Complainant

Respondent

Parties

Piotr Owczarev

DHL Supply Chain Limited

Representatives

Maria Geraghty, SIPTU

Declan Thomas, IBEC

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-00055555-001

15/03/2023

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

CA-00055555-002

Withdrawn

15/03/2023

The complainant worked as a heavy goods vehicle driver and his job was to deliver goods from two distribution centres in Dublin to retail outlets across Ireland.  He joined the respondent’s company in September 2019 and he earned €911.22 gross per week.  He was dismissed on January 26th 2023 arising from an incident where he reversed his truck into a barrier surrounding an electrical generator at a client’s premises, causing damage to the truck and the generator.

It is the complainant’s case that his dismissal was unfair because he was not provided with the assistance of an interpreter at a disciplinary meeting on January 17th 2023.  The respondent’s position is that no disadvantage arose for the complainant when an interpreter wasn’t at the meeting and that he was supported by his SIPTU official, who decided to proceed with the meeting without an interpreter.  Also, the complainant did not raise the absence of an interpreter when he appealed against his dismissal.  The manager who heard the appeal of the complainant’s dismissal found that there were no grounds to justify overturning the original decision and his dismissal was upheld.

The respondent’s case is that the complainant was dismissed in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977 due to misconduct.

On May 6th 2022, the complainant received a final written warning arising from his failure to follow a safe system of work when he was unloading product from his truck.  As a result, he fell one and a half metres from the tail lift of the truck to the ground.  This incident occurred on March 31st 2022 and resulted in the complainant being hurt and the truck being damaged.

On November 5th, the complainant refused to make two deliveries to Bray and Dorset Street in Dublin and he left the depot without permission and did not complete his schedule of deliveries for that day.  He walked out of a meeting on Tuesday, November 15th, the purpose of which was to investigate his conduct on November 5th.  Mr Patryk Witzak was the manager appointed to conduct the investigation.  The complainant claims that he left the meeting because he had no representation, although he had been advised of his right to be represented.  The meeting was re-scheduled for Friday, November 25th.  However, a week beforehand, a serious incident occurred when the truck that the complainant was driving struck a generator barrier during a delivery to a client in Swords.  The provisional cost of the damage to the trailer and the customer’s property was €7,000.

The complainant did not attend work on Monday, November 21st 2022 and he sent in a medical certificate stating that he was unwell until December 2nd.  On December 3rd, he was invited to attend a meeting to discuss his refusal to carry out his duties on November 5th; however, he did not attend the meeting and he sent in another medical certificate up to December 12th.

On December 8th, the complainant wrote to the company alleging that Mr Witzak was biased, that he had harassed him and discriminated against him and that he should not conduct the investigation into his conduct on November 5th.  The HR business partner, Ms Melissa Barrett wrote to the complainant and advised him that he could submit a grievance concerning Mr Witzak’s alleged behaviour.  The complainant replied and said that he would consult his SIPTU representative.

On December 14th, the complainant was again invited to attend an investigation meeting about the incident on November 5th, this time to be hosted by a different manager, Mr David Morley.  A meeting took place on December 22nd, and, although he had been advised of his right to be represented, the complainant attended without representation.  Mr Morley decided that the complainant had a case to answer and he was advised of the case against him and requested to attend a disciplinary meeting on January 17th 2023.  The allegations were that the complainant had refused to do a delivery on November 5th 2022, that he walked out of a meeting on November 15th and that he collided with a generator barrier while making a delivery to Tesco in Swords on November 18th.

In anticipation of the meeting on January 17th, Mr Gary Smith of SIPTU wrote to the operations manager, Mr Liam Pepper the day before and asked for the assistance of an interpreter, saying “Piotr has advised that he doesn’t speak English very well.”  The HR business partner, Ms Barrett, phoned Mr Smith and when she couldn’t contact him she sent him an email informing him that an interpreter wasn’t available.  Ms Barrett said that the complainant had attended meetings before without an interpreter and that the manager who was running the meeting would ensure that the complainant understood what was being said.  Following the meeting, Mr Smith replied to Ms Barrett’s email and said, “We managed to conduct the disciplinary meeting with Piotr ok.”

