Complainant

Respondent

Parties

Derek  Doyle

Primeline Vne Limited

Representatives

Gavan Mackay Mackay Solicitors

Owen Keogh Clark Hill Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041904-001

11/01/2021

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

CA-00041904-002

11/01/2021

The complainant was employed as a general operative with the respondent from the 1st July 2017 until the 27th July 2020.  He submitted two complaints to the Workplace Relations Commission contending that he did not receive his statutory minimum notice or payment in lieu thereof in accordance with the Minimum Notice and Terms of Employment Act 1973 and that he was unfairly dismissed.  The complainant confirmed that he had the minimum required service of 12 months pre termination of employment. 

The respondent is a provider of logistics, sales and marketing services to national and international brands and retailers.  In relation to the substantive complaints, the respondent confirmed that the fact of the dismissal was not in dispute but contended that the complainants’ dismissal was both substantively and procedurally fair. 

Preliminary Issue: (Time Limit/Correction to Date of Dismissal)

The respondent drew attention to the fact that both claims were out of time, stating that the claims were lodged by the complainant on the 11th January 2021 and the date of dismissal of the complainant was the 1st May 2020 as per a letter of dismissal.  The respondent pointed out that this was more than nine months after the dismissal date.

The respondent drew the Adjudicator’s attention to the date of dismissal listed on the claim form which the respondent stated was incorrectly listed as the 27th July 2020, almost three months after the date of dismissal.  The respondent outlined the provision in section 8(2) of the Unfair Dismissals Act which states that “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) …

(A)    Within the period of six months beginning on the date of the relevant dismissal, or

(B)    Within such period not exceeding 12 months from the date of the relative dismissal as the Adjudication Officer considers appropriate, in circumstances where the Adjudication Officer is satisfied that the giving of the notice within the period referred to in paragraph (A) was prevented due to reasonable cause”

The respondent also pointed to the Workplace Relations Act 2015 and in particular section 41 which states as follows:

“(6) Subject to subsection (8), an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The respondent submitted that the Unfair Dismissals Act clearly stipulates that the time limit runs from the date of the dismissal and not from any other date.  The respondent further submitted that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the six month period, unless “reasonable cause” is proved.  The respondent outlined that the act refers to “reasonable cause” as permitting an extension of the statutory time limits and also referred to the tests supplied by the Labour Court for extensions of time under legislation as being well established.  The respondent opened the case of Skanska V Carroll, DWT0338, where the court articulated the test by stating

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time …

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The respondent contended that the complainant had failed to provide any reasonable cause for his failure to lodge his case within the statutory time limits and pointed out that it should be noted that this was not a short delay, as more than three months passed before the expiration of the statutory time limit and the lodging of the claims.  The respondent noted that the date of dismissal was incorrect by just over three months, enough of a mistake to close the six-month requirement.  The respondent noted that the claimant was represented at the time of the dismissal by his solicitor who remained on notice at the time of the hearing.  In those circumstances the respondent pointed out that the complainant had the benefit of legal advice which surely would have included the importance of the statutory timeframes when he failed to lodge his claims within the required six-month period.  The respondent contended that the claim in this case was quite clearly out of time and thus submitted that the Adjudication Officer did not have requisite jurisdiction to hear this claim nor could the Adjudication Officer proceed to hear the substantive case until the matter was determined.

The respondent submitted that the responsibility fell to the complainant to submit the complaint on time or at the very least, within a reasonably speedy time frame.  The respondent respectfully submitted that the complainant had not discharged the burden of proof that reasonable cause existed for an extension to the six-month deadline and accordingly the respondent submitted that the case must fail. 

CA-00041904-002 - The Substantive Issue:

The respondent submitted that the following sequence of events occurred in relation to the termination of employment of the complainant;

·       The complainant commenced employment with the respondent on the 1st December 2018 as a delivery driver

·       On the 24th March 2020 the complainant was issued with a final written warning for swearing, aggressive and threatening behaviour and that warning was to remain active for a period of 18 months

·       On the 6th April 2020 the complainant was advised that he needed to improve his driving behaviour, and his attention was drawn to 18 incidents of speeding in the preceding fortnight

·       On the 16th April 2020 the complainant was stepped down from driving duties following a road traffic accident

·       The complainants’ suspension on way pending an investigation was confirmed in writing the following day, 17th April 2020

·       The complainant was invited to attend a disciplinary meeting to discuss the following allegations

o   Endangering the safety of himself and others

o   Ongoing records of incidents of careless and reckless driving of a company vehicle

·       The complainant was advised as to who would be the decision maker, the possible outcomes, the allegation and his right to be accompanied at that meeting

·       An agreed minute of the disciplinary meeting was finalised between the complainant and the respondent

·       A full investigation was undertaken and a final report drawn up

·       The outcome of the investigation was conveyed to the complainant at a meeting held on the 22nd April 2020.  The respondent submitted that given the complainants’ failure to improve his driving behaviour, this being his second chance in a short space of time, and his having an active and a written warning, the decision was taken to dismiss the complainant with one week notice, paid in lieu.  The complainant was advised of his right to appeal the outcome in five working days

The respondent submitted copies of all correspondence, minutes and the investigation pack appended to their submission.

