Complainant

Respondent

Parties

Thomas  O'Connor

Premier Auto Parts Resources Limited T/A Premier Auto Parts

Representatives

Terence F Casey & Co

Gaffney 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-00041670-001

22/12/2020

The Complainant commenced his employment with the Respondent on 26th March 2012. His employment was terminated on 7th October 2020. At the time of dismissal he was employed as a van driver and was paid €495 gross weekly.

The Complainant referred his claim to the Director General of the WRC on 22nd December 2020 alleging that he was unfairly dismissed.

The Respondent submits as follows:

The Complainant commenced employment with the Respondent on the 26th March 2012 as a Sales Representative and signed a Statement of Terms and Conditions in relation thereto on the

30th March 2012.  The Complainant was promoted to Branch Manager on the 28th November 2016 and signed a Statement of Terms and Conditions to that effect on the 7th December 2016.

The Complainant was absent from work as a result of illness from the 10th June 2019and returned to work on the 6th July 2020 as a van driver, following a discussion between the Complainant and the Respondent in advance of his return to work. The Complainant was furnished with a letter setting out certain amendments to his Terms and Conditions and which were signed by the Complainant on 9th July 2020. All other Terms and Conditions of the Complainant’s employment remained in effect.  

Respondent’s Position:

The Complainant was suspended from his employment on full pay on the 11th August 2020 by the

Branch Manager.

A letter was sent to the Complainant on the 31st August 2020 which set out the allegations against the Complainant and which included minutes of an investigatory meeting with the Complainant on the 10th August 2020. At the meeting the Complainant admitted to having left the scene of an accident after colliding with a pedestrian while the Complainant was carrying out his duties.  The Complainant did not report the incident to An Garda Síochána, nor did he report it to the Respondent. The Respondent only became aware of the serious incident when enquiries were made of the Complainant in relation to the visible damage to the Complainant’s work vehicle.

Following a disciplinary hearing on the 2nd September 2020, the Complainant was furnished with a copy of the minutes of the hearing and asked to confirm that they were an accurate account of what was said at the meeting. The Complainant confirmed that to be the case. The Complainant was offered the right of appeal and exercised that right. The grounds of appeal furnished by the Complainant consisted solely of a request for ‘a general review’ of his termination to be carried out. The minutes of the appeal  hearing also contain a comment by the Complainant that the process had been carried out ‘very professionally’. This is completely at odds with the complaint filed by the Complainant which alleges that fair procedures were not followed. The Complainant believes that the sanction levied against him was ‘wholly disproportionate and grossly unfair’. 

The outcome of the disciplinary hearing which was held on the 2nd September 2020 is set out comprehensively in the letter from the Respondent to the Complainant of the 3rd September 2020.  On the 9th September 2020, the Complainant exercised his right to appeal the decision and the appeal was heard on the 1st October 2020. The notes of the appeal hearing were sent to the Complainant, and he confirmed that these were an accurate account of the meeting and offered no further commentary. The appeal decision of the Financial Director upheld the decision at first instance to terminate the employment of the Complainant by reason of gross misconduct which led to a fundamental breakdown in the trust and confidence that must exist between an employer and an employee. 

The Complainant was, at all times, afforded fair procedures, natural justice and full transparency. The actions of the Complainant that gave rise to an investigation and ultimately to the termination of his employment show a complete and utter disregard for the welfare of the public and a disregard for his employment.

At the adjudication hearing, in response to the Complainant’s solicitor’s argument that the Complainant should have received the disciplinary procedure within 28 days of the commencement of his employment, the Respondent’s solicitor argued that the Complainant is entitled to his terms of employment under the Terms of Employment (Information) Act, and that there is no claim in this regard. The Respondent’s solicitor also pointed out that the Employee Handbook is not considered personal data, and therefore would not fall withing the GDPR request.

The Respondent argued that the Complainant was afforded fair procedures. The Respondent pointed out the inconsistencies in the Complainant’s statements, including those made at the adjudication hearing. It was also contended that the Complainant is capable of working but made no effort to look for new employment.

