Complainant

Respondent

Parties

Anthony  Woods

Meditec Medical Limited

Representatives

In person

 Company Management.

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-00048637-001

15/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048637-002

15/02/2022

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

CA-00048637-003

15/02/2022

The Complainant was in employment with the Respondent from August 2019 until 12th January 2022. I note that he had previously been in employment with the Respondent from 20th July 2015 to January 2019. The Complainant was employed as a Customer Services Representative.

This complaint was received by the Workplace Relations Commission on 15th February 2022.

The complaint comes in three parts:

1.      CA – 00048637 – 001 – A complaint seeking adjudication by the WRC under s.8 of the Unfair Dismissals Act, 1977.

2.      CA – 00048637 – 002 - A complaint seeking adjudication by the WRC under s.6 of the Payment of Wages Act, 1991.

3.      CA – 00048637 – 003 - A complaint seeking adjudication by the WRC under s. 12 of the Minimum Notice and Terms of Employment Act, 1973.

Background.

The Complainant worked for the Respondent from 20th July 2015 to January 2019 when he resigned from his employment.  He was re-employed on 12th August 2019 and worked until 12th January February 2022 when his employment was terminated for gross misconduct.  The Complainant was employed as a Customer Service Representative on a salary of €30,000 per annum and was based at the Respondent’s premises.

The Respondent’s vehicles are fitted with tracker units.  Each tracker unit has a power source, a wire, that is connected to the ignition and, which when enabled, sends a signal showing where the vehicle is travelling.  The vehicle’s journey can be followed using computer software.  The tracker unit also has a GPS which sends the vehicle’s location.

On 13th August 2021 the van tracker company TRANSPOCO informed the Respondent’s Operation Manager that from reviewing the data coming from the tracker in vehicle registered 171C2217 it had found from the GPS signal that the vehicle was moving regularly while the ignition wire was disconnected.  When the ignition wire is disconnected it looks like the vehicle is parked.

On 27th August 2021 the Complainant was invited to attend an investigation meeting on 30th August 2021.  At the investigation meeting incidents showing the vehicle being parked at one location and the GPS showing it at a different location were put to the Complainant.  In addition, the Complainant was questioned as to how the toll badge in the vehicle could have been tagged at the toll when the ignition was showing that it was parked.  The Respondent was unhappy with the Complainant’s response but felt that this matter needed to be investigated further.

The Complainant was on certified absence from 31st August 2021 to 19th September 2021.

A complaint was received on 20th September from a member of the public claiming that the Complainant had been using his mobile phone while driving in a “highly distracted” manner on the M50.

The Complainant was satisfied that the previous minutes were a true reflection of what had transpired at the previous meeting.  The Complainant was informed that it would be after Christmas before the Respondent would be in a position to communicate its position following this meeting. On 21st September 2021, the day prior to the disciplinary meeting, the Operations Manager was met by the Complainant in the Respondent’s car park.  He claimed he was suffering from stress and was going home. He gave the Operations Manager the keys of his van and some paperwork.  The Operations Manager offered to drive him home, but he declined.

The Complainant returned to work on 29th November 2021.  The Operations Manager had a “return to work” discussion with the Complainant regarding his absence.  The Operations Manager met with the CEO to discuss the Complainant’s return to work and the outstanding disciplinary meeting and decided to postpone holding the meeting for a number of weeks until, as the Complainant had said, he would be “back in the swing of things”.

On 18th December 2021 the Operations Manager had cause to hold a meeting with the Complainant regarding his failure to meet appointments and for a clear breach of the Respondent’s hygiene rules by carrying meat in the Respondent’s vehicle.  A breach of this nature could have major consequences for the Respondent’s business due to the risk of contamination of products being transported to hospitals.

By letter dated 21st December 2021 the Complainant was asked to attend an investigation meeting on 22nd December 2021.  He was informed of his right to be accompanied at the meeting and informed that the purpose of the meeting was to investigate matters relating to the unauthorised use of a company vehicle, tampering with a vehicle’s tracking system, a complaint of dangerous driving and of breaching the Respondent’s health and safety regulations.  He was advised that the outcome of the investigation could result in disciplinary action being taken against him.

The investigation meeting took place on 22nd December 2021

The outcome from the recent investigation meeting and from the previous investigation meeting was a decision by the Respondent that the Complainant’s behaviour and actions warranted disciplinary action.  By letter dated 11th January 2022 the Complainant was asked to attend a disciplinary meeting on 12th January 2022.  He was afforded the right to be accompanied by a colleague, the right to object to the time and date of the meeting and informed that the disciplinary action, up to and including dismissal could result if he was found guilty of the charges of the unauthorised use of a company vehicle and/or of tampering with a vehicle’s tracking system, engaging in dangerous driving and of breaching the Respondent’s health and safety regulations.