The respondent submitted that the following events took place following the termination of employment;

·       The complainant through his solicitor, appealed the decision to dismiss on the 30th April 2020

·       The appeal was postponed for several weeks at the request of the complainants’ solicitor

·       The complainant did not express any remorse for his actions nor did he acknowledge any failings on his part.  Instead, the complainant sought to blame obfuscate the issues at hand, namely his own actions as a driver

·       The decision to dismiss was upheld and the full outcome of the appeals process was communicated to him in writing

The respondent submitted copies of all correspondence relating to the appeal appended to their submission. 

The respondent submitted that the fact of the dismissal was not in dispute and the complainants’ dismissal was both substantively and procedurally fair.  The respondent stated that it was well established case law that the standard for assessing the fairness of a dismissal was that of a reasonable employer.  The respondent submitted that the issue before the adjudicator is not to reinvestigate the substantive issue, but rather to ask the question, how would a reasonable employer have dealt with the situation. 

The respondent submitted that a pattern of dangerous driving displayed by the complainant, amounted to serious breaches of health and safety and stated that it was reasonable and responsible to suspend the complainant to allow an investigation into such serious allegations.  The respondent further submitted that the investigation followed every rule of natural justice and fair procedure.  The complainant was provided with all evidence that was being considered in the investigation and he was allowed representation and given the opportunity to put forward his own version of events. 

The respondent submitted that all aspects of the disciplinary investigation and the disciplinary process, were conducted in accordance with the S.I. 146 of 2000; the complainant was given the opportunity to state his case.  The complainant was afforded the right to representation at all meetings and availed of this and the complainant was informed of the possible disciplinary sanctions at all stages of the disciplinary process.  The respondent submitted that the fact that the complainant was repeatedly speeding was clearly evidenced by the Fleetmatics records yet the complainant had never acknowledged that he had done anything wrong.  The respondent submitted that this was of the greatest significance in assessing the reasonableness of the respondents’ decision, that it was not simply that the complainant had acted in breach of the training and procedure, but it was that he saw nothing wrong with his actions.  The respondent stated that it simply did not and does not trust the complaint to safely drive for them and that they could not accept the moral and financial liability of putting a driver whom it considered to be a danger to himself and others, on the road.

The respondent opened a number of decisions, in particular the recent Labour Court decision of DHL Supply Chair (Ireland) Ltd, V William Barry UDD 221, where the court addressed the question of a driver being dismissed for speeding.  In that incident case, the complainant was dismissed for dangerous driving (including speeding) and similar to the complainant in the incident case, refused to acknowledge any wrongdoing on his part.  The respondent stated that the court identified this as a key issue in their determinations; “the complainant was given ample opportunity to furnish a creditable 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 process, has he expressed regret for the events of the 12th October 2018”. 

The respondent submitted that the importance of trust to the employment relationship had been

established on many occasions by the tribunal and cited the example of Audrey Burtchaell V Premier

Recruitment International Limited, trading as Premier Group, UD1290/2002, (although different

circumstances to the case today), the tribunal stated;

“Having conducted an investigation into the situation, the respondent was satisfied that the trust

and confidence which has long been established by this tribunal to be fundamental to proper

working conditions and is necessary for the correct administration of any reputable business, to be

virtually destroyed to such an extent that the appellant could no longer be retained by the

respondent.  Accordingly, the claim fails.”

The respondent opened the case of Bank of Ireland V Reilly OB [2015] IEHC 241:

“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 judgement 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

The respondent also drew attention to the views expressed by Judge Linnane in Allied Irish Banks V Purcell [2012] 23 ELR189, where she referenced the decision made by the Court of Appeal in British Leyland UK Ltd V Swift [1981] IRLR 91 and the following statement of Lord Denning MR which stated

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view.”

In referencing Lord Denning’s judgement, Judge Linnane stated that “it is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute it’s view for the employers’ view but to ask was it reasonably open to the respondent to make the decision it made, rather than necessarily the one the EAT or the Court would have taken”.  The respondent submitted that when faced with the driver on a final written warning, who repeatedly was found to have been speeding, and who saw nothing wrong with his actions, that the dismissal falls within the band of reasonableness set out by Noonan J. 

In conclusion the respondent submitted that in all ways the dismissal was substantively and procedurally fair, that the complainant’s dismissal resulted wholly from his own conduct, that health and safety was the responsibility of all staff and that the complainants’ actions put himself and others in danger.  In the circumstances the respondent asked the Adjudicator to find in favour of the respondent and to hold that the complaint was not well founded. 

Evidence given at hearing:

The respondent representative stated that the respondent was addressing issues of gross misconduct between February and April 2020 with the complainant, that the complainant had been involved in two crashes and that there had been a number of speeding incidents.  In addition to those issues, the respondent had received a complaint from a customer in relation to aggressive behaviour by the complainant while at the customers’ home.  The respondent representative stated that the conduct and the driving of the complainant was unacceptable and in those circumstances a decision had been made to terminate his employment, that he had been given fair procedure, that he had appealed the decision to terminate, that the decision to terminate his employment had been upheld and that at all stages in terms of the process, he had had the benefit of legal representation. 

