Complainant

Respondent

Parties

Sean  Corcoran

Shannon Transport International Limited T/A  Stl Logistics

Representatives

SIPTU

Brendan McCarthy ,Stratis Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032232-001

15/11/2019

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

CA-00032232-002

15/11/2019

The complainant has submitted a complaint that he was unfairly dismissed on the 31 May 2019, and a complaint that he was denied his paid notice entitlements.

He commenced employment with the respondent logistics company as a driver in August 2011.

His weekly salary was €680.

He submitted his complaint to the WRC on 15 November 2019.

CA-00032232-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.The complainant’s

The complainant ‘s case is that the respondent employed unfair procedures in dismissing him and the sanction was disproportionate.

Evidence of the complainant given under affirmation.

The complainant was employed as a driver with the respondent logistics company for eight years, delivering kegs of beer supplied by Diageo to the respondent’s customers.

The process for delivering the kegs of beer was that he would receive a delivery docket specifying the number of kegs and their onward destination. If the complainant has 50 kegs on board the truck it is possible, in theory, to add a keg, but the truck and number of kegs are checked three times; when the truck is loaded the night before, again in the morning and at the exit gate by security. The bar man/cellar man or designate checks the number of kegs delivered in the receiving pub.

The complainant engaged in an ad hoc swap arrangement of beer kegs between the respondent’s customers in January and February 2019. These swaps came about, for example, when a football match nearby or a funeral generated an increased demand for beer.  The host pub would ask to borrow a keg from another nearby pub. The pub seeking to borrow would ask the complainant or his crew if they would transport the borrowed keg as to go through Diageo would incur an extra cost of having to get a courier to deliver the keg; the STL drivers would not charge for the transport from the pub or the receiving pub. The practice has been in existence since 2011; it happened from time to time. The complainant stated that the drivers were using their discretion; it was part of a ‘Winning Dublin ‘project (a Diageo marketing tactic).

The complainant explained the arrangement to the respondent in March. The Microlise system (tracking trucks) would have shown it up.

During the investigation process, he checked with former Guinness employees (the predecessor of Diageo), and they confirmed the existence of this arrangement. They signed a document confirming that this was so. This was sent to Mr McCarthy, (HR representative representing the respondent at the hearing) and was to hand during the conduct of the disciplinary process.

Pub B’s report, signed and submitted in evidence, confirms that swaps occur about three times a year and confirms that Pub B give the crew permission to take a keg from their delivery load, and return it to Pub A on the complainant’s delivery days.

The respondent never made the complainant aware of a procedure or policy which prohibited this practice, the breach of which now constitutes the basis for his dismissal. He never took any kegs from Diageo. There was no benefit gained by the complainant in this arrangement.

Procedures.

The complaint’s representative stated that any loss which Diageo could or may have sustained was never put to the complainant during the entire process.

All the unsigned statements from the nine pubs identified by the complainant as parties to the swaps, and who ultimately denied any knowledge of a swap arrangement, amount to hearsay, whereas Pub B ‘s statement, signed by that pub’s Manager, confirm that it was a common practice.

The respondent is relying on statements assembled by Mr C, Diageo Corporate Security, acting on behalf of Diageo. The relationship between Mr C and Pub A is not known.

Cross examination of the complainant.

The complainant confirmed that he had been the shop steward at the material time. He confirmed that he had dealt with the respondent about excess work and heavy kegs. He confirmed that he did not mention swap arrangements when discussing workload with the respondent or in any union management discussions because he did not wish to add to the existing problems. He did receive all documentation relied upon prior to his actual dismissal, but not all before the investigation or disciplinary hearings.

He confirmed that he did not challenge any of the minutes of the investigation and disciplinary hearing meetings.

He confirmed that Pub A was not on his schedule when he dropped the 4 kegs there on 22 January and 12 and 15 February.

