UDD2016

This is an appeal by Mr. Retter, (‘the Complainant’), against a Decision by an Adjudication Officer, (‘AO’), that he had not been dismissed unfairly, in accordance with the terms of the Unfair Dismissals Acts 1977 to 2015, ‘the Acts’, by DHL Supply Chain (Ireland) Ltd., (‘the Respondent’).

The Complainant was employed as a driver, working initially for Stobart Ltd and then, following a transfer of undertakings, for the Respondent. He earned €695 per week.

On 21 February 2018, an employee of a service provider to the Respondent saw one of the Respondent’s trucks stopped on the R132 near Swords, Co. Dublin. He advised his manager that he had seen somebody take something black and heavy from the truck, which was then dropped in nearby bushes. The manager reported this to the Respondent. Following a subsequent search of the location, a large parcel wrapped in black plastic was found, in which there was a 25 litre drum of diesel and some tubing.

The Respondent’s vehicle tracking system identified the truck concerned as that being driven by the Complainant. The Complainant stated to his Shift Manager that he had taken a route and made a stop in order to go to the toilet. The Complainant was suspended on full pay pending an investigation.

On 16 March 2018, an investigation meeting took place, at which the Complainant was represented by his Shop Steward. The Complainant outlined at the meeting that he had been returning from Wexford to his base in Donabate, Co. Dublin when he took an indirect route in order to go to the toilet. He denied carrying anything from the truck and stated that he was wearing a black jacket that could have been open.

The Complainant said that every morning he checked the fuel level in his vehicle and, if necessary, he topped it up. He said that he could not recall if he had done so on the morning concerned. He stated also that he stopped at that location sometimes to go to the toilet. It was put to the Complainant that, as the depot was only 5-10 minutes away, why had he not gone there to use the toilet facilities? He replied that he would have to fill the truck with fuel first and it would take too long. It was argued for the Complainant that the package found at the location was a coincidence and that there were no reports of a diesel smell from the Complainant or in the truck cab. The Complainant confirmed that he did not have a bladder condition and re-stated that he had not taken anything from the truck but that his black jacket was open.

The investigator also met the employee of the other company, who affirmed his earlier statement about what he said he had seen.

The investigator found that the Complainant had put in 27.4 litres of fuel into the truck that morning; that there was a pattern of the Complainant putting in extra fuel and making unplanned stops on the same day, giving him the opportunity to siphon fuel. He felt that there was a case to answer and that the matter should proceed to a disciplinary hearing.

A disciplinary hearing took place on 29 March 2018. This was conducted by Mr. Tony MacNamee, General Manager, and the Complainant was represented again by his Shop Steward, Mr. Pat Doolin.

At this meeting, the Complainant reiterated that he stopped sometimes in unusual places but that he never took diesel. He denied a suggestion that he topped up the tank for every trip but stated that it was the policy of the previous employer, Stobart, to ensure a full tank before leaving the depot every morning. He was unsure if that was current company policy and he confirmed that he filled the tank at the end of each day.

The Complainant reiterated that he would have been delayed going to the toilet if he had gone back to the depot on the relevant day. He denied that he carried anything from the truck and re-stated that the find of a drum of fuel and tubing at the location was a coincidence. His Shop Steward questioned how he could have got a 25 litre drum into the cab. He also noted that the truck had an anti- siphoning device, to which the General Manager responded to note that if the tank was filled to the top, it was possible to siphon the amount above the device.

At a subsequent meeting on 11 April 2018, the General Manager confirmed that an independent analysis had confirmed that the content of the drum found was uncontaminated diesel.