CA-00041904-002 - Respondents’ case at hearing:

Preliminary Issue:

The respondent again outlined the position that the case was out of time.  The respondent stated that the letter of dismissal which was dated 24th April confirmed that the dismissal was taking effect on the 24th April.  The respondent further submitted that the contract was silent in relation to the matter of an appeal extending the timeline for the termination of employment.  The respondent further submitted that even if one extended the termination date to the 8th May based on the complainants’ pay in lieu of notice, that the latest possible date upon which the termination of employment could be deemed to have taken effect was the 8th May 2020.  The respondent pointed out that the complainant did not launch his complaints until the 11th January 2021, some eight months after that latest possible date.  In those circumstances, the respondent contended that the complaint was out of time and that the Adjudication Officer had no jurisdiction to hear the case. 

The respondent noted the complainants’ position regarding the date of appeal and stated that the date of appeal did not change the termination date of employment, that there was no express statement in the contract and stated that where a decision to uphold the termination of employment is upheld then the original date of dismissal remains in place.  The respondent noted that the complainant relied on the decision of Ryan v UPC and stated that this decision was not relevant in the instant case, that the decision of that case referred to a situation where it was alleged that the EAT had exceeded their jurisdiction and the respondent stated that the factors that applied in that case in relation to ambiguity over the date of termination did not apply, that no such ambiguity existed in this case.  The respondent stated that in that case the outcome of the appeals procedure had been delayed by approximately 11 months. 

The respondent stated that in this case, the letter of the 24th April, made very clear that there was an appeal to be lodged within five days and that the complainant had complied with the timeline in that instance, however the respondent stated that the delays in conducting the appeal had been at the request of the complainants’ solicitor and that notwithstanding the delays experienced, the process had been completed by the 27th July 2020 which still left the complainant with up to the 8th November to lodge their claims.  The respondent stated that this was a significantly different situation than what occurred in the Ryan V UPC case.  The respondent then pointed to the fact that the complainant had legal representation through the process.  The respondent opened the case of Gabor v NVD Limited (UD2436/2011) and the case of ADJ00019732.  The respondent stated that based on those cases the date of termination must be taken to be the 8th May based on the termination letter and the appropriate notice, that there was no provision in the contract for a stay and that a case lodged some eight months later was clearly out of time.  The respondent noted that there was no request set out for an extension to the time limits on behalf of the complainant. 

The respondent representative replied to the complainant representative position stating that the only ambiguity that existed was a mistake in terms of the minimum notice and that that was not relevant to the timelines for the case and was a separate matter.  The respondent representative stated that it was not correct that the relevant information was not provided to the complainant until after the process had been completed, rather it was provided at the start of the procedure.  The respondent stated that the complainant was relying on the benefit of previous terms but that no such contract was before them.  The respondent stated that in order to grant an extension there needed to be reasonable cause and that the unavailability of the complainants’ solicitor was not a reason to justify an extension and that he did not believe that a case law would support that position, that there was always the option of another legal representative from the firm representing the client in the absence of the solicitor present. 

Evidence Mr D:

Mr D confirmed that his role was that of Home Sales Director, he had been in the role for approximately four years, that he had no connection of the complainants’ area of work and that he had been asked to look at the disciplinary matter.  He confirmed that he had worked in retail for 25 years at managerial level, that he had received formal training in relation to people management and that he had conducted multiple disciplinary procedures.  He stated that he had been asked to take on a review of the allegations against the complainant and that he had undertook to review the allegations as a disciplinary investigation.  He stated that the actual investigation had been conducted by Mr CM and that there was an allegation that the complainant had been abusive and aggressive to a customer.  He stated that he had met with the complainant on the 5th March 2020 and that a couple of days prior to that he had furnished the complainant with an investigation pack.  He stated that he sent him the disciplinary policy on the 3rd March and that he considered that his role at the meeting was to be independent.  He stated that he tried to understand the background to the case, that he summarised the basis of the meeting, that he read the complainants’ version of the incident and that his understanding was that the customer had been in Dunnes Stores shopping, had arrived back in a taxi, and that he had expected someone to help him to move the delivery into his home but that the complainant was not willing or able to help. He stated that he had adjourned the meeting for a break and that he was concerned that somebody as a representative of the company was representing the business and that they should do so in a professional manner.  He stated that if there was a flash point that the complainant should have made a call.  He stated that in this instance the complainant did make a call during the incident to Mr A McG and a colleague Stephen.  Mr D confirmed that he had held a meeting with Mr A McG and that he had clarified about picking up equipment and carrying it up the stairs and that Mr McG had confirmed that there ought to be two people.  He stated that in his view the real issue was not about bringing the item up or down stairs, it was about the interaction.  He stated that it was clear from the interview that the parties on the phone could hear that the complainants’ voice was raised in his interactions with the customer.  He stated that the complainant actually seemed to escalate the situation and was antagonistic and he stated that he ultimately issued a final written warning and set out the basis for his decision.  He stated that he accepted that there was a disputed account of what occurred but that he did not accept the complainants’ version of events that his body language and his demeanour at hearing was antagonistic and that he also relied on the accounts of the others at the end of the phone who heard his raised voice and believed him to have escalated the situation.  He confirmed that he was not aware as to whether or not the complainant had appealed that decision but he confirmed that he had advised him of his right to appeal. 