When asked to help Mr McCarthy understand the swap, the complainant stated it would be donewith a pub near to Pub A or with a pub known to the staff of Pub A. He accepts that a limited number of pubs were involved in the swap arrangement. He confirmed that he could not remember which pub had asked him to do the swop with Pub A or vice versa. As to why kegs were going out of Pub A to other pubs, Pub A would be best placed to answer that question. It was not unusual for swaps to occur. As to why other pubs could not confirm the existence of swop arrangements if kegs were going out of pub A, the complainant confirms that a swap arrangement existed.

He stated that Pub A was on his route.

As to why Pub B who did confirm that they engaged in swaps about three times a year but could not confirm the days or align the swaps with the dates on which the complainant engaged in swaps, he stated that accurate recollection was difficult given the time which had elapsed since then.

When asked as to why he had been unwilling to pick up empty kegs from pubs not on his schedule, he stated that he had never been asked to do this. It wasn’t normal.

He accepted that the processes employed by Diageo and DTL were strict so as to enable them to track the number of kegs taken to pubs.

As to why the crews involved in the delivery of documented kegs to Pub A were not scheduled to deliver on that day, the complainant stated that sometimes the pub made a new changed arrangement with Diageo to deliver outside of the normal schedule.

He confirmed that his helper in dropping the kegs would deal with different members of staff.

Cases relied upon by the complainant.

The complainant relies on Frizelle v New Ross Credit Union Ltd (1997) IEHC 137 where Flood J stated that the employer engaged in a disciplinary process should

“state the complaint, fairly, clearly and without innuendo or hidden inference.”

The emphasis on transparency was highlighted in Higgins V Irish Rail UD480/2006.

The complainant also relies on Heffernan v Dunnes Stores UD 1355/2009 where amongst other matters, the failure of the respondent to adequately inform the staff of the prohibited nature of misusing the respondent’s value club card points card led to a finding that the dismissal did not amount to gross misconduct and was unfair.

Mitigation of Loss

The complainant secured alternative employment on 31 June 2019, four weeks after his dismissal, on an average salary of €507 per week. His hourly rate increased from €13 to €14 per hour from November 2020 onwards. He worked 39 hours a week.

CA-00032232-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant did not receive his statutory period of notice or payment in lieu thereof.

CA-00032232-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent General Manager in attendance at the hearing, chose not to give evidence. The respondent was represented at the hearing by Mr McCarthy, Stratis Consulting, who spoke on the respondent’s behalf.

 The respondent is a logistics company providing delivery of product to various outlets.

The respondent disputes that the dismissal was unfair and relies on section 6(4)(b) of the Act. The conduct for which he was dismissed was the unauthorised delivery of kegs of undocumented  beer to a public house on 22 January and on the 12 and 15 February 2019.

The respondent complied with its own procedures.

The complainant contributed 100% to their dismissal. The bond of trust was broken.

The respondent’s representative set out the background to the dismissal.

The respondent was advised that one of their customers, a public house, complained that they could not get deliveries of beer in time, but that another public house, Pub A, managed to get supplies ahead of them. The basis for this was unclear to the respondent.

Diageo, a brewer and supplier of product to the respondent, conducted surveillance for a period of time on Pub A, and discovered excess, unscheduled deliveries were being delivered on a regular basis to Pub A. Diageo asked the respondent to investigate the matter.

Mr McCarthy advised that 15 out of 28 drivers were involved in these excess, unscheduled deliveries to Pub A. Fifteen of these employees were dismissed. Thirteen have brought complaints against the company.

The explanation offered by the complainant was that it was a regular occurrence for the respondent to do favours for pubs who had loaned kegs to other pubs or who borrowed from other pubs.

The complainant could not remember which pub- the beneficiary of a loan from Pub A – had asked him to return the borrowed keg to Public House A. The complainant accepted that the deliveries were unscheduled, and that the kegs delivered were undocumented. The complainant could not remember the details or persons who initiated, authorised, or maintained the swop arrangement.

Mr McCarthy stated that the respondent contacted all of the nine public houses named by the complainant as having participated in this loan/borrow arrangement and all, bar one, denied knowledge of the existence of or involvement in any such arrangements. Mr. McCarthy stated that the respondent had spoken to Pub B, the pub which did confirm that a swap arrangement was in place but they could not confirm that swops happened on the dates on which the complainant made the deliveries to Pub A.

