Complainant

Respondent

Parties

Stephen  Kinsella

BOC Gases Ireland Limited

Representatives

SIPTU

IBEC

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-00042710-001

25/02/2021

The complainant commenced employment as a VCH Compressed Gases Driver with the respondent on 5th November 2012.  His employment was terminated on December 2nd, 2020 and he says the dismissal was unfair.

The respondent submits that the complainant was fairly dismissed by the respondent on December 2nd, 2020. There were substantial grounds justifying the dismissal.

The respondent is Irelands largest supplier of industrial, process and speciality gases to almost every Industry and has been producing industrial gases in Ireland for over 70 years.

Health, safety, and quality standards are of the utmost importance considering the risks associated with the company’s products. Responsibility for health, safety, and care rests with each employee.

A VCH Driver must ensuring the road worthiness, safekeeping, and cleanliness of his vehicle, completing daily pre-use inspection check sheet and for any special equipment he may need to use, applying defensive driving techniques, knowledge of commercial driving regulations and roads to ensure the safe transit and delivery of cylinders.

The complainant had been on a final written warning since December 2019 and was dismissed for failing to follow reporting procedure on Health and Safety issues, failure to complete mandatory daily pre/post trip inspection sheet, inadequate cooperation and engagement in relation to the fact-finding process and failure to adhere to the terms and conditions of his contract of employment.

The respondent lost trust in the complainant to fulfil his duties to the required level, especially considering the safety sensitive nature of the role, the hazardous goods that the company transports and the critical nature of the products.

On the September 6th, 2019, a bald tyre incident was reported orally by a production operative. He also noted a mud guard was missing, and he reported it to the garage as the truck could not be loaded for the next day on safety grounds.

The tyre was removed and sent for expert analysis to determine the failure mode of the tyre in question. While awaiting a response, the company carried out a number of driver meetings highlighting wheel security and driver safety issues.

As part of a separate process on October 18th and November 6th, 2019, the complainant attended a fact-finding meeting regarding the issue of walking out of the job.

On the October 21st and 25th 2019 the complainant sent two emails stating that he had no knowledge of the bald tyre incident.

On December 4th, 2019, he attended a disciplinary meeting to answerallegations of unauthorised absence from work on October 17th, 2019, failure to follow reporting procedure on Health & Safety issues at work and related issues.

This resulted in a final written warning being issued on December 12th. The sanction of dismissal had been considered but the complainant’s plea for leniency was taken into consideration.Animmediateimprovementinhisbehaviourandperformancewasexpected,otherwisefurtherdisciplinaryactioncouldbetakenagainsthim.

He did not appeal.

The final tyre report was received from Michelin on January 24th, 2020. It found no evidence of a manufacturing defect of the tyre but did find that the wear to the tyre was severe.  The complainant was invited on three occasions to attend an investigation meeting on various dates in February, March, and May,

Eventually it took place on June 22nd, 2020, and the complainant attended with his SIPTU Official and confirmed that he had been driving the truck on September 2nd, 4th, and 5th 2019 and on each day, he had filled in the Driver Walk Around check list.

On the June 30th, 2020, the complainant was issued with the copy of the fact-finding report and was invited to a disciplinary hearing for failure to follow reporting procedure on Health and Safety issues at work in timely manner, failure to complete the mandatory daily pre/post trip inspection sheet, inadequate cooperation, and engagement in relation to the fact-finding process and failure to adhere to the terms and conditions of his contract of employment.

The complainant was put on notice that the outcome of the disciplinary hearing could lead to his dismissal. He then went on a period of sick leave between June 30th and October 19th, 2020 and received an invite on 21st October 2020 to attend a disciplinary hearing on the 28th of October 2020.

Various efforts were made to schedule this meeting, initially for November 4th, 2020, but was adjourned to November 12th.

On November 11th, 2020, the complainant submitted a medical certificate and the disciplinary hearing had to be postponed. On being deemed medically fit to resume normal duties and to engage in the internal investigation, he was re-invited to the disciplinary hearing on November 25th, 2020.