Cross examination of Mr D:

The complainant representative asked Mr D how many of these types of issues he had dealt with in the past and he stated that he had dealt with at least 100 cases.  The complainant representative asked him of that 100, how many had been within the respondent company and he stated that two or three had been.  The complainant representative asked Mr D, up to the point of addressing this matter with the complainant, how many disciplinary hearings had he done with the respondent and he confirmed that this was the first such hearing that he had conducted with the respondent company.  The complainant representative asked Mr D if he was familiar with the disciplinary policy and he confirmed that yes he was, that he had reviewed the policy and that he was happy to proceed with the disciplinary matter. 

The complainant representative asked him if he was happy with the investigation conducted by Mr M and he confirmed that he was.  The complainant representative asked him if Mr M was the same person who undertook the subsequent investigation and he said he would have to check, he was unclear and he did not know, that it was not part of his remit and he would need to check the paperwork. 

The complainant representative asked him if he had seen the letter from Mr M to the complainant on the 24th February and Mr D confirmed that it was part of the investigation pack.  The respondent stated that no he had not opened that correspondence.  The complainant representative stated that he noted that the previous contract had not been opened and now this document had not been opened.  The complainant representative asked Mr D if he had any concerns that the allegation of gross misconduct which had been reached by Mr M, was a predetermination of the position and he asked who made the decision in that investigation that it warranted a disciplinary hearing.  Mr D confirmed that he was the one who was asked to review and determine the disciplinary procedure.  The complainant representative asked Mr D how he decided that the issues were to be treated as gross misconduct.  Mr D stated that he was satisfied that the information was sufficient to go to a disciplinary meeting to consider what the course of action might be and that there was sufficient evidence to go to a disciplinary meeting.  The complainant representative asked Mr D what is a disciplinary meeting and Mr D said a meeting where an independent person considered the information and heard the position of the person alleged to have been involved in wrongdoing.

The complainant representative asked Mr D if he was in fact making a finding of fact and also determining what punishment was warranted and Mr D confirmed that no, that was not the case.  He stated that the documentation was clear.  The complainant representative asked him if he was satisfied that the complainant had an opportunity to cross examine the witnesses that he interviewed and he stated that it was clear in the minutes of the meeting that the complainant had an opportunity to raise any issues that he might have. 

The complainant representative stated that Mr D had to determine the outcome yet he was clearly saying that he was not familiar with the policy on work practices in the area in relation to lifting of weights and that it was clear that he had to ask another individual what the position was.  Mr D confirmed that that was not what the disciplinary matter was about.  The complainant representative asked Mr D if it was not correct that the complainants’ position was that he was not abusive and Mr D confirmed that yes that was his position but that he had relied on the independent witnesses, ie Stephen and Andrew on the end of the phone and the wife of the customer.  The complainant representative again asked Mr D if the complainant had had any opportunity to cross examine the witnesses and Mr D confirmed that he had not.  The complainant representative asked why this was the case and Mr D confirmed that it was standard practice to gather information, that it was not part of the standard process to allow for cross examination.  The complainant representative stated that it was part of the principles of natural justice that an individual would get the opportunity to question the accuser.  Mr D confirmed that it was the complainant who had raised the names of the two individuals who overheard the interaction on the phone and that it had been incumbent on him to get their account of events.  The complainant representative asked him why it was incumbent on him to get their account of events and Mr D said that he needed to gather the information.  The complainant representative asked him did he conduct those interviews and he said that yes, he did.  The complainant representative then asked if Mr D had provided the complainant with the notes of those meetings and Mr D said he would have to check.  The complainant representative asked Mr D why did the complainant only get the investigation pack and why was he not furnished with all relevant information and Mr D said he was not familiar with what went on prior to the disciplinary meeting.

The complainant representative put it to Mr D that the complainant did not receive the disciplinary procedure prior to the disciplinary meeting and Mr D confirmed that he had misunderstood the question and he confirmed that when he undertook the disciplinary meeting, he understood that those documents were given prior to the disciplinary meeting and he could not provide an explanation as to why that document had not been furnished to the complainant.  The complainant representative drew attention to the fact that the complainant had been advised of his right to lodge an appeal of Mr D’s decision to issue a disciplinary sanction and he asked why was the complainant only given five days for the appeal when the policy clearly allowed for ten days for such an appeal.  Mr D confirmed that that was the case and he could not provide an explanation for that.  The complainant representative asked Mr D if that was ambiguous from the complainants’ position, the inconsistency between the policy and what took place and Mr D responded that it was an oversight and that it was his oversight, but he did not accept that there was any failure to provide copies of minutes of meetings.

The complainant representative asked Mr D what alternatives did he consider when making his judgement on the appropriate course of action.  He stated that he considered everything from no sanction at all up to and including dismissal and that he determined that the appropriate sanction was a final written warning.  The complainant representative put it to him that perhaps that was disproportionate in the context that there was no independent corroboration of the allegations against the complainant.  Mr D responded that there was corroboration and he again outlined the evidence given by the two colleagues Andrew and Stephen who were on the phone and and the evidence given by the customers’ wife. 

