ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030782

Parties:

Complaint(s):

Date of Adjudication Hearing:  18/11/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Location of Hearing:  Remote Hearing via Webex Platform

Procedure:

This complaint pursuant to Section 8 of the Unfair Dismissals Act 1977 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 14th November 2021.  As two complaint references were generated in error, this decision will relate to CA-00041029-001 and CA-00041030-001 is deemed withdrawn.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  

I held a remote hearing on 18th November 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, designating the WRC as a body empowered to hold remote hearings. The Complainant represented himself whilst the Respondent was represented by Management Consultancy Services.  The hearing was held in public and evidence was taken on oath pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021, amending the Workplace Relations Act 2015.  The Parties were made aware that their names would be published.  Although the date of dismissal was in dispute, the fact of dismissal was not.  Hence the burden of proof rested with the Respondent who accordingly gave evidence first.  All of the evidence, submissions and documentation submitted by both Parties have been considered herein.  Nothing material arose from post-hearing documentation such that a further hearing was merited.

Background:

The Complainant was employed as a HGV Driver by the Respondent and earned €650 gross per week.  He was dismissed by the Respondent for gross misconduct and maintains that this was pre-determined and in fact he had been summarily dismissed on an earlier date.  He also maintained that his dismissal was unfair and sought compensation.  The Respondent contended that the Complainant’s dismissal was fair and a proportionate and sought to have this complaint dismissed.

Summary of Respondent’s Case:

The Respondent provides transportation services including the transport of chemicals and perishable goods.  The Complainant was employed by the Respondent from 2nd April 2001 in various roles and at the time of his dismissal, worked as a HGV driver earning €650 gross per week.  It was contended that he had been fairly dismissed on 8th September 2020 for failure to follow an instruction from management on 28th August 2020 amounting to gross misconduct.  Direct evidence on oath was adduced on behalf of the Respondent, supplementing written submissions and documentation:

Mr A – Manager

Mr A, the Manager responsible for giving the Complainant his work instructions on Friday 28th August 2020 outlined their dealings that day.  After completing his first job/s from around 8am the Complainant arrived back at the Respondent’s depot at 11.15am.  Inexplicably, he had not come to Mr A at the hatch to receive his next job until 12.30-45pm.  At that stage, Mr A instructed him to undertake a straightforward delivery to County Roscommon which would take a maximum of 5.5-6 hours to complete.  This entailed driving a truck to the factory, dropping off a tank and driving back to Dublin.  The Complainant refused point blank to do the job without giving any reason.  Mr A was completely taken aback as a driver had never previously refused to undertake a job.  Mr A confirmed to the Complainant that he would have had plenty of time to complete this job without breaching any Working Time Regulations.  He also confirmed that Mr B, the Managing Director overheard the exchange from the office.  Mr A did not overhear Mr B or anyone else dismissing the Complainant.  Mr B may have asked him for the keys to the truck so another employee could undertake the job.

When questioning Mr A, the Complainant disputed his start time on 28th August 2020 and maintained that he had started work much earlier than Mr A had indicated in his evidence.  As his first job had not gone to plan owing to a shipping delay he had texted Mr A to inform him of the difficulty at 6.20am.  Mr A accepted that he could have started at this time but the tachograph records submitted showed that he was still well within permitted driving/working time limits.

Mr B – Managing Director

Mr B confirmed that he had been in a nearby office out of sight but in earshot during the aforesaid exchange between Mr A and the Complainant on Friday 28th August 2020.  He recalled that the Complainant had been in the depot for an hour and 25 minutes when his maximum break would have been 45 minutes before going up to the hatch to get his next job from Mr A.  He refused to take the paperwork for the job in question which was delivery of a tank to County Roscommon.  He would have been informed about this job the previous day and it was also a straightforward job.