The complainant was again put on notice that as he is on a final written warning and due to the seriousness of the new allegations the outcome of the disciplinary hearing could lead to his dismissal.

On November 20th, the complainant raised a complaint about the Occupational Health Specialists and requested a third medical opinion. He was provided with a copy of the referral form that was provided to the company doctor as well as a statement from the line manager with regards to the phone conversation he had with the doctor.

The respondent says that it did not influence the company doctor.

The complainant was invited again to the disciplinary hearing for November 25th and told that if he did not attend the hearing it would proceed in his absence. He was also offered the option of submitting a written statement to the disciplinary panel that could be considered before any disciplinary decision/ outcome was issued.

On November 24th, 2020, SIPTU requested that a scheduled disciplinaryhearing forNovember 25th bepostponedto1stDecember and thecomplainantlodgedaformalgrievancewiththeCompanyonthe25thofNovember2020.

That grievance was investigated and not upheld, and the outcome was issued to him on November 30th. On that same day, SIPTU advised that the complainant was not well enough to attend the Disciplinary Hearing and submitted a statement on his behalf. he did not attend the hearing but was at work on the day.

The Disciplinary hearing proceeded in the employee’s absence. The complainant was issued with the outcome of the hearing. The Disciplinary officer upheld the complaints as set out above.

The Disciplinary Panel considered actions short of dismissal but due to seriousness of the complainant’s behaviour and the breakdown of trust, and a due to the live final written warning, the respondent was left with no alternative but to dismiss the complainant.

In this case, the relationship of trust between the respondent and the complainant had broken down as the respondent simply could no longer trust the complainant to fulfil his duties to the required levels. The complainant was paid in lieu of his notice.

The complainant appealed his dismissal and attended the appeal hearing on December 22nd, 2021.

The grounds for the appeal included breaches of natural justice in the procedures, inaccuracies in the disciplinary panel’s report, refusal to agree a third medical opinion, failure to provide all relevant documents and statements.

He also said that the company implemented ‘double jeopardy’ by considering findings from a previous disciplinary hearing and that the decision to dismiss was severe, unreasonable, and disproportionate in the circumstances.

He also said that his long service with the company was not taken into account and that full and fair consideration was not given to his response and that of his union representative to the four allegations.

Finally, he alleged a breach of GDPR by discussing the disciplinary hearing with the company doctor and issuing documents to a number of BOC employees.

At the appeal hearing the complainant, accompanied by his union representative, set out additional argument in respect of the matters above (fully documented in the submission).

The appeal was not upheld by the respondent on the basis that the incident had occurred as alleged on September 6th, 2019, and as it emerged that a number of staff had driven the same vehicle in previous days, a fact- finding exercise was initiated.

(Full detail was also provided in respect of the other grounds of appeal)

Of particular note, the appeal panel found that the fact-finding process for the bald tyre incident was only completed in January 2020 (Michelin Report Issued January 2020) so it could not influence the disciplinary process which was completed in December 2019.

The appeal panel believed that the decision to dismiss was warranted taking into consideration that the complainant was on a live final written warning.

The respondent made extensive legal submissions on the applicable law, the jurisdiction of the WRC and on the appropriate remedy on the event of a finding in the complainant’s favour.

This case is brought under the Unfair Dismissals Act. The complainant’s dismissal was unfair both substantively and procedurally and he seeks to be re-instated. 

On Thursday October 17th, 2019, Mr. Kinsella raised concerns with his union that his truck for that day had been loaded unsafely, and he left the workplace over these concerns.

He was called for a disciplinary investigation over the incident.

During these proceedings, a reference was made to the “bald tyre” incident in the margin of the handwritten minutes from one of the meetings although not discussed at the meeting. This did not mean much to Mr. Kinsella at the time, but it is now clear that he was already being investigated about the bald tyre without being told.

This resulted in a final written warning December 4th, 2019.  Not aware that he was implicated in the “bald tyre” investigation, Mr. Kinsella did not appeal the final written warning at the time.

