Complainant

Respondent

Anonymised Parties

Delivery Driver

A wholesale food supplier.

Representatives

Andrei Stserbakov Walkinstown Accounting and Taxation Services

Caoimhe Heery Ronan Daly Jermyn Solicitors

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-00033970-001

24/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00033970-002

24/01/2020

The Complainant commenced employment on 7th May 2007 and was subsequently transferred to the Respondent in July 2016. The Complainant was employed as a Multi Drop Driver.

The Complainant’s employment was terminated on 17th December 2019.

1.       At the time of his transfer to the Respondent organisation in July 2016 the Complaint underwent safety training and signed a Commitment to Safety Statement that confirmed he understood the safety rules to include not doing anything that he was not trained to do.

2.       On 14/02/2019 the Complainant was due to attend work at 6.00am. He rang the Respondent to inform that his car had broken down and his supervisor made arrangements to collect him. After arriving at work, it was noted that there was a smell of alcohol coming from the Complainant. This was brought to the supervisor’s attention and he was asked by the supervisor to sit in the canteen. The Complainant admitted drinking five pints of beer the evening before between 9.00pm and 11.00pm. The Supervisor deemed him not fit to drive and he was suspended with pay pending the outcome of an investigation.

3.       An investigation was carried out and the Respondent viewed this as an incident of Gross Misconduct. The Disciplining Manager took the Complainant’s length of service into consideration and decided not to impose the sanction of dismissal, the Complainant was issued with a Final Written Warning that would remain on file for a period of 12 months.

4.       In accordance with company policy and fair procedures the Complainant had a right of appeal, he chose not to exercise this right, the issue of the Final Written Warning was not appealed by the Complainant.

5.       On 28th November 2019 the Complainant used a Power Pallet Truck (PPT) that he was not trained on or authorised to use. The Complainant, while manoeuvring the PPT caught the door of a large freezer unit and ripped the handle/lock from the door causing damage that cost €800 to repair. At investigation the Complainant admitted that he took the PPT with the knowledge that he was not permitted to use the vehicle in question.

6.       On 9th December 2019 the Complainant refuelled a van on site. Whilst refuelling the Complainant noted that the nozzle of the fuel pump would not fit and proceeded to hold the nozzle next to the tank and filled it. The Complainant was fully aware that the correct fuel for the van was diesel and he had filled the van with Ad Blue. The damage caused was estimated at €8,000, the van was written off. At an investigation meeting on 12th December 2019 the Complainant stated that he did not notice the Ad Blue sign on the pump.

7.       A disciplinary hearing was held on 16th December 2019. The Complainant had been advised that he could be accompanied by a work colleague. He was also asked if he required the services of a translator. He declined both.

8.       The Complainant did not dispute the allegations against him however during the disciplinary hearing he requested the services of a translator. The hearing was adjourned and reconvened when a translator was available.

9.       During the disciplinary meeting the Complainant was again advised of the seriousness of the matter and reminded that it could lead to his dismissal. At this point the Complainant apologised and stated that he would not do anything like this again.

10.   The Disciplinary hearing was adjourned to the following day to allow the Disciplining Manager time to consider the facts. Following consideration of the matter the Disciplining Manager concluded that unfortunately a sanction of dismissal was warranted. The following were considered by him:

·       The significant damage to the company property

·       The use of the vehicle the Complainant was not authorised to use

·       The health and safety breaches

·       The live Final Written Warning on the Complainant’s file

·       The Complainant’s service to date.

11.   In accordance with fair procedures and the Respondent disciplinary policy the Complainant had the right to appeal the decision to terminate his employment. No appeal was ever received from the Complainant.

12.   The Respondent notes that the Complainant has also made a claim under the Redundancy Payments Acts. The Complainant was not made redundant.

Legal Submission.

1.       Section 6 (1) of the 1977 Act states that:

“the dismissal of an employee shall be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

As outlined there were substantial grounds to dismiss the Complainant.

2.       The Respondent relies on Section 6 (4) of the 1977 Act which states:

“the dismissal of an employee shall be deemed for the purpose 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.

Proportionate Sanction.

1.       The Respondent is of the opinion that in all the circumstances that the sanction of dismissal was proportionate and within the range of reasonable responses.

Cases quoted.

Allied Irish Bank Plc v Brian Purcell [2012] 23 ELR.

Looney & Co Ltd v Looney UD843/1984.

The Respondent submits that once it has been established that the sanction was one of the options the employer was reasonably entitled to take, the WRC does not jurisdiction to “look behind” that decision, and/or substitute its judgement for that of the Respondent.