The complainant representative asked Mr D what training staff in the area got in relation to de-escalating matters with customers and Mr D advised that it was not his area, that he did not work in that area of the business so he was not clear about the training.  The complainant representative put it to Mr D that it was incumbent on him to ascertain whether an employee had had appropriate training and asked him if he had raised any question in relation to that matter.  Mr D confirmed that he had not.  The complainant representative asked Mr D if he had considered the complainants’ disciplinary record as part of his decision making and Mr D confirmed that he had not, that he had looked at this situation as an individual issue.  The complainant representative put it to Mr D that it was relevant to consider all the other deliveries that the complainant had made without prior incident to which Mr D responded that this was about an individual situation, not about cumulative behaviours.  Again, the complainant representative asked him to clarify if it was a definite no that he had not looked at the complainants’ previous records and Mr D confirmed that he had not.  The complainant representative asked Mr D why was informal counselling not considered and he stated that Mr D’s decision had had a profound effect on the outcome of the second disciplinary process for the complainant and Mr D advised that he was not familiar with the other process, that the issue he had dealt with had nothing to do with the other matter. 

The complainant representative asked how much notice the complainant had received of the invitation to the disciplinary meeting on the 3rd March 2020 and Mr D confirmed that he would have received a minimum of 24 hours’ notice.  The complainant representative asked him what did he base that notice period on and Mr D confirmed that while the policy did not state a specific timeline, 24 hours’ notice was standard practice in the industry. 

CA-00041904-001 - The Substantive Issue:

The respondent submitted that at a meeting held on the 22nd April 2020, the decision was made to dismiss the complainant with one weeks’ notice which was paid in lieu. In those circumstances the respondent contended that it complied with the requirements of the act. 

CA-00041904-001 - Respondents’ evidence at hearing:

At hearing the respondent accepted that there had been an error in relation to the notice period and the complainant accepted that there was a weeks’ pay due in terms of the appropriate notice for the complainant based on the totality of the complainants’ service.  The respondent stated that they had overlooked the service with the previous employer prior to transfer in calculating entitlement. 

Preliminary Issue:

The complainant submitted that the complainant was fundamentally opposed and rejected the assertion of the respondent that the complainants’ complaints were out of time.  The complainant drew attention to the fact that the respondents’ appeal process was not finalised until the 27th July 2020.  The complainant submitted that the appeals process was under way and ongoing prior thereto, and in the circumstances where the appeals process had not been finalised, the complainant submitted that the respondent was fundamentally incorrect in its assertion as to the date of the dismissal and therefore their contention that the complaint was out of time.  The complainant further submitted without prejudice to the above that the complainant case was clearly brought within a period of 12 months from the date of the relevant dismissal.

The Substantive Issue:

The complainant drew attention to the respondent submission where it was maintained that the complainant commenced employment on the 1st December 2018 and pointed out that it was the complainants’ view that this was incorrect.  The complainant had initially commenced employment with a previous company and had transferred employment to the respondent as part of TUPE.  The complainant pointed out that in those circumstances the correct date of commencement of employment was the 1st July 2017.  The complainant accepted that the complainant was a delivery driver for the respondent.  The complainant pointed out that the above commencement date was of particular relevance having regard to the policies and procedures used by the respondent in its dismissal of the complainant.  The complainant pointed out that in the respondents’ position and indeed the documentation relied upon by the respondent in dismissing the complainant, it placed considerable reliance on the fact that the complainant had been issued with a final written warning on the 24th March 2020 for alleged aggressive and threatening behaviour.  The complainant pointed out that it should be noted that the warning was to remain for an inordinate period, namely 18 months and that the facts of the final written warning were of particular relevance in the instant case for a variety of reasons. 

The complainant pointed out that in the first instance the final written warning issued to the complainant was not in relation to the nature and quality of his driving.  The complainant was alleged to have engaged in an altercation with a customer of the respondent although the facts of that alleged altercation were very much in dispute.  The complainant pointed out that essentially there was a fundamental dispute as to the veracity of the evidence given by a customer and concerning the complainant and notwithstanding the complainants’ protestations as to the accuracy and veracity of that information, the respondent essentially chose to believe the customer over the complainant.  The complainant submitted that notwithstanding the respondents’ decision to accept this individuals’ evidence, it should be noted that in the respondents’ own documentation, where a conflict of evidence arose, it asserted that a decision could not be made.  The complainant submitted that in any event, it was further submitted that the final written warning issued to the complainant was grossly excessive and unwarranted and prior to the commencement of the investigatory hearing in respect of alleging driving offences, the complainant furnished to the respondent a letter of appeal in respect of the first final written warning.  The complainant submitted that the respondent refused to acknowledge receipt of that letter of appeal on the basis that the complainant was purportedly out of time.

The complainant submitted that he was a delivery driver with the respondent with an excellent driving record, that he was free from penalty points and driving convictions and held a full and clean driving licence.  The complainant submitted that he had not been issued with any penalty points for any motoring offences whatsoever during the course of his employment with the respondent.  The complainant pointed out that his record in this regard was clearly not considered by the respondent.

The complainant submitted that on the 6th April 2020 he received an email from the respondent Operations Manager, Mr CM, and that he was purportedly furnished with a speeding report from the 24th March which referenced the name of another employee.  The complainant submitted that it was asserted by the respondent that the complainant was driving the vehicle and that the aforesaid email made reference to 18 speeding alerts in total.  The complainant submitted that Mr M concluded the email to the complainant by stating that he wished to see an improvement in the complainants’ driving behaviour.  The complainant submitted that the speeding report furnished in the respondents’ booklet could not be the speeding report furnished to the complainant on the 24th March as it covered the period 23rd March 2020 to the 3rd April 2020.  The complainant further submitted that the information contained within the speeding report was fundamentally inaccurate and flawed and that the respondent ought to have made further enquiries in relation to same, particularly having regard to the issues and protestations raised by the complainant in relation thereto. 

