Complainant

Respondent

Anonymised Parties

Lorry Driver

Transport 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-00024561-001

02/01/2019

Adjudicator,

The case before you today concerns a claim by the Claimant against his former employer the Respondent under the Unfair Dismissals Act 1977. The Company refutes this claim in its entirety.

Background to the claimant

The claimant commenced employment with the respondent company in April 2015. The claimant was employed as a professional HGV Driver to drive an articulated vehicle for the Respondent Company. The claimant’s employment was terminated on 14th November 2018 following a disciplinary process whereby the Claimant was dismissed for gross misconduct as a result of two separate incidents which took place whilst driving the Respondents articulated vehicle, namely on the 2nd October 2018 and the 3rd October 2018 respectively.

Claim under the Unfair Dismissals Acts, 1977-2015

1.      The claimant alleges in his Claim Form [Appendix 1] that he was unfairly dismissed by the respondent. The respondent refutes the claim being made, as the claimant was fairly dismissed for gross misconduct – namely as a result of misconduct which represented a fundamental breach of the trust and confidence necessary for the employment relationship to continue. The investigation, disciplinary and appeals process were all conducted in accordance with the Respondent’s disciplinary policy and procedures whereby fair procedures and natural justice were afforded to the Claimant by the Respondent at all times. At all meetings the Claimant was afforded the right to representation.

2.      Section 6(4)(b) of the Unfair Dismissal Acts 1977 – 2015 states:

(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:

           (b) the conduct of the employee

The Claimant’s dismissal arose wholly from his conduct, and as such the dismissal was not an unfair dismissal.

Background to the Claim

1.      On the 2nd October 2018 the Claimant was involved in a car accident whilst driving the Respondents vehicle on the Main Street in Town X Co. Sligo where he collided with a parked BMW car causing significant damage thereto. Also, on 3rd October the Claimant was involved in a further incident at the Roundabout in Town Y, Co. Sligo. Further details in respect of both incidents will be expanded upon below and CCTV footage is also available of both incidents for the Adjudicator to view.

2.      On 3rd October 2018, the Claimant was given a letter informing him that he was being suspended on full pay pending an investigation hearing into the two incidents referred to above. Details of both incidents were clearly set out in the said letter. The Claimant was informed of his right to be represented by a work colleague and was further informed of the potential outcome from the said investigation. He was also given a copy of the company Disciplinary Policy and Procedures. A copy of the said letter is attached at [Appendix 2].

3.      The investigation hearing went ahead as planned on 12th October 2018. In attendance was the Claimant, Mr. MK (Head of Transport - Investigator) and Mr. KC (Translator). Notes from the said investigation meeting are attached at [Appendix 3].

4.      It transpired in the course of the investigation meeting that the Claimant phoned Mr. DK (Transport Manager) on his mobile phone following the collision in Town X and following a conversation with the Claimant Mr. K also spoke with the driver of the BMW car which was damaged.

5.      By letter dated 16th October [Appendix 4] Mr.D K was invited to an investigation meeting in respect to giving his account of what conversations had taken place on the day of the accident in Town X. This meeting took place on 17th October and notes from this meeting are attached at [Appendix 5].

6.      A draft Investigation Report was forwarded to the Claimant by letter dated 19th October 2018 [Appendix 6] informing the Claimant that if he had any issues with the content or accuracy of the Report or with the recommendations therein then such should be raised by him within 5 working days from receipt of the Report and if any points of concern were to be considered then a further investigation may be undertaken. The Claimant had not responded with the time specified. A copy of the said Report is attached at [Appendix 7].

7.      The Report recomended that the allegations be considered for disciplinary procedures in line with Company Policy.

8.      By letter dated 7th November 2018 [Appendix 8] the claimant was invited to a disciplinary hearing to take place on 9th November 2018. This letter further outlined the allegations being put to the Claimant and also referenced the Investigation Report including meeting notes and CCTV footage which had all previously be given to him. Again, he was furnished with a copy of the Respondents disciplinary procedures and advised that he had the right to be accompanied by a fellow employee. He was also advised of the seriousness of the matter and that it could result in summary termination of his employment.

9.      The said disciplinary hearing went ahead as planned on 9th November 2018. In attendance at the hearing were the Claimant, Mr. FMCL (Operations Director) and Mr.KC (Translator). Minutes from the said meeting are attached at [Appendix 9]. The Claimant requested the attendance of his Solicitor however was reminded of the company policy in respect to this.

10.  At the disciplinary hearing the Claimant handed a typed letter dated 9th November 2018 [Appendix 10] to Mr. FMCLwhich referenced a number of points that the Claimant wished to raise in respect to the disciplinary proceedings.

11.  Following this, Mr.FMCL thoroughly investigated the issues raised by the Claimant and issued his findings in respect of each issue. A letter dated 12th November 2018 [Appendix 11] issued to the Claimant in this respect from Mr.FMCL providing that he had investigated the issues raised by the Claimant in the said letter and further provided a copy of the said investigation report into these issues.

12.  A copy of these findings are attached hereto at [Appendix 12]. A copy of the documents referred to in these findings are also attached hereto at [Appendix 13].

13.  The claimant was issued with the Disciplinary Hearing Outcome by letter dated 14th November 2018 [Appendix 14]. The said letter provided;

“Having due regard to all the circumstances and the seriousness of the incidents I regret to inform you that the decision of the company is to terminate your employment with immediate effect. This is by reason of gross misconduct as a serious breach of the company rules governing misconduct as outlined in your Employee Company Handbook represents a fundamental breach of the trust and confidence necessary for the employment relationship to continue. These rules covering gross misconduct are as follows;

-          Failure to abide by general health and safety rules and procedures;

-          Serious breached of health and safety rules that endanger the lives of employees or any other person;

I hereby confirm that you are being dismissed from the firm with effect from November 14th 2018…”

            In the said letter the Claimant was also afforded his right to appeal.

14.  The Claimant subsequently chose to appeal the decision and done so by letter dated 20th November 2018 [Appendix 15] to Mr. FMCM (Managing Director) for the Respondent. The said letter set out the grounds upon which he wished to appeal the decision.

15.  The Claimant was subsequently invited to an appeal hearing by letter dated 26th November 2018 [Appendix 16] in which the appeal hearing was scheduled for 29th November 2018.

16.  On 27th November 2018 the Claimant by e-mail to Mr.FMCM requested the attendance of his solicitor and an independent translator [Appendix 17]. Mr.FMCM responded informing the Claimant that the company would provide an independent translator but quoted the company policy in respect of representation and day-to-day communications with employees [Appendix 18].

17.  In respect of the appeal itself, Mr.FMCM sought a meeting with Mr. DK to confirm what his involvement was on the day of the accident in Town X. A letter dated 27th November 2018 was forwarded to Mr. DK to confirm this meeting [Appendix 19] and the meeting was held on 28th November as per the notes there from at [Appendix 20].

18.  The appeal hearing was rescheduled for 30th November 2018 and went ahead as scheduled on that date. At the appeal hearing was the Claimant, Mr. FMCM (Appeal), Mr. EW (Note Taker) and Mr. OK (Independent Translator from Word Perfect). Notes from the appeal hearing are attached hereto at [Appendix 21].

At the outset of this meeting Mr FMCM advised the Claimant that he had not been previously connected with the disciplinary process and that he would make an independent decision into the severity and appropriateness of the disciplinary action taken.

