Complainant

Respondent

Anonymised Parties

A Driver

A Limited Company

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-00032201-001

14/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032201-002

14/11/2019

The complainant is a HGV driver. He commenced his employment with the Respondent on the 1st of July, 2015. His employment was terminated on the 11th of September 2019 for gross misconduct on the grounds that he had been driving the Respondent’s lorry with an expired licence.

The Complainant alleges that at no point during the investigation or disciplinary process was he aware of the gravity of the allegation being made against him. He admitted from the outset that his licence had expired. He thought it had only expired by a week or two. He keeps his licence in the lorry and never thought to check it. As soon as the Complainant became aware that his licence had expired, he started the process of having it renewed. That took two or three days.

The Complainant alleges that he was not given a copy of the disciplinary procedure. Whilst the Complainant accepts that he was driving the Respondent’s lorries without a licence he feels, due to unblemished employment record with the respondent, that the sanction was disproportionate.

The Complainant got a job on the 30th of January 2020. From the date of his dismissal he began looking for alternative employment. He registered for job seekers allowance and with a number of employment agencies.

CA-00032201-002

The complainant was not paid notice following the termination of his employment.

On Thursday the 5th of September 2019, TY, as a favour for the Complainant, made a number of online enquiries in order to help him find a good comprehensive car insurance quote. TY found a very good deal and called the complainant to inform him of that. TY said that he would complete the online application form for the complainant. The application form required details of his current driving licence. When TY asked the complainant for those details the complainant told him that his driving licence was 'just out of date'.

TY promptly alerted the Respondent’s MD that the complainant had been driving vehicles without a valid driving licence. In the meantime, the Complainant had left the Respondent’s premises driving himself home in a company vehicle. The MD immediately had a staff member drive to the Complainant’s home where he investigated and verified the facts. He then took possession of the vehicle and brought it back to the Respondent’s premises. The Complainant was placed on paid leave pending investigation and possible disciplinary process.

When the Respondent investigated the matter and had sight of the complainant’s driving licence, it transpired that it had expired 2 months earlier, on the 7th of July. Based on that information the Respondent escalated the matter to a disciplinary process. The complainant was invited to attend a disciplinary hearing to be held on Wednesday the 11th of September. He was advised of the nature of the accusation and was informed that he was entitled to bring a colleague or legal representative with him.

The Complainant attended the meeting alone. During the meeting he told the Disciplinary Officer,  he thought his licence expired on the 17th of August. Furthermore, he stated that there used to be 30 days grace but that probably doesn't exist anymore more and that he would never put the Respondent company in jeopardy. It was just ignorance on his part and he apologised.

Following the meeting the complainant was told that the disciplinary officer would reflect on the issues and would get back to him.

A few hours later the disciplinary officer texted the Complainant requesting him to call into the Respondent’s premises the next day. The Complainant called back immediately. The Disciplinary Officer did not intend to disclose the decision to the Complainant over the phone but he pressed him to do so. The disciplinary officer told the Complainant that his employment was being terminated for gross misconduct. He asked him to come into the office the following day so that he could go through the reasons for the decision.

The consequences for the Respondent, had a complainant being caught driving without a licence, are twofold. Firstly, there are insurance implications. Secondly it is in breach of Section 38 of the Road Traffic Act and upon conviction the employer is liable to a fine not exceeding €5,000 and/ or up to six months imprisonment.

The Respondent was of the belief that the Complainant knew his driver's licence was out of date as he was able to tell TY during the original phone call that he believed it was out of date. The Respondent felt that the trust, that is essential in any employer/employee relationship was damaged beyond repair and based on that, dismissal was the only option.

The complainant was paid his wages up to date but was not paid notice as he was not entitled to it in the circumstances.

The complainant was given a right of appeal, but he did not avail of that.

CA 00032201-011

The complainant in this matter alleges he was unfairly dismissed from his employment. The dismissal followed a short investigation and disciplinary process. The respondent states that the dismissal was fair and proportionate in all the circumstances.

S6 (1) 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.”

The Respondent, by chance, found out that the complainant had been driving its lorries for two months without a valid driving licence. I am satisfied that the complainant was fully aware that his licence was out of date because he told TY during their phone call on the 5th September, without checking his licence, that it was out of date. Therefore, he knowingly drove the Respondent’s vehicles without a valid licence. That is a criminal offence which not only could have had serious consequences for the Complainant but also for the Respondent. I do not accept the Complainant’s argument that it was the Respondent’s responsibility to ensure his licence was up to date. His contract of employment clearly states at clause 16:

“It is a condition precedent of the offer of employment that you hold a full, valid and recognised driving licence which said licence must be produced to the company prior to you taking up employment with the Company. This condition applies throughout the duration of your employment with the company and it this condition cannot be satisfied your employment with the company will be terminated forthwith.”

In all the circumstances the decision to terminate the Complainant’s contract of employment was well within the bands of reasonableness. Accordingly, the complaint fails.

CA-00032201-002

In circumstances were the complainant was dismissed for gross misconduct he is not entitled to a notice payment. The complaint fails.

CA-00032201-002

The complaint fails.

CA-00032201-001

The complaint fails.