The disciplinary outcome was issued on 11 April 2018. It found that 2 unscheduled stops had been made in locations where there were no toilet facilities; the stated reason for not returning directly to the depot was that the Complainant would have to fill the truck with fuel and this would take too long, noting that a 2-3 minute detour had been taken when the stop was only 5km from the depot; that a report had been received that the Complainant had been seen removing something heavy from the truck and leaving it in the bushes and that a search of the exact location had found a 25 litre container of diesel. It was found that, on the balance of probability, the Complainant had siphoned fuel from the company vehicle, that this constituted theft, which amounted to gross misconduct. The General Manager set out that he had considered options short of dismissal including redeployment to a non- driving role but that there were no positions available. The Complainant was dismissed.

An appeal hearing took place on 8 June 2018 and the Complainant was represented by a union official. On 29 August 2018, the appeal decision was issued upholding the decision to dismiss.

The Complainant brought a case to the Workplace Relations Commission. The AO decided that the dismissal was not unfair. The Complainant appealed to the Court.

Respondent arguments

The respondent acted in accordance with s. 6(4) of the Acts and terminated the Complainant’s employment for gross misconduct.

In the case ofMullane v Honeywell Aerospace Ltd,UD 111/2008the Employment Appeals Tribunal, (EAT), noted that it was not required to determine if the claimant carried out the alleged act, rather that it was required to establish that there had been fair procedures, that a reasonable conclusion had been reached ‘on the balance of probabilities’ and that the decision to dismiss was a ‘proportionate response’.

The Complainant was made fully aware of the allegations against him. He was provided with an opportunity to respond at all stages of the comprehensive, investigation, disciplinary and appeal hearings. He was also afforded the chance to be represented and he availed of this at all stages. All information was taken into consideration and the decision makers were impartial. A right of appeal was provided and the Complainant availed of it.

It was reasonable to conclude on the balance of probabilities that the Complainant had placed the container in the bushes.

The sanction was proportionate, as any reasonable employer could not be expected to continue to trust an employee in the circumstances. The destruction of confidence in an employee was upheld as a valid basis for dismissal by the EAT inMoore v Knox Hotel and Resort ltd UD 27/2004and the employer had acted as a ‘reasonable employer’ as required inLooney and Co.Ltd v. Looney, UD 843/1984.

Complainant’s arguments

After the Complainant had completed a second journey on the day in question, he was called into the office and ambushed with an accusation. Despite the fact that he was given no notice of the purpose of the meeting, the Manager’s statement was used subsequently in the investigation and the disciplinary meeting. The Complainant was not advised of the allegation against him until six days after he was sent home.

The stop concerned was so brief that it did not register on the tachograph but the Complainant was open and honest in confirming that he had stopped at the relevant location. He outlined to the investigator why he sometimes stopped there and he explained why he often filled the tank at the start of his shift. He also confirmed that he knew nothing about the container of diesel. Despite this honesty, the investigator started to investigate other occasions when he had filled the tank and had made unscheduled stops, although this was not part of the original investigation. The investigator referred throughout to ‘diesel’ although the exact nature of the container’s contents was not established at that point. Therefore, it is clear that there was not a proper procedure and that the Complainant had been targeted from the outset.

The same employee was the note taker at both the disciplinary hearing and the appeal.

The disciplinary meeting went ahead despite some matters outstanding from the investigation. As Mr. Doolin, the shop steward present, pointed out, it was the standard practice in Stobart to fill the tank before going out and many ex Stobart employees did so. Also, there was an anti-siphoning device in the tank, which triggered after 25-28 litres was used but the whole 25 litre container was full, even though the only hypothetical possibility for the Complainant to have siphoned the fuel was a 4 minute stop on his way to Wexford, by which stage in his journey he would have used up to 20 litres of fuel.

The person who brought the alleged incident to attention was not identified to the Complainant at the disciplinary hearing and he was not afforded the chance to cross-examine. The assertion about it being common practice to fill the tank was not investigated and there was no investigation into the Complainant’s explanation for his unscheduled stops. The Respondent did not investigate just how long it would take to siphon 25 litres of fuel and whether it was possible to do so in 4 minutes.