The Disciplinary meeting took place on 12th January 2022.  Again, as the Complainant had decided for all previous meetings, he declined the right to be accompanied at the meeting.  At the meeting, the Complainant raised his complaint that the issues raised by the CEO were “nit picking” and were tantamount to bullying and that he wished his complaint to be added to the agenda.  He was informed that his complaint would be dealt with separately.  The meeting concluded with the Respondent stating it would consider what had transpired at the meeting and respond in the afternoon with its position. 

The meeting resumed in the afternoon of 12th January 2022 where the Complainant was informed that the Respondent considered his actions and behaviour in respect of the charges against him to be gross misconduct and an irrevocable breach of trust warranting summary dismissal and while no notice was warranted in the circumstances, the Respondent would give him two weeks’ pay.  He was informed that he had 7 days to appeal the decision.  The Complainant raised his allegation of being bullied by the CEO and was given a copy of the Respondent’s Bullying policy and procedure and informed that he could commence progressing his complaint through the procedure the following day if he wished. 

Respondent’s arguments.

The Complainant was at all times afforded fair procedure and the principles of natural justice.  He was informed of the allegations and charges against him, given notice of meetings, provided with the agenda for all the investigation and disciplinary meetings, afforded the right to representation, provided with copies of the minutes of meetings and provided with the opportunity to make all representations on his behalf.

The GPS and Tracker evidence was overwhelming against the Complainant as it was clear that the ignition wire of the vehicle had been consistently disengaged over a long period of time and that the vehicle was being used in an unauthorised manner outside of working hours.

Even when the Complainant knew he was under investigation the Complainant continued to show a disregard for his work responsibilities and for the consequences for the Respondent’s reputation.  He failed to make scheduled calls in order to carry food products that could have potentially contaminated the Respondent’s vehicle.  The consequences if it had led to contaminated product being introduced in a hospital would have potentially resulted in the Respondent losing contracts and suffering major damage to its reputation.

Conclusion.

In conclusion, the Respondent submits that the Complainant was afforded fair procedure and that in the circumstances, its decision to dismiss him for gross misconduct was justified and reasonable in the circumstances.

The Complainant has been employed by Meditec Medical Limited (the "Company") as Customer Service Representative and excelled in his role, with an unblemished record. The Complainant first commenced employment on 20 July 2015 to January 2019 when he left employment due to the Respondent's refusal to increase the Complainant's wages. The Complainant subsequently recommenced employment in August 2019, following a call from the Respondent, acceding to his request for an increase of salary.

The Complainant continued in employment until 12 January 2022 when he was unfairly dismissed.

 In late August 2021 the Complainant received correspondence from the Respondent that they were conducting an investigation into allegedissuesinrelationto:

(i)               breachofcompanyvanpolicyandprocedure;and

(ii)              breach of health and safety concerns.

The investigation didn't occur at this time due to the Complainant  being absent due to sickness. The Complainant subsequently returned from sick leave on 29 November 2021. On 21 December 2021 the Complainant received correspondence from the Respondent that they were conducting an investigation into allegations in relation to:

(i)               breach of company van policy and procedure.

(ii)              breach of health and safety concerns; together with

(iii)             a report of dangerous driving by a member of the public.

The investigation took place the next day on the 22 December 2021. There was considerable delay on the part of the Respondent in rescheduling the investigation meeting considering the fact the Complainant returned to work from sick leave on 29 November 2021. Also, the additional allegation being the report of dangerous driving by a member of the public, was added to the investigation invite letter which issued to the Complainant on 21 December 2021.

On11January2022,theComplainantreceivedcorrespondencefromtheRespondentthathewasrequiredtoattenda disciplinarymeetingthenextdayonthe12January2022at10am.

The Complainant was not given full details of the complaints made against him, nor was he given copies of all evidence held before he was expected to make representations or attend any such disciplinary hearing. At the end of the disciplinary hearing the Respondent explained that they would provide the outcome of the disciplinary meeting when he returned to the office at the end of the day.

At the end of the working day on 12 January 2022 the Complainant was dismissed by the employer Company and no reason was given for the dismissal. Following this meeting no formal letter issued to the Complainant confirming his dismissal. The Complainant was not given an opportunity to appeal the decision and the Complainant was dismissed without notice in breach of his right to fair procedure and natural justice.

The employer Company terminated the Complainants employment without any consideration of lesser sanctions and the sanction of dismissal was disproportionate. The complainant reserves the right to make further submissions at the hearing of the matter.

CA -00048637 – 002.

The Complainant was dismissed for Gross Misconduct, which is disputed. The Complainant did not receive the appropriate payment in lieu of notice of termination of his employment

CA – 00048637 – 003.

The Complainant was dismissed for Gross Misconduct which is disputed and was not paid his notice.

On 27th August 2021 the Complainant was invited to attend an investigation meeting on 30th August 2021.  At the investigation meeting incidents showing the vehicle being parked at one location and the GPS showing it at a different location were put to the Complainant.  In addition, the Complainant was questioned as to how the toll badge in the vehicle could have been tagged at the toll when the ignition was showing that it was parked.  The Respondent was unhappy with the Complainant’s response but felt that this matter needed to be investigated further.