The complainant submitted that notwithstanding Mr M’s email to the complainant on the 6th April, on the 16th April the complainant received a copy of an email addressed to a number of individuals (including the ultimate decision maker Mr AL) concerning the complainant in respect of an incident which occurred on the 16th April 2020.  The complainant submitted that on that occasion he was rounding a bend during the course of one of his deliveries and he had to take evasive action as a truck was rounding the same bend, travelling in the opposite direction and that in the course of doing so, the mirror on the passenger side of the complainants’ truck struck against a branch of a tree stump, forcing it back against the passenger window causing that to smash.  The complainant submitted that the email from Mr M made reference to this incident and also the complainants’ final written warning, notwithstanding that it had no relevance or bearing to the incident referred to.  The complainant submitted that Mr M sought an investigation meeting but also indicated on that email that the complainant had had his last chance at that point. 

The complainant submitted that an incident investigation report which was appended to the respondents’ submission made no actual finding of any wrongdoing whatsoever.  Furthermore, he submitted that the report was completed by Mr M who subsequently became the investigator leading to the complainants’ dismissal and, who, in the investigation report, had clearly reached a determination that the complainant should be let go.  The complainant submitted that this conclusion was reached prior to the finalisation of any investigation having been undertaken in relation to the substantive issue and also in the absence of any wrongdoing being exhibited in the report in which Mr M asserted the complainant should be let go. 

The complainant submitted that he was placed on suspension and required to attend an investigation with Mr AL and he further submitted that the investigation was undertaken by Mr M who had a predetermined bias against the complainant and that this was a fundamental breach of the complainants’ constitutional rights.  The complainant submitted that it was unclear what meetings Mr L had with Mr M and that no notes of any such meetings had been exhibited and that it was also unclear precisely what documentation Mr L relied upon as part of his process.

The complainant submitted that a meeting took place between the complainant and Mr L on the 22nd April 2020 and that there were considerable concerns in relation to the manner in which that meeting was conducted and the conclusions arising therefrom.  Specifically, there were grave concerns as to the documentation upon which Mr L was purportedly relying which had not been furnished to the complainant.  The complainant submitted that an investigation pack was put together for the complainant and that it was appended to the respondents’ submission and he submitted that there were also concerns that some of the documentation referred to in the investigation pack had not been furnished to the complainant until the conclusion of the investigation process.

The complainant submitted that immediately following the investigation with Mr L, he was furnished with a letter inviting him to an outcome meeting.  The complainant suggests that this begs the question as to what consideration was given to the complainants’ arguments and protestations of innocence and also to the issues raised by the complainant during the course of his meeting with Mr L.  The complainant submitted that Mr L reached an extraordinary hasty decision and could not have reasonably considered all of the complainants’ arguments within such a short timeframe.  In addition, the complainant was furnished with a number of documents which Mr L relied upon during the course of the investigation but which were not furnished to the complainant until the investigation had concluded and were simply furnished to the complainant at the outcome meeting.  The complainant submitted that this included a number of documents from the respondents’ Fleetmatics provider which did not appear to be a complete set of documents but rather documents which had been cut and pasted accordingly.  The complainant submitted that it was unclear precisely what documentation the respondent was furnished by Fleetmatics and in particular what email correspondence was sent by the respondent to Fleetmatics. 

The complainant submitted that he attended an outcome meeting on the 24th April 2020 and he noted in particular what he described as the extraordinary circumstances where the respondents’ meeting minutes should contain references to “off the record conversation”.  The complainant submitted that it was also extraordinary that the respondent should include reference to the provision of documents upon which the respondent relied and which were furnished to the complainant at that meeting at which a decision was made to dismiss the complainant.  The complainant was furnished with a letter dated 24th April 2020 setting out the basis for his dismissal.  The complainant stated that the letter clearly made reference to the final written warning previously furnished to the complainant and the complainant submitted that it was grossly unfair and unjust to have relied upon such a warning in circumstances as previously outlined but particularly in circumstances where that warning had no relevance or bearing to the nature or quality of the complainants’ driving.  The complainant had not been given any formal written warnings and certainly no final written warning in relation to the nature and quality of his driving prior thereto. The complainant stated that the aforesaid letter made reference to the right of the complainant to appeal his dismissal.

The complainant submitted that a full and detailed appeal was furnished to the respondent via the complainant solicitor setting out six grounds of appeal.  The complainant noted that the entirety of that letter was not contained in the respondents’ submission and that it was unclear why the respondent had chosen to exhibit only a fraction of that correspondence.  In any event, the complainant submitted that the appeal hearing was convened on the 14th July 2020 by way of a virtual appeal at which the complainants’ solicitor was to attend but in an observational capacity only.  In his submission the complainant noted that the notes of that meeting would be the subject of cross examination at hearing.  The complainant submitted that following the appeal hearing the complainant was furnished with a letter from Mr H on the 27th July 2020 setting out the basis for the respondents’ objections to the complainants’ appeal and upholding the dismissal. 

