ADJ-00019374

Complainant

Respondent

Anonymised Parties

A clamping operator staff member

A clamping operator

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00025287-002

25/01/2019

The complainant worked as a staff member of a clamping operator from the 14th February 2017 to the 13th November 2018. He was dismissed on grounds of misconduct, i.e. taking a work van home and improperly clamping a vehicle. This was said to be improper as he had not initially spotted the illegally parked supermarket delivery van, which had CCTV to show this.

The respondent outlined that the complainant was issued with a final written warning and was then further disciplined for changing clamp times. The respondent then dismissed the complainant.

Evidence of the performance manager

The performance manager said that he conducted the investigation which followed a phone call from a third party regarding the time a parking ticket stated that the vehicle was spotted. There was a 20-minute grace time in this case as this was a commercial van parked in a loading bay. The time the vehicle was spotted was relevant. The performance manager referred to the downloaded tracking information in respect of the complainant’s vehicle, which showed that the vehicle was in motion at the time stated in the parking docket. It happened that the commercial vehicle spotted had CCTV on board, so could show that the clamping vehicle was not in proximity to it at the stated time.

The performance manager said that they brought the complainant in and he attributed the discrepancy to a system error. He later stated that he had taken the time from another employee, who had spotted the commercial vehicle. The performance manager explained that the operator should take a photo at the start of the grace time and a photo at the end of the 20-minute grace period.

The performance manager said that he also investigated the money issue. The complainant had come into the office to say that a customer had damaged a clamp. The customer was then charged a fee. A colleague had charged this customer extra and split this additional amount with the complainant. This colleague was also dismissed. The complainant handed over his share of the additional amount. The performance manager referred these matters to the disciplinary process.

The performance manager said that he had given the complainant the chance to be truthful and to say that he had changed the clock. He accepted at the investigation that he knew how to do this, which he had denied knowing before. He had admitted to changing the clock at different places. The respondent was then not aware that staff could change the clocks.

The performance manager said that operators benefitted from a bonus. Changing the clock allows the employee to receive more in a bonus by clamping more vehicles. The performance manager said that they had since asked every driver whether they knew how to change times on the PDA. The respondent would not train staff how to do this.

The performance manager said that the complainant clamped many vehicles but received a high number of appeals and errors.

Evidence of the operations manager

The operations manager has worked in the role for two years. In respect of the warning previously issued, the complainant accepted that he had taken the van home and did not have permission. He had not said that he had missed his lift and the respondent had already refused his request to take the van home. The operations manager was of the view that the complainant deserved another chance, so the warning was issued. Taking the van home prevented a night shift worker from starting his shift and a supervisor had to bring in another van. The respondent also made a deduction from the complainant’s bonus. The complainant did not appeal this outcome.

The operations manager said that he heard the disciplinary hearing into the clock-time incident on the 8th November 2018. The complainant admitted to changing the times on the PDA and they discussed the money situation. The operations manager said that the letter of termination of the 13th November accepted that taking the money was a lapse of judgement in not reporting it sooner. The operations manager found the complainant guilty of changing the times on the ticket, in breach of policy. The operations manager referred to the final written warning on file and the dismissal was grounded on repeated conduct. The complainant was paid notice pay.

The operations manager said that the National Transport Authority had clear regulations regarding observation times before immobilising a vehicle. The respondent allowed 11 minutes and they erred on the side of the consumer. Any grace period must be logged and there is a countdown from the initial logged time to prevent premature clamping.   The operations manager said that the only way to manipulate the system is to start the clock early.

The operations manager said that the colleague was also dismissed for changing the times on the PDA.

Evidence of the enforcement officer

The enforcement officer outlined that he had worked with the respondent for two years but had worked as a clamper for ten years. He confirmed that he was aware of the policy regarding using the van and the bonus policy. 11 minutes grace was provided in pay and display areas. He said that the only benefit for changing the clock on the PDA was money wise or to get out of there as quickly as possible. He had never been shown how to change the clock. He said that this was not allowed and usually resulted in dismissal. The enforcement officer said that if he inputted a vehicle registration wrongly into the PDA and realised this before immobilising the vehicle, he would start the grace period again.

Evidence of the operations director

The operations director said that he has worked for the respondent for 8 years. He said that the NTA wished to eradicate bad behaviour and the respondent welcomed the regulations and the uniformity in the industry. The regulations came into force in 2017 and there were repercussions and possible fines for the respondent if it was held to be in breach of the regulations. He said that the respondent’s enforcement software seeks to prevent people from going below the grace times.

