Complainant

Respondent

Parties

John  Farrell

Applus Inspection Services Ireland Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Rep by SIPTU

Rep by Paul Twomey BL, instructed by  Kate McMahon & Associates Solicitors

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-00041365-001

02/12/2020

The complainant commenced employment on 15 September 2008 with the respondent as a vehicle inspector and was promoted to team leader on 20 April 2016. Prior to dismissal, the complainant had an excellent record. The

complainant was first notified of allegations when he was asked to attend an investigation meeting held on 22 September 2020 with Mr. H of the respondent company. In advance of this meeting the complainant was supplied with a file that included allegations initiated in 2017 and repeated with additional detail in March 2020. It was noted by the complainant in his meeting with Mr H that the so called 'whistle-blower' had not been anonymised with her initials on documents supplied by the company and was in fact the complainant’s former wife, doing so maliciously. The complainant wishes it to be noted the timeframe of the complaints coincides with the timeframe that he and his former wife were going through divorce proceedings, i.e 2017 was when he started divorce proceedings and is the same time as the initial complaint was made. Secondly, March 2020 was when the divorce was before the courts. The complainant’s former wife contacted the Road Safety Authority on the 9 March 2020 with additional unfounded allegations and also made herself known as the initial person who made the complaint in 2017. The complainant submits that he was not made aware in advance of said meeting and the specific allegations he was facing.

The complainant was invited to attend a disciplinary hearing on 8 October 2020, on the company premises. However, the invitation again did not specify the allegations against the complainant Instead, referring to events that occurred in and around the Named test centre, over the past number of months. The invitation also referred to including "an updated Company report into the allegation under review at the disciplinary hearing". The complainant asserts that this was never supplied to him. Therefore, the complainant believes all the malicious comments made by his former wife were taken into consideration.

The complainant was dismissed by Mr H in his letter dated 22 October 2020 citing a particular alleged breach of the company's ethics policy, while referring to several allegations and not confirming whether they were upheld or not. Therefore, leading the complainant to believe all issues were unfairly considered when deciding to dismiss. The complainant submits that there were flaws in the disciplinary process. The complainant was never informed of earlier allegations from 2017 and allowed to defend same. Despite citing the whistle-blower policy, the company has identified the person who submitted the allegations, and it was not an employee as stated in the policy. The person who submitted the allegations is the complainant’s former wife and therefore, is doing so maliciously. The investigation and disciplinary invitation letters do not specify what allegations the complainant is facing to allow for reasonable consideration and response. At the disciplinary meeting Mr H was, likewise, unclear what exactly the complainant was answering in terms of allegations. The right to know and understand the allegations one is facing is fundamental to fair process. The minutes of the disciplinary meeting were not provided or agreed prior to the decision to dismiss and do not capture Mr H's bias.

The complainant asserts that the Ethics Policy provided to him during this process is brief and vague to say the least, and on querying same, Mr H could not identify which section the complainant had allegedly breached. The letter of dismissal does not include the complainant’s defence and it is submitted that one must therefore conclude these points were not taken into consideration in the decision to dismiss, contrary to fair process. The complainant states that he raised legitimate queries regarding the application of the company's ethics policy in relation to car testing and cited the fact that colleagues in test centres test each-others' cars and relatives' cars on a regular basis. This contradiction was not addressed in the decision to dismiss. The complainant engaged honestly and willingly in both the investigation and disciplinary processes however, this was given no consideration in the decision to dismiss. The complainant states that he gave a reasonable explanation for what occurred on the one occasion in question, and this was disregarded. It is submitted that the complainant’s 12 years loyalty and hard work for the company and his ongoing cooperation with overtime and paperwork was not considered.