No documentation existed in respect of these deliveries. Company procedures were not observed.

Procedures employed in the dismissal.

All documentation used by the respondent in arriving at the decision to dismiss was given to the complainant. The respondent is relying on the unscheduled deliveries of undocumented kegs from 28 January to the15 February. The GPS tracking system is not using other dates.

S.I. 146 was complied with.

Cross examination of the respondent’s representative.

The respondent’s representative confirmed that he was factoring in the information from the other dismissed employees in coming to a decision to dismiss the complainant. All thirteen  including the complainant supplied the same information, which was totally lacking in credibility. No reasonable explanation was offered.

The company did not know how the complainant concealed the kegs.  He must have had some way of covering it up.

The complainant delivered four undocumented kegs to Pub A, on 22 January and 12 and 15 February. Each keg is worth €450.  The bond of trust was broken between the complainant and the respondent.

The delivery process demands that the complainant must fill the details of the number of kegs delivered and to which pub and by whom and when. Any return kegs must also be logged.  Any deviation from any of these details must be reported.

The number of kegs going out through the gates are counted in advance.

In response to a question the respondent advised that there was no evidence of missing kegs. He cannot say how the complainant was able to supply unauthorised kegs to Pub A.

He confirmed that bar the one pub, the respondent received no other complaints from other pubs regarding a shortage or a failure of delivery. 

He confirmed that the dismissal was based on the three incidents of unscheduled and unauthorised deliveries to Pub A, on 22 January and 12 and 15 February.

Mr McCarthy accepted that any possible loss to Diageo was never put to the complainant during the entire process.

To the question as to why, for example, Pub C and Pub D, two pubs named by the complainant as engaging in swaps were not interviewed, Mr McCarthy stated that all information relied upon by the company and shared with the complainant was not challenged by the complainant. No specifics other than Pub B were given to them. The respondent stated that nine pubs were asked and confirmed, contrary to the complainant’s assertion, that they had no involvement in any such swap arrangement. If there was such a swap arrangement in place you would expect a similar number of kegs would be leaving Public House A for other pubs. The complainant maintained that a swap arrangement was in place but could not provide any details as to who loaned to whom or borrowed from whom.

Diageo asked the respondent STL not to investigate Pub A as they, the respondent, merely supply the product, whereas Pub A is a customer of Diageo.

Legal authorities.

The respondent relies on Looney & Co. Ltd. v Looney UD843/1984, where the EAT in considering the scope of a decision-making body said that it is their responsibility to

“consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

The respondent’s representative states that the job of the adjudicator is to assess if the decision to dismiss was within the parameters of reasonableness. They contend that their decision to dismiss falls within these parameters.

The respondent also relies on Gary Boyle v An Post 2015/6739P, where Barrett J held that the issue for An Post in dismissing Mr. Boyle, is adherence to fair procedures, not perfect procedures.

Mr McCarthy states that fairness applied at all times thoughout the disciplinary process. 

CA-00032232-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The respondent maintains that section 8 of the Act of 1973 permits the respondent to terminate the contract without notice due to the misconduct of the complainant.

CA-00032232-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The dismissal is not in dispute and therefore it is for the respondent to establish that in the circumstances of this case, the dismissal was fair.

The complainant has asked me to conclude that the dismissal was unfair because of the procedures involved and the disproportionate nature of the sanction.

The respondent relies on section 6(4) of the Act which provides:

 “(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee.”

 The conduct which led the respondent to summarily dismiss the complainant was his unscheduled and undocumented delivery of four kegs to Pub A on 22 January and 12 and 15 February 2019. The respondent states that these actions are in breach of its procedures and amount to gross misconduct meriting summary dismissal.

While the complainant did question the legitimacy of using photographic evidence and CCTCV images to disclose his presence at Pub A on the specified dates, he acknowledged that he made the deliveries as described, and on days when Pub A was not on his schedule of deliveries.

The complainant states that he had never heard that this 21 yearlong swap arrangements was prohibited; it had never arisen in one way or another.