The operations director heard the complainant’s appeal. The complainant referred to his positive contribution to the work of the respondent. He pointed to his loyalty to the respondent. He admitted to changing the time on the PDA in order to correct an error. The complainant alleged that two now former employees had instructed him how to do this. The operations director said that he took this into account but also had regard to the existing final written warning.

The respondent submitted that this dismissal was not unfair pursuant to section 6(4)(b) of the Unfair Dismissals Act, i.e. on grounds of the complainant’s conduct. There was insubordination in taking the van home. The complainant was caught changing the clock back on the PDA. The respondent referred to the UK authorities of British Leyland v Swift [1981] IRLR 91 and Foley v Post office [2000] EWCA Civ 330. The respondent relied on the test of the reasonable employer and the band of reasonableness open to employers. The respondent had issued a final written warning and later dismissed the complainant with notice. It relied on Bunyan v United Dominions Trust (1982) ILRM 404. It submitted that this is a regulated business and no circumvention was allowed. This was particularly the case as there was a financial incentive to clamp vehicles. The respondent had carried out a fair process and the complainant had changed his story during the process.

The complainant outlined that in respect of the car park incident, while the parking ticket referred to a parking time, it was not necessarily his spotting time. In this case, he had used the spotting time of a static guard. If the complainant failed to insert a time into the PDA, the time displayed would indicate that he had clamped the vehicle immediately on arrival, i.e. giving no grace period. He had time-stamped photos to show that he had allowed three hours and he refused to correct the PDA.

The complainant said that he was honest and was shown how to change the time by a colleague. He was new to this industry and took the instruction as gospel. He was not provided with training regarding the use of the PDA. He had never put the time back on a pay and display clamp.

The complainant said that the appeal notes incorrectly stated that he had shown the colleague how to change the time. The complainant had pointed this out as a loophole but was dismissed for doing so.

The complainant referred to the incident when a customer tried to drive off with the clamp attached to a wheel and was therefore charged a higher amount. The customer offered to pay for the damage and paid the colleague €200. The complainant phoned it in as an increased declamp fee. The complainant wanted to give the customer a receipt of this amount, but the colleague removed the additional fee. The complainant set out what happened to the respondent after a conversation with the enforcement officer. The complainant said that he made this as a protected disclosure at 7am on the Monday morning. The colleague verbally abused him on the phone, having been told of the disclosure by the operations manager.

The complainant said that he was not provided with training on the Act and the Regulations. The only training he received was at the time his employment commenced in February 2017.

The complainant described that he had been pressured by the respondent in giving false evidence against a former operations manager. The complainant was also in receipt of smart comments from the current operations manager, for example that he was a headache of an employee. The respondent pointed out to him that targets for March and July were missed and he replied that this included a period of annual leave. He said that he had installed 2,500 clamps between January and October 2018 and was subject to only 12 successful appeals.

The complainant outlined that an offensive meme had been circulated in the office about him and there was handwritten note referring to him as ‘smelly [name]’. The complainant reported this to the respondent, but nothing came of it. The complainant outlined that at the Christmas party, the operations manager had punched him in the face. The complainant was later informed by a senior manager that this had been ‘dealt with’. There were also smart comments about his partner, who used to work for the respondent. The complainant said that he was told to ‘shut up’ if he voiced concerns about how the operations manager was speaking to him. The complainant said that he was asked, mockingly, whether he needed a hug.

The complainant outlined that he was owed pay, as he had worked 2,656 hours but was owed for 367 hours. This matter was referred for WRC inspection. He said that deductions should be reflected in his pay slips, for example where a bonus is rescinded following a successful appeal. This was not recorded in pay slips.

The complainant said that after his employment with the respondent ended, he took up alternative employment with another clamper. He commenced training the day after his dismissal. This is a full-time role but involved night shifts. His rate of pay was now €9.80 per hour with the same commission basis. He did not get a shift allowance or other benefits.

In cross-examination, the complainant confirmed that he commenced his new job the day after the date of dismissal, the 13th November 2018. He stated his monthly pay with the respondent as €4,200 as this was the average he calculated. He said that his hours varied but he worked an average of 60 hours per week.

In respect of the van incident, the complainant said that he had worked 90 minutes beyond the end of his shift because someone else had finished up early. He had to stay on to honour de-clamps. Once this was finished, he returned home with the van. He believed that there was a second van available for the next shift, but another employee had also taken this home. The complainant had tried to contact the operations manager, but another manager told him not to take the van home. He said that others had broken the van policy and were not dismissed. The complainant was advised not to appeal this warning, despite his concerns. There were further sanctions to the October warning where he was deducted €250 from commission.

On the day of the damaged clamp, the complainant made three attempts to phone management to increase the de-clamp fee. He believed that the performance manager and the colleague were friends, as the colleague had stated they were. The complainant said that the performance manager was defensive when it came to questioning about the colleague.