The complainant submits that the company has not dismissed employees in other test centres for similar issues. He states that a vehicle inspector in a county Cork centre, drove his neighbour's car to the test centre for testing and received a written warning for 6 months. The complainant asserts that there is a precedent in a Kerry centre where the wrong vehicle was tested, a certificate issued and provided to an owner who never presented their car for testing. The Vehicle Inspector in this case was also not dismissed. The complainant states that he was unsuccessful in his appeal but that the company's meeting notes do not reflect the fact that the complainant kept referring to precedents the company had set when firing people and its coverage in the media, demonstrating he had already predetermined the outcome of the appeal. The complainant submits that it is his understanding the car in question has been NCT tested and passed.

In a complaint of unfair dismissal arising from the employee's conduct, the relevant statutory provisions and the factors to be considered are set out in Section 6 of the Unfair Dismissals Act, 1977. The complainant submits that the circumstances in this case do not amount to "substantial grounds justifying the dismissal". In cases where misconduct is stated as the basis for dismissal the test is set by Lord Denning in the British case of British Ley/and UK Ltd v Swift (1981) IRLR91, confirmed in this jurisdiction in Foley v Post Office (2000) ICR1283.

The Union argues that therefore, for one incident where a vehicle is driven from one empty carpark to the NCT Centre's very busy next-door carpark and tested for a friend is considered a sackable offence, is not the action of a reasonable employer. Also, in the context of prior exemplary service and malicious false claims. Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking the decision to dismiss an employee as per Section 6 (7) of the Acts. The Union submits that in the within case, the respondent did not show that the procedures adopted that resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer. In Frizelle v New Ross Credit Union Ltd, 1997 IEHC 137 Flood J found:

-          Where the Complainant is a personal of body of intermediate authority, it should state the complaint, factually, clearly and fairly without innuendo or hidden inference or conclusion.

-          The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered

-          The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

The Union representative states that in this case the allegations were not stated factually and clearly without innuendo or hidden inference or conclusion. Therefore, the decision to dismiss was unfair in the circumstances and had significant effect on his financial position. In addition, in the Supreme Court case of Charles Mooney v An Post [1988] 4 IR 288 Barrington J. held that;

"Certainly the minimum he is entitled to is the be informed of the charge against him and to be given the opportunity to answer it and to make submissions".

The Union submits that in the within case, it was unclear during each stage what specific allegations the complainant was facing. The Union submits that the complainant was unfairly dismissed based on a flawed process where firstly, specific allegations were not put to him and either upheld or not upheld. Secondly, the decision makers demonstrated bias by considering multiple allegations and documentation and not stating that only one allegation was relevant to a disciplinary process. Thirdly, neither of the decision makers could explain the contradictions in the Code of Ethics regarding testing for each other, friends and family on a regular basis. Fourthly, the complainant asserts that he was dismissed in similar circumstances where other employees received lesser sanctions.

The complainant commenced employment on 15 September 2008 as a Vehicle Inspector. He was later promoted to Team Leader in April of 2016 and was employed in that role up until his dismissal.  The respondent is engaged in the process of vehicle testing pursuant to a State contract with the Road Safety Authority. The performance of the contract is subject to random auditing by the Road Safety Authority. The respondent’s test centres are also the subject of constant remote auditing by the Automobile Association (“the AA”), principally with respect to test compliance. The complainant was dismissed on foot of an admission made at an investigation meeting, and repeated at the disciplinary meeting, that he had brought a vehicle to the test centre which he did not own and then proceeded to test it himself. This is strictly forbidden in the respondent’s Code of Ethics. The Code of Ethics is absolutely critical to the respondent’s business model. Employees are given extensive training in this regard which training is repeated on an annual basis and was last provided to the Employee on 23 January 2018. The Employee Handbook expressly forms part of each employee’s Contract of Employment. On page 22 of the Employee Handbook it states:

“The individual must be informed before the meeting that they are being asked to attend a disciplinary meeting, what the problem is to be discussed and that they have the right to be accompanied or represented by another employee, union representative or other representative, at each stage of the procedure. During the investigation of allegations, the Company reserves the right to suspend the individual concerned with pay pending a thorough investigation being completed.”

The Employee Handbook further states on page 22 that,

“if the breach of discipline is serious enough, any of the above stages in the Discipline Procedure can apply without having gone through the previous stages”.  