19.  By letter dated 7th December 2018 [Appendix 22] the claimant was informed by Mr.FMCM of the outcome of his appeal. The claimant was informed that his appeal was unsuccessful and the decision to dismiss was upheld. The letter provided;

“Also, as part of the Appeal’s process, I considered in depth if the decision of the disciplinary hearing was reasonable in the circumstances. To that end I reviewed the process undertaken by Mr. MK (Investigator) and Mr. FMCL (Disciplinary Officer) and considered all associated documentation in relation thereto. I also considered all matters raised by you in the course of your Appeal and listened to what you had to say in that regard during your appeal hearing.

I conclude that all of your rights under natural justice were observed during the process i.e. in terms of your right to representation, the right to be heard, and the right to due consideration. I have given detailed consideration to each point of your Appeal, I listened to what you had to say, and reviewed any material pertinent to that Appeal point to enable me to conclude whether or not to uphold your position in relation to those. In respect of same I attach a copy of these considerations hereto.

As such I regret that I cannot uphold any of your Appeal points in relation to your dismissal. I find the disciplinary officer’s decision reasonable, and there is a fundamental breakdown of trust and confidence in you resulting from your breach of company rules in respect of health & safety and also rules covering misconduct as outlined in the Company Handbook. Regrettably therefore, it is my decision that your appeal has not been successful and the decision to formally terminate your employment on November 14th 2018 stands”.

20.  Mr.FMCM also provided the claimant with a detailed response to the points of appeal raised by him in his letter of appeal dated 20th November [Appendix 15]. A copy of these responses are provided at [Appendix 23].

Company’s Position

1.      Section 6 (1) of the Unfair Dismissals Act, 1977 provides that “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.” Moreover, section 6 (4) provides that:

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.

2.      The Respondent has a clearly defined set of Disciplinary Procedures which are used to deal with instances of misconduct. The Claimant was familiar with these procedures and what constituted gross misconduct. The Respondent company adhered to these disciplinary procedures and conducted fair meetings with the Claimant where he was, at all times, afforded his rights under the principles of natural justice. All allegations were put to the Claimant and he was afforded the opportunity to express his defence to the allegations in full. He was also afforded the right to appeal his dismissal and did so. The Respondent company places a high level of importance on fair procedures when utilising the company disciplinary policy and a full and thorough impartial investigation and disciplinary process took place into the incidents for which he was dismissed and the outcome of this was to dismiss the Claimant.

3.      During the entire disciplinary process the Claimant was provided with a translator so was fully aware of and understood all matters being put to him throughout the process and also affording him the opportunity to fully respond to the matters being put to him. Throughout the investigation and disciplinary stages the Claimant did not request a translator. The Respondent acted proactively in providing a translator for these stages in the event that the claimant needed any aspects of the meetings translated. It was only at the appeal stage that the Complainant requested an independent translator be provided which the Respondent did and subsequently provided a translator from ‘Word Perfect’.

1. The Claimant alleges the Respondent withheld evidence from him in relation to not providing CCTV footage from the dates of the incidents. It was stated numerous times, in disciplinary meetings and also in the appeal outcome, that the company provided all the evidence to the Complainant that was available. It was further explained that the reason behind the absence of some footage is due to the front facing camera not functioning on the day of the incident due to a technical issue and that the internal cab camera had been covered with an ‘unknown substance’, therefore did not show any visual.

5.      The Claimant was fully informed of his rights throughout the disciplinary process. He was given the opportunity to view the CCTV footage from both incidents and was given a copy for his own records.

6.      Throughout his period of employment he always conducted his work in English on a daily basis and all company documentation issued to the Claimant was signed off and accepted that he fully understood its contents – various copies at (Appendix 13).

7.      The claimant may further argue that his right to representation had been infringed in respect to the company not engaging with his Solicitor in the course of the disciplinary proceedings and/or not permitting representation by his solicitor in respect to the disciplinary meetings. This matter as been considered in depth by the Court of Appeal in the case of Iarnrod Eireann/Irish Rail -v- Barry McKelvey [2017/394] a judgement which was delivered on 31st October 2018. A copy of the said judgement is attached hereto at (Appendix 25). This case takes precedence of previous High Court cases such as Lyons -v- Longford Westmenth ETB and the case of Burns -v- Governor of Castlerea Prison.

The Court of Appeal decision in the Irish Rail case cited above provides that the company are “not required to allow legal representation before it embarked on a disciplinary enquiry” and disagreed with the High Court that issues of law arose in company disciplinary proceedings. The Court further provided that “to allow legal representation for one would set a precedent for all employees facing allegations of misconduct”.

8.      The Claimant in his Complaint Form at several intervals attempts to trivialise the reasons for his dismissal and particularly the very first line thereof which provides; “On 2nd October 2018 the Complainant was involved in a minor road traffic accident at Town X where a parked car was slightly damaged”. The fact is that the Claimant caused extensive damage to a parked car, namely a 7 Series BMW, as a result of his own negligence whilst driving through the Main Street in Town X. This damage ultimately resulted in a claim of €15,812.57 against the Respondent’s Insurance which has been confirmed by the Respondents Insurers [Appendix 24].

9.      This is typically representative of the Claimants casual and callous attitude in respect of his obligations to his employer particularly in regard to driving an articulated vehicle in a safe matter having due regard to the safety of the vehicle for which he is in control and for himself and other road users.

10.  This was a clear breach of health and safety guidelines which was unacceptable due to the nature of the claimant’s work and the possible harm which could have been caused to him or to others. Professionally qualified drivers such as the Claimant must operate to the highest standards of care in carrying out their daily duties whilst on the public road or elsewhere.

11.  The Claimant own actions were of a sufficiently serious nature which influenced the respondent’s decision to dismiss him. The Respondent at a minimum expects all of its employees who drive heavy goods vehicles to partake in safe practices on the road and being professional drivers and fully qualified in this respect to adhere to the rules of the road at all times.

12.  The Claimant said in his investigation meeting when asked why he drove through the town of Town X that he “thought it was a better way.” However, Mr.DK evidence suggests that immediately following the accident that the Claimant told him “that there was a tractor on front of him coming in the   N17 Road driving very slowly and that when the tractor turned out the A Road, the claimant decided to travel through the town to try and beat the tractor”.

13.  During the course of the investigation Mr. DK provided an account of his conversation with the Claimant immediately after the accident in Town X. When asked to elaborate on that conversation he provided;

“The claimant rang me on the day of his accident in Town X. He said that he had an accident and that the tail lift of his trailer had struck a parked vehicle. He put me on to the owner of the 3rd party vehicle. The 3rd party vehicle owner told me what happened and that he had just parked on the side of the street when his vehicle was struck by the tail swing of the   trailer….”

Also, when asked if the 3rd party mentioned whether there was any other vehicle at fault he stated;

“No, the 3rd party didn’t. After I was speaking with the 3rd party, I asked the claimant why he drove through the town of Town X and not use the by-pass. He told me that there was a tractor in front of him coming in the   N17 road driving very slowly and that when the tractor turned out the A road, the claimant decided to travel through the town and try and beat the tractor. I told him that he should have used the by-pass if there was no other reason for him to travel through the town.”

14.  It is clearly obvious from the above that the claimant chose to take the articulated vehicle through the narrow streets of Town X in a clear attempt to get out on the far side ahead of the tractor which was travelling slowly on front of him. It is also evident and supported by the CCTV footage that this was done in a rushed fashion driving very closely and winding in and out around parked cars without slowing down for oncoming traffic and/or any other hazards that presented. These actions are not the actions of a professionally trained driver and ultimately were erratic actions which clearly put the Respondents property in jeopardy as well as the safety of other road users.

15.  The Claimant travels this route regularly in the course of his work. Again, it is simply not credible for the Claimant to suggest that the route that he chose to take on the day of the accident to avoid the tractor was as he stated in the course of his investigation meeting “a better way”. In recent times the said by-pass was widened and resurfaced, and a new roundabout put in place to make the by-pass in Town X even more convenient and accessible for all road users particularly heavy goods vehicles who do not have any reason to travel through the narrow town.