The complainant outlined that he had reported the de-clamping issue to the performance manager so that he had the chance to deal with it. It was incorrect to say that the complainant had shown the colleague how to change the clock.

The complainant said that he panicked after being shown the GPS tracked information during the investigation. The complainant had told the investigation what happened. A colleague had spotted the commercial vehicle in the loading bay and gave the complainant the time. When he arrived to clamp the commercial vehicle, the complainant inserted the time given to him by the colleague.

The complainant said that he never changed the time on the PDA and had proved this in the appeal. He said that he had been too emotional on reading the letter of dismissal to challenge its contents. He said that the appeal notes were inaccurate as they record that the complainant had shown the colleague how to change the PDA. The notes later record the complainant saying that he never showed the colleague how to do this.

The complainant said that he disagreed with point 4 in the appeal outcome; it was not his fault that the managers left. In respect of the Pay and Display incident, the complainant had inputted the incorrect vehicle registration, so edited the record as allowed by the PDA. He had not changed the time. In car park overstays, the complainant took time-stamped photos to verify the time.

Statutory framework

Section 6(1) of the Unfair Dismissals Act provides that ‘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 6(4) provides that a dismissal shall be deemed not to be unfair ‘if it results wholly or mainly from one or more of the following: … (b) the conduct of the employee.’

Section 6(7) provides ‘Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.’

Applicable case law

The respondent relied on the EAT case of in Bunyan v United Dominions Trust (1982) ILRM 404. Here the EAT held ‘The tribunal therefor does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.’

In Hennessy v Read and Write Shop UD192/1978, the EAT held that the ‘reasonableness’ test required the employer to show:

‘1.       the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.       whether the procedures adopted were fair and reasonable, and,

3.       the reasonableness of the conclusion arrived at by the Respondent.’

In Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Justice Linnane held: ‘It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.’

Application to this case

Using the language of the Vehicle Clamping and Signage Regulations, SI 421/2017, the complainant is a ‘clamping operator staff member’ and the respondent, a ‘clamping operator’. Clamping operators and parking controllers operate under the auspices of the National Transport Authority, which has statutory enforcement powers. The 2017 Regulations have since been augmented with a statutory Code of Practice, in place since the 1st January 2020.

The respondent dismissed the complainant on grounds of misconduct. The letter of dismissal of the 13th November 2018 concluded that the complainant holding onto the money did not merit a sanction, while changing times on the PDA merited misconduct at the formal written stage. The respondent made the decision to dismiss on the basis of the live final written warning on file since the 18th October 2018. The decision to dismiss was confirmed on appeal.

Incident of the 17th October 2018

While several issues were raised during the course of the adjudication and in the documentation, central to this case are the events of the 17th October 2018 and involve a supermarket home delivery vehicle. The immobilisation notice states that this contravention was spotted at 17.58 and that the clamp was fixed to the vehicle at 18.24. The driver of the supermarket vehicle was able to rely on the vehicle’s CCTV to challenge that it had been spotted at the said time. Using the GPS on the clamping vehicle, the respondent established that the complainant could not have spotted the commercial vehicle as he was driving at this time, although not very far from where the commercial vehicle was parked.

Incident of the 3rd October 2018

The Final Written Warning of the 18th October 2018 arises from an incident where the complainant took home the respondent van. This occurred in circumstances where he was working late to declamp vehicles. The other operator had ceased working for the night and I note that the respondent is obliged under the Regulations to declamp vehicles within two hours. The complainant believed that his taking the van home would have no impact on the respondent providing a service. He contacted a manager and was explicitly told not to take the van home. The complainant missed a pre-arranged lift home as he was working late. He lived some 80 km from where he was working. His evidence refers to checking bus times and there was no bus. The complainant took the van home and was subsequently issued with the final written warning.

Fair procedures

In respect of fair procedures, I note that the respondent carried out a three-stage process, consisting of investigation, the disciplinary process and the appeal. I note that the investigation made findings against the complainant (his ‘dishonesty’). The investigation stage was, therefore, required to meet the full panoply of fair procedures. I do not think that the finding of dishonesty is borne out by the evidence. I note that this was not a finding replicated at the disciplinary stage or the appeal. I am satisfied that the disciplinary stage and the appeal re-considered the matters afresh and made their own findings. This led to the narrowing down of issues, to the specific breaches made out above.

The reasonableness test

In respect of the reasonableness test, I first note that the regulatory framework in which the respondent operated. It is subject to the Regulations and the authority of a state body. It is essential that there is public confidence in the immobilisation of vehicles. Clamping is part of improving mobility generally by freeing up public space earmarked for parking and improving access. This is a public good.

