Complainant

Respondent

Parties

Vaidas  Narvydas

XPO Transport Solutions Ireland Limited

Representatives

MKS - Michael Kelleher Solicitors

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044333-001

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00044333-002

24/05/2021

The Complainant commenced employment as a Driver with the Respondent on 4 March 2018 and was paid a gross monthly salary of €2,357. He was dismissed on the grounds of gross misconduct on 24th February 2021.

The Complainant’s representative highlighted that the burden of proof was on the Respondent to show that the dismissal was fair. Evidence was only given by the Complainant in relation to his mitigation of loss, which was supported by documentation sent after the hearing.

The Respondent produced a number of policies and procedures all of which had been signed by the Complainant, namely the Accident & Near Miss Procedure, the Transport Solution Induction information, the Transport Solutions H&S Responsibilities for Employees as well as the Logistics Integrity Matters Code of Business Ethics

It was stated by the Operations Manager, who carried out the investigation, that as he had breached the Respondent’s trust, a decision was made to suspend him at the end of the investigation meeting   

The Site Manager, who carried out the disciplinary hearing, asserted that the Complainant contravened the above mentioned procedures when he failed either to report the accident or carry out a check of the vehicle to ensure there was no damage on it and also that he made the decision to fix it himself. He also stated that the decision to dismiss was reasonable because it was clear from the video evidence that the Complainant knew that he had caused damage to the vehicle but did not report it and asked another employee, Mr A, to lie and not say anything about the accident to anyone else. The Site Manager stated when questioned that the Complainant was not allowed to challenge Employee A’s version of events because he was protected by the Employer’s Policy. In addition, the Site Manager highlighted a Motor Accident form, which detailed an accident in 2019 where the Complainant damaged the company vehicle’s left tail light but reported it and no disciplinary action was taken.

It was also stated that the Complainant was given the right to appeal the decision to dismiss.

THE LAW:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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) of the Act states as follows:

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

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

The combined effect of the above sections of the Act require me to consider if the Respondent’s decision to dismiss the Complainant on the grounds of gross misconduct was reasonable in the circumstances.

I noted firstly that the Operations Manager, who conducted the investigation, stated that he decided at the end of the investigation meeting with the Complainant that his actions represented a breach of trust and made the decision to suspend him on this basis. This decision is at odds with the purpose of an investigation which should be solely to gather the facts and is indicative of a pre-judging of the matter by the Respondent. Specifically, where a company’s disciplinary procedure provides for a disciplinary hearing, as it does in this instance, an investigation should only summarise the facts and provide an explanation as to why the investigator feels there is sufficient evidence to warrant the matter being referred to a disciplinary hearing.

The issue of suspension was examined by the High Court in the case of Bank of Ireland v Reilly [2015] IEHC 241 where the bank was ordered to reinstate a former employee who was dismissed in 2009 for breach of the company’s email policy on the basis that the decision to dismiss was disproportionate and unreasonable. In its decision, the High Court was particularly critical of the manner in which the employee was suspended. and held that the employee was entitled to an explanation of the reason for the suspension. It is notable in the context of the instant case that no reasons were given by the Operations Manager to the Complainant for his suspension in the letter of 19th February 2021.

The High Court also found in Bank of Ireland v Reillythat the suspension was not imposed to facilitate an investigation but that it was an expression by the Bank of the seriousness of the matter and its resolve to punish those involved. The Court held that this indicated pre-determination. It is notable that similar circumstances pertained in the instant case and that the decision to suspend was made at the end of investigation meeting with the Complainant, because of a breach of trust, as asserted by the Operations Manager. I also find this to be indicative of pre-determination.

While I recognise that the matter was nonetheless referred for a disciplinary hearing in line with the Respondent’s procedures, I note that in making the decision to dismiss, the Site Manager stated that he gave significant weight to the evidence of Employee A who the Complainant was not allowed to challenge because he was apparently protected by the Respondent’s Whistleblowing Policy. The provisions of any such policy cannot be allowed to trump the Complainant’s rights to fair procedure however where the potential sanction could warrant dismissal and the right to cross-examine should not have been ignored by the Respondent.  Indeed, it was highlighted in Borges v. The Fitness to Practice Committee [2004]1 IR 103 that cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right.  If an employee fails to ask for cross examination, they cannot be faulted for failing to ask. 

In the recent Supreme Court case, Zalewski v. Adjudication Officer and WRC[2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice.  It held that this was a fundamental aspect of constitutional fair procedures.  The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party ‘could hope to make any adequate defence of his good name.’”

It is also the function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done.  In this case the Site Manager conducted the disciplinary hearing and confirmed in evidence that he has undertaken many disciplinary hearings and that he is fully familiar with fair procedures and due process.  He found that there were no mitigating circumstances and referred repeatedly to the alleged breach of trust and the evidence from the employee who was protected by the Whistleblowing Policy, which the Complainant was not even shown. This is despite the Respondent’s disciplinary policy stating that where dismissal is a possibility “The colleague will be provided with all documents that will be considered or discussed”.  

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances and would not have relied so heavily on the evidence of a witness which was not open to challenge.  Accordingly, I find that the dismissal of the Complainant was unfair for the purposes of the Act.

CA-00044333-001:

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate form of redress and have regard, in making this decision, to section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal

FINDINGS

Given the reasons behind the Complainant’s dismissal, the fact that he has secured alternative employment elsewhere and his preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case.

Section 7(1) of the Act above states that:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

I note firstly that the Complainant was dismissed on 24 February 2021 but was paid until the end of the month. The calculation of financial loss therefore begins on 1st March 2021. I note that the Complainant obtained a temporary role for a period of two weeks from 23rd May to 5th June and that he obtained a full-time role on 12th July 2021 where he is still employed on superior terms to his previous role. The calculation of financial loss is therefore confined to the period from 1st March to 22nd May and from 6th June to 11th July, a total of 17 weeks.

I must have regard in the first instance, in accordance s 7 (2) (c) above, to the extent to which the Complainant mitigated his financial loss. Having reviewed the evidence presented, I am satisfied that he made reasonable efforts during his period of unemployment to secure alternative roles and find that, on the basis that he was paid a gross monthly salary of €2,357 by the Respondent, his loss of earnings for the aforementioned 17 weeks period was €9,247.   

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

Given the Complainant’s service with the company, his accrued redundancy entitlement, which he lost as a result of his dismissal, amounted to €3,803

I estimate therefore that the total financial loss attributable to the dismissal in is €13,050

I also must consider, in accordance with s.7 (2) (f) above, if the Complainant contributed to the dismissal. In recognising that he did so by failing to follow the Respondent’s procedures in respect of what should be done both when damage was caused to a vehicle and fixing the vehicle himself, I have reduced by 50% the award I would otherwise have made and decide that an amount of €6,525 payable by the Respondent in respect of the unfair dismissal is just and equitable.

CA-00044333-002: As I have found that the Complainant was unfairly dismissed, I also find that he should be paid his notice period. As he was dismissed on 24th February 2021, he was entitled to a minimum notice period under the Act of two weeks and should therefore have been paid by the Respondent until 10th March 2021. Given that he was paid up to and including 28th February 2021, there is a shortfall of 1.6 weeks in respect of the minimum notice payment. Accordingly, I make an award of €870 in respect of this complaint

Gross misconduct; failure to allow cross -examination; prejudicial decision to suspend