Substantial grounds for dismissal?

Did contravention of the respondent’s procedures in delivering undocumented kegs constitute gross misconduct?

The Labour Court in DHL Express (Ireland) Ltd v M Coughlan UDD173 stated that

“The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted views of what constitutes gross misconduct justifying summary dismissal”.

It is imperative that the fairness or otherwise of this dismissal is addressed on the basis of the stated grounds, and not on the basis of hints or unproven speculation.

Inherent in the obligation to demonstrate that the dismissal was not unfair lies the obligation to prove that the grounds for the dismissal which in this case are the unauthorised and undocumented deliveries of beer kegs to Pub A – acts which contravened the respondent’s procedures -amount to gross misconduct. The respondent General Manager in attendance at the hearing, who conducted the investigatory stages, chose not to give evidence and relied on the HR company who did not participate in the processes leading to the dismissal, in other than, perhaps, an advisory capacity, to speak on the company’s behalf.

There is no evidence that any of the employer’s policies or procedures informed the complainant that the wrong for which he was dismissed was prohibited or was a disciplinary matter.

As to whether substantial grounds exist for an employee’s dismissal on the ground of gross misconduct, the accepted, applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM”

Conflict of evidence on the existence of substantial grounds for dismissal.

The complainant contests the existence of a procedure or policy prohibiting swaps.

Missing is the production of the procedure which the complainant is said to have contravened.   Missing is the failure of the respondent in attendance at the hearing to contest the direct evidence of the complainant on the latter’s lack of knowledge of or even the existence of this procedure.

The respondent’s representative is classifying non-compliance with an unknown and unpublished procedure to ground their complaint of gross misconduct.

On the basis of the evidence tendered, I am unable to find that a decision to dismiss on the basis of a contravention of an unknown and unpublished procedure comes within “the range of reasonable responses of a reasonable employer”.

In assembling the case that the conduct amounts to gross misconduct, the respondent insinuates that the absence of the reported companywide swap arrangement indicates that a subterfuge, unproven, involving the complainant and one or two pubs, was afoot. There is a conflict of evidence concerning the swap arrangement. The respondent’s representative produced no witness, but documents generated by third parties on 14 May 2019, named persons, in seven pubs, and two further documents dated 12/4/ 2019, denying the existence of swaps. The complainant described these statements as incorrect or untrue. These statements presented to the complainant prior to the disciplinary hearing on 22 May 2019, but not at the first disciplinary hearing on the 1 May or the previous investigative meetings, were not signed by the author of the statement, or the pub staff giving the evidence, but assembled and written by a Mr C, a Diageo Corporate Security employee. Neither Mr C nor the personnel denying the existence of an arrangement involving Pub A indicated any shortfall in their delivery. It was accepted that there was no complaint against the complainant of having left any of these nine pubs pub short or any discrepancies in what was scheduled for delivery and what was actually delivered and no difficulty in reconciling the number of kegs which exited at the gate with the number of kegs delivered. The complainant’s explanation was that arrangement was almost certainly known to the respondent due to the tracking system (Microlise system) in place on the delivery trucks. One of the respondent’s customers attested to the existence of a swap arrangement in a signed statement.

The complainant’s representative asked that I address the inadmissibility of hearsay.

In the case of Kiely v The Minister for Social Welfare [1977] IESC 2, the proceedings before the appeals officer were invalidated because the appellant, denied a death benefit in respect of her late husband, had not been given an adequate opportunity of controverting evidence adverse to her case which was contained in a written report submitted by a cardiac specialist, not in attendance at the relevant hearing. The Supreme Court stated

“it would be contrary to natural justice if one side were allowed to shelter behind his controverted evidence while the other side was subject to cross examination on theirs.”

This is what happened at the disciplinary hearing on 22 May 2019.