Under the Regulations, a customer must pay the declamping charge and wait for the clamp to be removed. The customer may then challenge the basis of the immobilisation, but this is a matter adjudicated upon some day after the vehicle was clamped. It follows that it is an activity that must be exercised fairly, and full regard given to statutory requirements such as grace periods.

Second, I appreciate that this is a target-driven environment. The complainant referred to being taken up for being short of the monthly target in two months, one of which he was on annual leave for most of the month. The respondent operated a bonus scheme, paying additional remuneration for installing and removing clamps etc. The complainant’s basic rate of pay was €11.25 per hour and he worked long hours (there was a suggestion in the respondent’s submission that the complainant was overpaid; there is no basis for such a submission. The employer paid him what it paid him).

Third, I note that a workaround had developed regarding the grace period, so that more vehicles could be clamped. The evidence was that several staff members carried out this practice, although denied by the enforcement officer who attended the adjudication. In effect, the clamping officers collaborated, so that one member of staff spotted the vehicle in contravention and relayed this information to another staff member, who would clamp the vehicle after the end of the grace period. The staff member who administered the clamp would enter the spotting time relayed to them by the colleague (be that a static guard or a colleague on the road) and then enter the time the staff member administered the clamp. This obviously allowed for more vehicles to be clamped as the staff member who clamped the vehicle did not have to also spot the vehicle beforehand.

The complainant accepted that he had adopted this practice in respect of a car park and also in relation to the incident of the 17th October 2018). The respondent concluded that the latter incident would ordinarily merit a final written warning for the complainant.

In assessing whether this was misconduct and if so, the degree of misconduct, I note that it is imperative for public confidence in the administration of a clamping regime. Neither the Regulations, nor the respondent’s policy, permit one staff member to spot and another to clamp. It also leaves the case open to error, as the staff member who clamps can only rely on the information relayed to them by the colleague. The staff member cannot verify this information and must insert an earlier time into the PDA.

On the other hand, it is striking how prevalent this workaround was. From the evidence, I count five members of staff who engaged in this practice (although the enforcement officer who attended for the respondent gave strong evidence that he did not engage in this practice). The employer sets up the system of work, in this case targets for clamping vehicles and commission for each stage of the clamping process. Staff have the obvious incentive to bend the rules in order to stave off criticism of their performance or to earn additional remuneration. I note the respondent’s contention that the complainant used the workaround to earn more bonus, but the respondent also benefitted financially from an operator who clamped a great many vehicles (although subject to the appeal and regulatory regime operated by the state body.)

In assessing misconduct, I note that it would be significant mitigation for an employee to say that they had to bend the rules in order to comply with a targets regime and also to access a bonus scheme. The employer cannot set up a system of work which it ought to know significantly incentivises employees to bend the rules, and then throw the book at staff for bending the rules when this is brought to the employer’s attention. In such a circumstance, the employer must shoulder responsibility for the breach.

The question in this case is whether there is sufficient evidence to show that the lapse of the 17th October 2018 can be mitigated by the system of work implemented by the respondent. Having considered the evidence, I find that there is not sufficient evidence to show this. While the complainant referred to the targets regime in a general way, it was not established that the practice and prevalence of the workaround stemmed from the targets regime or the bonus scheme.

Taking account of the need for public confidence in clamping and the insufficient evidence that the complainant’s actions stemmed from the system of work, I find that it was reasonable for the respondent to determine that the incident of the 17th October 2018 was misconduct.

In respect of the van incident, I appreciate that the complainant was working late declamping vehicles and missed his lift home. He had no other means home, although a taxi home would have likely cost less than the penalty imposed on him. I must have regard to the complainant being given the explicit instruction not to take the van home. Even if the complainant thought that this had no impact on the respondent, he defied the respondent’s explicit instruction. It follows that it was reasonable for the respondent to determine that this was misconduct and to issue the final written warning.

Given that I have found that it was within the band of reasonableness that both the incidents of the 3rd and 17th October 2018 amounted to misconduct, it follows that it was reasonable for the respondent to determine that the first incident warranted a final written warning, and taking this warning into account, that the second incident warranted dismissal. Another employer may have made a different decision, but the decision for this adjudication is whether the respondent’s decision was within the band of reasonableness. I decide that it was. It follows that the complainant was not unfairly dismissed by the respondent.

CA-00025287-002

For the reasons set out above, I decide that the respondent did not unfairly dismiss the complainant from its employment.

Unfair Dismissals Act

Misconduct dismissal / reasonableness test

Public confidence in regulatory regime / system of work incentivising non-compliance