Evidence of the then Managing Director (MD)

MD said that he was advised of the incident by email of 12th August 2020 by the Branch Manager. The Sales Director and the Branch Manager arranged a face-to-face meeting with the Complainant and carried out the investigation. Minutes of the investigation meeting were sent to the MD and he decided to conduct a disciplinary hearing. A letter inviting the Complainant to a disciplinary hearing was sent by email on 31st August 2020.

The disciplinary hearing was held on 2nd September 2020. Minutes of the meeting were sent to the Complainant by email, and he confirmed that they were correct. An outcome letter was issued on 3rd September 2020 informing the Complainant of the decision to dismiss him for gross misconduct. The Complainant appealed this decision and a meeting was convened for 1st October 2020. 

In cross-examination, the Complainant’s solicitor asked if the disciplinary procedure does exist, as the Complainant argued that he did not receive it. The MD replied that all the information, including the disciplinary procedure was emailed to the Complainant. It was pointed out that the minutes of the disciplinary hearing, which the Complainant confirmed were correct, say clearly

[MD]: “Did you receive your invite and the associated documentation, namely the accident report, copy of meeting notes with [Ms D] and also the employee handbook?

[Complainant]: Yes”

The MD noted that while the Complainant had commenced his employment with the Respondent before he did, when the MD joined the Respondent, all employees were given the Employee Handbook which included the disciplinary procedure and signed for it. The MD said that the Employee Handbook has clear policy on what to do in relation to incidents.

The MD confirmed that he did consider all other disciplinary actions available to him but decided that dismissal was the appropriate action.

The MD confirmed that the business closed to the public at 5.30pm, but the Manager would remain in the office until 6pm. Both the Manager and the Complainant have work mobile phones, the Complainant was a good friend of the owner of the business and had his mobile number. 

The Complainant submits as follows:

The Complainant submits that proper procedures were not followed either in the initial element of the process or during the appeals which led to him being summarily dismissed. The Complainant submits that the sanction levied against him was wholly disproportionate and grossly unfair and he was unfairly dismissed as the Respondent wished to remove him from the company.

The Complainant’s solicitor argued that under section 14 of the Unfair Dismissals Act, the Complainant was entitled to but did not receive a disciplinary procedure within 28 days from the commencement of his employment. She argued that he still hasn’t seen it. She noted that she made a GDPR request, but the Employee Handbook was not included in the records furnished by the Respondent. As a result, it is unclear if the Respondent followed their own procedures. In reply to the Respondent’s assertion that, as per minutes of the disciplinary hearing, the Complainant confirmed that he did receive the Handbook, the solicitor argued that maybe the Complainant did not understand the question as there was a lot of pressure on him. So, while he confirmed that he did get the document, maybe he didn’t.  She argued that he seems to agree with what was put to him.

The Complainant’s solicitor asserted that it was a very minor incident, nobody was hurt and there was a minimal damage to the vehicle, which cannot be considered  as gross negligent misconduct. The Complainant  was not intoxicated, he didn’t flee the scene, he stopped but the pedestrian ran away. She contented that the Complainant intended to report the incident to the Respondent but it was queried before he got an opportunity to do so. She could not see the basis for the trust to be gone.

She noted that the tone of the correspondence issued to the Complainant seems harsh. She contented that the dismissal was unduly harsh.

Evidence of the Complainant

The Complainant confirmed that he worked for the Respondent for about 8 years and he had an unblemished record.

He described the incident of 5th August 2020. The Complainant argued that the pedestrian did not get injured and ran away. The Complainant maintained that his intention was to report the matter the next morning. He said that he did not disregard what had happened and he wanted to report the matter on the next day. He said that while he was talking to a colleague, the “boss” saw the mirror and asked what happened. The Complainant said that he did not see the need to contact the Gardai as he “didn’t know the fellow on the road” and “had nothing to say to Gardai”.  

The Complainant said that after the Respondent had reported the incident to the Gardai, he got a call and was told that everything was OK and that nobody came forward.

