FULL RECOMMENDATION
PARTIES : STRANDVAUS LIMITED
SUBJECT: DETERMINATION: This is an appeal on behalf of Strandvaus Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00019035, dated 18 March 2020) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer found that Mr Sylwester Michalski (‘the Complainant’) had been unfairly dismissed by the Respondent on 14 November 2018. The Respondent’s Notice of Appeal was received by the Court on 20 April 2020. The Court heard the appeal in Sligo on 16 February 2020. The Court heard evidence from Mr Fergal McLoughlin and Mr Frank McMorrow on the Respondent’s side. The Complainant also gave evidence.Factual Matrix. The Complainant is a professional HGV driver. He was employed by the Respondent as such between April 2015 and 14 November 2018 when he was summarily dismissed on grounds of gross misconduct. The letter of dismissal issued to the Complainant on 14 November 2018 outlines the reasons for his dismissal as follows: “Having due regard for all the circumstances and the seriousness of the incidents I regret to inform you that the decision of the company is to terminate your employment with immediate effect. This is by reason of gross misconduct as serious breach of the company rules covering misconduct as outlined in your Employee Company Handbook represents a fundamental breach of trust and confidence necessary for the employment relationship to continue. The rules covering gross misconduct are as follows: Failure to abide by the general health and safety rules and procedures;•Serious breaches of health and safety rules that endanger the lives of employees or any other person”. The ‘incidents’ referred to in the letter of dismissal occurred on 2 October 2018 and on 3 October 2018. On 2 October 2018, the Complainant was driving the Respondent’s vehicle through Tubbercurry. He made a diversionary move to avoid an oncoming vehicle. As a consequence of so doing, the rear of the Complainant’s truck made contact with, and damaged, a BMW car that was parked on the side of the road. The Complainant stopped the vehicle and spoke with the driver of the BMW who was sitting in his car when the impact occurred. The Complainant telephoned Mr Donal Kerins a member of the Respondent’s management team to advise him of the incident and put the driver of the BMW car on the phone to Mr Kerins.The following day - 3 October 2018 – the Complainant was driving a different vehicle. He had a ‘near miss’ when exiting a roundabout in circumstances where the driver of a car in the right-hand lane at the time illegally left his lane to exit the roundabout and pulled in front of the Complainant’s vehicle. The Complainant had to apply his brakes with force in order to avoid hitting the car that had crossed in front of his path. T The Complainant also reported this matter to the Respondent immediately.Later that day, the Complainant was notified that he was being suspended on full pay pending an investigation under the Respondent’s disciplinary policy into the events of 2 and 3 October 2018. T The investigation meeting took place on 12 October 2018. It was chaired by Mr Michael Kivlehan (Head of Transport). The Complainant – although advised of his right to be accompanied by a colleague – attended alone. Also present was Mr Kris Czyz who is also an employee and fellow national of the Complainant’s. Mr Czyz was present to assist with interpretation as his comprehension of the English language is better than the Complainant’s. Mr Kivlehan interviewed Mr Donal Kerins on 17 October 2018. Mr Kivlehan then prepared a draft report and invited observations from the Complainant. The Complainant did not provide any observations and Mr Kivlehan finalised his report in which he made the following findings: “Sylwester drove in an unsafe manner by not yielding to oncoming vehicular traffic while overtaking a parked vehicle.”•“Failed to follow the rules of the road while exiting the N17 junction and entering the Toberbride Roundabout at Collooney which nearly resulted in a road traffic accident.” Mr Kivlehan, on the basis of these findings, recommended that “the above allegations are considered for disciplinary procedures in line with Company Policy.”A disciplinary meeting took place on 9 November 2018. It was chaired by Mr Fergal McLoughlin, Operations Director. Mr Kris Czyz was also in attendance again to provide interpretation support. The Complainant was unaccompanied although he had been informed of his rights in this regard in the letter inviting him to the disciplinary meeting. Immediately prior to the meeting, the Complainant handed in a detailed letter which the Court was told had been drafted with the assistance of the Complainant’s solicitor. In the letter, the Complainant raises twelve concerns he had had about the disciplinary process and its conduct. Nevertheless, the meeting proceeded as planned. Mr McLoughlin subsequently addressed in writing the points raised by the Complainant. He did so by letter dated 12 November 2018 addressed to the Complainant.Mr McLoughlin raised the issue of representation at the outset of the disciplinary hearing and advised the Complainant that the meeting could be adjourned to allow him to arrange to be accompanied by a fellow employee. The Complainant advised he wished to be accompanied by his solicitor as did not know anybody else. Mr McLoughlin advised that the Company’s policy stated that an employee attending a disciplinary meeting could only be accompanied by a fellow employee. The meeting proceeded and the Complainant was shown CCTV footage taken from the vehicle he was driving on both occasions and asked to respond to it. He stated that he had driven on both occasions with the highest precaution and denied having done anything wrong on either day.As stated previously, Mr McLoughlin issued a disciplinary outcome letter on 14 November 2018 in which he communicated his decision to dismiss the Complainant for gross misconduct. He advised the Complainant of his right to appeal that decision in writing to the Respondent’s Managing Director, Mr Frank McMorrow, within seven days. The Complainant availed himself of his right of appeal and an appeal meeting was held on 30 November 2018.By letter dated 20 November 2018 – written with the assistance of his solicitor – the Complainant outlined nine grounds of appeal as follows: 1.It was not fair to deny me the right to legal representation in circumstances where my command of the English language was basic at best and where the stakes were so high. 2.The company withheld evidence with which I could have been able to defend myself. 