16.  The Claimant further maintained in the course of the disciplinary hearing that he “didn’t believe that he drove in a dangerous way”, that he “did nothing wrong” and that he “drove with the highest precaution”. Again, his views in this respect are simply not credible and simply at odds with what happened and further at odds with the CCTV footage available.

17.  During the course of his disciplinary hearing the Claimant declined to elaborate or respond fully in respect to any of the questions asked despite having being provided with a translator and given every opportunity to do so whilst knowing that his employment was at risk. This is evident from the notes of the said meeting (Appendix 9).

18.  Also, in the course of the appeal the Claimant confirmed details of the conversation that he had with Mr.DK in respect to the presence of a tractor on the day of the accident in Town X. When asked by Mr. MCM he stated;

“Yes I did say there was a tractor, that is a fact. It was going so slow. I would have a opportunity to pull in at Supervalu, do a bit of shopping and keep driving. What is the point of me driving behind this tractor at around 15kmph. I didn’t go through the town to overtake the tractor to be out in from of it”.

19.  Furthermore, in the course of the appeal the Claimant stated;

“The owner of the BMW was in his parked car and on his mobile phone at the time of the accident. The driver of the BMW said, ‘I saw what happened, I was speaking on my mobile phone”.

Again, this statement is not credible. The Adjudicator will see from the CCTV footage that the BMW car was parked in the opposite direction and could not have seen the other car allegedly approaching the front of the Claimants articulated vehicle. Not only was he facing the opposite direction but his vision in any event would have been hindered due to being blocked by the sheer length of the articulated truck whilst passing him on the side of the street.

20.  The claimant changed his version of events a number of times throughout the disciplinary process in respect to his reasoning for choosing to travel through the town of Town X in his truck.

Firstly, he told Mr. DK on the day of the accident that he had “decided to travel through the town to try and beat the tractor”. In the course of the investigation with Mr. MK he stated, “I came through the town because I thought it was a better way”. At the disciplinary hearing the Claimant refused to elaborate and merely stated, “I don’t believe I drove in a dangerous way. I drove with the highest precaution”. When asked at the appeal hearing why he drove through the town he stated, “I told M that I opted to go that way, simply because I wanted to go to the Super Valu shop”. Further on in the appeal hearing he again confirmed that he “went through Town X to avoid the tractor”.

21.  The Claimant further failed to drive his truck in a safe manner the day following the accident in Town X. This incident happened at the roundabout in Town Y Sligo and the Claimant brought this incident to the attention of the company himself. Upon viewing the CCTV footage this incident also formed part of the disciplinary proceedings.

22.  The Respondent Company submits that the decision to dismiss the Claimant was fully in line with Company procedures and in this instance was proportionate to the seriousness of the incidents at hand and in accordance with the general principles of natural justice and fair procedures and in full compliance with the provisions of Section 6(4) of the Unfair Dismissals Act as set out above.

Conclusion

Adjudicator, on behalf of the Respondent we respectfully request that you uphold the Company position in this matter and reject the claimant’s claims under the Unfair Dismissals Acts 1977-2015. The loss of trust and confidence in the Claimant was justified under the circumstances given the nature of his role and in all the circumstances the decision to dismiss was a reasonable one.

The respondent’s representative asserted that all of the time frame set down in the company procedures had been met.He submitted that the company were precluded from calling in a witness to investigate who was at fault in the collision as this was a matter for the insurance company.

Mr.FMcF outlined the company policy wit respect to accidents and stated that near misses were required to be reported .He stated that sometimes a member of the public might ring in to record a near miss. He asserted that it was essential that the driver anticipate the road ahead , that a professional driver coming onto a roundabout had to risk assess. He said that the driver had to risk assess , manage the risk and vield to other vehicles. He stated that the respondent had considered alternatives to dismissal but that the trust was gone and the respondent would not consider trusting the claimant to go on the road again. The company had reviewed the cctv footage and noted the damage to the car. The company did not have a zero tolerance policy of accidents , they were examined on their merits and usually resulted in dismissal.

Evidence was given by Mr.FMcM who conducted the claimant’s appeal against dismissal – the witness stated that he had reviewed the entire proceedings , all of the information presented by the claimant   - he asserted that the claimant advanced 4 different answers in relation to the Town X incident and that on consideration “he was afraid to let him back out on the road”.

It was put to the respondent’s witness under cross examination that it was evident from the letter of suspension that a conclusion had already been reached in relation to the claimant’s driving in advance of the fact finding investigation.It was submitted that the claimant had sought clarity as to who made the allegations against him and no response was forthcoming from the respondent.It was submitted by the respondent that there was an obligation on the claimant to check that all cameras are in working order and that the claimant had not done so.It was contended that the claimant should have stopped .The claimant’s representative asserted that the claimant had to take evasive action because a car spun out in front of him and the respondent did not see what the claimant saw.He argued that the claimant should not have been required to seek access to the front camera footage in writing .It was submitted on behalf of the claimant that his voluntary report of the roundabout incident was wrongly   elevated to the status of an allegation at the investigation hearing.It was also contended that it was never put to the claimant that he had made an S manoeuvre.It was argued that the respondent had failed to probe the significance of the other car – they could not see what was happening because the front cameras were not working and had they been working they would have shown what the claimant saw – the oncoming 2ndcar.

Mr.K gave evidence on behalf of the respondent – he stated that he examined the contentions of the claimant about taking evasive action ; he asserted the cctv footage spoke for itself and that it was enough for him to reach a conclusion.It was put to the witness that he did not tell the claimant that Mr.D would have sight of his statements.It was also advanced that in the interview with Mr.D there was no reference to bad driving and the account was silent on the matter of corroboration.

The respondent’s representative asserted that the guiding system was the same system used by Dublin Bus and that the claimant’s assertion that there was ‘no sound in the cabin ‘was not credible.The beebing heard on the approach to Town X was evidence that the system was working.It was contended that the claimant ignored the system and that he had responsibility to check the footage.If the system was not working it was a matter for the claimant to report that .

The claimants representative stated that the cctv footage could be relied upon and that the claimant had been given full information and had every opportunity to present his case.He had responded with short and repetitive responses to the questions posed during the course of the investigation when he knew his job was at risk. It was asserted that it was the claimant’s responsibility to ensure that everything was in proper working order .The company had complied with their procedures and the claimant was afforded all of his rights under natural justice.The vehicles had the potential to be a lethal weapon and drivers were expected to drive in a safe and appropriate fashion.It was submitted that the claimant changed his story in relation to his reasons for not using the bypass. It was submitted that the standard of proof required was what would a reasonable employer do in the circusmtances.It was contended that it was more than reasonable for the employer to do what they did.

2nd October 2018 Complainant was involved in a minor road traffic accident at Town X where a parked car

was slightly damaged while complainant took evasive action to avoid an oncoming vehicle which refused to give

way, 3rd October 2018 Complainant was suspended pending an investigation into the circumstances of the RTA

12th October 2018 Complainant attended an investigation hearing at the Company premises It was clear that the

respondent company leveraged the minor accident as a means to dismiss the complainant. There was a charade

of fair procedures but it was nothing more than a charade. The respondent’s conduct in dealing with this matter

was prejudicial, self-serving and unfair. The normal principles of natural justice were not afforded to the

complainant. It should also be noted that the complainant asked to be accompanied by his legal advisor for the

investigation hearing. The reason for this was because the complainant only has a rudimentary command of the

English language and did not fully understand the Company procedures. The employee handbook and driver

handbook were not provided to him in his own language, and while that forms no basis for a complaint in itself,

the complainant was at a significant disability as a consequence which could only have been surmounted by

allowing the complainant to have legal representation at the investigation hearing. It is clear from the minutes of

the investigation that the complainant was unable to represent himself adequately. October 19th 2018

Investigation Outcome Report issued by post to Complainant. This contained the following findings: 1.