As outlined in the preliminary matter, the complainant submitted that this is in fact the correct date of dismissal and noted that this letter makes reference to the decision being the “final within the company process.”  The complainant submitted that this correspondence in itself brings this matter on all fours with the decision of the high court in Ryan V UPC Communications Ireland Ltd (UD13/2013).

The complainant outlined particular concerns in relation to paragraph 26 of the respondents’ submission and stated that it was unclear whether or not the respondent maintained that had the complainant expressed contrition for his actions then an alternative to his dismissal would or could have been considered.  The complainant submitted that it was notable that nowhere in the documentation and in particular in the investigation pack and correspondence issued to the complainant, was there any alternative other than dismissal considered by the respondent and the complainant stated that the same issue arose in relation to paragraph 32 and 33 of the respondents’ submission. 

The complainant submitted that he disputed the fact that the dismissal was substantively and procedurally fair.  He stated that he took issue with the description of “a pattern of dangerous driving displayed by the complainant”.  The complainant submitted that the investigation was fundamentally flawed failing to adhere to the principles of natural justice and fair procedures and he disputed that the respondents’ investigation and disciplinary process was conducted in accordance with statutory instrument SI 146 of 2000 and he stated that the respondent was obliged to prove that it had followed fair procedure. 

The complainant opened case law and referenced the respondents’ submission in relation to the “reasonable employer” in particular the complainant opened the decision of the employment appeals tribunal in the case of Doyle V Conduit Enterprises Ltd (UD1200/2014) where in it was held:

“The contract in this case states that the outcome of the appeal is the final decision.  This can be construed as ambiguous.  The outcome of the appeal can mean two different things and the tribunal must favour the complainant (the weaker side).  Exceptional circumstances arose in the length of time it took for the appeal to be heard by the respondent.  Section 7 of the respondent corrective active policy (appeals process) states that “the outcome of the appeal is the company’s final decision” and there can be ambiguity as to what this means.  It could be interpreted in one of two ways:

A)      That the outcome of the appeal is the final decision on the appeal only, or

B)      That the outcome of the appeal is the final decision in relation to the dismissal or whatever corrective action is to be applied”

As a result of the ambiguity the construction of the contract must be read against the drafter, namely the respondent”.

The tribunal in this matter determined that it did have jurisdiction to hear the claim. 

The respondent also opened the case of Devaney v DNT Distribution Company Ltd (UD412/1993).  The EAT in this case set out the following objective test:

“Where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end?” In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.  We find, having regard to the relationship that existed between the parties prior to the termination and the claimants’ evidence that (the Director of the respondent company) often expressed his feeling in very strong language, that the words uttered by him in an angry mood did not amount to a dismissal and were never intended as such”. 

The complainant submitted therefore having regard to this case, it was necessary to consider what a reasonable employee in all the circumstances would have understood the employers’ intention to have been.  The complainant submitted that the letter upholding the dismissal is particularly instructive and submitted that it was evidence of the respondents’ understanding that the dismissal could only have taken effect following the conclusion of the appeal.  The complainant submitted that the letter of Mr H dismissing the complainant stated “finally, I would like to inform you that my decision is final within the company process” and the complainant submitted that in that regard it could not be stated that the entire process had been finalised until Mr H made his decision dismissing the complainants’ appeal. 

The complainant submitted that pursuant to the case of Ann Marie Ryan v UPC Communications Ireland Ltd (UD13/2013), (and which was subsequently confirmed by the High Court pursuant to judicial review and referred back to the EAT for substantive hearing), the EAT held:

“The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged that this did not act as a stay on such dismissal, then in that event, the Tribunal believes this led to a lack of clarity and in consequence created ambiguity which resulted in the claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal supported her view.”

The complainant submitted a number of documents which they considered relevant to their position as follows:

·       Respondent speeding report for the period 23rd March 2020 to 3rd April 2020 with corresponding evidence of actual speed limits

·       Meeting notes re disciplinary hearing of the 5th March 2020 and 10th March 2020

·       Photograph from the cab of one of the respondents’ vehicles, evidencing the difficulties in respect of calibrations of GPS measured speed

·       Evidence of the complainants’ efforts to find alternative work

Complainants’ evidence at hearing:

Preliminary Issue:

The complainant representative noted that an error had been made by the respondent in relation to the notice period and in particular drew attention to the error based on the TUPE transfer.  The complainant stated that the respondent was now relying on a subsequent contract and that the complainant was actually entitled to rely on the original contract with the previous employer.  The complainant pointed out that the disciplinary procedure was not furnished to the complainant during the procedure and the complainant representative stated that although the respondent contended that there was no ambiguity, in his view there was ambiguity throughout the procedure.  He noted the position contained in the appeal letter that this was the final decision in the company process and he posed the question how then was the complainant to decide otherwise.  He again opened the case of ADJ00019732 and confirmed the definition of dismissal relied up in that case.  He also opened the case of UD412/1993 and pointed to the question posed as to how a reasonable employee was to understand the date of termination.  He stated that the complainant did not understand that his termination of employment took effect prior to the appeal and he posed the question how could he have understood when much of the documentation provided to him was not provided until after the termination letter.  He pointed to the case of IEHC18 and stated that based on that case it was clear that the appeal operated a stay and that the complainants’ understanding that there was a stay in place was based on the correspondence issued by the respondent and he pointed out that the timelines followed by the respondent was not in accordance with their own policy. 