3.I am entitled to rely on front facing CCTV footage which would have exonerated me but this evidence was not made available to me. 4.I was not given an opportunity to cross-examine witnesses and the company misrepresented the reasons why I was no given such opportunity. 5.I was not given contact details for the witnesses even though these are known to the company. 6.The process was not conducted in accordance with the principles of natural justice. 7.My representations on 13 November 2018 were not dealt with at all even though the decision to dismiss me was taken after Fergal McLoughlin received those written representations. 8.There was insufficient evidence available to Fergal McLoughlin to make a decision to dismiss me and he did not seek more and better evidence. 9.Without prejudice to my assertion that I did nothing wrong, the penalty imposed was too severe. By email dated 27 November 2018 to Mr Frank McMorrow, the Complainant requested confirmation that he could be accompanied at the appeal hearing by his solicitor. He also indicated that he required an independent ‘translator’ (sic) present at the meeting. Mr McMorrow replied by letter (undated) in which he restated the Respondent’s policy of permitting an employee to be accompanied only by a fellow employee at an appeal hearing. Mr McMorrow advised that the Respondent would provide an independent translator at the appeal meeting. He also stated: “Strandvaus Limited recognises any individual’s right to seek whatever independent legal advice they consider necessary however, the Company does not engage in day-to-day communications with our employees through a solicitor or any third party not associated with the Company.” Mr McMorrow communicated the outcome of the appeal hearing by email and registered post, dated 7 December 2018. Attached to that correspondence was a document in which Mr McMorrow addressed each of the nine points of appeal raised by the Complainant and stated his findings in relation to them.In the main outcome letter Mr McMorrow stated: “I conclude that all of your rights under natural justice were observed during the process i.e. in terms of your right to representation, the right to be heard, and the right to due consideration. I have given detailed consideration to each point of your Appeal, I listened to what you had to say, and reviewed any material pertinent to that Appeal point to enable me to conclude whether or not to uphold your position in relation to those. In respect of same I attach a copy of these considerations hereto. As such I regret that I cannot uphold any of your Appeal points in relation to your dismissal. I find that the disciplinary officer’s decision reasonable, that there is a fundamental breakdown of trust and confidence in you resulting from your breach of company rules in respect of health and safety and also rules covering misconduct as outlined in the Company Handbook. Regrettably therefore, it is my decision that your appeal has not been successful and the decision to formally terminate your employment on November 14th2018 stands.” Mr McLoughlin’s Evidence The witness firstly outlined his preparation for the disciplinary meeting with the Complainant. He told the Court that he reviewed the investigation outcome letter and CCTV footage of the events on 2 October and 3 October 2018. He familiarised himself again with the Respondent’s Driver’s Handbook and Disciplinary Policy. At the meeting itself, he says that he showed the CCTV footage of 2 October 2018 to the Complainant and invited him to respond to it. He asked the Complainant a number of questions about the events that day in Tubbercurry to which the Complainant gave the same answers to the effect that he hadn’t done anything wrong and had driven with caution. The witness told the Court that he felt the Complainant hadn’t answered the questions he had been asked. The Complainant took the same approach when asked questions about the events of 3 October 2018 after having been shown CCTV footage from that date. According to the witness, the Complainant was arrogant towards him and the process. The witness said that he based his decision to summarily dismiss the Complainant because he had not observed the fundamentals of safe professional driving on either 2 or 3 October 2018. The Respondent, he said, had provided the Complainant with defensive driving training delivered by ROSPA. If he had applied his training on 2 October 2108 he would have stopped his vehicle and would thereby have avoided colliding with the parked BMW. Furthermore, according to the witness, the Complainant had failed to communicate any meaningful defence at the disciplinary hearing. The witness stated clearly to the Court that his decision was based on the occurrence of both events on successive dates i.e. the combined effect of both events caused the witness to determine that the Respondent had lost trust and confidence in the Complainant. The witness was unable to identify any other sanction short of summary dismissal that he gave consideration to as he was of the view that if the Complainant had been retained in employment as a HGV driver and should another incident occur in the future this would result in an adverse reaction from the Respondent’s