The following February, he was contacted about the tyre incident and a meeting was scheduled for the 10th of March.  This meeting subsequently had to be cancelled, as Mr. Kinsella’s work roster on the day did not allow enough time for him to return to the base in time for the hearing.

Due to the onset of Covid-19, and a period of sick leave, the meeting did not take place until May 28th, 2020. Mr. Kinsella attended this first meeting without representation.

Early in the proceedings he raised concerns around a potential conflict of interest of one of the managers involved and says he wanted to get legal advice due to the gravity of the allegations. The meeting was adjourned and re-scheduled for June 22nd, 2020.

The complainant was represented by his union. The complainant raised concerns about how the process was being handled and requested additional information about the allegations.

He was not given the evidence he requested or given the opportunity to interrogate much of the documentation which would ultimately feature in the findings from the investigation. He was told by the investigator, that “the process is that you would get all that information if it did go to disciplinary”.

This is contrary to the principles of fair procedures and natural justice.

The investigation made a number of findings against Mr. Kinsella, and he was instructed to attend a Disciplinary Hearing on the July 8th, 2020. However, this was postponed as Mr. Kinsella was certified unfit to work from the June 30th until October 20th, 2020

On the 23rd of July, while Mr. Kinsella was on sick leave, the union requested additional information such as how the allegedly bald tyre had been identified and a copy of the defect book for the truck in question, which Mr. Kinsella had looked for during the investigation.

This was sought so that the complainant could help prove the allegations against him were fabricated.

He got a response to these queries on the August 4th and supplied with a signed statement regarding how the tyre came to the attention of the respondent.

This statement was dated August 2020, 11 months after the incident (appendices, pg. 159). But the requested copy of the defect book and drivers’ data for the vehicle were not provided.

The complainant returned to work on October 20th, and the disciplinary hearing was scheduled for November 4th, 2020.

During preparations for this meeting, it was noted that according to BOC Gases’ disciplinary policy, a “more senior” manager ought to hear the case. This was raised as a preliminary issue at the meeting the following morning.

The meeting was adjourned and, following a period of deliberation of approximately one hour, the meeting was deferred for one week, until a more senior manager could be appointed to hear it.

This meeting did not take place on November 12th, as the complainant was advised by his GP that he was unfit to attend due to work-related stress on November 11th.

BOC Gases instructed Mr. Kinsella to attend the company doctor on November 18th.

The doctor then informed him that she had just spoken to a representative of the respondent and that he had told her he believed Mr. Kinsella was trying to avoid the hearing by “kicking it down the road”.

This was untrue as the complainant was prepared to proceed on November 4th and highly prejudicial. He asked that a third doctor’s opinion be sought when the company doctor certified Mr. Kinsella fit to return to work against the advice of Mr. Kinsella’s own GP.

Later, on November 20th, the company rejected the complainant‘s allegations, and stated that he was expected to attend the disciplinary hearing on November 24th.

After a lengthy email exchange, the meeting was postponed until December 1st, to allow time for

union representation at the hearing.

The complainant was required to return to work, or risk further disciplinary action should he fail to comply. This was despite not being required for operational reasons; he was left sitting in an office without meaningful work for much of this final period of his employment with the respondent.

On November 25th, Mr. Kinsella lodged a formal grievance over the rejection of his request for a third medical opinion. An outcome was issued on November 30th which did not uphold his complaint. Notably, there was no formal grievance hearing, and Mr. Kinsella was not given the opportunity to respond to the statements gathered before the outcome was issued.

The disciplinary hearing took place on December 1st, 2020.

Mr. Kinsella was offered the option of submitting representations in writing rather than attending in person, which he availed of as he did not feel fit to attend in person without a union representative physically present.

The union submitted a cover letter and a copy of Mr. Kinsella’s own written responses on Mr. Kinsella’s behalf including the argument that Mr. Kinsella firmly believes he and five other drivers implicated in the investigation would not have missed a bald tyre if there had been one on the truck.

The decision to dismiss Mr. Kinsella issued on December 2nd. The decision asserted that all the delays in the process were essentially attempts on Mr. Kinsella’s part to frustrate the process, which was categorically not the case.