Complainant "drove in an unsafe manner by not yielding to oncoming vehicular traffic while overtaking a parked

vehicle" 2. Complainant "failed to follow the rules of the road while exiting the N17 junction and entering the

T Roundabout at Town Y which nearly resulted in a road traffic accident" 26 October 2108

Complainant's Legal Representatives wrote to Respondents setting out the following objections. The invitation to

the complainant   to attend an investigatory meeting contained two detailed allegations. It did not set out who made

those allegations, nor the basis on which those allegations were made. It appeared from the wording that the

respondent had already predetermined the outcome of the investigation. This was not an investigation to

establish the facts. This was a brief and cursory event during which the complainant was accused of serious

driving violations which were utterly without substance. There was no attempt to get to the facts. There was no

probing of evidence and no reliable or relevant evidence was put to the complainant. The complainant was not

provided with the front facing CCTV footage that he requested and which would have exonerated him. The

CCTV footage provided to him was from rear facing cameras only. That footage could not be sufficient to reach

any objective conclusion. The complainant’s evidence to the meeting was that the front camera footage “would

show that the other car was parked and that it moved into [his] path. The guy in the BMW said don’t worry

because he seen [sic] what happened with the other car. I handed the phone to the BMW driver and he spoke to

Mr.W”. That evidence was not considered, was not probed, was not expanded upon and was not taken into

consideration. The respondent did not analyse the front camera footage, or if the respondent did the respondent

did so it did not refer to it in the investigation report, nor did the respondent base its conclusion on it. The

respondent did not attempt to contact the BMW driver even though he was known to the respondent’s Mr K

and it would have been straightforward to take a statement from him. The second allegation clearly arose from a

trawl of the complainant’s driving videos with the intent to find something wrong. There was no crash. There

was not even a complaint. There was no question of unsafe driving and there was no breach of the rules of the

road. This allegation was gratuitous. The complainant give a detailed explanation as to what happened but again

there was no consideration of his evidence. The investigation meeting with Mr.W was farcical. There was

an eyewitness (the BMW driver) but it is clear that the respondent made no attempt to ascertain what the

eyewitness saw. There is nothing in what Mr K said at the investigatory meeting which attributed any fault

to the complainant. The investigation outcome report states that the respondent carried out an extensive

investigation having interviewed the complainant. The facts are that the respondent carried out no real

investigation, much less an extensive investigation. There was no real interview of the complainant. A word

count from the meeting notes shows that the complainant spoke approximately 145 words in total, much of

which was in response to questions which were not directly related to the specific allegations. The responses to

the specific allegations total 8 short sentences. The investigation outcome report does not refer to any other

investigation. No other evidence was put to the complainant. The complainant was not given an opportunity to

test the evidence or test any witness. This was manifestly unfair and injurious. The Respondent’s Drivers

Handbook states that the primary purpose of the vehicle CCTV cameras are for the health and safety of

employees, members of the public and for the investigation of accidents, incidents and near misses. The

complainant has asked the respondent for the front facing footage and the respondent refused to provide that to

him. He was entitled to that footage and his position was utterly prejudiced as a result of not having it. The

handbook notes that the system will be operated fairly and not for covert directed surveillance. It can be used for

near miss reporting, but nowhere does it state that the CCTV can be trawled to look for unreported incidents,

which is what the respondent did to concoct the second “incident”. It is clear from our instructions and from the

respondent’s conduct that the respondent set the complainant up for dismissal. We are instructed that this is not

the first time this has happened to an employee of the respondent company. The investigation process was utterly

biased against the complainant. The methodology was shambolic at best. The respondents did not adhere to their

own procedures. The respondent did not treat the complainant fairly. The respondent trawled CCTV footage to

look for reasons to discipline the complainant. 26th October 2018 Respondent company wrote to Complainant's

legal advisors stating that they would not correspond with them or any third party. 28th October 2018

4

Respondent's Legal Advisors wrote to Complainants in the following terms: We have indeed read your terms and

conditions of employment but your requirements in that regard do not override the rights of a vulnerable

employee to be represented. Those rights were clearly set out in the High Court case of Michael Lyons v

Longford Westmeath Education and Training Board [2017] 5 JIC 0513 delivered on May 5, 2017. Our client is a

Polish national with only very basic and rudimentary English. His contract of employment has not been provided

to him in his own language. It is not fair to expect him to represent himself in disciplinary proceedings where he

is at such a disadvantage. We have asked you to abandon this disciplinary process which is clearly prejudicial

and unfair. We call on you again to abandon this process. If you are not prepared to do so, please confirm no

later than Wednesday, 31 October 2018 at 1 PM that you will permit our client to be represented by a solicitor

from this firm in cross-examining witnesses at a continuation of the investigation stage which has certainly not

been concluded to the satisfaction of our client. Please also confirm • The name address and phone number of the

witness who spoke to your Mr K at the time of the accident at Town X • That you will provide the front

facing CCTV footage that our client has requested. • That you will re-engage our client immediately since there

is no ongoing requirement to keep him on suspension. • The names of all persons who made allegations against

our client? • The names of all persons involved in the investigation procedure? • How the 2nd “incident” came to

light. • Whether there was a complaint or how did you come to be aware of the 2nd “incident”. • Why our client

was called for a disciplinary hearing when you were fully aware that he had booked annual leave. You might

note that our client and his family did not actually fly to Poland this weekend because of his fear that to do so

might place his job in jeopardy. That alone demonstrates just how vulnerable our client is. Please confirm that

you will reimburse the cost of the family’s plane tickets. _____ The Respondent did not reply to that letter. 9th

November 2018 Complainant wrote to the Respondent in the following terms: • I am a Polish national with only

very basic and rudimentary English. My contract of employment has not been provided to me in my own

language. • It is not fair to expect me to represent myself in disciplinary proceedings where I am at such a

disadvantage. • I am afraid that my lack of understanding and knowledge may result in me incriminating myself.

• You have refused to permit me to be represented by a legal representative in clear contravention of my legal

rights. You have refused to correspond with my solicitors who have written to you on my behalf. • You have

withheld evidence with which I may be able to defend myself. • You have not provided me with the front facing

CCTV footage which I have asked you for and which is critical to my defence. • You have not provided me with

the name address and phone number of the witness who spoke to Mr K at the time of the accident at

Town X. • I have not been given an opportunity to cross-examine witnesses. • You have not provided the

names of all persons who made allegations against me or the names of all persons involved in the investigation

procedure. • You have not informed me how you come to be aware of the 2nd “incident”. • The process has not

been conducted in accordance with the principles of natural justice. • You called me to a disciplinary hearing at a

time when you were aware that I was on annual leave. As a result I had to cancel my family holiday and suffer

loss. 12th November 2018 Respondent addressed the points contained in complainant's letter of 9th November

2018. Issue 1:‘I am a Polish national with only very basic and rudimentary English. My contract of employment

has not been provided to me in my own language’. Finding 1: Throughout your employment with the respondent to

date, all company documents related to HR, health and safety and training were provided to the claimant in

English. For each piece of company documentation that you received, you received and returned an

acknowledgment document signed by you confirming that you had read and understood the contents of each

document. - Examples of those documents were set out. Issue 2: ‘It is not fair to expect me to represent myself in

disciplinary proceedings where I am at such a disadvantage’. Finding 2: In my letters to the claimant dated October

30th and on November 7th 2018 it stated that he may be accompanied by a fellow employee of his choice at his

disciplinary hearing. This is in line with the company policy which the claimant is aware of. The company has

provided a translator at all meetings with the claimant . I have reviewed the notes taken from this disciplinary

meeting and note that the claimant declined the right to be accompanied by a fellow employee when questioned.