On page 23 of the Handbook it states: 

“in cases of very serious or gross misconduct an employee may be dismissed without recourse to stages 1, 2 or 3.”  

Numerous examples are then provided and they expressly include “wilful violation of Company rules”, “testing policies and procedures” and “breach of NCT Integrity”. It is also submitted that that the Employee Handbook sets out details of the Integrity

Programme under “Standard of Business Conduct”.  It also refers to the Integrity Programme booklet, which was issued to all employees. That booklet states expressly that:

“All employees shall be required to confirm by signature that they have read and understand the NCTS Integrity Programme, and commit to complying with the regulations set down”

And under Regulations:

“If you have any history pertaining to a vehicle presented to you for a test, you must disclose this to your TL/Manager, who will organise another inspector to test this vehicle”

The Code of Ethics specifically states “Driving a vehicle that is not your own to and/or from a test centre for a test is not permitted”. In this case the Employee went further and proceeded to then test the vehicle himself (and passed it). 

The 2017 Complaint

Although the complainant was dismissed on the basis of an admission made during the investigation, the respondent had received information under its confidential Whistle-Blower Policy about certain practices, she maintained were ongoing in one of the Respondent’s test centres. Information was initially received in 2017 but the Respondent was not able to identify the specific vehicle tester allegedly involved. 

On 30 November 2017 an unidentified person contacted the respondent anonymously and enquired:

 “What is your company policy on permanent NCT staff working at other garage establishments on days off and out of hours? These establishments also have car sale which are no doubt being tested at centre which staff member employed at. I would be obliged if you would forward your code of practice and customers charted please” (sic)

A series of e-mails passed in which the whistle blower made further enquiries and referred to a range of potential misconduct offences without naming any particular employee. TG, Training and Standards Manager requested further details but they were not provided.  The respondent had no reason to believe at this time that the questions posed had anything to do with the complainant in this case. The matter was investigated but as there was no substantial information received which identified a particular vehicle tester it was concluded that the matter could not be investigated further. 

The 2020 Investigation

On 9 March 2020 the whistle-blower contacted the Road Safety Authority (“the RSA”). The respondent was not initially made aware of this correspondence and understands that the RSA conducted its own investigations internally. That correspondence contained a number of explicit allegations against the complainant including that he worked for several years at a local garage while also employed at the respondent’s test centre. This would constitute a breach of the Employee’s terms of employment. However, the complaint also contained allegations about testing practices at A Named Test Centre. Specifically, it was alleged that the complainant had brought a specific vehicle to the test centre and then proceeded to test the vehicle himself. The complainant ultimately admitted this misconduct and it was this allegation that ultimately led to the complainant’s dismissal. 

On 5 May 2020, the respondent received information from the RSA confirming the allegations made against the complainant. The test centre was closed at this time because of Covid-19 and it was decided to delay investigating the matter until the test centres reopened.  On 16 July 2020, the Company decided to have internal auditors call to the garage in question and to determine the state of the vehicle. In the event that the vehicle had already been sold it was decided that the respondent would try to investigate the current owner of the vehicle.  On 17 July 2020, TG visited the premises (under the guise of viewing another vehicle) but the vehicle was no longer available to inspect. The respondent suspected it may already have been sold to a member of the public. TG then also sought to contact the registered owner but discovered that the contact details on the respondent’s system were incorrect. The respondent then sought further details from the RSA. On 4 August 2020, TG determined that the vehicle had been tested by the complainant.  On 31 August 2020, TG passed the matter on to the Human Resources Division of the respondent organisation to take whatever steps they considered appropriate.

With respect to the allegation that the complainant brought a vehicle to the test centre and then proceeded to test it; the vehicle was tested on 2 July 2020 when it had failed on the following items:

•       NSR & OSR track rod ends’s dust covers – damaged, displaced or seriously deteriorated

•       NSR & OSR rear suspension wishbones/swingarm mounting area – extensive corrosion

•       NSR rear suspension wishbones/swingarm mounting area – advanced corrosion

•       OSF & NSF ball-joint dust covers – damaged, displaced or seriously deteriorated

•       NSF inner CV boot – frayed, cut

The vehicle was tested again on 15 July 2020 when the complainant passed it having brought it to the test centre himself. 