In cross-examination, the Complainant was “trying to remember” whether the accident was serious or not. He said that it did hurt the pedestrian but he “didn’t hang around to tell” the Complainant. When it was put to him that it was bound to hurt, the Complainant said that he didn’t disagree.  In the initial statement the Complainant said that the pedestrian got up and ran, in cross-examination the Complainant insisted that he did not fall. He confirmed that there was a car behind him and said that “they were just looking at me, in general”. When asked, the Complainant confirmed that he wouldn’t be happy if a situation like that happened to a member of his family. He also said that, having worked as a branch manager, he would expect an employee to tell him immediately of an incident of this nature. He said again that he intended to do so  but decided to leave it until the next day. The Complainant was asked about the changed details of the speed he was driving. He said that he was under pressure but agreed that he could have said that he wasn’t sure rather than changing his statement.

The Complainant confirmed that he knew why he was suspended. While he initially couldn’t remember how he received the letter inviting him to the meeting, he said that he did have work email address.

The Complainant was asked why there was a complaint against the Respondent, given that he confirmed at the disciplinary hearing that he every opportunity to ask or raise anything related to the incident. The Complainant answered that he thought that it was unfair to dismiss him after 8 years with the Respondent. The reason for dismissal was that he did not tell the Respondent about the incident, but he was going to do so. He said it to a colleague first and intended to tell the Respondent but the Manager spotted it first.

The Complainant confirmed that the process was fair and he was given an opportunity to have his say, that he was offered to have a person with him, that he was given the right to appeal the decision to dismiss him. He said, however, that the decision was disproportionate, he deserved a warning.

The Respondent presented via screen sharing facility an email that was sent to the Complainant on 31st August 2020 to his personal email address, with disciplinary procedure attached, the Complainant accepted that he did receive the email.

Mitigation of loss

The Complainant confirmed that he has not taken up new employment since the dismissal and he has not applied for any jobs. He was in receipt of a benefit from the Department of Social Protection. He said that he had no confidence to go for a job because his “CV would say that [he] was fired”.

In cross-examination, the Complainant said that his confidence would come back when he gets a favourable decision that he was unfairly dismissed. The Complainant confirmed that he did not make any money “from anything else”. However, when queried by the Respondent about a social media page which showed that he engaged in car sale, the Complainant said that he “panicked” and didn’t tell the truth. He confirmed that he used his savings to buy cars and then sold them at profit. While his social media page showed that he sold 4 cars, the Complainant said that he sold two and made some €800 profit on both. The Complainant confirmed that he understands the obligation to mitigate his loss.

The relevant law

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1)

”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(4)

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

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 to have regard to

“(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.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was 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 s. 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.”

In line with the above, my role, as the Adjudication officer in this case, is therefore not to establish the guilt of innocence of the Complainant but rather to decide if the Respondent acted reasonably in the circumstances. This view is supported by the EAT decision in Looney and Co Ltd. V Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the Complainant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

Dismissal as a fact is not in dispute and, therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair.

Dismissal in this case, as submitted by the Respondent arose from the Complainant’s failure to report that he had struck a pedestrian while driving the Respondent’s vehicle. The Complainant was dismissed for gross misconduct by letter issued on 3rd September 2020.

There was no dispute that on 5th August 2020, when completing deliveries, the Complainant struck a pedestrian. While there were some inconsistencies in the Complainant’s statements as to the speed he travelled at, whether the pedestrian fell and got up or did not fall, none of these matters are of major relevance to the within case. It was not in dispute that the Complainant did hit the pedestrian and he did not report the incident to his employer or to Gardaí. While the Complainant insisted that he had intended to do so, there was no dispute that on the next day he asked for the damaged mirror to be replaced first and then, having been questioned by the Branch Manager, he informed the Respondent of the incident.

Procedural Issues

The Complainant’s solicitor raised the matter of the Disciplinary Procedures not being furnished to the Complainant. She argued that, as of the day of the hearing, the Complainant had not had the sight of the document. In that regard, I note an email sent to the Complainant on 31st August 2020, that the Respondent exhibited at the adjudication hearing, and which enclosed the Disciplinary Procedures. The letter attached to the email states “I also enclose herewith copy Disciplinary Procedure”. The Complainant confirmed the receipt of the email. Furthermore, the minutes of the disciplinary hearing of 2nd September 2020 state:

“Did you receive your invite and the associated documentation, namely the accident report, copy of meeting notes with [Ms D} and also the employee handbook?”