Issue 3 ‘I am afraid that my lack of understanding and knowledge may result in me incriminating myself’.

Finding 3: All company policies and procedures were followed when undertaking disciplinary proceedings

against the claimant by the Company on November 9th 2018. It is my view that the claimant clearly understood these

proceedings and procedures at all times. At this disciplinary proceeding dated November 9th 2018, a translator

was present in the event that the claimant had any issues that he did not understand. I also wish to note that all

questions asked of the claimant in the disciplinary hearing held on Friday November 9th 2018 were answered in

English. Issue 4: ‘You have refused to permit me to be represented by a legal representative in clear

contravention of my legal rights. You have refused to correspond with my solicitors who have written to you on

my behalf’ Finding 4: In response to the letter received from your Solicitors dated Friday October 26th 2018, the

Company corresponded to them on Friday October 26th 2018. In terms of managing employee relations,

The respondent engages directly with all staff members and we have very clear and defined policies and

procedures for so doing which form part of the terms and conditions of employment for all staff. The company recognise any individual’s right to seek whatever independent legal advice they consider necessary

however, the Company does not engage in day-to-day communications with our employees through a solicitor or

any other third party not associated with the Company. For that reason, your solicitor was informed that we will

not be corresponding directly with them or any other third party in respect of such internal company matters and

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will continue to communicate directly with the claimant on an individual basis. In my letters to the claimant dated

October 30th and on November 7th 2018, it stated that he may be accompanied by a fellow employee of his

choice at his disciplinary hearing. Issue 5: ‘You have withheld evidence with which I may be able to defend

myself’ Finding 5: This allegation is unfounded as the claimant was provided with all evidence that was available

to the Company throughout the investigation process and disciplinary process. Issue 6: ‘You have not provided

me with the front facing CCTV footage which I have asked you for and which is critical to my defence’. Finding

6: When the Company went to review the CCTV footage from the RTA on October 2nd 2018, it was noted that

the internal cab camera and forward facing camera was not functioning correctly. The Company’s CCTV

supplier support department were contacted by the Company’s maintenance department regarding obtaining this

footage. On inspection of both CCTV cameras, the internal camera had been interfered and had been covered

with an unknown substance. Regarding the forward-facing camera, it was noted that this camera was not

recording at the time of the RTA. The Company’s CCTV supplier advised that the forward-facing camera be

replaced. Issue 7: ‘You have not provided me with the name, address and phone number of the witness who

spoke to Mr. K at the time of the accident at Town X’. Finding 7: On the date of RTA on October 2nd

2018, the claimant contacted Mr.K (Transport Manager) and informed him that he had been

involved in a road traffic accident and had caused damage to a 3rd Party Vehicle. The claimant requested that MrK

speak with the owner of the 3rd Party Vehicle, which he obliged. I have reviewed again the witness

statement taken by Mr.M.K.( Head of Transport) with Mr.DKon October 17th 2018

as part of the investigation process and note the following extract from this meeting: DK speaking:

‘The claimant rang me on the day of his accident in Town X. He said that he had an accident and that the tail lift

of his trailer had struck a parked vehicle. He put me onto the owner of the 3rd party vehicle. The 3rd party

vehicle owner told me what happened and that he had just parked on the side of the street when his vehicle was

struck by the tail swing of the company trailer. The 3rd party also told me that he was in the process of trading

in his vehicle on Thursday of that week, October 4th 2018. As the road traffic accident on October 2nd 2018 is

being dealt with by our insurers, for GDPR purposes with are not obliged to disclose this information to

the claimant . Issue 8: I have not been given an opportunity to cross examine witnesses’. Finding 8: As the road

traffic accident on October 2nd 2018 is being dealt with by our insurers, for GDPR purposes with are not obliged

to disclose this information to the claimant . Issue 9: ‘You have not provided the names of all persons who made

allegations against me or the names of all persons involved in the investigation procedure’ Finding 9: On

October 2nd 2018, the Company were contacted by email by our insurers: [an email was attached from the

company's insurance brokers notifying the company that a claim was being made by a third party] which stated It

is the Company’s understanding that you gave the 3rd party your details as stated in the above email. I also wish

to note that you emailed Mr.PB on October 2nd 2018 at 13:25hrs, photos of the

damage caused to the 3rd party vehicle. PB forwarded these photos to hr for

review by the Company Health and Safety Advisor – E.W.. In line with our Company CCTV policy, the

System’s primary function will be used for the following manner: CCTV Hard disk recording: − Assistance in

accident investigation. This will include near miss reporting that will help prevent the occurrence of future

accidents. − Investigation of insurance claims by third parties Furthermore, the CCTV Policy goes on to state

that if a Health and Safety issue or a potential breach of the rules that could lead to a disciplinary investigation

arises from the system checks, the incident will be viewed by the individuals Transport Manager and Health and

Safety/HR Manager and appropriate action taken. The CCTV policy continues by stating that any breach or

suspected Health and Safety non-conformance practice or acts of misconduct will be investigated under the

statutory duty of care prescribed in the Safety, Health and Welfare at Work Act, 2005 (ROI) and the Health and

Safety at Work Act (NI) Order 1978, which will include the viewing of recorded images by the investigating

Issue 10: ‘You have not informed me how you come to be aware of the 2nd ‘incident’ Finding 10: On October

3rd 2018 at 12:40hrs, the claimant emailed Mr.PB regarding CCTV footage. Mr.PBforwarded these photos to hrfor review by the Company Health and Safety Advisor –

Mr.EW. This email contained the following information from the claimant . In line with our Company CCTV

policy, the System’s primary function will be used for the following manner: CCTV Hard disk recording: −

Assistance in accident investigation. This will include near miss reporting that will help prevent the occurrence

of future accidents. − Investigation of insurance claims by third parties On the back of the above information

dated October 3rd 2018, the following company individuals were involved in the investigation process:

October 3 rd 2018: CCTV footage regarding the email submitted by the claimant on October 3rd 2018, was

reviewed by the Company’s Health and Safety Advisor, Mr.EW. October 3 rd 2018: CCTV footage

regarding the RTA on October 3rd 2018, reviewed by Transport Manager Mr.PQ October

3rd 2018: Letter of suspension issued to the claimant by Mr.PQ – Companys Transport Manager. October

12th 2018: Investigation meeting held with the claimant by Mr.M.K.– Head of Transport with

The claimant October 17th 2018: Investigation meeting held with the claimant by Mr.MK–

Head of Transport with Mr.DKTransport Manager). Issue 11: ‘The process has not been

conducted in accordance with the principles of natural justice’. Finding 11: The company has adhered to its

policies and procedures at all times during the investigation and disciplinary proceedings to date. Issue 12: ‘You

called me to a disciplinary hearing at a time when you were aware that I was on annual leave. As a result I had to

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cancel my family holiday and suffer loss’. Finding 12: This was an oversight on my behalf – FMcL

– I was not aware that the claimant was on annual leave for the 1st scheduled disciplinary hearing to be held

Tuesday October 30th 2018. When I was made aware of this, the disciplinary hearing was rescheduled for Friday

November 9th 2018, after the claimant had completed his annual leave. -------- The respondent's findings /

responses were utterly inadequate and on 13.11.2018 the Complainant wrote to the respondents in the following

terms: Response to Finding 1 I do not accept that my signature on documents received constitutes an

acknowledgement that I understood the documents. It is clear to anybody who knows me that I have basic,

rudimentary English and I do not understand written English particularly in a technical or legal context. My

signature was affixed to the various documents to indicate my acknowledgement that I had received the

documents – not that I understood them. Response to Finding 2 The company policy is illegal. My job is at risk

and I should be entitled to reasonable opportunity to defend myself and to be represented in that defence.