On January 26th, Mr Pepper wrote to the complainant to inform him that he was dismissed.  Summarising the company’s position, Mr Pepper wrote,

“You are trusted by DHL to operate a Heavy Goods Vehicle and also responsible for ensuring that this is done with a duty of care for yourself and our customers’ stores.  The employment relationship between employee and employer is based on trust.

“Both the incident on 5th November and that of 18th November fall under non-adherence to procedure under their own merit.  We also have to take into account your previous employment record and it is with regret that my final decision is to dismiss you from the company due to misconduct and your last date of employment is 26th January 2023.  You will be paid up to and including aforesaid date as normal and you will be entitled to receive two weeks’ notice pay which will be paid to you as payment in lieu of notice in your final salary.”

Concluding his letter, Mr Pepper advised the complainant of his right to appeal against his dismissal.  An appeal hearing was held on February 1st.  On February 3rd, he was advised that, as he had not given sufficient reasons to challenge his dismissal, the sanction of dismissal was upheld.

Considering the procedure following by the respondent, Mr Thomas said that the respondent conducted the disciplinary investigation and the disciplinary hearing in accordance with Statutory Instrument 146 of 2000, the Code of Practice and Grievance and Disciplinary Procedures.  He said that the complainant was informed of the allegations against him and he was given an opportunity to state his case and advised of his right to be represented.  He was informed of the possible sanctions that could result from the disciplinary process and all the evidence was considered before Mr Pepper reached the conclusion that he should be dismissed.  He was offered the right to appeal which he exercised.

It is the respondent’s case that the dismissal of the complainant resulted from his own conduct and that it was substantively and procedurally fair.

Evidence of the Operations Manager, Mr Liam Pepper

In his evidence on behalf of the respondent, Mr Pepper outlined his recollections of the meeting on January 17th 2022.  Mr Pepper said that it was concerned with three issues:

1.           The complainant’s failure to follow an instruction to carry out a delivery on November 5th 2022 and his departure from the workplace without permission;

2.           His walking out of a disciplinary investigation on November 15th;

3.           The damage caused to the truck he was driving and to a client’s property on November 19th.

Mr Pepper said that the incident on November 19th was the most substantive issue for discussion.  He said that the tail lift of the truck driven by the complainant came into contact with the barrier around an electrical generator in the client’s car park.  He said that if the complainant had followed a proper risk assessment, the incident would not have occurred.  Mr Pepper said that the complainant became upset when the allegations were put to him, and that Mr Smith calmed him down.  It seems therefore, that the complainant understood what was being said and that he was aware that the allegations were serious.

Mr Pepper said that the complainant brought some documents to the meeting to suggest that the risk assessment had been changed.  He said that he told Mr Smith that, in his view, the complainant was trying to blur the issue and that there had been no change to the risk assessment and that the complainant was not taking the issue of safety seriously.  When the complainant’s argument about the risk assessment wasn’t accepted, Mr Pepper said that he stopped engaging.  When Mr Smith explained to the complainant that his answers needed to be consistent with the answers he gave at the investigation meeting, Mr Pepper said that he seemed to lose interest, throwing his hands in the air.  Mr Pepper said that it seemed to him that he just wanted to leave the meeting.

Mr Pepper said that he was influenced in his decision by the fact that the complainant seemed bemused at the incident in which his truck made contact with the apparatus around an electrical generator.  He said that he didn’t take the incident seriously.

In response to questions from me, Mr Pepper said that the complainant is a fully qualified driver and that he has been trained in safe systems of work.  He said that all the training documents are in English and that the complainant needs to have a competency in English to do his job.  He said that the complainant never raised an issue about his understanding of English before the meeting scheduled for January 17th 2023.  He did not request an interpreter at the disciplinary investigation that resulted in him being issued with a final written warning on May 6th 2022.

