Complainant

Respondent

Parties

Jason  Sinnott

 GDP Transport Ltd

Representatives

  Jason Sinnott

 Terri Sue Cosgrave HR Head Consultants

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-00052437-001

28/08/2022

This case is concerned with a complaint of alleged unfair dismissal. The Complainant was employed as a driver providing a delivery service from 03/11/2020 until his dismissal on 19/07/2022 with notice to expire on July 31st 2022.. The rate of pay varied-an issue which is addressed in the findings section of this decision. Dismissal as a fact is not in dispute.

The Respondent provided a written submission which was presented at the hearing. The dismissal was not unfair citing the ground of  conduct as defined in section 6(4)(b) of the Unfair Dismissals Act as rendering the dismissal not unfair-resulting as it did  from the conduct of the Complainant. There were numerous incidents involving the Complainants poor behaviour specifically in the depot such as throwing parcels around and he was spoken to about that behaviour on numerous occasions and also speeding. The incidents which led to his dismissal occurred over a seven-month period between December 2021 and July 2022.

On 15 December 2021 another employee to be known here as J made a complaint that he was verbally abused by the Complainant at the conveyor belt. This complaint was investigated by the Respondent witness, Paul Keane. The Complainant attended a meeting on 17 January 2021 regarding the complaint. Other matters also arose at that meeting. Those matters were concerned with the Complainant not following procedures for parcel deliveries and leaving parcels behind without following procedure. His explanations to the Transport Manager about the volume of parcels being assigned to him being unfair and providing an explanation did not make sense. Also detailed at this meeting were the extended breaks taken by the Complainant at his home which were evidenced on the van tracker system. These breaks occurred throughout the day to such an extent that they were deemed a dereliction of his duty. The Complainant had been previously told that leaving parcels behind was unacceptable. At the conclusion of the disciplinary meeting, the Complainant was told that he would be receiving two written warnings -these were later emailed to him. The second was a written warning for gross misconduct in relation to bullying. At that meeting, the Complainant was told that his unsafe practices and speeding in the depot would lead to a warning. At the conclusion of the meeting Jason Sinnott was aware he would be receiving two written warnings and these were issued on 18 January 2022-one for speeding in the depot and the second related to his behaviour towards his fellow employee J.

A third letter was then issued to the Complainant in relation to his refusal to come to work the next day or to return the company vehicle to the depot. This meeting was described as a disciplinary meeting and the Complainant was suspended without pay until all matters could be resolved. That meeting was scheduled to occur on January 26th

On the day before the scheduled disciplinary meeting, the Complainant wrote seeking clarification if his employment was terminated and the Respondent replied that it was not-that all issues were being investigated and reviewed as part of the disciplinary process. The meeting then took place on 26 January 2022 as scheduled with a support person for the Complainant present. The meeting concluded with the Complainant endeavouring to improve on performance issues – poor practice and behavioural issues. The meeting notes record that the Complainant was accommodated with a new route after he killed a dog on an estate and did not want to return to work there. The matter of the Respondent having to collect the company vehicle three times from the Complainants house was also referenced and the Complainant was told that this was unacceptable. Following this meeting and a period of unpaid suspension, the Complainant returned to work with a written warning of gross misconduct to remain on his file for twelve months.

On March 23rd, 2022, the Respondent received a complaint about the Complainant from a member of the public, the mother of children said to have been abused by the Complainant-he was now wearing a GLS branded uniform and driving a van with that logo. This complaint was investigated by GLS and GDP with GDP saying that they no longer wished to have the Complainant representing them as a courier due to his high conflict personality.

On June 3rd, 2022, the Complainant requested a day off for a medical appointment and on June 6th the witness Mr Keane received a telephone call from a man he did not know but who did work with GLS to inform him that the Complainant would not be at work that day. He did not contact the Respondent and failed to follow sick leave procedures. Following his return to work and on July 19th, 2022, the Complainant was invited to a meeting to discuss recent events and he was again accompanied by a support person at this meeting. Following this meeting the Respondent concluded there was no option but to dismiss the Complainant from his role due to his continuous conduct and serious breaches of the employer’s policies and practices. The Complainant was abusive towards Mr Keane and his family at this meeting.

The Complainant was paid in lieu of notice and he took up new employment two weeks later on 01/08/2022.