Response to Finding 3 I do not understand the proceedings and procedures and that is why I consulted a solicitor.

You have refused to allow my solicitor to attend at the investigative and disciplinary hearings and you have

refused to correspond with my solicitor. Response to Finding 4 A solicitor representing his client at a

disciplinary hearing where the client’s job is at risk does not constitute day-to-day correspondence with the

solicitor.My right to be represented is set out in the High Court case of Michael Lyons v Longford Westmeath

Education and Training Board [2017] 5 JIC 0513 delivered on May 5, 2017. My solicitor has informed you of

that case and have continued to deny me the right to legal representation during this process. Response to

Finding 5 You have refused to provide the name and address of the witness in Town X. You have refused to

provide the name of any person who brought an allegation against me. You have refused to provide front facing

CCTV Footage. If in fact that footage is not available, then you could not have sufficient evidence to find against

me. Response to Finding 6 The Drivers Handbook clearly states that the primary purpose of the vehicle CCTV

cameras are for the health and safety of employees, members of the public and for the investigation of accidents,

incidents and near misses. The investigation was for an accident/incident and an alleged near miss. Front facing

CCTV footage would have clearly shown that I did nothing wrong but for whatever reason, that footage is not

available. I cannot adequately defend myself without the front facing CCTV footage and you cannot reach a

reliable conclusion without the front facing CCTV footage. Response to Finding 7 GDPR has nothing

whatsoever to do with your refusal to provide me with the name and address of the witness. This response is

disingenuous and prejudicial. Response to Finding 8 GDPR has nothing whatsoever to do with your refusal to

provide me with the name and address of the witness so that I can cross-examine them. This response is

disingenuous and prejudicial. Response to Finding 9 Your response to this is confusing at best. I have no idea

why you have provided me with a copy email from your insurance company, when that happened after the fact.

In any event you have still not provided me with the names of any witnesses. Response to finding 10 Your

response to this is also confusing and fails to answer the question that I asked. My question was how you came

to be aware of the alleged “near miss” on 3 October 2018. I asked for the footage after I was made aware that

there may have been an incident. Your review of that footage did not make you aware that there may have been

an incident, you had already determined that an incident had occurred. Clearly there was a review of all CCTV

footage after the minor accident in Town X with a view to finding problems. This was clearly a fishing

exercise with a clear agenda to find fault with my driving. Response to finding 11 Irrespective of whether the

company has adhered to its own policies and procedures the company has an obligation to conduct an

investigation in accordance with the principles of natural justice. It did not do so. Response to Finding 12 The

company’s “oversight” caused severe hardship for my family and I and resulted in me having to cancel our

family holiday. The company did not actually reschedule the meeting until after our flight had departed. The

respondent did not reply to the Complainant's letter. 14th November 2018. The Respondent dismissed the

complainant for Gross Misconduct with no entitlement to notice. 20th November 2018 Complainant Appealed

the decision to dismiss on the following grounds: 1. It was not fair to deny me the right to legal representation in

circumstances where my command of the English language was basic at best and where the stakes were so high.

2. The company withheld evidence with which I would have been able to defend myself. 3. I am entitled to rely

on the front facing CCTV footage which would have exonerated me but this evidence was not made available to

me. 4. I was not given an opportunity to cross-examine witnesses and the company misrepresented the reasons

why I was not given such opportunity. 5. I was not given contact details for the witnesses even though these are

known to the company. 6. The process was not conducted in accordance with the principles of natural justice 7.

My representations on 13 November 2018 were not dealt with at all even though the decision to dismiss me was

taken after Mr.FMcL received those written representations. 8. There was insufficient evidence

available to Mr.F.McL to make a decision to dismiss me and he did not seek more and better evidence.

9. Without prejudice to my assertion that I did nothing wrong, the penalty imposed was too severe. 27th

November 2018 Respondent notified Complainant of Appeal hearing on 30th November Complainant asked to

be accompanied by legal representative but this request was denied. 30th November 2018 An appeal hearing was

conducted by Mr FMcF. The complainant attended but was not represented. 7th December 2018. The

Respondent wrote to the complainant rejecting the appeal points and upheld the dismissal.

The following legal submissions were made on behalf of the claimant :

This legal submission is restricted to the following points of law:

1.       Adequacy of grounds for summary dismissal

2.       Right to legal representation

3.       Right to cross-examine witnesses

1.       Adequacy of grounds for summary dismissal

It is submitted that the complainant was not guilty of any conduct which justified his summary dismissal. The complainant was involved in a minor RTA at low speed when he took evasive action to avoid an oncoming vehicle.

1.1.    The tribunal is referred the case of DHL Express (Ireland) Ltd v. Michael Coughlan (Labour Court Determination No. UDD1738).   In this case, the employee, Mr. Coughlan, was awarded the maximum compensation of 104 weeks salary for unfair dismissal. The decision arose from an appeal by DHL Express (Ireland) Ltd (hereinafter referred to as “DHL”) against the decision of an Adjudication Officer of the Workplace Relations Commission dated 30th January 2017.

1.2.    The employee had brought a claim of unfair dismissal arising out of the termination of his employment with DHL on 24th November, 2015 on the grounds of gross misconduct following a disciplinary process.

1.3.    At first instance, the Adjudication Officer found that the sanction of dismissal for gross misconduct was disproportionate having regard to all the circumstances, the dismissal was accordingly unfair and the Adjudication Officer directed the company to re-engage the employee, Mr. Coughlan. The re-engagement was intended to allow for “bridge-building” between the Company and the employee. DHL appealed that decision to the Labour Court.

1.4.   Facts of case

1.4.1.The employee was employed as a courier/van driver with DHL since approximately 2002.   His dismissal arose as a consequence of an incident involving his van that had occurred on 19th October 2015.

1.4.2.The employee had been involved in a number of incidents previously (in 2012 and 2013) that resulted in some damage to his employer’s vehicle. The employee received a written warning for the 2012 incident and a final written warning for the 2013 incident. There was an articulated truck parked adjacent to the entrance to the depot with the result that the space available to vehicles entering or leaving the premises was extremely narrow. The driver of the truck was present at the entrance and Mr. Coughlan believed that that driver beckoned at him to continue to drive his van through the available gap. Unfortunately as he did so the vehicle was damaged. The employee brought the incident to the immediate attention of his employers. The cost of repairs was €2,500.00.

1.4.3.On 4th November 2015 an investigation meeting took place regarding this incident. The employee admitted at the meeting that he had misjudged the space available to him when trying to drive into the depot compound between the parked truck and the fencing on the other side of the entrance. Thereafter, the employee received a letter which stated:

1.4.4."In summary you misjudged the space when trying to drive past a truck parked at the gate of the Cork depot and consequently caused significant damage to the driver’s side of the van when you collided with the fencing. You are therefore requested to attend a disciplinary hearing in regard to the aforementioned incident.

1.4.5.Please be advised that the above incident could be considered Gross Misconduct under 5.4.3 of the company’s disciplinary process:

1.4.6.“Failure to protect and safeguard company property”

1.4.7.And a disciplinary hearing could “result in disciplinary action up to and including your dismissal from the company”’.