Fair Procedure.

The Respondent submits that it conducted the disciplinary process correctly, up to and including the sanction of dismissal, and that the Complainant had the benefit of fair process and procedures throughout. However, should the WRC find that there has been a procedural flaw, at any stage in the process, which is denied, the Respondent relies upon a line of well established legal authorities which set out that, even in circumstances where some procedural issues surrounding a dismissal may be present, which is denied by the Respondent, that in and of itself does not necessary negate the fairness of the outcome.

Cases quoted:

v  Elia Erian Aziz v The Midland Health Board [1995] ELR 48

v  Loftus and Healy v An Bord Telecom (13th February 1987, unreported HC)

v  Pacelli v Irish Distillers (UD 571/2001)

The Respondent asserts that “the requirements of justice” and “procedure have been observed”.

The Remedy of Re-instatement.

It is noted that the Complainant is not seeking compensation or re-engagement rather re-instatement. Were the WRC to find that the Complainant was unfairly dismissed, which is denied, the Respondent submits that reinstatement would be a wholly inappropriate remedy in this case, and further submits that trust and confidence has broken down and thus the relationship between the parties has irretrievably broken down.

Cases quoted:

v  Stapleton v St Colman’s (Claremorris) Credit Union (UD 1776/2012)

The Respondent submits that far from being “blameless” in his dismissal, it was the Complainant’s conduct, which resulted in his dismissal.

1.       On the 14th February 2019 the Complainant’s car was broken and he contacted his supervisor who was very helpful and sent a co-worker to pick him up. On arrival at work the Complainant was accused of being under the influence of alcohol and asked to sit in the canteen. The Complainant was suspended on pay pending the outcome of an investigation. Prior to going home, the Complainant asked his employer to conduct an alcohol test on him, this was refused by the Respondent employer.

2.       Following an investigation, the Complainant was issued with a Final Written Warning for Gross Misconduct the Complainant was unhappy with this as he was not given an opportunity to prove that he was not under the influence of alcohol i.e. given a breath test.

3.       The Complainant accepts that he was drinking beer the evening before but insists that he had slept for eight hours and was not under the influence of alcohol.

4.       The Complainant did not appeal the issue of a Final Written Warning.

Incident on 28th November 2019.

1.       The Complainant was using a Power Pallet Truck (PPT) because he had no other options to carry out his duties. All the handheld pallet trucks were being used due to the large number of staff working at that time. There is a general shortage of equipment.

2.       The Complainant has asked on several occasions could he be trained in the use of the Power Pallet Truck, this has not happened due to the duration of the training i.e. one full day.

3.       The manager was fully aware that the Complainant and other staff members were using the PPT and were not trained in the use of this equipment.

4.       Whilst operating the pallet truck the Complainant caught the door to a fridge and broke the handle from the fridge resulting in damage costing €800 to repair.

5.       This was an accident and could have been done by any employee, trained or not.

6.       If there was no accident and resulting damage, there would have been no investigation undertaken.

7.       The Complainant would have paid for the damage had he been asked to do so. There was no discussion in relation to the Complainant paying for the damage.

Incident on 9th December 2019.

1.       The Complainant refuelled a van with Ad Blue instead of diesel, this was pure human error. The Complainant did not pay attention to the writing on the pump because he was well used to carrying out this function and went through the steps automatically without thinking too much about it.

2.       The Complainant wished to appeal the decision to dismiss him and his representative sent emails to the Respondent on the following dates:

18/12/2019 – “we are going to appeal this decision and under those circumstances we would like to request a full copy of the following documents…….”

20/12/2019 – “As far as we are aware we have 5 days to appeal your decision, but we still haven’t got any requested documents yet…….”

06/01/2020 – “We have contacted you on 18th December 2019 and on 20th December 2019 with a request of employees files and unfortunately haven’t heard anything back. So unfortunately, we have no other choice just to put a complaint to the Workplace Relations Commission”

Copies of these emails were provided by the Complainant’s representative.

No response was provided by the Respondent to these emails.

There is much to be considered in coming to a decision in this complaint.

The Transport Manager who chaired the Disciplinary Meeting considered the following in coming to a conclusion:

·       The significant damage to company property

·       The use of a vehicle the Complainant was not authorised to use

·       The health and safety breaches

·       The live final warning

·       The Complainant’s service to date.