There was no investigation to ascertain who might own the drum and pipe that were found. The anti-siphoning system was not investigated and the disciplinary hearing proceeded before the exact nature of the drum’s contents had been established. No measurement had been conducted to establish how much fuel was missing, if any.

In light of the above, the outcome of the disciplinary hearing was a surprise.

The subsequent appeal did not take place for three months. At the appeal hearing, the right to cross examine the original witness was requested and refused.

The dismissal letter was contradictory in referencing consideration of redeployment as a penalty, which did not happen due to the unavailability of other roles, in circumstances where the Complainant had been found to have breached the Respondent’s trust.

InConnaught Gold v Connor Rafter UD 48/2014, the EAT stated that its role was not to establish an objective standard but to ensure that a decision to dismiss comes within a band of reasonable responses and inGeorgopolous v Beaumont Hospital Board (1998) 3 IR 132,the EAT stated that where an allegation is one of serious criminal misconduct, an employee is entitled to proof to a high degree of probability.

The investigation was not sufficiently thorough, the overall process was not fair and there was not sufficient evidence of involvement in some theft.

The accuracy of the original witness is questionable as doubt can be cast on whether he could have had a clear view and no opportunity to cross examine was provided to the Complainant. The Complainant was then ambushed and in the subsequent investigation, crucial matters were not assessed.

It is a mere coincidence that a container filled with diesel was found at the location where the Complainant had stopped to go to the toilet.

Witness evidence

Mr. Tony McNameegave evidence that he was the manager who had carried out the disciplinary hearing and that he had taken the decision to dismiss.

The witness confirmed that he had not known the Complainant before this process.

The witness stated that it was possible to siphon a considerable volume of diesel, much more than 25 litres, even where there is an anti -siphoning device, where diesel is filled above that device in the tank. He stated also that this could be done in a few short minutes.

The witness said that he had not found the Complainant’s explanation for his unscheduled stop to be credible as he was just a few minutes from the depot and he could have used the toilet facilities there. He stated that, in such circumstances, drivers would be allowed to use the toilet before being expected to tend to their vehicles. He believed that the find of a container of diesel at the exact spot where the Complainant had stopped was too much of a coincidence and he believed the Complainant had stolen the fuel.

Under cross examination and questions from the Court, the witness stated that the possibility of siphoning up to 25 litres above the anti -siphoning device had been tested and had been confirmed with the truck suppliers. He confirmed that no test had been undertaken to establish how long it would take to siphon 25 litres but he was satisfied that this could be done in 4 minutes. He confirmed that the Complainant had not been seen engaged in siphoning and that there was no record of a diesel smell from the Complainant or in the truck cab on the relevant day.

The witness could not confirm that there was fuel missing.

The witness said that he had considered redeployment to a role in which the Complainant would be supervised as an alternative, as he felt that the trust put in the Complainant in the unsupervised role of driver had been broken, but this was not possible as there were no suitable vacancies.

In response to a point regarding the feasibility of parking near the toilets in the depot, the witness noted that it was possible to park elsewhere.

On re-direct questioning, the witness confirmed that the Complainant had stated that he had filled the tank to the brim.

Mr. David O’ Neillgave evidence that he was the manager who had conducted the appeal.

He noted that the Complainant had topped up the fuel tank on days when he had made unscheduled stops. He denied that this was the practice in the company and stated that drivers were expected to fill the tank at the end of their shift, so that it was ready for the following day and he stated that if a driver found that the tank had not been filled adequately upon arrival, they would be expected to report this. He said that it would be most uncommon for drivers to put in amounts as low as 50 litres. Under cross examination and questions from the Court, the witness accepted that this was not written down but he stated that this was well established practice.

The witness accepted that he had not tested how much fuel could be siphoned when there was an anti-siphoning device, although the minutes of the appeal hearing suggested otherwise, but he stated that he knew from experience that way more than the 28 litres maximum suggested by Mr. Doolin could be siphoned.