1.4.8.The disciplinary meeting took place on 16th November 2015 and was conducted by a Mr. Butler, Area Operations Manager with DHL.   The employee was represented by his union representative.

1.4.9.It was not disputed that Mr. Coughlan once again accepted responsibility for his actions on 19th October 2015 at this meeting.   At this meeting, extensive references were made by Mr. Butler to past driving incidents and the final written warning issued to Mr. Coughlan dated 2013. This was notwithstanding the fact that the final written warning had expired more than 12 months previously.

1.4.10.    By letter dated 24th November 2015, Mr. Butler informed Mr. Coughlan that he was being summarily dismissed by DHL with immediate effect for gross misconduct. The letter stated:

1.4.11.    ‘This is a most serious situation from the company perspective and having carefully considered the facts of the case and the representations made by yourself and [his colleague], the company has taken the view that there is no other alternative in this case except to terminate your employment for reasons under Gross Misconduct where it has been determined that you failed to protect and safeguard company property.’

1.4.12.    ‘It is the company’s opinion that you were driving carelessly and your poor judgment caused over €2,500 of damage to the driver’s side of the van when you collided with the fencing.

1.4.13.    This is an extremely serious issue in light of your history with causing damage to both the company van and customer property.

1.4.14.    The company has previously provided you with substantial training and has gone to extensive efforts to ensure that you were driving in a safe manner.

1.4.15.    The company has serious concerns about your ability to safely carry out your duties as a driver and can’t trust that you won’t have a similar lapse in judgment which may result in further damage or potential injury to yourself or others.

1.4.16.    The company cannot accept this level of negligence and poor judgment from a driver who takes a van on public roads on a daily basis.’

1.4.17.    Mr. Coughlan appealed from this decision to dismiss him to Mr. Farrell, Head of Operations, DHL. Mr. Farrell’s decision was to uphold the finding of dismissal effective from 24th November 2015.

1.5.   Labour Court Hearing

1.5.1.At hearing before the Labour Court, Mr. Butler of DHL who had conducted the initial disciplinary hearing gave evidence that the poor judgment displayed by Mr. Coughlan caused him to have concerns about public safety should Mr. Coughlan be permitted to continue driving on the company’s behalf.  

1.5.2.Mr. Farrell, to whom the appeal was referred, confirmed to the Court that he was aware of the historical driving incidents involving Mr. Coughlan at the time of the appeal.   Mr. Farrell stated that he believed it was appropriate to consider an employee’s entire relevant employment history in the context of a disciplinary process, notwithstanding that – as in Mr. Coughlan’s case – any and all previous disciplinary warnings had lapsed by the passage of time.

1.6.   Labour Court Decision

1.6.1.In its decision, the Labour Court found that it was evident, that Mr. Coughlan had been confronted with multiple allegations at the disciplinary meeting that had not been advised to him in advance of that meeting. The Labour Court found it of some significance that the letter dated 24th November 2015 notifying Mr. Coughlan of his summary dismissal recited a number of grounds to justify DHL’s decision to dismiss Mr. Coughlan, including by reference to previous incidents with the van in respect of which the warnings he had received had clearly expired. The Labour Court took the view that DHL based its decision to summarily dismiss Mr. Coughlan on numerous grounds not referred to at all at the investigation stage or in the letter inviting Mr. Coughlan to the disciplinary meeting.

1.6.2.In addition, the Labour Court was not convinced that the grounds set out by the company merited summary dismissal in any event. The Court quoted from the Employment Appeals Tribunal decision in Lennon v Bredin M160/1978 where it was stated that:

1.6.3.‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so..’

1.6.4.The Labour Court was not satisfied that such a situation arose in this case – the employee’s failure to properly judge the width of the gap through which he was attempting to drive the van on 19th October 2015 could not reasonably be considered to amount to gross misconduct justifying the imposition of a sanction of summary dismissal. The Court felt that the circumstances amounted to an error of judgment.   Accordingly, the Court found that the sanction of summary dismissal imposed was disproportionate and unwarranted in all the circumstances. The Court also found that DHL did not give due consideration to imposing an alternative and more proportionate sanction on the employee.   The Court went on to find that the Company’s decision to summarily dismiss Mr. Coughlan was “informed to no small extent” by the previous driving notwithstanding the company’s own evidence that its procedures provided for the expungement of disciplinary warnings on their expiry.

1.6.5.This decision is authority that sanctions imposed on an employee must be proportionate and alternatives short of dismissal should be considered where appropriate. In particular, an allegation of “gross misconduct” should be sufficiently serious to warrant summary dismissal and a mere error of judgment, as in this case, is unlikely to be viewed as conduct which merits summary dismissal.

1.7.   Application of “Coughlan” and “Lennon” to this case

1.7.1.       In the case brought to this Tribunal by the complainant there is no evidence of any misconduct, let alone gross misconduct, but even if there was misconduct such misconduct claimed by the respondent does not meet the threshold established in Lennon v Bredin.

1.7.2.       There is no evidence that the respondent considered any sanction other than instant dismissal.

2.       Right to legal representation

2.1.   On 31 October, in the case of Iarnród Éireann / Irish Rail v Barry McKelvey, the Court of Appeal emphasised that the leading case in relation to legal representation in disciplinary investigations is Burns and Hartigan v Governor of Castlerea Prison [2009] IR 3 IR 682.

2.2.    In that case, the Supreme Court acknowledged that there are circumstances in which an employee will be entitled to legal representation in disciplinary proceedings but held that the cases in which an employer would be obliged to exercise discretion in favour of permitting legal representation would be exceptional. The Supreme Court adopted principles set out in an English case, Regina v Home Secretary Ex Parte Tarrant [1985] QB 251.

2.3.    The Tarrant case requires an employer to consider the following factors as part of the overall decision about whether an entitlement to legal representation arises:

·           the seriousness of the charge and the proposed penalty;

·           whether any points of law are likely to arise;

·           the capacity of the particular person to present his or her own case;

·           procedural difficulty;

·           the need for reasonable speed in making the adjudication, that being an important consideration; and

·           the need for fairness between the different categories of people involved in the process.

2.4.   The Court of Appeal said that that the correct test is set out in the decision of the Supreme Court in Burns.

2.5.    The Court also made supportive statements in respect of the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000). That code of practice provides for a right for an employee to be represented by a colleague of the employee’s choice or a registered trade union

2.6.    It is submitted that the requirements set out in Burns have been met by the complainant in the instant case and he should have been afforded legal representation

2.6.1.The seriousness of the charge and the proposed penalty were sufficient in the instant case. The complainant was at risk of losing his job. In circumstances where a driver was dismissed because of his manner of driving, the prospects for that driver of obtaining future employment are bleak. In this case therefore the ramifications of the dismissal extended beyond losing this job and into securing another job.

2.6.2.The complainant does not have a fluent grasp of the English language. While he received manuals in English, he did not fully understand those manuals and does not have any reasonable grasp of Irish employment law. Having a translator present was simply not sufficient since the complainant was a complete disadvantage due to his lack of linguistic skills and knowledge. He was not capable of making representations on his own behalf and that is clear from the minutes of the various meetings.

2.6.3.The company is a large company with strong legal representation. It has well-defined if inadequate employment policies. In addition, the respondent retained control throughout of all of the evidence against the complainant. The complainant was not allowed to cross examine witnesses and there was a fundamental inequality of position between the complainant and the respondent. In the circumstances, the company could have engaged legal representation at no significant burden to itself, but simply chose not to do so, fully cognisant of the difficulties faced by the complainant.

2.7.    Separately, even if the complainant might have been denied legal representation he should have been offered the opportunity to be accompanied by a union representative. Instead the only “representation” he was offered was to be accompanied by a work colleague who would clearly be in an invidious position with regard to the employer employee relationship.