When the Complainant refused a second time, Mr B approached the desk and asked him what was wrong with the job.  He replied: “I don’t want to do this job, I am not doing this job.”  When Mr B asked for a reason for this refusal of a reasonable request, he said that he did not want to work late and it was “too much”.  Mr B reassured him that as he had plenty of time to complete the job within the tachograph rules there was no reason why he could not do it.  The Complainant retorted that as he had already worked 58 hours that week he was not doing the job.  As Mr B was of the view that he was making himself unavailable for work without any valid reason he replied: “well if you are not doing it please give me the keys to the truck back”.  He had accompanied Mr B to the truck where the Complainant gave the keys to Mr B and also removed his lunchbox.  Another driver had to be instructed to undertake the job.  Mr B denied uttering any words to the effect that the Complainant was dismissed.  He maintained that a driver would never be required to work in breach of Regulations.  Whilst management would not allow unreasonable refusals to undertake a job they would always be open to drivers’ suggestions regarding ensuring compliance with the Regulations.  The Respondent is highly regulated, its tachograph records are monitored by a third party and the Complainant’s records were submitted to show compliance with all relevant statutory requirements.

Mr B further confirmed receipt of text messages from the Complainant claiming that he had been “sacked” over the weekend.  Mr B was accustomed to receiving text messages from the Complainant at odd hours and did not respond.  When the Complainant did not turn up for work on the following Monday morning of 31st August 2020, HR emailed him confirming that he had not been dismissed.  Mr B confirmed that he had no further involvement or dealings with the Complainant thereafter. 

Mr B further clarified that whilst the Complainant had a history of other disciplinary issues, this was his first time refusing to undertake a driving job.  This was fundamental as the purpose of his job was to drive the truck and his refusal would result in letting customers down.  He was most disappointed as he had dealt with the Complainant reasonably in the past.  He maintained that refusal to follow a reasonable instruction amounted to gross misconduct and dismissal was a proportionate penalty. 

Under questioning from the Complainant, Mr B denied that the Complainant had expressed any concerns about being tired or unwell and health and safety issues arising from the time required to undertake the job or had requested a shorter job.  No medical certificate was ever submitted.  The Complainant put it to Mr B that during their exchange when he had asked him for the keys back and followed him out to the truck, he had asked Mr B if this meant that he was fired, in response to which Mr B had replied “yes”.  Mr B refuted this stating that if he had told the Complainant that he was fired, it did not make sense that the Complainant would repeatedly message him over the weekend asking if he was fired.  Mr B further denied that he had demanded his phone back or had not permitted him from retrieving his personal belongings from the truck.  He had waited whilst the Complainant had retrieved his belongings before walking out of the yard.  He further confirmed that there had been no discussion whatsoever about him being fired or requesting a letter of dismissal.

Mr C – General Director

Mr C, the General Director confirmed that he had conducted the initial investigation / disciplinary process leading to the Complainant’s dismissal.  He confirmed that the Complainant had been furnished with a written contract and an Employee Handbook containing disciplinary procedures.  He was aware that following the incident on Friday 28th August 2020, he had not attended for work the following Monday 31st August 2020 and at 9.54am emailed Mr B stating: “Since you explicitly said to me I’m sacked on Friday I don’t understand how you can say that I’m not sacked and I will be sacked now because I refused to come into work on Monday when I was rightfully under the assumption I’m fired since you personally said to me in person and then you ignored my email on Saturday morning and said absolutely nothing about me coming back into work.  Since you now say that I will be sacked, under the terms of the Minimum Notice and Terms of Employment Acts 1973-2001, if you do not follow the act stated above in giving me my 8 weeks minimum notice, I will take legal action.”  Mr C replied at 12.50pm as follows: “You were not dismissed and are still an employee of the company.”  Later that same evening, the Complainant emailed back: “As you know I have been sacked, therefore I require a letter of dismissal and for you to explain why I wasn’t given any sort of warnings regarding my “performance” and the minimum 8 weeks notice as per employment law that I would be sacked.”  The following day, the Complainant attended at the Respondent’s office and spoke to Mr B insisting that he had been sacked despite it being confirmed that was not the case.

Mr C gathered all of the relevant facts regarding the events of 28th August 2020 and wrote to the Complainant inviting him to a disciplinary hearing on 3rd September 2020 for repeatedly refusing to follow a reasonable instruction and setting out the events of that day.  It noted that he was maintaining that he had been sacked when it had been confirmed that he had not been dismissed.  The letter set out the relevant provisions from the Respondent’s disciplinary procedures which included under the heading ‘Gross Misconduct’: “V. Refusal or failure to follow an instruction from Management will be treated as Gross Misconduct, other than where the matter is of minor importance to the Business.  The following actions may be classified as Gross Misconduct depending on the severity in each instance:” and “XVI. Insubordination towards management may warrant instant dismissal, depending on the severity of the Offence.”  The letter further confirmed that he was entitled to representation including a Solicitor and that the main purpose of the hearing was to give him a full and proper opportunity to state his defence and to make any points in mitigation. 

