doing the delivery and that he had not informed the owner, because he did not know there was a spillage.

The Complainant stated that he had managed to get a new job two weeks later, with slightly longer hours but no pension.

In response to questions from the Respondent’s representative, the Complainant stated that the overflow had only gone on for half a second and that he had switched off the overflow when he saw what was happening.  The Complainant also stated that he had not been aware of any spillages from either the side or the back of the tank; not unlike the garage employee who happened to be standing beside him at the time.  

The Complainant did not think he needed a representative when he met with Mr B as he thought it was “just a disciplinary”.

The Complainant’s wife also gave evidence at the WRC hearing. She stated that she looked after her husband’s administration and that, although she did see three letters sent to her husband (the outcome of the disciplinary hearing, the letter to do with an appeal and the outcome of the appeal) she had never received or see a letter inviting him to a disciplinary hearing.

The Complainant’s daughter also gave evidence at the hearing.  She stated that she is a trainee solicitor and is familiar with her father’s affairs. She accompanied him to the Appeal Hearing.  Before the Appeal Hearing, she had not seen the letter inviting her father to a Disciplinary Hearing. She had never seen a copy of the investigation report or the photos of the site before the Appeal Hearing.

In conclusion, the Complainant put forward that there had been an indication of bias, a presupposition of guilt, at the time of the investigation, supported by the type of questions asked and the fact that two witnesses, the employees of the garage, had not been asked for their version of events.  In addition, the sanction of dismissal, given the Complainant’s long service and unblemished record, for a small spill, was disproportionate.

S6(4)(a) 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

Regarding the procedural aspects of this case, it is clear an investigation took place into the allegations made against the Complainant, the outcome of which was a recommendation that formal proceedings under the Disciplinary Policy should be pursued. It is not my role to re-investigate the allegations but to decide on whether the investigation was thorough and fair. In all cases of dismissal for conduct, an investigation by the employer is required.  The precise requirements of each investigation will be determined by the facts of the case, but the onus is on the employer to show that it was "fair" in the sense of being open-mined and 'full' in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. If an investigation fails to meet these requirements, the decision to dismiss is likely to be found unfair.

In direct evidence Mr A stated that he did not contact the two workers who chatted with the Complainant as he filled the tank.  I believe this is a significant omission from the investigation; these men could have given evidence on whether the spill seemed to be substantial or as the complainant maintains, seemed to be a minor one, a key element in this scenario.  This omission undermines the veracity of the investigation’s outcome.

There is some confusion over whether the Complainant received the letter of invite to the Disciplinary Hearing and was not therefore not fully understanding of the potential outcome. From the evidence adduced I believe it more likely that the Complainant did not receive the letter and therefore he was unaware of the potential consequences of the hearing. Neither was he warned at the outset of the Disciplinary Hearing that if found against he was liable to sanction up to and including dismissal.   The Complainant was not represented at the hearing which is undermines the fairness of the hearing and in turn the process.

Having considered the evidence adduced in relation to the procedural aspects of this case I find that the failings referred to above render this dismissal unfair.  In reaching this finding I am informed by Labour Court Recommendation UDD 198 which states inter alia:

“The Complainant’s case is that his dismissal was unfair as the decision to dismiss him does not meet the standard for fair procedure set out in the case law cited. The Respondent disputes that the dismissal was unfair and argues that that there is no requirement for the process to be perfect. Any errors that may have occurred in the process were minor. The Court does not dispute the fact that the process does not have to be flawless however, in this case a number of issues have been highlighted which in the Court’s opinion go to the heart of the Complainant’s ability to answer the charges being laid against him. In particular, the failure to provide him with all documentation being relied on by the decision makers at the various stages of the process and the failure to provide him with some of the allegations in advance of the investigation into same.

In Panasov v Pottle Pig Farm UDD1735 this Court concluded;

• ‘The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.’

The fact that the Complainant in this case was not informed in advance of all the allegations against him and was not provided with all the documentation being relied on by the decision makers at the various stages of the process, deprived him of the opportunity to advance a defence. In reliance on the decision in Panasov v Pottle Farmit is the decision of the Court that in those circumstances the decision to dismiss was not within the range of reasonable responses. The Court therefore, cannot see how this dismissal could be deemed to be fair.”

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

I find the decision to dismiss the Complainant, based on the allegations made against him, was unreasonable. The allegations did not justify the imposition of the sanction of dismissal, particularly considering the Complainant’s long service and his clean disciplinary record.

In this regard, I find the sanction of dismissal imposed on the Complainant was disproportionate and unwarranted in the circumstances.

For all the above reasons I find that the Complainant’s dismissal was unfair within the meaning of the Act.

Financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal.    The measurement of and assessment of compensation is difficult; it is not an exact science and is not confined to actual loss. Essentially, the compensation award is for the Complainant’s proven and probable economic losses following his dismissal.  The degree of unfairness in the dismissal or other such attributes is not a factor to be taken into account.

In this case, the Complainant was diligent in finding work after being dismissed and commenced employment elsewhere only two weeks later.  His weekly pay in his new job is slightly less per hour than that which he enjoyed with the Respondent and he works three hours more per week with his new employer.  He also has five days less annual leave per annum with his new employer than he had with the Respondent.

Unlike his former job with the Respondent, the Complainant’s new job does not provide a pension nor is he allowed continue in the Respondent’s pension scheme.  Given his employment profile, the lack of pension is of grave concern to the Complainant.  

The Respondent’s annual pension contribution is 8% of the Complainant’s base pay (€29,838.00) with six years and three months from the date of termination to date of retirement, the loss of pension contribution from the Respondent totals €14,919.  Taking this and all the above into consideration I believe an award of €22,419 is just and equitable.

The complaint is well founded, and I award the Complainant compensation of €22,419.

Investigation, proportionate,