Investigation Process

By letter dated 17 September 2020, JH, Regional Manager, wrote to the complainant and stated, inter alia, that:

“I am writing to you to advise that I have been appointed as the investigation meeting officer to conduct an investigation into the events that occurred in and around the Named test centre [my emphasis], over the past number of months.

The Company has received several allegations under the Whistle Blower

Policy (attached below), that you have allegedly breached the Company’s Ethics Policy, (attached below).

The Company has completed an initial assessment of these allegations and have instructed me to now conduct an investigation meeting in accordance with the Whistle Blower Policy. Please note that the outcome of the investigation may lead to a disciplinary hearing, in accordance with the Disciplinary Policy, …I have been forwarded your file by HB, Head of Human Resources, following the initial Company review, in accordance with the Whistle Blower Policy. My role is to review the file in its entirety and consider whether you have breached the Company’s Code of Ethics, policies, processes and/or standards, and if so, if a  disciplinary hearing is deemed appropriate and necessary or not.

The Regional Manager JH invited the complainant to a meeting on 22 September 2020 to discuss the allegations received. The complainant was asked about a number of issues and denied most of them. However, he admitted that he had brought the vehicle to the test centre, presented it and tested it himself. This constitutes a clear breach of the Code of Ethics of the Company.  By letter dated 1 October 2020, JH invited the complainant to a meeting to discuss the findings of the investigation and to consider further disciplinary action. The meeting proceeded on 19 October 2020. The complainant was permitted to have a witness or trade union representative in attendance. The purpose of the meeting was “to afford you an opportunity to discuss/outline any additional information you think may be relevant and for the Company to put any additional questions to you which pertain to this disciplinary hearing.” By letter dated 22 October 2020 JH wrote to the complainant and stated, inter alia, that: 

“The company has received several allegations under the Whistle Blower policy, that you had allegedly breached the Company's Ethics Policy.  John, it is not refuted by you that you collected and drove a garage owner's vehicle into the test centre, and then went on to complete an inspection of the same vehicle. Furthermore, the evidence provided proves these facts to be true. This is a clear and serious breach of the code of ethics. The sanction for this breach is the immediate termination of your employment, you will not attend work today Thursday, 22 October 2020, or any day thereafter.” 

The complainant was informed of his right to appeal the decision. By letter dated 29 October 2020, the complainant appealed the decision through his union. The appeal was heard by HD, Operations Manager, on 17 November 2020. By letter dated 24 November 2020, HD upheld the decision to dismiss the complainant stating:

“I have considered the various arguments made by you and outlined in the letter of October 29. I have decided to uphold JH’s decision to dismiss. Mr Farrell, you were dismissed for bringing a vehicle to the test centre for test, having collected from a garage owner. In addition, you then proceeded to test the vehicle yourself. Whilst Ms M (union representative) [my emphasis] and you put some context around this, it was accepted that this did happen and further accepted that it was an error of judgement. This action is clearly in breach of the Code of Ethics. In arriving at my decision, I have considered your service with the company and other possible sanctions (such as demotion). However, in this case I believe dismissal is the only option, as this is a clear breach of a very explicit element of the code of ethics. Not only was the vehicle brought to the test centre on behalf of the garage owner by you, but that vehicle was then tested by you, which further compounded the issue. In accordance with the disciplinary policy, the process is now completed, and there are no other appeal regions processes available within the company.” 