The live final warning was issued following the Complainant’s arrival for work with a smell of alcohol from his breath. The Complainant admitted to drinking five pints of beer the evening before between the hours of 9 and 11 pm. Due to this volume of alcohol being consumed the Complainant was deemed not fit to drive a vehicle and carry out his duties.

The employers Work Rules clearly state that “Under the influence is defined as any positive test which indicates any presence of alcohol, illegal or non-prescriptive drugs or Marijuana”. It was contended by the Complainant’s representative that he had requested a test and this was refused. In refusing this request made by the Complainant I believe the Respondent employer must have a look at their own procedure /policy.

I also note that the issue of this warning was not appealed by the Complainant. This failure by the Complainant was a mistake by him. In An Employee v An Employer (ADJ – 0000381, April 2017) the Adjudication Officer commented as follows:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance……….”

Moving onto the incident in November 2019, the Complainant used a Power Pallet Truck to load his van and carry out his duties. This was a piece of equipment the Complainant was not trained or authorised to use. The Complainant caused an amount of damage to a freezer door whilst using this pallet truck. The consequences of the Complainant using this power pallet truck could have been much worse.

The Complainant’s rep stated that this practice i.e. untrained/unqualified personnel using these power pallet trucks is commonplace. This contention was refuted by the Respondent.

On the 9th December 2019 the Complainant fuelled the company van with a fuel additive rather than diesel causing €8,000 worth of damage to the vehicle. The nozzle of the fuel pump would not fit into the vehicle and the Complainant had to hold the nozzle next to the vehicle fuel tank to fill it. This type of action is unacceptable from an individual who drives a vehicle day in and day out.

Following a full investigation conducted by the Respondent a decision was made to dismiss him from employment. This was the decision from the Transport Manager who considered the following:

·       The significant damage to the company property

·       The use of the vehicle the Complainant was not authorised to use

·       The health and safety breaches

·       The live Final Written Warning on the Complainant’s file

·       The Complainant’s service to date.

The Complainant was informed of his dismissal on 17th December 2019, he was paid in lieu of notice.

In relation to appealing the dismissal the Representative for the Complainant produced three emails that were sent to the Respondent:

18/12/2019 – “we are going to appeal this decision and under those circumstances we would like to request a full copy of the following documents…….”

20/12/2019 – “As far as we are aware we have 5 days to appeal your decision, but we still haven’t got any requested documents yet…….”

06/01/2020 – “We have contacted you on 18th December 2019 and on 20th December 2019 with a request of employees files and unfortunately haven’t heard anything back. So unfortunately, we have no other choice just to put a complaint to the Workplace Relations Commission”

The Respondent contends that no such emails were received by them and on day 2 of the hearing the Respondent produced a report from an IT specialist in the parent company stating that no such emails were received by them.

I cannot state that these emails were or were not sent and equally so, I cannot state they were or were not received.

In any appeals process the onus sits with the employee / complainant to appeal a decision made by the Respondent. In this instant case the Complainant contends that three emails were sent to the Respondent. Having received no response to these emails the complaint was submitted to the Workplace Relations Commission.

There are forms of communication other than emails. The Complainant could have written or telephoned the Respondent seeking an appeal hearing.

As pointed out by the Respondent the role of the Adjudication Officer is not to look behind the decision to dismiss or to substitute my judgement for that of the Respondent. I cannot say that if the appeal had gone ahead it would have been successful.

Looney & Co Ltd v Looney UD843/1984.

“The Respondent submits that once it has been established that the sanction was one of the options the employer was reasonably entitled to take, the WRC does not jurisdiction to “look behind” that decision, and/or substitute its judgement for that of the Respondent”.

I have fully considered the content of the submissions and the evidence adduced before me at hearing and now decide that the complaint is not well founded and therefore fails.

CA-00033970-002 – Complaint submitted under section 39 of the Redundancy Payments Act, 1967.

This is not a redundancy situation. The Complaint as submitted under s.39 of the Redundancy Payments Act, 1967 is not well founded and therefore fails.

CA – 00033970 – 001 – Complaint submitted under section 8 of the Unfair Dismissals Act, 1977. I have fully considered the content of the submissions and the evidence adduced before me at hearing and now decide that the complaint is not well founded and therefore fails.

CA-00033970-002 – Complaint submitted under section 39 of the Redundancy Payments Act, 1967.

This is not a redundancy situation. The Complaint as submitted under s.39 of the Redundancy Payments Act, 1967 is not well founded and therefore fails.

Unfair Dismissals Act. Redundancy Payments Act.