Complainant

Respondent

Anonymised Parties

A Driver

Transport Company

Representatives

Des Courtney SIPTU

Muireann McEnery IBEC

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-00035747-001

17/04/2020

The complainant commenced employment as a driver with the respondent on 29th July 2019. He was paid €574.00 per week. As a result of a road traffic accident (not connected to his employment) in August 2019 he was off work for nine and a half weeks.  On his return to work he was informed that his probationary period would be extended in line with his period of sick leave.  In January 2020 he brought to the respondent’s attention a number of what he believed to be serious defects in some of the trucks he was asked to drive. The complainant believes that raising these “serious concerns” amounted to a protected disclosure in line with the provisions of Section 5 of the Protected Disclosures Act, 2014.  He was invited to a probationary meeting on 23rd January 2020 and following this he was dismissed.  The complainant believes that the proximity time between making his protected disclosures and being invited to a probationary review meeting was no coincidence.  In addition, the complainant believes that the probationary review meeting was conducted in such a manner that his fundamental rights were breached.  The complainant submitted his complaint to the Workplace Relations Commission on 17th April 2020.

The complainant is a professional driver with over 20 years’ experience.  He commenced employment with the respondent on 29th July 2019 until he was dismissed on 30th January 2020.  The complainant had a road traffic accident at the end of August 2019 and his return from sick leave he was informed that his probation had been extended by three months up to 8th April 2020.  On 9th January 2020 he noticed what he considered to be some serious issues with his assigned truck.  These were such that he felt that it was unroadworthy and unsafe.  As the driver he is responsible for any issue that might occur, and the Road Traffic Act places the responsibility on the driver to ensure that any vehicle he drives is “in a safe and roadworthy condition at all times when in use on a public road.”    In making his complaint he submitted video and photographic evidence to the respondent.  The following day he made a complaint about the truck he was assigned.  These were in relation to an orange coloured warning light displayed on the dashboard and an issue whereby the driver’s seat could not be adjusted to facilitate him using it.  These were sorted by the mechanic on duty in the yard.  Since commencement of employment with the respondent he worked well and had an issue in relation to an error with adding a substance to the fuel tank and also some issues involving the interaction with helpers.  However, these were all dealt with. 

On 16th January 2020 the complainant received a letter confirming a “Probationary Review” meeting on 20th January 2020 to discuss: “Your refusal to use suitable equipment; Non completion of daily duties and Your refusal to work with other co-workers.”

The complainant attended the meeting and received a letter on 23rd January 2020 confirming that his employment would be terminated.  He was not allowed to appeal this decision.

It was submitted on behalf of the complainant that the complaints submitted by the complainant fall within the scope and meaning of the Protected Disclosures Act 2014.  Specifically, the Act provides protection to workers who make a disclosure of “relevant information” in the manner specified in the legislation.  The complainant made his disclosures to his employer and these fall within the definition of “relevant wrongdoings” and “relevant information” as defined within the legislation. 

It was also submitted that the proximity of time between the making of the protected disclosures (9th and 10th January 2020) and being summoned to a probationary review meeting on 20th January 2020 is no coincidence and confirms the complainant’s belief that “but for” the making of his protected disclosures he would not have been dismissed.

The respondent manages a fleet of 100 vehicles.  They provide a regional and local distribution service to major product manufacturers and marketing operations in Ireland and the U.K. The complainant was engaged as a driver and commenced employment on 29th July 2019 until his employment ended on 28th January 2020 by reason of having failed his probationary period.

The respondent notes that the alleged protected disclosure is grounded around the safety of the truck (Truck A) he was allocated.  The first occasion occurred on 9th January 2020 when the complainant informed the transport manager that he felt the truck was unsafe and that it was leaning to one side.  The mechanic on site checked it and the transport manager drove the tuck in question he found it to be in a roadworthy condition.  The complainant was allocated another truck (Truck B) and he went on his assigned delivery.  Truck A was sent for a DOE and safety in an authorised vehicle test centre and passed the DOE test.  On 10th January 2020 the complainant raised two issues in relation to his allocated truck (Truck C).  These were remedied on site that morning by the mechanic on duty.

The respondent submits that the issues raised by the complainant should be considered a grievance and not a protected disclosure.  The respondent also submits that there is a process in place where a prescribed checklist must be completed by each driver before taking the truck out on the road.  This is an fundamental part of the duties of a driver and any issues raised in this process are dealt with on site and if an issue cannot be resolved on site the truck is “parked up” and the driver allocated another truck.

The respondent refutes the claim by the complainant that he was unfairly dismissed for exercising his rights under the Protected Disclosures Act.  The issues raised by the complainant were in the nature of a grievance specific to his working conditions.

In looking at the issues raised I as the Adjudication Officer has to look at all the facts and firstly determine if there was a protected disclosure within the meaning of the relevant legislation.  As the complainant does not have 12 months service the Adjudication Officer has to determine if the dismissal was related to the protected disclosures.  In doing so I have considered the extensive written submissions and the evidence adduced at the hearing.

The Protected Disclosures Act, 2014, Section 5 clearly sets out what “relevant information “ is:

(2) For the purposes of this Act information is “relevant information” if –

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings,      and

(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act –

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other         than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement or

(h) that information tending to show any matter falling within any preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

The complainant has submitted his complaint under the Unfair Dismissals Act. His service with the respondent as outlined above is less than one year’s service.  The Protected Disclosures Act, 2014 [section 11(1)] provides that the dismissal of an employee who made a protected disclosure is automatically unfair even in circumstances where that employee had less than one year’s service.

The complainant raised concerns about his allocated trucks on two dates in January 2020.  The respondent took those seriously and ensured that they were rectified and where necessary had the truck certified again.  At no stage was the complainant instructed to drive a truck which in his opinion was not roadworthy.  The respondent in evidence accepted that the complainant was entitled to raise any concerns he had about the trucks he was asked to drive if he had a reasonable belief that any such deficiencies might compromise his ability to drive safely.   The respondent also accepted that it did not matter if the perceived defects were later found to be not correct. The respondent in evidence submits that it is an integral part of every driver’s duty to inspect the assigned truck and complete what was referred to as “a prescribed checklist” and to bring anything arising from this to the respondent’s attention.

The matter to be decided then is when do the matters that arise from this checking process get converted to protected disclosures.  While some of the issues noted by the complainant could lead to possible breaches of the Road Traffic Act, the facts are that the respondent took the matter seriously, had it thoroughly and professionally rectified and meanwhile, provided the complainant with an alternative truck to allow his undertake his daily duties.  On a second occasion the two issues raised were resolved by the mechanic on site and no subsequent issues were highlighted.  These are the actions clearly demonstrate that the respondent had a process in place to ensure that their trucks are maintained in a roadworthy condition and that the necessary certification is obtained to confirm this.

The Act envisages a considerably greater and more complex level of disclosure and also a more prescribed method than merely completing a checklist and informing the mechanic or transport manager of concerns noted.

I find that that complainant has not reached a standard which would ground a disclosure under the Act and therefore I find that there was no protected disclosure made.

In view of that finding the complaint under the Unfair Dismissals Act fails as the complainant does not have the required one year’s service.

The complaint fails as the complainant does not have the required one year’s service.

Protected Disclosure;  Probation; Unfair Dismissal;