Caselaw

     In Thomas Gunn v Bord na Choláiste Náisiúnta Ealaíne is Deartha [1990] 2 IR 168 Walsh

    J. found (and this was upheld by the Supreme Court) that: 

“there is no doubt that not merely was the plaintiff made aware of the charges against him, but he was given them in writing together with the documentary evidence which had been supplied by the complainant, Mr. Bowes…”

Walsh J. also set out an employee’s entitlement to natural justice and in referring to the case of Glover v BLN Ltd. [1973] IR 388 he found “the case fell to be decided…upon the actual terms of the contract between Mr. Glover and his Employers”. It is respectfully submitted that in this case the Employee’s Contracts of Employment and incorporated Disciplinary Procedure are explicit in their express terms. There is a certain type of behaviour, which constitutes a gross violation of the Employer and the behaviour of the Employee is subject to summary dismissal.  The respondent also cited the Supreme Court case of Charles Mooney v An Post [1988] 4 IR 288in support of its arguments.

The respondent submits that the Disciplinary Procedure is clear in its terms and the Employer was permitted to move to Stage 4 of the Disciplinary Procedure if the behaviour is considered Gross Misconduct. The allegations were set out prior to the Investigation Meeting, then at the Investigation Meeting and later at the Disciplinary Meeting. The Employee was also provided with all documentary evidence relied on in support of the allegations made against him. In this regard, the respondent highlights the case of Hennessy v Read & Write Shop Ltd UD 192/1978.

It is submitted that the respondent’s relationship with the public is something that it must treat with priority as being critical to the continued performance of its obligation and in keeping the trust of its residents and members of the public.  In Frizelle v New Ross Credit Union Ltd., 1997 IEHC 137 Flood J. found:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1.   The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.   Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.   The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.   The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5.   The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

The respondent states that in Doyle v JJ Carron & Co Ltd UD 236/1978 and Devlin v Player & Wills (Irl) Ltd UD 90/1978 the Tribunal found that gross misconduct generally presupposes intentional or deliberate misconduct. The respondent asserts that in this case the conduct was clearly deliberate.  The respondent cites Dr Mary Redmond at paragraph 16.113 of Dismissal Law in Ireland, Second Edition which states: “Among the implied terms in the contract of employment are mutual trust and confidence, co-operation, trust, loyalty and fidelity. These are the rationale behind many of the Employer’s express terms.”  The respondent maintains that in addition to amounting to a breach of these implied terms, it is submitted that the particular conduct complained of in this case which led to the investigation and subsequent dismissal of the complainant is conduct which was such that no reasonable employer would permit to happen. The misconduct was admitted because the evidence was irrefutable.  The respondent further cites the caselaw in the cases of Da Silva v KepakUD1378/2011 andDavide Colli v Ryanair Limited UD 193/2010 in support of its case. In the latter case, the Tribunal concluded that the procedure adopted in not providing the employee with all documents relied on prior to the investigation meeting was flawed and found that the employee should have been shown such documents in advance. However, the Tribunal also found that the conduct of the employee constituted gross misconduct and therefore the decision of the employer was not unfair and was justified in the circumstances. The respondent submits that the decision to dismiss the complainant in the within case was made only after the investigation meetings took place and the respondent was satisfied that acts of serious misconduct had taken place. The ultimate decision was made by the Regional Manager only after the investigation meetings took place and on foot of the findings on those meetings.

The respondent states that on 26 June 2014, a Judge of the Circuit Court overturned a determination of the Employment Appeals Tribunal in relation to a delicatessen assistant in Dunnes Stores who had been dismissed having admitted that she had eaten food without paying for it. Initially she had been awarded €8,000 compensation by the Employment Appeals Tribunal for unfair dismissal. However, on appeal, the Court found that there were substantial grounds justifying the company’s “fair decision” to dismiss her, along with seven other members of staff. The Court overturned the Tribunal’s finding and dismissed a claim by the claimant who, in a cross-appeal, had asked the court to increase her compensation award. The EAT had found that while she had contributed substantially to her own downfall in the loss of her job in October 2011, she had still been unfairly dismissed. The Court considered that a camera was installed after a whistle-blower told the employer that staffers were eating from the hot food section without paying and the theft was a serious breach of company policy, which had been specifically outlined to all employees when inducted and afterwards in refresher courses.  The respondent cites the caselaw in Doyle v JJ Carron & Co Ltd UD 236/1978 and Devlin v Player & Wills (Irl) Ltd UD 90/1978 where the Tribunal found that gross misconduct generally presupposes intentional or deliberate misconduct. The respondent submits that in this case, the complainant clearly admitted that the conduct complained of was deliberate. 