Mr Pepper said that he decided to dismiss the complainant because he didn’t appreciate the gravity of the incident that resulted in him being issued with a final written warning in May 2022 or the incident in the car park in November.  Mr Pepper said that the complainant could have been very seriously injured when he fell off the truck and the collision with the generator barrier, while it cost the company €7,000, could have resulted in more serious damage or injury.  Mr Pepper said that the complainant frustrated the disciplinary process by walking out of a meeting and then going sick and that he appeared to be unwilling to take responsibility for what occurred.  He seemed bemused that the disciplinary meeting was happening.

Cross-examining of Mr Pepper

In response to questions from Ms Geraghty about the meetings in April 2022 that ended with him being issued with a final written warning, Mr Pepper said that a Polish manager was at the meetings and that the complainant didn’t ask for a translator.

Mr Pepper said that all the company’s business is conducted in English and, although Mr Smith asked for an interpreter to be available for the meeting on January 17th, one wasn’t available.  Mr Smith then agreed that the meeting could go ahead.  Mr Pepper said that the complainant had been working for the company since 2019 and that he never looked for an interpreter before January 2023.

Evidence of the Site Leader, Mr David Morley

Mr Morley gave evidence regarding the meeting he had with the complainant to hear his appeal against his dismissal.  Mr Morley said that the complainant did not set out any grounds for his appeal, but the meeting proceeded anyway on February 1st 2023.  Mr Morley said that the complainant did not raise a concern about the absence of an interpreter during the disciplinary process.

In her submission on behalf of the complainant, Ms Geraghty set out the background to the disciplinary process that resulted in the complainant being dismissed on January 26th 2023.

Ms Geraghty said that the complainant was unwell on November 5th when he was asked to change the delivery schedule he had been given the previous evening and to do a delivery to Dorset Street and Bray.  The disciplinary meeting scheduled for November 15th did not go ahead because the complainant wanted his union representative to attend with him.

The complainant was out sick for a couple of weeks and a meeting was then scheduled for December 22nd.  Added to the agenda for this meeting was the incident that occurred on November 18th, when the complainant allegedly caused damage to a truck and to the property of a client in Swords.  At the meeting, the complainant said that he was unable to translate the letter in which these allegations were outlined.  His concerns were ignored and the meeting went ahead without an interpreter present.  The complainant said that he had been working long hours and was suffering from stress when the incident occurred on November 18th.

A disciplinary meeting then took place on January 11th, and Mr Gary Smith of SIPTU attended to represent the complainant.  An interpreter wasn’t provided to assist the complainant, despite Mr Smith’s formal request.  On January 26th, the complainant was dismissed.  Although he appealed against his dismissal, giving a commitment that the incidents that occurred would not happen again, on February 3rd 2023, his dismissal was upheld.

The union’s position is that the respondent did not follow fair procedures in the way that they failed to provide the complainant with the assistance of an interpreter at the disciplinary meeting on January 17th.  Ms Geraghty referred to the decision of the former Employment Appeals Tribunal (EAT) in Norbit Gnitecki v Tesco Ireland Limited[1] where it was held that,

“An interpreter should have been provided for the claimant without him having to request one.  It is the responsibility of the respondent when investigating an issue or disciplining an employee to ensure that the employee understands everything that he is being asked and being told.”

Ms Geraghty concluded her submission by stating that the complainant was not afforded fair procedures when the company did not provide him with the services of an interpreter and she asked me to find that his dismissal was unfair.

Evidence of the Complainant

The complainant said that, before he left work on November 5th, after he was asked to do a delivery to Dorset Street and Bray, he told his manager, Marcin, that he was going home.

After the meeting on November 15th, which didn’t go ahead, the complainant said he asked for an interpreter and that he said that his wife could translate for him.  He said that all the letters he received about the disciplinary process and the allegations against him were in English.  He was not offered the documents in Polish.

Cross-examining of the Complainant

In response to questions from Mr Thomas, the complainant accepted that he signed documents that confirmed that he received training in safe systems of work. 

In early April 2022, he said that he asked for an interpreter to be present at the disciplinary meetings.  He said that, although he did not appeal against the final written warning, he was not able to express himself or present his thoughts or understanding.   He said that he thought his employer should provide an interpreter.