In the alternative the complainant representative stated that if it was accepted that the case was out of time, then he specifically was requesting an extension of the time limit as the delays in the process which resulted in him seeking a delay in the appeals process with the early birth of one of his children.  He submitted that in those circumstances it would be totally unacceptable if the complainant should be penalised for circumstances which prevented him from participating and representing his client in the process.  He stated that at a minimum that would warrant an extension of the timeframe for the complainant. 

The complainant stated that he had not specifically requested an extension of the timelines as he had not accepted that the complainant was beyond the six month limit in lodging his complaints.  The complainant representative stated that it was his firm understanding that the complaint was within time.  He stated that in relation to ambiguity the question was how did the initial ambiguity arise.  He stated that it was clear that it arose from the TUPE regulations that the respondent must follow the procedure of the original contract of employment and he stated that the respondents’ documentation in relation to their defence of the unfair dismissal was incomplete, that the contract signed by the complainant in April 2017 was directly relevant to this matter.  He stated that the policies, nor indeed the handbook of the respondent, could actually not replace the contractual entitlements set out in that original contract and he stated that it was very clear that unless the terms of those policies were more favourable than what was in the original signed contract and he asked if the respondent was in a position to provide that correspondence.

A break was taken at the hearing to allow the respondent to source the contract documentation.  Following the break the company confirmed that they were not able to confirm if there was a document and they stated that perhaps the complainant possibly would know.  The complainant representative stated that it was the responsibility of the respondent to defend the case in an unfair dismissals case and that the absence of the contract went to the heart of the ambiguity which was central to the matter of the timeline. 

Preliminary Issues (Time Limits/Correct date of termination of employment)

I considered carefully the oral and written submissions made by both parties at the hearing, as well as the case law opened by the parties.

I noted that the disciplinary meeting which took place where the complainant was advised that his employment was terminated took place on 24th April 2020 and a letter confirming the decision was issued to him on the same date.  That letter stated, “It is the decision of the company to terminate your employment on Friday 24th April 2020, with one week notice, which will be paid to you in lieu….” I noted that the complainant was advised that he should make his appeal if so desired within 5 days and I noted that this was not in line with the respondent policy which provided for an appeals timeline of 10 days.

I noted that the appeal meeting took place on 14th July 2020, and I noted that both parties accepted that the delay in holding this hearing was at the request of the complainant’s representative and was due to family circumstances. I noted that no decision was communicated to the complainant at that meeting but was later confirmed in an undated letter to the complainant from the respondent manager who heard the appeal.  In that letter the complainant was advised that the decision was to “uphold the sanction of dismissal.”

I noted the complainant position that the statement contained in that letter that this decision was “final within the company process” indicated that this statement determined the date of termination of employment as being post the appeal process.

I further noted that the respondent had failed to take the complainant’s previous service transferred under TUPE into account when determining his entitlements to notice and that the respondent was unable to confirm whether or not there had been a clause contained in the complainant’s original contract making provision for a “stay” of sanction in the case of a dismissal.

It is evident to me that the respondent intended to dismiss the complainant with effect from 24th April 2020, the letter of dismissal is unambiguous in that regard.  While an error was made by the respondent in relation to the paid notice, I do not consider that error to be fatal in terms of creating any doubt in the mind of the complainant that his employment had terminated on 24th April 2020.  Case law is clear that the termination of employment of an employee is not altered by the appeal unless there is provision in contract or there is significant ambiguity which would lead an employee to be in doubt about the date of his/her dismissal. In circumstances where the contract was not in evidence, where neither party produced the contract, I cannot determine that such a clause existed.

In these circumstances I find that the complainant’s dismissal did take effect on 24th April 2020. A claim for unfair dismissal must be taken within 6 months of the date of dismissal.  The complainant’s complaint form was submitted to the WRC on 11th January, 2021, just over 8 months beyond the date of dismissal.

I noted that on the day of the second hearing the complainant’s representative sought an extension of the time limit within the permitted extended period of 12 months in the event that the date of dismissal was deemed to be 24th April 2020.  I noted that the grounds for such an extension was that he (the representative) was largely unavailable throughout the period due to family circumstances.  I noted the respondent position that this was not appropriate grounds for an extension.

Section 41(8) of the Act states that an Adjudication Officer may hear a complaint of unfair dismissal after the expiration of the 6-month time limit, but not later than 6 months after the expiration, “if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

While I fully appreciate and empathise with the situation as described by the complainant representative, I consider that it does not constitute “reasonable cause” for the delay in submitting the complaint.  It was open to the complainant representative to arrange for another in their practice to assist the complainant in the completion and submission of the complaint form and in those circumstances, I find that the reason put forward for the delay does not meet the threshold of “reasonable cause”.

Taking all of the above into account I find that I do not have jurisdiction to hear these complaints as they are both out of time.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00041904-001

This complaint is out of time and therefore it is my decision that this case is not well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00041904-002

This complaint is out of time and therefore it is my decision that this complaint is not well founded.

Unfair dismissal, time limits, minimum notice