Mr C confirmed that he had conducted the disciplinary hearing on 3rd September 2020 with the Complainant who attended with a colleague as his representative.  The Complainant repeated his account of events on 28th August 2020 but did not mention that he had cited sickness as a reason for refusing the job in question.  He acknowledged that he had been given notice beforehand of the job and been advised that he would be within the tachograph limits.  He said that there had been a number of “early starts”, he had already worked 58 hours that week and that he had wanted to “do something else”.  On reviewing the Complainant’s driving/working time for the year to date and the week in question with reference to the tachograph records, he was well below the required limits.

Having considered all of the evidence, Mr C issued his decision letter on 8th September 2020 confirming that he had checked the Complainant’s tachograph records for the week in question and found no reason why the journey in question could not have been made; that early starts are a normal part of the business; that the task he had been asked to perform was a normal and reasonable one and the Respondent could not run a business if drivers were allowed to be selective about which instructions they would follow; that the Complainant’s repeated refusals to follow an instruction and undertake the job constituted gross misconduct and based upon his disciplinary record (absenteeism in 2014 and 2017 and failure to communicate same), he could not find any mitigation against dismissal and confirmed that he was to be dismissed effective from that date.  It was also noted that the Complainant did not appear to show any remorse for his actions or provide any proper explanation for his refusals to carry out the task.  The letter further confirmed that the Complainant was entitled to appeal the decision by 14th September 2020 to an external person. 

Reflecting on the hearing, Mr C said he was surprised at the Complainant’s “relaxed attitude”.  He had been well paid to undertake his job as a HGV driver.  The nature of the Respondent’s business entailed transporting chemical and perishable goods in a timely and compliant manner so adherence by its employees with directions to transport such goods was essential.  He outlined the manner in which tachograph records were monitored by a third party who would notify the Respondent of any non-compliance which would in turn be relayed by the Health and Safety Manager to employees.  An inspection of the Complainant’s records showed that he was well within the permitted limits.  His working time for the week in question was 47 hours and 25 minutes and as he was permitted to work up to 56 hours there had been ample time to complete the run to County Roscommon.  Mr C confirmed his view that dismissal was a proportionate penalty given his prior disciplinary history.

In questioning Mr C, the Complainant maintained that he had asked for a shorter job and hence had not refused to work and had said he was unwell and very tired.  He submitted that another driver could have easily undertaken the County Roscommon job.  Mr C replied that he had been told that he would have been well within his working time limits to undertake that job.  He did not recall or note sickness or tiredness as being proffered as an explanation for refusing the job at the hearing.  The Complainant also took issue with Mr C’s calculation of working time for the week in question, and in response Mr C confirmed that it was based on records signed-off by the Complainant. 

The Respondent accepted a late appeal from the Complainant on 21st September 2020.  An independent external Business and HR Expert was appointed to hear and determine the appeal.  He met with the Complainant and heard his grounds of appeal and also interviewed Mr B.  In a detailed decision dated 6th October 2020, he upheld the Complainant’s dismissal for failure to follow an instruction from management as constituting gross misconduct.  He preferred the Respondent’s account and outlined a number of credibility issues with the Complainant’s account including his reference to the weather also being very bad on 28th August 2020 when in fact it had been good.  

In conclusion, it was submitted that the dismissal process herein was both procedurally and substantively fair.  The evidence was clear that the Complainant had repeatedly refused to follow a normal and reasonable instruction from two members of management including the Managing Director.  There was no breach of any law or regulation involved.  Reliance was placed upon the High Court Judgement in Brewster -v- Burke and the Minister for Labour (1985) JISLL 98 wherein Hamilton J. stated: “It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master.  Such a refusal justified an employer in dismissing an employee summarily.”  The Respondent had applied a scrupulously fair procedure and used an independent external person to conduct a detailed appeal.  The dismissal was the only penalty available to the Respondent in the circumstances.  In relation to mitigation, it was submitted that given the Complainant’s skill-set as a HGV driver there was no reason as to why he was not in employment or indeed better paid employment since termination of his employment with the Respondent given that licenced drivers have been in high demand during the pandemic.