Substantive & Procedural Fairness

The respondent cites the case of Thomas Gunn v Bord na Choláiste Náisiúnta Ealaíne is Deartha [1990] 2 IR 168 wherein Walsh J. found (and this was upheld by the Supreme Court) that: “there is no doubt that not merely was the plaintiff made aware of the charges against him, but he was given them in writing together with the documentary evidence which had been supplied by the complainant, Mr. Bowes…” . Walsh J. also set out an employee’s entitlement to natural justice and in referring to the case of Glover v BLN Ltd. [1973] IR 388 he found “the case fell to be decided…upon the actual terms of the contract between Mr. Glover and his Employers”. The respondent submitted that in the within case, the complainant’s Contract of Employment and incorporated Disciplinary Procedure are explicit in their express terms. There is a certain type of behaviour, which constitutes a gross violation of the rules of any Employer and the behaviour of the complainant is subject to summary dismissal.  In the Supreme Court case of Charles Mooney v An Post [1988] 4 IR 288 Barrington J. held that:

 “The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case… If the contract or the statute governing a person's employment contains a procedure whereby the employment may be terminated, it usually will be sufficient for the Employer to show that he has complied with this procedure… Certainly the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. Certainly the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.”

It is respectfully submitted that the Disciplinary Procedure is clear in its terms and the respondent was permitted to move to Stage 4 of the Disciplinary Procedure if the behaviour is considered Serious Misconduct. The allegations were set out prior to the Investigation Meeting, then at the Investigation Meetings. The complainant was also provided with all documentary evidence. Furthermore, the complainant admitted the wrongdoing in the face of irrefutable evidence.

In Bunyan v United Dominions Trust [1982] ILRM 404 the EAT endorsed the view that:

“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would done and/or concluded.”

It is submitted that as Dr Redmond considered in Dismissal Law in Ireland at paragraph 12.16:

“Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice. However, procedural defects will not make a dismissal automatically unfair. The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee. The correctness of this proposition was tested in Meath County Council v Creighton UD 11/1977 “by an extreme example of a purely hypothetical case”: ‘…two employees are proved to go to the end of a remote field and one comes back seriously and bodily injured and complains to his employer that he was brutally assaulted by his fellow employee and the employer dismisses his fellow employee on the spot without waiting for an explanation.’

If, having been convicted of causing grievous bodily harm to his workmate, the dismissed employee claims under the 1977 Act:

“does that employee, who has been proved beyond all doubt to be guilty of misconduct, have a right to claim compensation for an unfair dismissal merely because his employer failed to give him a hearing in accordance with natural justice? We think not”.

The Circuit Court endorsed this view:

“That the mere fact that some failing in due or agreed procedures is not a final a decisive matter for the Court on an appeal is clear from the provision of section 6(1) [of the 1977 Act], that regard must be had ‘to all the circumstances’, and not to one circumstance to the exclusion of all others. This is further borne out by section 7(2)(a), where compliance or failure to comply, by employer or employee, with certain agreed procedures is made a factor to be considered in determining compensation where a dismissal has been held to be an ‘unfair dismissal’ under the Act”.

The respondent submits that the Circuit Court in that case derived support from a judgment of the High Court where Barron J in Loftus and Healy v An Bord Telecom dealt with an allegation that a lack of fair procedures was fatal to the employer’s case and found that it was not a question of whether ex-employees were deprived of fair procedures to which they were entitled but: “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish…[the basis if its dismissal] as the whole or the main reason for and justifying the dismissal.”

The respondent submitted that its decision in this case was reasonable in all the circumstances and any procedural shortcoming was not such to (a) change the character of the conduct alleged or (b) to have prevented the dismissal being valid in the circumstances.