Witness Evidence Paul Keane

The witness explained that he owns the licence for DPD Ltd operating yearly contracts with UPS/GPS and GPD with the letter being the employer of the drivers working across the brand names.

The witness described the working relationship with the Complainant as good for the first few months with no issues at all. Covid was very busy for them. On the 16th   of September 2020 he spoke to the Complainant what he described as a chat about speeding in the depot. The next issue was when a dog was killed by the Complainant in Castlebar. The incident was not reported by the Complainant who drove off. The guards were called and he was contacted but the Complainant did not report it to him, so he spoke to him, saying that he should have reported what happened to him. After that the Complainant said he would not go back to that estate. On another occasion the Complainant hit a wall and dented a vehicle but again he did not report it to Mr Keane.

The witness described how the parcels are sorted on a conveyor belt in the depot. The drivers are supposed to place the parcels on the belt. He received a report that on a particular occasion, the Complainant skipped the queue and started throwing the parcels onto the belt causing it to clog up. On that day, 15 December 2021, when a worker on the belt-J-asked him not to throw the parcels, he became abusive, calling him a ‘handicap’. J reported the incident and Mr Keane told him the procedure for making a complaint, to put it in writing. Following a meeting, a first written warning was issued at a meeting on 17 January 2022.

Then there was another incident, involving two kids. The Complainant thought they were trying to break into the van and he was rude to them, threatening to call the guards. This was reported by their mother. She sent an email-this went to GLS first and then it came to him-GLS were not happy. She complained that following the incident, the Complainant went to her workplace. The witness phoned the woman involved to investigate what had happened. The Complainant was accused of shouting and roaring. GLS were concerned because they Complainant was wearing an uniform with their logo at the time.  Later his company lost the contract for delivering for GLS and he still firmly believes that this incident had a huge bearing on that decision.

In early June, the Complainant was off on a sick day. He could have contacted the witness or a named supervisor. Instead, he had to send two lads down to collect the van.

The Complainant had told him he had a hospital procedure and would be off. The witness said this was no problem that he could keep the van for the day. However, the Complainant did not show up for work after that day and there was no call from him.

Regarding the move to the GLS contract/route, J could not work with him after the incident. He had a good chat with the Complainant and decided to give him a second chance, saying lets get it right this time. The Complainant had said he was sorry over the incident with J.

There was some discussion with the witness about the notice of the disciplinary meetings and the delay between receiving the complaint about his alleged treatment of children and the incident with the van and commencing a disciplinary process. He believed there were notices of the disciplinary meetings, whats app was used for communications at the time. He had to speak to others and investigate the complaint and to do up letters. The Complainant was out sick for some of this time. There was a notice of the meeting on 19 July 2022 and that the Complainant had a support person, his sister, present. He accepted there was no right of appeal in any of the letters issued.

Respondent Closing Summary

This dismissal was brought about by the behaviour of the Complainant at work and out in the community. It is evident that there was an altercation with a member of the public. The Respondent side is very sorry to find themselves at the hearing. Their procedures have been completely updated since these events and all employees have received revised handbooks. It is noted that the Complainant obtained work within two weeks of his dismissal and the Respondent wishes him all the very best for the future. Mr Keane wished to have it noted that the Complainant drives into their depot in his new job from time to time and there are no issues.

The preferred form of redress is compensation. The rate of pay for drivers in the company has not increased since the departure of Mr Sinnott. They provided payslips following the hearing, as requested.

Evidence of Mr Sinnott and response to the Respondent Case

On the Friday before the first meeting in January, he rang Mr Keane because Mr T the supervisor had taken him off his run. Mr Keane said he wanted to talk to him on the Monday and wouldn’t say what it was about and when he sent a text asking what it was about Mr Keane ignored him.

On the Monday, when he was called to the office about the incident involving J-Mr Keane had already made up his mind. He was not asked for his side of the story. At the hearing he described what had happened on the conveyor belt and claimed that J was abusing him. He apologised for the name calling and offered to meet J to apologies-he did not know that J had a learning difficulty and any accusation about this was false. Mr Sinnott said he spoke up for himself and spoke about taking a case to the WRC.