Mr. Kinsella lodged an appeal on December 8th, which was heard on the 22nd, though the outcome of the appeal was not issued until February 3rd, 2021.

The appeal was dismissed.

The complainant was unfairly dismissed from BOC Gases on several grounds.

First, the sanction of dismissal was excessive.  It became apparent that this was the outcome it wanted when they forced Mr. Kinsella to return to work in November 2020 while he still certified unfit to work by his own GP.

There was no good reason to refuse to allow a third, medical opinion, other than that it might have confirmed the opinion of his GP that he was unfit to work or engage in work-related processes at the time.

Instead, the company acted unfairly and unreasonably when they forced an employee already suffering from work-related stress to return to work, particularly as there were no operational requirements that demanded it.

A reasonable employer may still have referred Mr. Kinsella to Occupational Health in November 2020 but would not have sought to unduly influence the doctor by stating that Mr. Kinsella was just “looking to kick [the hearing] down the road” in advance of his appointment with them.

They had no meaningful work for Mr. Kinsella to do when he did return, and as such, no real reason to force him to return other than they wanted to proceed with the disciplinary process while a final written warning was still active on his file; this warning was due to expire on the 4th of December 2020 and Mr. Kinsella was dismissed on December 2nd, 2020.

In other procedural unfairness, the incident for which Mr. Kinsella was dismissed predated the incident for which he was given a Final Written Warning in December 2019.

In a fair process, this would not have arisen. Mr. Kinsella would have been informed in September 2019 of any alleged issues with his truck, and that his actions in relation to these were to be investigated. He would probably then have appealed the severity of the final written warning in December, thus reducing the likelihood of dismissal as the immediate next step of any disciplinary process potentially arising from the investigation into his truck.

Throughout this process, Mr. Kinsella has maintained his innocence. He has stated clearly that he did

not fail to complete his checks or follow procedure or fail to adhere to his contract of employment.

When he completed his checks in the week preceding September 6th, 2019, there was no bald tyre on his truck. He firmly believes the allegations against him were fabricated, and that the company targeted him unfairly, because he had raised health and safety concerns in the past and they wanted rid of him.

This view that the process was fixed was compounded by the opaque way BOC Gases set about investigating the alleged bald tyre incident in September 2019, without informing Mr. Kinsella of their investigation until February 2020. This caused Mr. Kinsella great stress.

The matter was further aggravated by the investigator withholding certain information during the investigation stage, and by BOC Gases failing to provide certain documentation Mr. Kinsella requested, which he believed could help prove his innocence.

Mr. Kinsella was accused of obstructing the investigation, but his intention was not to obstruct proceedings but rather to defend himself against serious, fabricated allegations. He was not to blame for the delays

The respondent acted unreasonably and contrary to fair procedures and natural justice in relation to Mr. Kinsella’s certified illness, the resulting delays to procedures, and in their handling of his final period of sick leave and associated grievance in November 2020.

Procedural injustices such as these were raised repeatedly during the process, up to and including the appeal stage, but these have not been acknowledged or considered by the respondent at any stage to date.

We seek the complainant’s re-instatement to his position as a driver, with no break in service, in

recognition of the unfair treatment and unfair dismissal to which he has been subjected.

It will be helpful to identify the various components in this case, and to look at their relationship with each other. This is an important theme of both submissions.

The first is the ‘bald tyre’ incident as it is convenient to refer to it on September 6th, 2019, and the precise facts in relation to this are hotly contested by the complainant. I return to the merits of this below.

Next, is an unrelated incident where the complainant absented himself from work without authority about six weeks later on October 17th. In his submission this is attributed to a disagreement over the safety of his vehicle.

This in turn led to disciplinary proceedings as a result of which he was issued with a Final Written Warning on December 12th. The respondent says it considered terminating his employment but did not do so.  The respondent’s evidence to the hearing was that seven different disciplinary breaches were involved and not just the October 17th incident

In the background, the respondent had referred the tyre at the centre of the first incident to the manufacturer for a technical examination.