Proportionality

Without prejudice to the respondent’s submission that the dismissal was not unfair it is further respectfully submitted that the sanction was proportionate in the circumstances of the case where the safety and/or integrity of the National Car Testing Services tests could be seriously undermined.   In Employee v Employer UD847/2009 the Tribunal determined that it was not satisfied that the investigative and disciplinary process that the respondent invoked and implemented was fair and reasonable and that the procedural defects were “significant”. However, in finding that the dismissal was unfair the Tribunal also had regard to the finding, on the balance of probabilities, that the claimant was guilty of misconduct and as a result of the misconduct contributed substantially to his own dismissal. A sum of €1,000 compensation was awarded.

In the case of Mark Devlin v Ladbroke (Ireland) Limited UD442/2011 the claimant was dismissed for breaching the “no money no bet” rule that a customer could not place bets on credit. This was prohibited in the company’s procedures and it was identified as gross misconduct in the Employee Handbook. The Tribunal did not believe that the behaviour complained of and the alleged misconduct constituted misconduct, warranted dismissal and that the dismissal was not proportionate to the alleged misconduct. The Tribunal referred to the judgment of Mr Justice Flood in the case ofFrizelle –v- New Ross Credit Union Limited [1997] IEHC 137which stated inter alia in examining the principles to be established to support the decision to terminate the employment for misconduct. The Tribunal decided that the dismissal was unfair but looked at Section 7(2)(f) of the Unfair Dismissal Act (as amended by Section 6(b) of the 1993 Act) and the extent to which the conduct of the claimant contributed to the dismissal. The Tribunal awarded the Claimant the sum of €2500 under the Unfair Dismissals Acts.

In Allied Irish Banks PLC v PurcellUD1068/2009 the claimant was an employee of the Employer bank since 1993 and on several occasions allegedly accessed the bank accounts of a number of work colleagues. In the disciplinary process which followed, the employee accepted he had accessed these accounts but stated he had the objective of finding out whether the colleagues were paid a bonus and what bonuses they got. The respondent claimed this was gross misconduct and dismissed the employee. The employee’s two appeals against dismissal failed. The EAT found that the decision to dismiss was a disproportionate response to the claimant’s actions and therefore unfair. It determined he be re-engaged backdated to six months after the dismissal and paid at the same salary as he had at the date of dismissal, although one dissenting member of the Division found that reinstatement was not appropriate and recommended compensation instead. The Bank appealed and the matter came before the Circuit Court. In the Circuit Court it was agreed that the only issue was the employee’s accessing the accounts of his colleagues, to which he had admitted. Linnane J.

concluded: “Taking into account the circumstances here and the position of trust [the claimant] as an employee of the Bank was in, in my view the decision made by the Bank to dismiss [the claimant] was a reasonable one and the dismissal was fair.”

The respondent submitted that the actions of the complainant in this case go to the very heart of the respondent’s business model. The alleged conduct is a clear breach of the express terms of the Contract of Employment, the Employee Handbook and in clear contravention of the training, practices and procedures of the Employer. The dismissal was a rational and reasonable reaction to these serious and coordinated breaches of company rules.

The respondent further submitted that although the company does not operate a system whereby all employees found to have tested vehicles they present to a test centre are automatically dismissed, this is an example of gross misconduct and the seriousness of the offence is made clear to all employees during annual training. The respondent has dismissed several vehicle testers in the past for similar offences which dismissals have been considered by the Employment Appeals Tribunal and the Workplace Relations Commission as not unfair or disproportionate. These dismissals include Ivan Invanov v Applus and Philip Billingsley v Applus.