The witness stated that he was satisfied that 25 litres of fuel could be siphoned in less than 4 minutes and he affirmed the earlier witness evidence that drivers would be permitted to use the depot’s toilets prior to tending to their vehicles.

The witness stated that the practice of ‘brimming’ i.e. filling the fuel tank to its brim, was not common.

Mr. Pat Doolingave evidence on behalf of the Complainant. He explained that he was the union shop steward who had attended the investigation and disciplinary meetings with the Complainant.

The witness stated that Stobart drivers had been trained to check fuel tanks before leaving the depot and to fill them, if necessary. On occasions, he said that tanks were not full.

When it was put to him that the point he had made at the disciplinary hearing regarding the lack of a diesel smell was not valid as all drivers would usually smell of diesel, the witness said that he could partially agree. He said that there would be a light smell of diesel from most drivers due to close proximity to the fumes. However, he said that if diesel was spilled, the smell was unbearable and if that smell was in the cab, nobody could drive the truck. He said that, while he was not expert at siphoning, he would expect spillage whenever fuel was being siphoned.

In relation to a point made by the Respondent’s representative that the 4 minute stop made by the Complainant on his way to Wexford occurred just a few minutes away from a truck stop in Newtownmountkennedy, the witness stated that there was no such stop there but, rather there was a garage/petrol station with a canopy that could not accommodate trucks for fuelling.

Mr. Marius Retteris the Complainant. He gave evidence that drivers were expected to fuel trucks at the end of the day but that he had been trained always to check the tank before a journey and, if the tank was not full, to fill it.

The witness denied that he had taken a drum or container to work and confirmed that there were numerous security cameras in the depot.

The witness stated that on the morning in question, he had found that the tank was not full and he had filled it. He stated that his first stop of 4 minutes was for the purpose of going to the toilet. The witness confirmed that he did not have a medical condition that placed special requirements on him in this regard but said that he had difficulties in holding on when he needed to go. This explained his stop a few minutes before he got to the depot especially because if he had gone to the depot he would have been required to park 500 metres away from the toilets.

The witness said that he had been clear from the outset in accepting that he had parked at the relevant spot and he had given a clear explanation from the beginning, despite not having been warned as to the purpose of the first meeting when the allegation was put to him.

The witness denied having stolen fuel.

On the matter of losses as a result of his dismissal, the witness stated he had been actively seeking work from the date of his dismissal in April until August 2018 when he had secured a driving job at €529.25 per week, compared to his earnings of €695 per week in DHL.

Under cross examination, it was put to the Complainant that his first unscheduled stop was unnecessary as he could have used the facilities in Newtownmountkennedy where there was a car park that he could use in the garage, which had toilet facilities. The Complainant responded that it would have taken too long.

It was put to the Complainant that his explanation for not waiting to get to the depot but, rather, stopping just minutes away was that he believed that he would have to re-fuel in the depot before using the toilet, yet the record showed that, in fact, when he got to the depot, he had not re-fuelled. In reply, the witness said that when he got to the depot, he was not aware that he was being sent on a second journey to Balbriggan.

The witness re-stated that the find of a container of fuel at a place where he had stopped was a coincidence.

When it was put to him that he seemed to make unscheduled stops on days when he had filled the fuel tank but not on other days, the witness stated that he could not confirm this but, if it was the case, this was a coincidence.

In response to a question from the Court, the witness said that he was not aware of a requirement to report that a fuel tank was not full, if that was the case, before taking out the truck. He stated also that he had made the unscheduled stop on his way back to the depot on a road that he knew not to be too busy.

The applicable law

Unfair Dismissals Acts

Unfair dismissal.

6.— (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.

(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:

( a) the capability, competence or qualifications of the employee for performing work of

the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held

without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) 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.