There appears to have been some reference to this in the course of the October disciplinary proceedings. The complainant says that this showed ‘that he was already being investigated about the bald tyre without being informed that he was being investigated’.

There is no basis for this assertion.

On these facts, the only thing that was then being investigated was the tyre itself, not the complainant. Its relevance to the complaint of unfair dismissal is that the complainant says that had he been aware of the prospect of further proceedings he might have appealed the December warning.

This is an argument of very limited merit; and posits that had a person been aware of potential future disciplinary proceedings they might have made a different decision in respect of an appeal of an earlier one.

Taking a gamble that a final written warning will have evaporated before a second cause of action might present itself is hazardous. If it comes off, fine, but in the unhappy event that another issue arises it is too late to relent on the decision not to appeal.

Whether or not to appeal something is a decision to be made on the merits of doing so only, not some tactical gambit based on possibilities no-one can know for sure.

Also, the complainant sought to make an issue out of the fact that the tyre incident pre-dated the disciplinary sanction.

But in fact, it is clear that no disciplinary issue had crystallised at that point and would not until the technical examination had concluded and again, nothing turns on this argument.

The fact is that the complainant confirmed at the hearing that he accepted the December decision; there was no conditionality.

In any event, having regard to the nature of the incident giving rise to the sanction, there is no guarantee that any appeal would have succeeded. The only way to know this for sure would have been to appeal.

The results of the technical examination of the tyre arrived late the following January, confirming that it was not intrinsically defective, and this brings us to the final sequence of events which led to the termination of the employment.

It is far from satisfactory that this process took, from the arrival of the report to the conclusion of the process over nine months, indeed, adding in the time for the appeal to conclude, it was not too far short of a year, although the pandemic and illness contributed significantly to this.

Both parties raised concerns about the delay, or more specifically the respondent did, and the complainant made an issue about the respondent making an issue out of it for suggesting that the complainant was to blame.

Ultimately, nothing turns on this either.

It appears that, to the extent that the complainant contributed to the delay, some of this was clearly genuine and medically certified, but, some less so in the later stages in particular and possible tactical.

This is relevant to the extent that the final decision, which the complainant alleges was rushed, brought the complainant close to the end of the shelf-life period for the final warning from December 2019.

Rather as with the issue regarding the appeal, whether a different decision would have resulted on the expiry of the Final Written Warning cannot be known. On the basis of the respondent’s submission as to how it viewed the gravity of the ‘bald tyre’ incident that is an open question, at best. The only issue to be addressed is whether it acted unreasonably in insisting on proceeding as it did.

The sequence of events is set out above in the complainant’s submission

The complainant returned to work on October 20th, and the disciplinary hearing was scheduled for November 4th, 2020.

The complainant objected to the manager appointed to hear the case and he was replaced. The resumed meeting was scheduled for November 12th.

However, the day before the hearing the complainant was certified unfit to attend it.

The company referred him to its Occupational Health doctor for a consultation on November 18th in the course of which the doctor allegedly referred to a conversation with a member of management which was critical of the complainant. The OH doctor certified him fit to participate.

While the complainant says he was prepared to proceed on the November 4th this is not true; the fact is he objected to that hearing going ahead on relatively specious grounds.

He then insisted on a third medical opinion, on the basis of the conversation between the doctor and management.

The fact that the doctor revealed this conversation to the complainant is very important, and indeed she was obliged to do so and in doing so met any obligations to fair procedure.

While a party must put its best case forward, the insinuation that the rather harmless comment allegedly made by the respondent to a medical practitioner led her to commit an act of professional misconduct in reaching her diagnosis, is unworthy and entirely without merit.

On November 20th, the company indicated that it intended to proceed, and told the complainant that he was expected to attend a disciplinary hearing on November 24th.

In the event the meeting was postponed until December 1st, to allow the complainant to be represented at the meeting.

On November 25th, Mr. Kinsella lodged a formal grievance that his request for a third medical opinion had been rejected.