Summary of Complainant’s Case:

The Complainant confirmed that he had been employed by the Respondent from 2nd April 2001 undertaking various roles.  At the time of his dismissal, he was employed as a HGV driver and earned €650 gross per week.  The Complainant maintained that he had not been furnished with a written contract, later stating that he had been forced to sign one when a receipt was furnished on behalf of the Respondent.  It was not in issue that he had been furnished with written disciplinary procedures.

The Complainant maintained that he was summarily dismissed on Friday 28th August 2020 following his request to perform a different / shorter job to the driving job assigned.  In direct evidence he outlined his day’s work on that date commencing at 5.15am to undertake a job at the docklands which did not go to plan.  He was assigned another job at 8.30am.  By the time he was finished he had worked 6.5 hours exceeding his tachograph limit by 15 minutes.  He took a 45 minute break before going to his Manager, Mr A in the office for the next job.  He was assigned to drive to and from County Roscommon being a 6 hour round trip plus 1-2 hours of work which would have meant returning to the depot very late.  He had said he was extremely tired and unwell and for health and safety reasons, did not feel confident completing such a long journey and requested a shorter job.  

The Managing Director, Mr B, who was in the office at the time told him he had time to do the job.  The Complainant again said that he was tired and unwell and sought a shorter job.  Mr B asked him a second time to do the job and asked whether he was refusing to work.  The Complainant repeated his position that he was unwell and did not feel safe to undertake the job given the length of the job on top of the hours already worked that day.  Mr B asked him for the keys to the truck.  He followed the Complainant out to the truck to get the keys.  The Complainant asked Mr B whether this meant he was fired and he said “yes” and asked for the company phone as well.  The Complainant said that the company phone was broken and he used his own phone.  He asked to retrieve his personal belongings and Mr B told him to come back for his stuff by appointment.  He also asked Mr B for a letter with the reason for firing him and Mr B said he would get it in the post.  The Complainant also contended that a former employee, Mr D, who happened to be on the phone to the Complainant (via Bluetooth earphones) and another former employee in the yard had overheard this exchange. 

Additionally in his complaint form, the Complainant outlined the ensuing disciplinary process from his perspective.  The following day, being a Saturday, he had contacted Mr B to enquire as to why he was not given any warnings and ask for a dismissal notice.  When he received nothing back over the weekend, he emailed the Respondent and received a reply confirming that he is still an employee and denying that Mr B had dismissed him.  This had left him confused given that he had been sacked by Mr B.  He did not return to work on Monday and on Tuesday 1st September 2020, he received a letter calling him to a disciplinary hearing for refusing to carry out instructions on Friday 28th August 2020.  He attended the disciplinary hearing on 3rd September 2020 and maintained that the Managing Director, Mr B had told him to “shut up” and he had been unable to defend himself.  On 8th September 2020, he received a letter confirming that he was dismissed with immediate effect.  

On 21st September 2020, he emailed the HR Manager to appeal the dismissal.  He confirmed that his appeal was heard by an external Business and HR Expert and his dismissal was upheld.  He felt that this was unfair as the HR Expert had asked him why he had not raised the health and safety issue and being tired at the disciplinary meeting whilst failing to consider that the Complainant had been told by the Managing Director to "shut up" at the disciplinary meeting which had not been noted. 

Under questioning, the Complainant accepted that he had not been dismissed for previous disciplinary issues and agreed that the Respondent was a reasonable employer.  It was put to him that his contention that he could not do the drive to/from County Roscommon on 28th August 2020 because he was sick and tired was made up after the fact during the appeal.  It was also put to him that being sick and tired was inconsistent with offering to do another job on the day in question.  He was asked to explain the discrepancies between the times he maintained he was working and the tachograph records compiled by a third party.  He maintained that time arriving and getting the truck ready and leaving along with breaks were not included within the calculation of time.  The Complainant denied that “he wanted to be sacked” after twenty years of service.  He was asked why he had insisted that he had been sacked when it had been confirmed that he had not.  It was put to him that he wanted ‘out’ and had not made a great effort to save his job or return to work on the following Monday.  He replied that he had not attended work as dismissed employees are not allowed to attend the workplace and he had not received any messages about his scheduled work.

