UDD221

FULL RECOMMENDATION

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

DHL SUPPLY CHAIN (IRELAND) LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR WILLIAM BARRY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s) ADJ-00021187 CA-00027872-001 dated 4 December 2019.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Courtin accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 3 November 2021. The following is the Determination of the Court:-





DETERMINATION:

Background to the Appeal

This is an appeal by Mr William Barry (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00021187, dated 4 December 2019) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received by the Court on 9 January 2020. The Court heard the appeal in Dublin on 3 November 2021. The Court heard evidence from two witnesses on behalf of DHL Supply Chain (Ireland) Limited (‘the Respondent’): Mr David Hancock and Ms Siobhan Harrison. The Complainant gave evidence on his own behalf.

The Factual Matrix

The Complainant had been employed by the Respondent as fuel tanker driver for approximately twenty-one years prior to his summary dismissal on 19 March 2019 following the conclusion of a disciplinary process triggered by an incident that occurred on 12 October 2018 at the Joint Fuel Terminal (‘the JFT’) in Dublin Port.

On that date, the Complainant was in a queue at the JFT in his empty fuel truck in order to collect a fill of fuel for distribution on behalf of a client of the Respondent. It is common case that another driver, in a parallel queue, indicated and moved at short notice into the Complainant’s queue directly in front of him.

It is also common case that the Complainant’s truck increased its speed to approximately thirty-five Km per hour for a short amount of time although the maximum permitted speed in the vicinity of the JFT is fifteen Km per hour. The Complainant submits that his lace was undone and caused his foot to become entangled between the accelerator and brake pedal in his truck and this accounts for the increase in speed that occurred.

The incident was reported by the operators of the JFT to the Respondent. The Complainant was then suspended on full pay, with effect from 19 October 2018, pending an investigation of the incident and four other, unrelated, allegations that had been raised against the Complainant in or around that time. An investigation meeting took place on 31 October 2018. The Complainant was represented at that meeting by his Trade Union representative. CCTV footage of the incident of 12 October 2018 taken from a front-facing camera installed on the Complainant’s truck was reviewed in the course of the meeting.

The Complainant was also given a copy of that footage. The investigation meeting was reconvened on 12 November 2018. The Complainant refused to comment on the CCTV footage from his truck at both meetings. Thereafter, the investigator interviewed a number of witnesses and colleagues of the Complainant in relation to the five allegations that had been raised against the Complainant. All material acquired by the investigator was forwarded to the Complainant in advance of a meeting scheduled for 23 November 2018 at which the Complainant was to be afforded an opportunity to set out his version of events. The Complainant informed the investigator by text message on that morning that he would be unable to attend the meeting that day “due to a long term illness problem”. It appears the Complainant went out on certified sick leave thereafter until 10 January 2019.

The investigator wrote to the Complainant by letter dated 24 January 2019, informing him that the investigation had concluded and enclosing a comprehensive report detailing the findings of the investigation and the reasons for those findings. The investigator found that three of the five allegations against the Complainant (including the incident of driving at excessive speed at the JFT on 12 October 2018) appeared to be supported by facts as established by him.

By letter dated 13 February 2019, the Respondents’ General Manager wrote to the Complainant to inform him that the aforementioned three allegations would the subject of a disciplinary process to be chaired by Mr David Hancock, Head of Northern Ireland Operations. A disciplinary meeting took place on 7 March 2019.

A second meeting took place on 19 March 2019 on conclusion of which the Complainant was advised that his employment was terminated with immediate effect. He was also advised of his right to appeal the decision. The Complainant availed himself of the right of appeal. An appeal meeting took place on 15 May 2019 and was conducted by Ms Siobhan Harrison, Director of Change Programs. Ms Harrison issued her outcome in writing on 14 June 2019. She upheld the decision to dismiss the Complainant.

Mr Hancock’s Evidence

Mr Hancock outlined his role with the Respondent. He confirmed he had had no knowledge of the Complainant prior to conducting the disciplinary hearing referred to above. He explained the importance of health and safety at the JFT and, in particular, the need for a maximum speed limit of fifteen Km per hour in the light of the risks associated with both empty tanker trucks and trucks loaded with fuel moving around in close proximity to each other.

The witness outlined how he conducted both disciplinary meetings. He stated that he focused on the incident at the JFT having regard to the seriousness of it. He told the Court that he found the Complainant had failed to recognise the gravity of the incident and showed no remorse for what had happened. The witness also found the explanation offered by the Complainant for the increase in his speed (his lace allegedly causing his foot to become jammed between the brake pedal and accelerator) to be very unlikely to have occurred.

Ms Harrison’s Evidence

Ms Harrison told the Court that she is based in the United Kingdom but is a member of the Respondent’s leadership team in Ireland. She confirmed she had not known of the Complainant prior to conducting the appeal hearing. She gave evidence of having received and considered the Complainant’s written grounds of appeal and of the meeting she held with the Complainant and his representative at which each ground was considered in detail.

The witness emphasised that she talked through each individual ground of complaint with the Complainant and his representative. Having done so, she had sight of all materials considered by both the investigator and Mr Hancock, including the footage from the front-facing camera on the Complainant’s truck. She formed the view that the Complainant had been travelling in excess of the 15 Km speed limit before the other driver indicated and changed lanes. In similar manner to Mr Hancock, Ms Harrison ultimately concluded – she told the Court – that the Complainant did not believe he had done anything wrong on 12 October 2018.

The Complainant’s Evidence

The Complainant gave evidence of his training, experience and unblemished record driving for the Respondent over a twenty-one year period prior to the incident that resulted in his dismissal. He told the Court that the speeding incident occurred when his lace caused his foot to get caught between the brake and the accelerator on his truck when he took evasive action to avoid hitting the truck that had suddenly pulled out in front of him. The Complainant said he believed he should have been commended for his action in avoiding an accident in the circumstances.

The Complainant also gave evidence in relation to his efforts to mitigate his loss after the dismissal. He told the Court that it proved very difficult to get another full-time driving job as the fact of his dismissal had been published in a newspaper article. He was unemployed for about five weeks after the dismissal. He then secured a part-time driving job through a friend. He is paid €390.00 per week for three days’ work. He had been earning €54,000.00 per annum when employed by the Respondent.

Discussion and Decision

Having considered the evidence before it in relation to the investigation process, the disciplinary hearing and appeal conducted by the Respondent following receipt of a complaint about the Complainant’s driving at the JFT on 12 October 2018, the Court is of the view that the Respondent’s procedures were fair and reasonable throughout.

The Complainant was given ample opportunity to furnish a credible explanation for what happened. He declined to do so and, in fact, maintained throughout that he should have been commended for the actions he took on the day in question. At no stage, up to and including the within appeal, has he expressed regret for the events of 12 October 2018.

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

The appeal, therefore, fails and the decision of the Adjudication Officer is amended accordingly.

NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.