3.       Cross examination

3.1.    The Court of Appeal in McKelvey made comments that can be interpreted as reinforcing that cross-examination is a broadly-held right in workplace disciplinary processes. In particular, the Court referred to the fact that none of Mr McKelvey’s other rights in this case were in dispute, including his “right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses”.

3.2.    The complainant was not given an opportunity to cross-examine witnesses. In fact he was not given the name of the key witness to the incident in Town X. The company instead hid behind a spurious claim that such information was protected because of the requirements of GDPR. That was manifestly unfair and prejudicial to the complainant.

The claimant’s representative asserted that they were disputing the accuracy of the meeting notes submitted into evidence. He challenged the respondent’s decision to give the claimant’s statement to Mr. D without furnishing the claimant with Mr. D’s evidence. It was argued that notwithstanding their non acceptance of the accuracy of the respondent’s notes it was evident that nobody had made an allegation against the claimant. He argued that somebody has a right to know what they are accused of – allegations could only arise after the conclusion of an investigation.

In his direct evidence the claimant gave an account of his recollection of the collision and insisted he had driven in a safe manner – he clarified that he did not have sound signals in the cabin. He stated that the do not turn signal shows up anytime you drive on a narrow road and that if you were to stop everytime the signal shows up you would never get anywhere. The claimant indicated that he had no training on the system. His representative argued that the video footage had not been independently verified and nobody gave evidence in relation to the system guiding the driver. The claimant reiterated that the training was inadequate and that the driving induction and handbooks were never properly shown to him. The claimant denied that he had at any point been told that when the do not turn sign comes up that you should stop the vehicle. He stated that the full extent of his training was 11 lines of text. The claimant confirmed that he told the respondent that a car drove out in front of him and he had to take evasive action. He asserted that during the investigation, he was not allowed to finish explaining what happened. The claimant stated that the driver of the BMW had said he would testify for him but he was not approached. The claimant said the statement of the BMW driver was not furnished to him. The claimant stated that if all of the cameras were working it would have shown the whole extent of the situation. He stated it would have been helpful to him if the BMW driver was interviewed. The claimant advanced that if the company had entire camera footage they would have concluded it was not my fault and that he had driven appropriately.

The claimant’s representative asserted that he had sought access to details of the BMW owner to bring him as a witness but the company refused to disclose same.

The claimant outlined his recall of the roundabout incident and insisted that he had no option but to go left to avoid a collision. The claimant stated that it was his impression that the company wanted to sack him from the beginning.

Under cross examination, the claimant accepted that it was part of his job to conduct a walk around the vehicle before departure. The claimant stated he did not have access when asked why he did not report that some of the cameras were not working. The claimant was asked if he accepted that he should see 4 screens on his monitor, he replied that is not what I saw. He asserted that he was never told he was to report camera/screen problems to the company. The claimant said he checked the monitor and it was working – he said he could only see side cameras and that the screens were constantly changing. The claimant stated he did not know that there should be 4 screens working and he did not know why one of the cameras was covered. The claimant stated that he had no previous disciplinary sanctions but confirmed he had received a verbal warning in 2016.The claimant accepted that he told Mr. D that he had to drive through the town to avoid a tractor. He did not recall why he had not mentioned the tractor during the investigation. The claimant accepted that the town bypass was a bigger road – he said it was not his intention to beat/ overtake the tractor.

The claimant stated he did not stop the truck as he had been driving at minimum speed and he avoided a dangerous situation – with a blind spot he did not see the BMW. The claimant confirmed that he was familiar with driver CPC training. The claimant’s representative argued that if the claimant had not done an S manoeuvre , it would have been a direct hit. The claimant asserted that at the roundabout incident , a car tried to overtake him and he disputed the respondent’s contention that he failed to take the left lane or allow the car on the right access to the lane. When asked if he thought this was safe driving the claimant said he went straight to Mr.W and asked for a recording of the incident. The claimant stated that he checked both lanes and saw the car approaching him from behind.

The claimant stated that it was not put to him during the investigation if he had done a walkabout of the truck and he stated that he had no reason to think the cameras were not working. The claimant stated he did not understand why the company refused to give him contact details for the owner of the BMW.

In summing up the claimant’s representative stated that if the cameras had been working properly they would have corroborated the claimant’s version of events. There was no minutes of the exchanges between Mr. D and the owner of the BMW and no reason had been given for the company’s failure to provide contact details for him. He asserted that it was clear that the company had made their mind up from the outset .It was argued that the claimant was denied an opportunity to challenge the company’s version of events and was denied access to cross examine witnesses .It was asserted that it was clear that the company technology was clearly unreliable and that the claimant had been treated in a prejudicial manner. The claimant   was now being pilloried in a vicious way. It was unfair to dismiss the claimant when the company had failed to clarify to him the appropriate response to a do not turn sign.

I have reviewed the evidence presented at the hearings and noted the respective positions of the parties. I have taken account of the documentation furnished post hearing and have considered the authorities relied upon by the parties.

It is clear from Irish Rail and McKelvey (2018) IECA436 that a disciplinary process is not rendered unfair by a refusal to allow an accused employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.  

Accordingly, I do not accept the claimant’s contention that his rights were breached when the respondent company denied him legal representation at the disciplinary stage.

It has been advanced by the claimant that the defective front facing cameras in the cab denied the claimant evidence that would have exonerated him with respect to the collision in Town X .The respondent for their part have assigned entire responsibility to the claimant with respect to the cameras ,arguing that the claimant should have alerted the respondent to same when he conducted his mandatory walkaround in advance of commencement of the journey. The respondent contends that the claimant was fully trained on all his obligations while the claimant has insisted that the training was inadequate and that he was not fully trained up on the alert system in the cab. While the respondent has argued that the claimant never sought to have the various training documents and handbooks translated into his native language, I find the respondent was unreasonable in failing to acknowledge their responsibility to ensure that their drivers whose native language is not English, fully understand safety procedures. I also find that the respondent was unreasonable in placing entire responsibility on the claimant for the defective cameras – the respondent’s own documentation submitted into evidence provides that “ Checks will be carried out on a regular basis to ensure the recording system is operating correctly .This will involve downloading or observing brief video footage of random days and will be carried out by authorised personnel only …”

I have given careful consideration to the repeated assertions by the respondent that the investigation undertaken by them was comprehensive and complied in full with their own procedures and natural justice. The claimant sought contact details for the driver of the BMW who according to the claimant would support the claimant’s version of events with respect to the requirement to take evasive action to avoid a collision with the second car. The respondent retrospectively sought to justify denying this information on the basis of an exchange between the claimant and a Garda some time previously. I find the respondent’s denial of the contact details to be unreasonable in the circumstances. I further find that when the respondent established that there was significant conflict between the claimant’s account and Mr. DK’s account of the exchange with the driver of the BMW, rather than seeking to establish the facts by contacting the driver of the BMW, they accepted Mr. DK’s version of events. This constituted a significant flaw in the investigation. Accordingly, and consistent with the findings of the Labour Court in UDD1739, I have concluded that the decision to dismiss was not within the range of responses of a reasonable employer. The decision and the disciplinary process leading to that decision took into account the outcome of the investigation that had been carried out by the respondent. I am not satisfied that the investigation was comprehensive and consequently I have concluded that it was not reasonable for the respondent to reach a decision to dismiss the claimant in the absence of a comprehensive investigation of relevant facts and events.

I am upholding the complaint of unfair dismissal. The claimant earned €600 gross per week – I require the respondent to pay the claimant €19,000 compensation.