On 21st September 2021, the day prior to the disciplinary meeting, the Operations Manager was met by the Complainant in the Respondent’s car park.  He claimed he was suffering from stress and was going home. He gave the Operations Manager the keys of his van and some paperwork.  The Operations Manager offered to drive him home, but he declined.

The Complainant returned to work on 29th November 2021.  The Operations Manager had a “return to work” discussion with the Complainant regarding his absence.  The Operations Manager met with the CEO to discuss the Complainant’s return to work and the outstanding disciplinary meeting and decided to postpone holding the meeting for a number of weeks until, as the Complainant had said, he would be “back in the swing of things”.

On 18th December 2021 the Operations Manager had cause to hold a meeting with the Complainant regarding his failure to meet appointments and for a clear breach of the Respondent’s hygiene rules by carrying meat in the Respondent’s vehicle.  A breach of this nature could have major consequences for the Respondent’s business due to the risk of contamination of products being transported to hospitals.

By letter dated 21st December 2021 the Complainant was asked to attend an investigation meeting on 22nd December 2021.  He was informed of his right to be accompanied at the meeting and informed that the purpose of the meeting was to investigate matters relating to the unauthorised use of a company vehicle, tampering with a vehicle’s tracking system, a complaint of dangerous driving and of breaching the Respondent’s health and safety regulations.  He was advised that the outcome of the investigation could result in disciplinary action being taken against him.

By letter dated 11th January 2022 the Complainant was asked to attend a disciplinary meeting on 12th January 2022.  He was afforded the right to be accompanied by a colleague, the right to object to the time and date of the meeting and informed that the disciplinary action, up to and including dismissal could result if he was found guilty of the charges of the unauthorised use of a company vehicle and/or of tampering with a vehicle’s tracking system, engaging in dangerous driving and of breaching the Respondent’s health and safety regulations.

On 12th January 2022 the Complainant attended a disciplinary outcome meeting. I note the Complainant agreed with the minutes from the disciplinary hearing and when asked did he understand the process he replied yes, he did.

It was then put to the Complainant that the company had decided that his actions in:

·        Breach of company van policy and procedures

·        Breach of health and safety rules

·        A report of dangerous driving

Were enough to deem these actions collectively as gross misconduct and that the Respondent felt that there was a loss of trust between the Complainant and Respondent. The Respondent, having exhausted all avenues had decided to dismiss the Complainant.

The Complainant was then informed that he would receive two weeks pay and had seven days to appeal this decision if he wished to appeal. The Complainant was dismissed with immediate effect.

I note that the Complainant contends (as per complaint form) that he was not provided with the opportunity to appeal. I have read the employee handbook and I am satisfied that it contains an appeals procedure, the Complainant would have been aware of this fact.

In concluding on this complaint, I believe the Respondent formed the honest belief that the Complainant was guilty of gross misconduct. In one of its final ‘legacy case’ determinations prior to the establishment of the Workplace Relations Commission, the Employment Appeals Tribunal held:

‘What is required of the reasonable employer is to show that he/she had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate’ (Abdullah v Tesco Ireland plc UD 1034/2014, citing Noritake (IRL) v Kenna UD88/1983 and Martin v Audio Video Services Centre Ltd UD 617 / 1991).

CA -00048637 – 001. Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977.

In conclusion I find that the actions of the Respondent have been reasonable, that the Respondent has conducted a fair investigation and the complaint as submitted by the Complainant is not well founded.

CA -00048637 – 002. Complaint seeking adjudication by the WRC under section 6 of the Payment of Wages Act, 1991.

The Complainant was dismissed for gross misconduct and was not entitled to a notice period. There is no question of payment in lieu of notice. This complaint as submitted by the Complainant is not well founded.

CA -00048637 – 003. Complaint seeking adjudication by the WRC under 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant was dismissed for gross misconduct and was not entitled to a notice period.

This complaint as submitted by the Complainant is not well founded.

CA -00048637 – 001. Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977.

In conclusion I find that the actions of the Respondent have been reasonable, that the Respondent has conducted a fair investigation and the complaint as submitted by the Complainant is not well founded.

CA -00048637 – 002. Complaint seeking adjudication by the WRC under section 6 of the Payment of Wages Act, 1991.

The Complainant was dismissed for gross misconduct and was not entitled to a notice period. There is no question of payment in lieu of notice. This complaint as submitted by the Complainant is not well founded.

CA -00048637 – 003. Complaint seeking adjudication by the WRC under 12 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant was dismissed for gross misconduct and was not entitled to a notice period.

This complaint as submitted by the Complainant is not well founded.

Unfair Dismissals Act, 1977. Payment of Wages Act, 1991; Minimum Notice and Terms of Employment Act, 1973.