Complainant

Respondent

Anonymised Parties

Driver

Logistics Company

Representatives

James Reilly James Reilly & Son

Kieran Kelly Gerard Murphy & Co.

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-00033980-001

24/01/2020

The Complainant contends that he was unfairly dismissed for alleged theft.

The Complainant was an Artic Driver with the Respondent from 29 August 2006 to 1 August 2019 when his dismissal was upheld following an investigation and disciplinary process which he alleges was flawed.  The flaws in the process include the fact that (a) he was not permitted to have legal representation when he was required to meet management to answer the charge of theft and (b) management had not carried out a fair and transparent procedure. 

The Complainant’s representative stated the sequence of events as follows:

28 November 2017 – alleged incident where the Complainant was accused of theft.

05 December 2017 – Two managers met the Complainant and suspended him with pay.

07 December 2017 – Investigation meeting

14 December 2017 – Further investigation meeting

15 December 2017 – Disciplinary meeting

18 December 2017 – Dismissal

February 2018 – Solicitor letter to Company appealing dismissal

Between February 2018 and July 2019, appeal hearings scheduled and cancelled.  Company refused the Complainant legal representation.

22 July 2019 – appeal hearing

01 August 2019 –appeal not upheld, dismissal confirmed.

Preliminary Issue – time limits

It is argued that the date from which the appeal failed, and the dismissal was upheld, i.e. 1 August 2019 is the date from which the six-month time limit for submitting this instant complaint should run.  In support of this, the Complainant’s representative relies on the outcome of the judicial review proceedings in UPC Communications Ireland Ltd v The Employment Appeals Tribunal (2017).  This case involved a preliminary issue adjudicated upon by the EAT regarding time limits.  In that case, the EAT decided that the dismissal did not become effective until the outcome of the appeal hearing.  The EAT decision reasoning included the fact that the Complainant’s written terms of employment were unclear in relation to whether an appeal would act as a stay on dismissal.  The High Court (McDermott J.) held that the EAT had not exceeded its jurisdiction and had fully considered the facts that the claim was in time.  The Complainant’s representative in this instant case, submits that if the contract is silent on effective date of dismissal, then the Complainant is entitled to hold that the date of dismissal will be put on hold pending an appeal.

Substantive issue – unfair dismissal

The Complainant was dismissed on foot of a claim that he had apparently removed a pallet or pallets of goods from the load he was delivering in or around 28 November 2017.   It is noted that in an email on 29 November 2017 referring to the matter, manager A stated in regard to other missing stock on a previous date that it was “the same driver” as the Complainant.  It is submitted that this demonstrated prejudice on the part of management against the Complainant, before any fair process was carried out.  In the ensuing investigation and disciplinary process, the Complainant was denied the right of representation by legal counsel, was denied the right to cross examine witnesses and denied the right of due process in a flawed exercise.

In summary, the Complainant has always denied the charge of theft, there was an absence of evidence from the Respondent to support the allegation of theft, the load on the day was incorrect, there was an ulterior motive in the Complainant’s dismissal in that he had a personal injuries case due to a workplace accident, the employer pointed the finger unfairly at the Complainant when referring to earlier missing stock and finally, the denial of representation rendered the Complainant’s dismissal unfair.

The Respondent was not present at the hearing.  The Liquidator was in attendance.

Preliminary issue – time limits

This complaint was received on 24 January 2020.  The Complainant was dismissed by letter dated   18 December 2017.  I note the lengthy period between that date and the outcome of the appeal date which was 1 August 2019.  I am bound by the findings of the superior court in this matter and find, that as the Complainant’s contract of employment is silent on the effective date of dismissal, the Complainant was entitled to hold that the appeal, especially involving such a lengthy time period, would act as a stay on dismissal.  I find the complaint to be in time.

Substantive issue – unfair dismissal

I note the Complainant’s points about denial of his right of legal representation.  In such a serious matter of dismissal for alleged theft, this was a denial of basic right which rendered the dismissal process unfair and flawed.  For this reason alone, I find that the Complainant was unfairly dismissed and I conclude that his claim is well founded.

Unfair dismissal, flawed process.