insurers. Under cross-examination, the witness was asked why the CCTV footage from the front-facing camera of the vehicle the Complainant was driving on 2 October 2018 was not made available to the Complainant and didn’t form part of the disciplinary investigation and hearing as this would (in the Complainant’s view) have verified that the vehicle he had to avoid had pulled out suddenly in front of him. The witness said that the camera was faulty on the day and the wiring to it had to be repaired subsequently. The Complainant’s Solicitor also asked the witness why the Complainant’s request for the contact details of the BMW driver had not been met. The witness gave two reasons for this. He cited GDPR grounds but when pressed on this he was unable to provide any rationale for this. The witness also referred to a general instruction from the Respondent’s insurance company to the effect that the Respondent should not engage with third parties following an accident so as to avoid any risk of an admission of liability occurring. It was put to the witness that the Complainant wanted to call on the BMW driver because he had told the Complainant at the scene of the incident that it was his view that the Complainant had done nothing wrong. Finally, the Complainant’s Solicitor what his reasons were for proceeding with the disciplinary hearing without first addressing the issues raised in the letter handed to the witness by the Complainant at the outset of the hearing. The witness said that he had read the letter and formed the view that it didn’t form part of the disciplinary investigation and he would follow up on the matters raised at a later point in time. Mr McMorrow’s Evidence The witness confirmed that he is the Managing Director and a co-owner of the Respondent. He gave evidence in relation to the steps he took to prepare himself in advance of the appeal meeting of 30 November 2018. He obtained all of the materials from the investigation and disciplinary stages, he said, and he viewed the CCTV footage. He also had a discussion with Mr Donal Kerins regarding the telephone conversation he had with the Complainant and the driver of the BMW car on 2 October 2018. When asked by the Respondent’s representative if anything new emerged at the appeal hearing, the witness replied that two new issues had been raised by the Complainant: firstly, the Complainant admitted he had made an ‘S-turn’ when avoiding the oncoming vehicle and secondly, had stated that there was no white line on the stretch of road where the incident occurred. The witness said that he subsequently visited that stretch of road in Tubbercurry and observed that there is a white line in the centre of the road there. Asked why he upheld the dismissal, the witness stated that he had noted that the Complainant’s answers to the allegations put to him had changed over the course of the disciplinary process. He also concluded that the Complainant had driven in an aggressive manner on both occasions in question in order to maintain his position on the road. He had, therefore, not driven with due care and attention. He added that he hadn’t arrived at the decision to confirm the Complainant’s dismissal lightly as HGV drivers are scarce and in short supply. The witness said that, notwithstanding this, he also had regard for the potential future implications for the business if the Complainant were to be retained and involved in another incident later on. Asked if he considered the substitution of a lesser sanction for that of summary dismissal, the witness stated that his trust in the Complainant had waned particularly in the light of the Complainant’s failure to engage with Mr McLoughlin during the disciplinary hearing. The witness formed the view that the Complainant was unwilling to accept he had made a mistake and couldn’t see that he had driven in an aggressive manner. Ultimately, he said he could not permit the Complainant to be in charge of a vehicle on behalf of the Respondent. Under cross-examination, the Complainant’s Solicitor put it to the witness that he hadn’t raised the issue in relation to the Complainant allegedly changing his answers to questions put to him during the course of the disciplinary process in his appeal outcome letter. The Representative also pointed out that although Mr Kerins had been interviewed by those conducting the various stages of that process on behalf of the Respondent, he had never been made available to the Complainant. The Complainant’s Evidence The Complainant told the Court that he has been an HGV driver for over fifteen years during which time he has never had an accident. He had had no prior disciplinary issues with the Respondent prior to those that ensued from the events of 2 and 3 October 2018. He stated that he hadn’t been in a position to represent himself properly throughout the disciplinary process due to his poor language skills and he believes the Respondent was unwilling at all stages to listen to his version of events. He referred to the driver of the BMW car and the fact that he had told the Complainant that he had done nothing wrong on 2 October 2018 and that the incident was caused by the behaviour of the driver of the oncoming car. The Complaint gave evidence of his efforts to obtain alternative employment following his dismissal. He listed five companies he applied to in December 2108 and early January 2019. Thereafter, he registered with Indeed. However, he no longer has access to his account there and as a result was unable to retrieve details of job applications he made through Indeed. He commenced employment on 6 March 2019 with Bruscar Bhearna Teoranta earning €686.45 gross per week. The Complainant was paid €600.00 gross per week when employed by the Respondent. Under cross-examination, the Complainant said that he did not understand the correspondence he received from the Company on 3 October 2018 advising him that an investigation was to