Deliberation

It is not the role and function of this Court to re-investigate the incident that led to the processes that, in turn, led ultimately to the dismissal of the Complainant and it is not for this Court to substitute its view of the outcome for that reached by the employer. Both parties acknowledge this in their submissions. The Respondent’s representative drew the Court’s attention to the case ofMullane v Honeywell Aerospace Ltd, UD 111/2008,in which the EAT stated that its role in examining cases under the Acts is to establish if there were fair procedures and that a reasonable conclusion was reached on the balance of probabilities, while the Complainant’s representative drew attention to the case ofConnaught Gold v Connor Rafter UD 48/2014,in which the EAT stated that it would always seek to establish if a decision to dismiss fell within a band of reasonable responses. These cases summarise the Court’s approach to cases such as this. The test for the Court was set out clearly by Lord Denning inBritish Leyland UK Ltd v Swift (1981) IRLR 91,(which was confirmed in this jurisdiction inFoley v Post Office (2000) ICR1283). He stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair’. He went on to refer to a ‘band of reasonableness’ within which one employer might reasonably take one view while another employer might reasonably take another view, so that ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’.

In gauging if a dismissal falls within a ‘band of reasonableness’, this Court has to have regard to the procedures used in arriving at a decision. Guidance is provided to employers in S.I. 146/2000, which is a Code of Practice for disciplinary and grievance processes.

The Court also has regard to the statement by Flood J inFrizelle v New Ross Credit Union Ltd (1997) IEHC137that ‘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’.

The essential elements of S.I. 146/2000 are that allegations must be investigated; a worker under investigation must be afforded the right to be heard; the worker has a right to be represented at all stages; if the investigation finds that there is a case to answer, there must be a separate disciplinary hearing and there must be a right of appeal of any sanction. All of these requirements were met by the Respondent in the instant case.

The Court notes that the Complainant was not afforded the right of cross examination of the original witness when this was requested by his representative at the appeal hearing. The right to cross examine is set out in S.I. 146/2000. In responding to this point, the Respondent’s representative argued that this was not requested until the appeal stage. The Court is not clear what difference that would make, of itself. However, equally the Court is satisfied that the decision to dismiss was, in fact, based on evidence other than that of this witness. It is not disputed that the Complainant stopped at the particular place where he was seen by this witness nor is it disputed that he went into the bushes there. While there is a disagreement between the witness and the Complainant as to whether the Complainant was carrying a heavy object on that occasion, it is the fact that a container of fuel and piping were found at the location that gave rise to the belief of the Respondent that, on the balance of probability, the container had been put there by the Complainant, taking account also of the fact that the Complainant had filled the fuel tank to the brim, something which facilitated by-passing the anti-siphon device, and that he had an opportunity earlier to siphon fuel. The fact that the unscheduled stop was made so close to the depot gave rise to reasonable curiosity, if not suspicion, on the part of the Respondent. Taking all these facts together, the Court is satisfied that the failure to accommodate a request for cross examination at the appeal stage was not a central aspect of the failure of the appeal, while in other cases this will often be a fatal flaw in the process.

In determining if the decision to dismiss falls within a band of reasonableness, the Court has regard to Lord Denning’s question as to whether a reasonable employer would decide to dismiss on the facts? It is not for the Court to decide if it would dismiss nor does it matter that another employer might decide not to do so. What matters is if the Respondent was acting as a reasonable employer in reaching that decision. In the view of the Court, given the circumstances, it cannot be said that the employer’s decision was irrational or unreasonable.

To be fair to the Respondent, serious consideration was given to the imposition of a lesser penalty, which turned out not to be a feasible proposition. This shows that regard was had to the impact of dismissal on the Complainant, notwithstanding the conclusion that the Respondent could no longer have confidence in the Complainant carrying out an unsupervised role. As the Respondent had reached a reasonable decision to dismiss, it follows that the Court accepts that the penalty is proportionate.

Determination

The Decision of the AO is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
20 February 2020______________________
CRDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.