Complainant

Respondent

Anonymised Parties

A HGV Driver

A Freight Company

Representatives

  Self

Evan O'Dwyer O'Dwyer Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00035635-001

08/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00035636-001

08/04/2020

The employee commenced employment with the employer on 18/11/2019.  He was employed as a HGV driver.  He was paid €461.50 gross per week.  The employee was assigned to the primary customer of the employer.  This customer provides in excess of 95% of business to the employer.  On 25/02/2020 an incident occurred between the employee and a security operative on the customer’s site.  As a result of this the customer advised the employer that they had barred the employee from their site “with immediate effect”.  As the employee’s employment was predicated on him ensuring that there would be no behavioural issues his employment was terminated by the employer.

The employee has been a HGV driver for approximately 33 years.  He worked in many different settings during this time.  He obtained employment from the employer as he called into their premises inquiring about HGV positions and was offered one.  He met the employer and agreed to reference checks.

The employee outlined the circumstances in relation to the incident on 25/02/2020.  He was leaving the customer’s site at approximately 6.00 am having completed the required security checks and when the barrier lifted he commenced driving out as this was the signal that he was clear to go.  As he was driving a security operative crossed in front of his heavy goods vehicle and he was forced to break hard.  The security operative had no reason to cross in front of him.  The employee opened the window of the vehicle and “let rip” at the security operative. He knows this security operative who is a long-term employee of the customer.  He then parked and rang the employer’s office to explain what happened.  He was asked to send an e mail with details of the incident.  He continued to work on that site for the remainder of the day and was sent to a different site the following day. 

He was dismissed without notice, investigation or any meeting on 27/03/2020.  He is seeking compensation.  He obtained alternative employment on an ad-hoc basis and is now working as a HGV driver and paid €750 per week.

The employer is a major freight company and the employee called into their office looking for work. As there is a shortage of HGV drivers they arranged to meet with him and offer him a job subject to a reference check.  The employee provided details of two previous employers.  The employer was advised by both referees that they would not recommend him as suitable for employment.  He was known to them as someone who could be “somewhat volatile and confrontational and that had resulted in him becoming barred from some of their customers”.  Although the employer had strong reservations about employing him they met with the employee for a face-to-face interview.  At that meeting the employee was advised that despite the poor references they were prepared to give him an opportunity.  They done this on the clear understanding that if he ever found himself in a situation that could potentially become confrontational he was to call some of the senior employers’ representatives in the office and the employee was provided with their mobile telephone numbers.  The employer also noted that the employee was advised that if he ever allowed a situation to escalate this would result in his employment being terminated.

The employer was advised by their main customer of the incident.  The customer viewed the employee’s conduct as unacceptable.  The employer had to get the owner of the business involved as this was their largest customer.  The employer did not have sufficient alternative business to keep the employee on and he was dismissed.

A number of witnesses for the employer outlined and confirmed the facts as outlined above.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties and the evidence presented at the hearing.  This was a difficult matter for the employer as they could not take any risk in relation to their major customer.  The employer was pro-active in setting out their expectations of the employee when he commenced employment with them.  There is no dispute in relation to the incident or to the fact that the employee was dismissed.

What is clear in this case is that there is a significant lack of any process in relation to the dismissal.  The lack of documentation in relation to the employment contract and any terms and conditions is also not helpful.

It is not disputed that an employer is entitled to dismiss an employee.  I accept that the decision to dismiss the employee for the conduct displayed was not an unreasonable decision.  However, a dismissal procedure is not merely a single act but a sequence of actions.  The objective of such a procedure is to provide clear guidance to an employee regarding any issue that places their employment at risk and to give to an opportunity take action to avoid dismissal or in cases of serious misconduct to provide the employee with an opportunity to be heard and outline their version of events.  The SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures, commonly known as the Code provides clear guidance in relation to such matters.

 The employer in this case failed to act in a procedural manner and, it seems to me, reached the decision to terminate the employee’s employment with unnecessary haste.  While it was not unreasonable for the employer to dismiss the employee, the process followed in reaching the decision to dismiss him was flawed and unfair.

Unfair dismissal.  Procedure.