commence under the Respondent’s disciplinary policy in relation to the events of 2 and 3 October 2018. He sought advice from a colleague, Mr Enda Watters, who told him not to worry and that this was a routine exercise undertaken by the Respondent in response to such events. Furthermore, the Complainant said, he didn’t fully understand that it was a disciplinary meeting he was been asked to attend with Mr McLoughlin as nobody explained that to him. He thought it was to be a chat and an opportunity to analyse the incidents. The Complainant also said that the provision of a co-worker (Mr Kris Czyz) as an interpreter at the investigation and disciplinary stages was inadequate as his English is only somewhat better than his own and he didn’t always translate as he had wanted him to. Discussion and Decision It is well-established that in exercising its jurisdiction to determine appeals under the Unfair Dismissals Act 1977, it is not the role of this Court to substitute its decision for that of the Respondent. The Court’s function is not re-run the disciplinary process and attempt to stop into the Respondent’s shoes, so to speak. Its function is to consider whether in all circumstances a reasonable employer could have arrived at the decision the Respondent arrived at. Having regard to facts of the within appeal, therefore, this Court must assess whether the decision to summarily dismiss the Complainant following the events of 2 and 3 October 2018 was within the band of reasonable responses open to a reasonable employer. The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal inLennon v BredinM160/1978 (reproduced at page 315 of Madden and KerrUnfair Dismissal Cases and Commentary(IBEC, 1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’ The Court, having considered very carefully both Mr McLoughlin’s and Mr McMorrow’s evidence, concludes that the decision made by Mr McLoughlin and confirmed on appeal by Mr McMorrow to summarily dismiss the Complainant was very heavily influenced by their unverified perception of the risk the Company would face of repercussions from their insurers should the Complainant be involved in a further road traffic incident in the future. Furthermore, it has not been established to the Court’s satisfaction that the events of 2 and 3 October 2018 either jointly or severally amount to the type of “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer” referred to by the Tribunal in the quotation above. The Court is fortified in its finding in this regard by the paucity of both Mr O’Loughlin’s and Mr McMorrow’s evidence in relation to whether or not they gave serious consideration to imposing a lesser sanction on the Complainant. It is clear from the evidence given by both witnesses in relation to this matter that no such consideration was given by either of them because they had concluded, in their own words, that the Respondent could no longer have trust and confidence in the Complainant to drive one of its heavy goods vehicles. The Court also has serious concerns with regards to certain aspects of the procedures followed by the Respondent. The Court does not accept the Complainant’s submission that the circumstances of his case were so exceptional that he should have been permitted to be accompanied by his solicitor at internal meetings conducted by the Respondent. However, on the other hand, there was no evidence before the Court that the Complainant could have availed himself of the assistance of a colleague who would have been sufficiently skilled to provide him with meaningful representation to deal with the allegations that had been levelled against him by the Respondent, particularly when the Complainant’s lack of proficiency in English is also considered. Relying on a colleague who is a fellow Polish national and whose English happens to be somewhat better than the Complainant’s to provide interpretation services to the Complainant when he was at risk of losing his employment put the Complainant at a significant disadvantage throughout the process when it came to articulating his version of events. Clearly, the Respondent accepted this in advance of the appeals stage as they agreed to provide a professional interpreter then. However, this was too late in the day. No effort was made by the Respondent’s witness to explain why the Complainant was not given access to Mr Kerins during the disciplinary process. The witness’s explanation for not furnishing the Complainant with the contact details for the driver of the BMW involved in the event of 2 October 2018 simply do not hold water. The Court was told by Mr McLoughlin that his decision to summarily dismiss the Complainant was based on the combination of events that had occurred on 2 and 3 October 2018. However, Mr McMorrow, in answer to questions from the Court, conceded that the illegal manoeuvres on the part of a third-party driver contributed significantly to the ‘near miss’ that occurred on 3 October 2018. This admission, in the Court’s view, casts a serious doubt over the Respondent’s the rationale underpinning the Respondent’s decision to summarily dismiss the Complainant. The Court finds, therefore, that for the reasons outlined above, the Respondent’s approach throughout the disciplinary process to which it subjected the Complainant falls far short of meeting the requirements of the fundamental principle ofAudi alterem partem, and was, therefore, unfair. Having regard to the foregoing, the Court, therefore, upholds the finding of the Adjudication Officer that the Complainant was unfairly dismissed by the Respondent. However, the Court varies the amount of compensation that it believes is just and equitable in all the circumstances to €9,600.00, being the total amount of the Complainant’s loss of earnings from the date of his dismissal to the date he commenced alternative employment. The Court so determines.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