Mr D – Former Employee of the Respondent and Witness

Mr D took the oath and confirmed that he had been employed by the Respondent at the material time but had subsequently left that employment.  He recounted that he had been working at the depot on 28th August 2020 and happened to be on the phone to the Complainant (via Bluetooth headphones) when a Mr E assigned him a driving job to County Roscommon.  He could not hear what it was but overheard the Complainant explaining that he had started early, was tired and wanted another job.  He then overheard Mr B telling him to do the job.  The Complainant repeated his position stating he had started at 5am, had already worked 56 hours that week and could do another job but “this is too much for me”.  Again, Mr B told him to do the job and the Complainant repeated his position.  Mr B asked the Complainant to give him the keys.  The Complainant asked whether this meant that he was sacked and Mr B replied “yes”.  Mr B also asked him for the work phone and the Complainant stated that he no longer had it as it was broken.  They went out to the truck and he overheard the Complainant asking Mr B for a letter to confirm that he had been sacked. 

When Mr D was asked why this was the first time in the process his witness evidence had been given, Mr D stated that he had not offered same previously as he had been an employee at the time.  It was pointed out that the Complainant had brought a different person as his witness to the disciplinary hearing before indicating that he intended to bring another employee who had been dismissed as his witness to this hearing.  It was put to Mr D that this is incredible because it was the first time that Mr D had been proffered as a witness, another witness had also been proffered and it was noted that it was Mr A and not Mr E who had assigned the job in question to the Complainant. 

The Complainant sought compensation for unfair dismissal by way of remedy.  He submitted that the decision to dismiss him was pre-meditated and had been made before the formal process.  He maintained that he had a good work record but did not dispute the Respondent’s evidence that he had been subject to disciplinary issues in the past.  It is also noted that he made a number of allegations against the Respondent in his complaint form which he did not repeat in direct evidence.

In terms of mitigation, the Complainant contended that he had been unable to claim Social Welfare as he had been dismissed.  He was unemployed for approximately eight weeks before finding employment.  He worked as a truckdriver for another company before leaving to undergo a medical procedure.  Since then he has been in receipt of Illness Benefit and unavailable for employment.

Findings and Conclusions:

It is necessary to examine the factual matrix giving rise to this complaint of unfair dismissal in light of the applicable statutory provisions and caselaw.  Section 6 of the Unfair Dismissals Acts provides the legal framework.  Whilst Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal arising wholly or mainly from the conduct of the employee, Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer of the WRC to have regard “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”  

Along similar lines to the aforementioned caselaw, the High Court in JVC Europe Ltd -v- Panisi (2011) IEHC 279, aptly summarised the legal burden as follows: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.”  In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was legally required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer's conduct in relation to the dismissal.  That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer.  The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures in relation to any disciplinary process. (see Re: Haughey (1971) IR 217)  In particular, S. I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should furnish employees with written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.  In terms of weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct legal approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. 

Where a question of unfair dismissal for misconduct is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment, being as follows:

“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.

Put very simply, principles of natural justice must be unequivocally applied.”

Consequently, the role of an Adjudication Officer is not to conduct a further factual investigation and substitute their own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances. 

Based upon the following reasoning, I am satisfied that the Respondent has discharged the onus of proving that the Complainant’s dismissal was both substantially and procedurally fair in this case:

1. I am satisfied that the Respondent had written disciplinary procedures which had been furnished to the Complainant and were properly followed throughout the process giving rise to his dismissal.
2. I am satisfied that the Complainant received a disciplinary process in accordance with fair procedures and that all the usual safeguards including allowing for representation were in place. The Respondent also accepted a late appeal from the Complainant and engaged an independent external Business and HR Expert to hear and determine the appeal.  Regardless of whether the Complainant could have reasonably understood his exchange with Mr B on 28th August 2020 to amount to a summary dismissal, I am satisfied that the appeal remedied any pre-determination.
3. The facts giving rise to the Complainant’s dismissal were not substantially in dispute but rather the Complainant had sought to provide an explanation for his refusal to follow the repeated requests of Mr A and Mr B to undertake a driving job to County Roscommon on 28th August 2020. Having weighed up all of the direct and documentary evidence adduced, on the balance of probabilities, I do not find the Complainant’s evidence to be credible in the following respects:

(a)  There is no credible evidence that the Complainant cited being unwell giving rise to a health and safety issue as the basis for refusing the driving job in question until first recorded at the appeal hearing.  Mr A’s and Mr B’s contemporaneous notes of their exchanges with the Complainant on 28th August 2020 were consistent with their direct evidence.  Given that the transport industry is highly regulated and being satisfied as to their bone fides, I find it highly unlikely that that they would have directed the Complainant to undertake the job if on notice that he was unwell.  It is also notable that no medical certificate to this effect was ever furnished.  I also found Mr C who conducted the disciplinary hearing to be an entirely credible witness and noted that he had compiled detailed minutes.  Accordingly, it was reasonable for the Business and HR Expert who conducted the appeal to find that these explanations had not been proffered previously.  On the same basis, I also find the Complainant’s contention that he had offered to do a shorter / different job on the day incredible. 

(b)  The Complainant proffered different reasons during the process for refusing the job in question including that the weather was bad at the time, an explanation that was subsequently discounted.

(c)  Notwithstanding the Complainant’s contention that he had been working in excess of the time allowed under the requisite statutory provisions, there was no objective evidence supporting same.  His tachograph records for the week and day in question were submitted confirming that he would have been within the permitted time allowed with the driving job to County Roscommon included.  Although the Complainant’s working hours for the week in question appear long and unsociable, it is noted that they are averaged over time reference periods and were within his permitted limits.

(d)  Nor am I impressed by the Complainant’s introduction of a ‘witness’ under oath for the first time at this hearing apparently proffered to corroborate his account of the exchange on 28th August 2020.  Regardless of Mr D’s contention that he could not have given evidence whilst still an employee of the Respondent, I find it incredible that the presence of witnesses to the exchange would not have been mentioned previously.  On the basis of same, I am unable to give Mr D’s evidence any weight.

(e)  Having assessed the Complainant’s conduct at the time of the incident on 28th August 2020, throughout the disciplinary process and at this hearing, I am of the view that for reasons best known to himself he sought to orchestrate his own dismissal and had no intention of ever returning.  His refusal to undertake the driving job in question without a reasonable explanation was bound to elicit an adverse response from the Respondent.  Instead of attending for work on Monday or seeking work, he made repeated demands for written confirmation that he had been dismissed and payment in lieu of notice notwithstanding confirmation as to otherwise.  This conduct is not consistent with the behaviour of an employee anxious to maintain an employment relationship.  Furthermore, his demeanour and lack of any remorse for refusing the job throughout the process are also indicative of someone without any interest in continuing an employment relationship.

4. I am further satisfied that the Complainant could not have been under any illusion that his conduct could potentially lead to his dismissal where he had been furnished with the disciplinary procedures including what infringements constitutes gross misconduct. As outlined above, these include refusal or failure to follow an instruction from management and insubordination.  The seriousness of the refusal has to be viewed in the context of the HGV industry which depends upon the transportation of chemical and perishable goods within a specified timeframe.  There can be no question that this was a bona fide complaint unrelated to any other agenda of the Respondent. 
5. I am therefore satisfied that the sanction of dismissal was an objectively reasonable response to the Complainant’s conduct and/or within the range or band of reasonable responses to his conduct. I am further satisfied that alternatives were adequately considered before finding dismissal to be the appropriate sanction.  Although the Complainant had lengthy service with the Respondent, it was not in issue that he did not have an unblemished record given prior disciplinary issues.  The fact that the Respondent had exercised restraint previously is testament to its reasonableness.  I am therefore satisfied that the sanction of dismissal was proportionate to the gravity of the conduct.

Overall and based upon the aforesaid reasoning, I am satisfied that the Complainant’s dismissal was both substantially and procedurally fair within the meaning of the aforesaid law and further that all of the requirements set out in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137 were met. 

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint.  Based upon the aforesaid reasoning, I find that the Respondent has discharged the onus/burden of proving that the Complainant’s dismissal was fair and accordingly dismiss same.

Dated:   8th April 2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Section 8 of the Unfair Dismissals Acts 1977-2015 – refusal or failure to follow an instruction from management / insubordination – gross misconduct – proportionality.