 It is submitted that the conduct of the complainant was in clear breach of the express and implied terms of the Contract of Employment by being in contravention of the rules provided for in the Employee Handbook and the Code of Ethics.  The respondent asserts that misconduct is not defined in the 1977 Act but it is provided for in the Contract of Employment and it is submitted that the Adjudicator is at liberty to consider the reasonableness of the respondent’s view that the behaviour complained of constitutes serious misconduct. The allegations were put to the complainant in writing providing the necessary details with respect to the vehicle in question. An investigative meeting took place and the allegation was confirmed on foot of this meeting. The complainant made an admission at the meetings and the respondent was permitted to rely on that admission. The respondent submits that the conduct in which the complainant engaged was a wilful breach of the respondent’s procedures, involving bringing in and testing a vehicle owned by a local garage. It states that his conduct was a dismissible offence under his terms and conditions of employment. 

Section 6 (1) of the Unfair Dismissals Act 1977 provides:

“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.”

Section 6(6) of the 1977 Act provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The respondent has submitted that the conduct of the complainant represents a breach of the expressly stated procedures and constitutes serious misconduct.

It should be noted that on the day of the hearing, the complainant did not wish to be called to give evidence and therefore did not take an oath/affirmation. The respondent was not in a position to cross examine the complainant. The witnesses for the respondent relied on the affirmation to accompany their evidence.

Having carefully examined all the evidence adduced, I note that the respondent carried out comprehensive training for all employees in relation to integrity within the company and the code of ethics. This training was updated on an ongoing basis and all employees were required to complete the training at the start of the year. It is an online programme; it involves answering questions and passing a test and employees sign a document to confirm that they have completed said training. I note the complainant is with the company since 2008 and became a Team Leader in 2012 which is a more senior role with additional responsibility.

The respondent submitted that it is under contract from the Road Safety Authority with regard to the testing of vehicles. It states that as a company it views road safety as paramount. The respondent submits that it operates to a very high standard and there can be no impropriety. The respondent asserts that interaction with garage owners needs to be completely above board.

I note that the complainant was in a role of Team Leader with employees that reported to him and he had responsibility for upholding test processes. While the complainant’s union representative stated that the respondent could have looked into a lesser sanction such as demotion; I find, based on the evidence heard that the breach was of such a serious nature that the decision of the respondent to dismiss the complainant was a reasonable one and I am satisfied that the dismissal was fair.

The complainant’s union representative submitted that the procedure was flawed in that the complainant was not aware of the specific allegations at the disciplinary stages. Based on the submissions and the testimony of witnesses on behalf of the respondent, I do not accept that assertion. I found the evidence of the respondent witnesses to be frank and credible and I am satisfied that the disciplinary process was carried out in accordance with company procedures. I am also satisfied given the serious nature of the breach in question that the bond of trust was broken and having followed through the investigation and disciplinary stages, wherein the complainant had admitted that he had brought a vehicle to the test centre which he did not own and proceeded to test it himself; I consider that the company was justified in its findings that dismissal was the appropriate sanction.

For the sake of completeness, it should be noted that at the hearing the complainant’s representative stated that the complainant was aware of other cases where the same issue occurred but the employees were not dismissed.   In this regard, the respondent gave details of Mr. C who is currently a vehicle inspector on the non-core shift in a centre in the Southern region. The respondent stated that Mr. C made an administration error testing the wrong car in 2017 and he received a final written warning as a sanction. The respondent submits that it was a single offence and no other breaches of policy were identified. The respondent states that it was not pre-meditated but that issuing an NCT certificate in error is an offence. The respondent reiterates the point that Mr. C is a vehicle inspector and not a team leader.

The complainant made an admission that he had brought a vehicle to the test centre which he did not own and proceeded to test it himself and passed it. This constituted a serious breach of the respondent’s expressly stated procedures. I am also cognisant that the complainant was a team leader which is a senior role attaching a level of responsibility as regards employees reporting to him and indeed responsibility for testing processes. I further note the rigorous training given to staff on an annual basis with regard to the Integrity Programme and Code of Ethics. Overall, having carefully examined all the evidence adduced, I find that the decision to dismiss the complainant was fair and proportionate. I find that the within complaint is not well-founded.

I find that the within claim is not well-founded. I am satisfied that the complainant was not unfairly dismissed.

Unfair dismissal, gross misconduct