Mr Thomas asked the complainant why he went ahead with the meeting on January 17th without an interpreter.  He said that Mr Smith explained to him that there would be no interpreter at the meeting and that he then used an application on his mobile phone to translate from English into Polish.  He said that Mr Smith did his best to help him, but there was no interpreter.  He said that it was hard to understand what was being said.

Mr Thomas asked the complainant why he didn’t raise this matter at the appeal hearing.  He replied that he didn’t know what the procedure was for the appeal.  He said that he sent an email to Mr Smith about it but he doesn’t know if he got it.

The union’s case is that the dismissal of the complainant was unfair because he wasn’t provided with the assistance of an interpreter at the disciplinary meeting he attended on January 17th 2023.  I note the decision of the EAT in the Gnitecki v Tesco case which was referred to by Ms Geraghty.  Mr Gnitecki was discovered asleep on duty and, in its findings, the Tribunal found that the respondent’s decision to dismiss him was disproportionate to his “impeccable” record over a number of years.  The complainant’s case is dissimilar, because he had a final written warning on his file and the reason he was dismissed was because his failure to observe safe systems of work presented a risk to his safety and the safety of others. 

I have considered the complainant’s case and the employer’s response and I have reached the following conclusions:

Before the meeting on January 17th, the union representative, Mr Smith, must have explained to the complainant that an interpreter wasn’t available.  The complainant did not suggest that he attended the meeting under duress and it seems likely that he agreed to proceed without an interpreter.  We know from the email Mr Smith sent to the HR business partner the following day that, in his view, the meeting “went ahead ok.”   

The complainant was represented by Mr Smith at the meeting, and he did not have to rely on his own abilities to defend his position.  In his evidence at the hearing, the complainant didn’t refer to any point of misunderstanding or confusion or any argument that he would have made if he had had the support of an interpreter.

The complainant attended the appeal meeting on February 1st with a colleague, who is a Polish national.  He could have asked this colleague or another Polish colleague to attend with him on January 26th, but he did not do so and he said that he relied on a translation App on his phone. 

In Mr Pepper’s evidence, he said that the complainant produced safety documents at the meeting, all of which were in English, and he attempted to argue that the safe systems of work had been changed.  If he could make an argument about a technical issue such as a safety procedure, it seems to me that the complainant had a reasonable understanding of English.

At the meeting he attended on February 1st 2023 to appeal against his dismissal, the complainant made no reference to any unfairness arising from the absence of an interpreter on January 17th.

Conclusion

From the perspective of the fairness or otherwise of the process that ended with the dismissal of the complainant, I must consider if there would have been a better outcome for him if had had the support of an interpreter.  It is my view that the outcome would not have been any different and that he would have been dismissed.  I have reached this conclusion because of the seriousness of the incident on November 19th 2022 and the fact that, when that incident occurred, the complainant had a final written warning on his file in relation to a similar failure to follow a safe system of work in March 2022.

It would be an unusual outcome for any employee who is dismissed to look back and think that their treatment was fair.  Where a workforce is made up to a large degree of foreign employees, there is an obligation on an employer to ensure an “equality of arms” in the context of disciplinary proceedings.  For a foreign employee, this means ensuring that there is someone at the meeting who can translate, if translation is necessary or requested.  The fact that the complainant was represented by his union official provided him with this equality, but he may not have felt equal.  To avoid an argument after the event, the respondent should make every effort to have someone present who speaks the language of the employee who is the subject of a disciplinary investigation.

Having expressed this caveat, for the reasons I have set out above, I find that the failure of the respondent to provide the complainant with an interpreter at the disciplinary hearing on January 17th 2023 does not mean that the entire procedure was flawed or unfair.  I am satisfied that the complainant clearly understood the allegations he was facing, he had the right to reply, he was represented by his union and he had an opportunity to appeal.  For these reasons, I must conclude that his dismissal was not unfair. 

I have concluded that the decision of the respondent to dismiss the complainant was not unreasonable and I find that the process was fair.  On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

Dismissal, misconduct