The Complainant replied: “Yes”

Moreover, at the appeal stage, the Complainant was asked if he had any issue with the process that was carried out and he confirmed that “it was all done very professionally”. He was also asked if he had any issue with the personnel involved in the process and he replied  “No, none whatsoever”.

The Complainant’s solicitor contended that the Complainant answers resulted from the pressure he was under at the meetings. While I appreciate that the Complainant could have been under pressure and stress at the time of the meetings, he confirmed that he received copies of the minutes for his perusal and he was happy with them. I find that, had the Complainant have any concerns regarding the content of the minutes, he was given opportunities to raise them. He did not do so.

While it was not raised by the Complainant’s solicitor, I would have some concerns in relation to the letter dated 31st August 2020 inviting the Complainant to the disciplinary hearing. The letter describes the incident of 5th August 2020 and goes on to say: “This is an extremely serious matter and should the allegations against you prove to be founded then the disciplinary action may be taken, up to and including the termination of your employment.“ The letter is not clear that the allegations against the Complainant are in relation to not reporting the accident to the Respondent. However, the minutes of the investigation meeting, which were attached to the letter clearly demonstrate that the fact the Complainant did not report the incident is the focal point of the process. In any event, at the adjudication hearing the Complainant confirmed that he was fully aware as to why the disciplinary action was taken.

Having considered the evidence before me in relation to the investigation process, the disciplinary hearing and the appeal conducted by the Respondent, I am of the view that the Respondent’s procedures were fair and reasonable throughout.

In relation to the Complainant’s assertion that the dismissal was disproportionate, I find that the test for reasonableness was set out in one of the cases opened to the Court Noritake (Irl) Ltd v Kenna UD 88/1983 as follows:

1.       Did the company believer that the employee misconducted himself as alleged?

2.       If so, did the company have reasonable grounds to sustain that belief?

3.       If so, was the penalty of dismissal proportionate to the alleged misconduct?

The issue was further considered in Bank of Ireland v Reilly, cited above. At paragraph 56 Noonan J. stated:

“In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regards to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

The Complainant was employed as a driver. While, unfortunately, road accidents do happen and people who drive for work are more likely than other drivers to be involved in a collision, there was no dispute that the Complainant was not dismissed for having been involved in the incident. He was dismissed for his failure to report the incident. 

The Complainant’s legal obligations such as obligations under the Road Traffic Act, 1961 as amended are not subject of this decision. In terms of the claim before me it would be, in my view, expected of any driver to report a traffic incident they are involved in, particularly one involving a pedestrian. I am of the opinion that the Complainant, as a professional driver would have been aware of his obligation to report a collision that resulted in injury to the Gardaí and to the Respondent immediately. The Complainant agreed that, having previously worked as a Branch Manager with the Respondent, he would have expected an incident of this nature to be reported immediately. While the Complainant seemed to rely on his assessment that the pedestrian was not seriously injured, and he emphasised that the pedestrian got up and ran away, it is clear that at the time of the incident the Complainant did not have either the knowledge or indeed the expertise to assess  the state of the pedestrian involved in the incident. In any event, the fact of the matter is that the Complainant struck a pedestrian while driving for work and he did not report it either to the Gardaí or to the Respondent. I note that the Complainant insisted that he had every intention to do so. However, there was no dispute that on the next day he considered attending to the matter of the broken mirror more pressing than reporting the matter to his manager. This, in my opinion displays his poor judgment and raises some concerns.  

Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s action, or inaction, the Respondent had every entitlement to lose confidence and trust in him. I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

In the light of all the foregoing, I conclude that the Respondent’s decision to dismiss the Complainant was within the band of reasonable responses open to a reasonable employer.

Having considered all of the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare this complaint to be not well founded.

Dismissal – failure to report road incident