In NM v Limerick and Clare Education and Training Board [2015 No. 308 JR] , NM, facing a charge of gross misconduct,  complained of the absence of fair procedures at the investigation stage. While Mc Dermott J did not find in his favour, he did differentiate between the protections which ought to be available at a disciplinary hearing as opposed to an investigatory hearing and   that before any finding of gross misconduct could be made, the facility to cross examine witnesses is essential due to the

 “the nature of the post held by the applicant, the seriousness of the allegations of gross misconduct made against him and the clear conflict of evidence in respect of the events under review”. 

 Mr McCarthy is relying on third hand reports as opposed to the first-hand experience of the complainant. The author of the document who committed the evidence of a third party to paper was not present to face any challenge or scrutiny on the basis of these written statements, unsigned and submitted to the respondent’s representative. Because there is a conflict of evidence that pubs engaged in this practice and there is no one in attendance from the nine pubs to contradict the evidence of the complainant, and in the absence of contrary evidence from the respondent, I must tend towards the complainant’s direct evidence.

Procedures

CCTV Evidence.

The complainant pointed to the covert nature in which information was gathered on his deliveries. The Labour Court in the case of Mr Thomas Gifford v Go Ahead Transport Services (Dublin) Limited (UD/20/191) found that:

“Arguments about the use of data are outside the competence of this Court. Any alleged breaches of the Worker’s rights in this regard are a matter for a different forum.”

I find therefore that the use the use of CCTV in the disciplinary process is not within my jurisdiction.

Absence of notification to the complainant of charge of gross misconduct.

While the respondent did alert the complainant that the activation of the disciplinary procedure could result in sanctions up to dismissal, the respondent did not alert the complainant that his conduct was being classified as gross misconduct either prior to the four investigative meetings held between the 26 March to 25 April, or prior to the two disciplinary meetings held on I May and 23 May. The first notification that his conduct was considered to be gross misconduct arrived after the disciplinary hearings in the letter of dismissal dated 31 May 2019.

 The complainant was disadvantaged in this way.

Proportionality of sanction of dismissal.

 The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

Applying the law to the facts of this case, I accept that the respondent believed that the complainant had misconducted himself.  The grounds used to elevate the complainant’s contravention of a procedure, itself in contention, to gross misconduct is central to the proportionality of the sanction. The respondent never maintained that the complainant understood the behaviour to be prohibited. The evidence fails to demonstrate that this policy is contained in the respondent’s policies, staff handbook, or disciplinary procedure.

Central to the sanction of gross misconduct being proportionate is knowledge within the complainant’s grasp that the contravention exists, is publicised, and was flouted. The sanction of dismissal based on gross misconduct must be based on substantial grounds and not supposition.

The respondent’s entitlement to investigate this practice, to prohibit it upon discovery, to deal with the staff engaged in this practice is unquestionable. While I accept that the complainant was at the very least cutting corners in a strictly regulated environment, and was, troublingly for the respondent, unable to dispel the uncertainty, I cannot find that these aspects of this case and most especially the contravention of a contested procedure are sufficient, based on the evidence and the authorities, to make the leap to a finding of gross misconduct meriting summary dismissal.  I find that the respondent’s evidence fails to prove that the dismissal was a proportionate sanction in all of the circumstances.

I find the complaint to be well founded.

Remedy.

I decide that the preferred remedy is compensation.

The complainant took up alternative employment on 30/6/2019 at a rate of €507 per week for thirty-nine hours.  His hourly rate increased from €13 to €14 an hour in November 2020.

Based on the evidence, the complainant’s loss from 31/5/2019 to 7 March 2022 was €15,491.

I decide that the respondent is to pay the complainant the sum of €5200, an amount I believe to be just and equitable in all of the circumstances.

CA-00032232-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

As I find that the complainant has been unfairly dismissed, I decide his complaint is well founded.

In accordance with section 4(2) ( c) of the Act of 1973, I  require the respondent to pay the complainant  €2720 subject to all lawful deductions.

CA-00032232-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find the complaint to be well founded. I require the respondent pay the sum of €5200 to the complainant in compensation for this breach.

CA-00032232-002. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I find this complaint to be well founded. I require the respondent to pay the complainant four weeks’ notice to the amount of €2720 subject to all lawful deductions.

Unfair dismissal; evidence; procedures.