Notwithstanding what now might be seen as a clear pattern of the complainant seeking to delay the disciplinary hearing despite his protestations to the contrary, the respondent investigated the grievance and dismissed it on November 30th, although it did so without a formal grievance hearing.

Mr. Kinsella was not given the opportunity to respond to the statements gathered before the outcome was issued.

However, as the net issue, as stated above was whether a medical practitioner had acted unprofessionally to the point where her diagnosis was compromised, probably got the hearing it deserved, and I find nothing turns on the conduct of the grievance.

The disciplinary hearing took place on December 1st, 2020.

The complainant was offered the option of submitting his representations in writing rather than attending in person. He did so, as he did not feel fit to attend in person without a union representative physically present.

His union made a written submission asserting his innocence of any wrongdoing in relation to the tyre incident. The decision to dismiss the complainant issued on December 2nd.

Despite certain limited flaws I can find no basis to impugn this process from a procedural point of view. The complainant was provided with more than one opportunity to state his case in person, he declined to do so but made submissions with the professional support of his trade union and he cannot complain now that he was denied a hearing.

Somewhat out of sequence, this now brings us back to the incident giving rise to the complaint.

The complainant says that he inspected the truck on the morning in question and did not see any bald tyre and gave evidence to this effect under oath. He says the allegation was ‘fabricated’. There was a direct conflict in the evidence offered by the two parties.

Before reviewing that it is necessary to re-state the jurisdiction of, or at least the limitations placed on an Adjudicator in these circumstances which has been well set out in a number of decisions of the Superior Courts and applied in both the Adjudication service and its predecessors.

It might be described as the ‘reasonable employer’ test, or, in relation to sanction, ‘the band of reasonable responses’ test.

Essentially it prescribes an objective, and, as it were, third party test and does not permit of an Adjudicator determining the merits of the matter, other than when it might be said to fall clearly outside that band of reasonableness or reasonable responses

This was set out as far back as 1984 in the EAT decision in Looney and Co v Looney UD843/1984 and the view of Dr Mary Redmond to the same effect that;

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

See also, for example Allied Irish Banks v. Purcell [2012] 23 ELR 189, where Linnane J commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

The application of the “band of reasonable responses” authorities in the context of unfair dismissal was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. 

 It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41 and is the well-established basis on which all such cases must be approached.

In this case, set against the complainant’s strenuous denial of any wrongdoing and his claim that the incident was ‘fabricated’ the respondent has made a robust response.

As to whether or not there was a defective tyre on the complainant’s vehicle the various investigations carried out by the respondent leaves no room for doubt, either on procedural or evidential grounds, that it reached a reasonable conclusion.

The complainant’s submission that it ‘fabricated’ the existence of a bald tyre lacks credibility or evidence.

The complainant vaguely suggested that the tyre may have been on a different truck, but I am satisfied that the respondent took diligent steps to establish the true position. Most, obviously the tyre had to be replaced on the complainant’s truck.

A number of other employees who had driven the same truck and failed to report the tyre defect (some of whom confirmed the existence of the defect) were also disciplined, but short of termination, (the complainant’s written warning being the differentiating factor).

The weight of the evidence before the respondent was overwhelming as to the existence of the defective tyre and the failure by the complainant to report it is a matter of fact (he simply denies there was a defect).

I have addressed the procedural issues in the body of this decision.

To summarise, nothing turns on the delay in presenting the complainant with the results of the technical examination until after the disciplinary decision in December 2019, nor on his failure to appeal it.

Likewise, there are no significant procedural issues arising in the course of that investigation.

I find that the complainant was given every opportunity to answer the case put to him, and, by his choice did so by means of written submission only. I find that, in general, his cooperation with the process left something to be desired and that in the latter stages of the process he actively obstructed it.

Ultimately, I find that the respondent met the necessary procedural standards and their decision to terminate the employment meets the tests set out in the case law referred to above as being within the range of reasonable responses, having regard to the facts of the case.

The dismissal was fair.

For the reasons set out above Complaint CA-00042710-001 is not well founded and the dismissal was fair.

Dismissal, investigation, fair procedure.