At the meeting he was told he had a choice, see out the next week or receive two written warnings and that is why he sent a message at 7pm that evening asking if he was dismissed and wanting it in writing. There was no witness at this first meeting in January. He was later offered a move to GLS-he didn’t want to move as he got on with his co-workers but he took the job as he needed the work. He also maintained that he lost overtime as a result of this move. Some weeks later he heard that Mr Keane was in the depot talking about him and wanted rid of him.

He spoke about his illness in early June and that he informed a manager with GLS-who was well known to Mr Keane-as he was actually on the phone exchanging messages with this person at the time and that person informed Paul Keane of his situation and that he was in casualty- at his request. He did send messages via whats app about his illness and Mr Keans son rang him the night he came home from hospital and would not listen to his explanations of his illness and how ill he had been.

Regarding the incident with the kids-he was never aggressive with them. He was in the gym and it was his sister who outside talking to the kids and she told Paul Keane that at the meeting in July-but he was the one sanctioned for it. He did go to the member of the publics workplace after she criticised his conduct because he was not happy at the way she behaved towards him. He did go to report the incident to the guards and the woman was also there that day.

As far as he is concerned, Paul Keane had it in for him ever since he stood up for himself at the meeting in January, that the Respondent wanted to get rid of him. He had reported the incident with the dog when he rang the office and spoke to one of the people working there.

He was dismissed over the complaint from the member of the public incident in July even though Mr Keane had known about it since March. This decision was taken without his side being heard. He does not accept that GLS wanted him removed from their contract and when it was said that he was wearing the GLS uniform at the time-this is untrue as he did not have a uniform with the GLS logo on it in March.

Complainant closing statement

Mr Sinnott said he too was sorry to be at the hearing. He said he never had problems like this before, the way he was treated. His mental health suffered as a result. He never had any problems with his co-workers or the public before this, describing his relations with most of the other workers as very good.

By way of redress, the Complainant stated that he was seeking compensation, that he could never work for this employer again. His rate of pay with the new employer was around the same and he has received a pay increase since he started there.

This employment relationship appears to have been largely untroubled for a little over a year. While Mr Keane had cause to criticise Mr Sinnott mainly for failing to report incidents, none of those incidents were deemed to merit disciplinary action. And 2020 into 2021 was an extremely busy and pressurised time for all concerned. From January 2022, however, matters took a turn for the worse with serious enough complaints made about Mr Sinnott’s behaviour. From their different accounts, it would also appear that neither Mr Keane or Mr Sinnott seemed able to get through and over those difficulties in manner which suggested that either of them really understood their obligations to the other. Mr Keane on behalf of the Respondent clearly had little idea how to conduct an orderly, organised and fair disciplinary process. The only example of a written notice of a meeting which resulted in a disciplinary sanction was that of 25.01.2022 in response to a query from Mr Sinnott as to whether his employment was terminated was his note to say the meeting is to consider the matters which are the subject of the issues raised, and your response to same. I can confirm your employment is not terminated. ‘Noting there is no mention of any charge or any possibility of disciplinary action, Mr Sinnott was notified of two written warnings concerning two different issues at that meeting. What type and from of notice was provided for the meeting which resulted in the dismissal is unclear. The delay in inquiring into the complaint made in March by the member of the public is difficult to understand given that it was subsequently found to be so serious. The Respondent appears to combine investigation and disciplinary meetings into one single event.

For his part, Mr Sinnotts reaction to incidents and the actions by Mr Keane appears to have been what might be described as heedless of the seriousness of his situation. The remark he had made to the employee J was serious-disciplinary sanction was merited. The transfer to the GPS contract was justified in the circumstances. At the same time as the disciplinary sanctions were being overseen by Mr Keane it does appear that Mr Sinnott’s own issues back in January were largely ignored.  However, while on written warnings Mr Sinnott did not contact Mr Keane directly about his illness or the van relying initially on a person working for GLS and failing to provide a sick cert. He went directly to the workplace of a a member of the public after she complained about him and engaged with her employer and her instead of going directly to Mr Keane to report the incident and asking for his advice. This behaviour denotes a complete lack of respect or concern for the interests of his employer. Recognising these are a one-sided version of what occurred, from the notes of the disciplinary meeting which led to his dismissal, there is nothing to indicate that Mr Sinnott behaved in a manner that was constructive. Anything but constructive in fact and certainly not in his own best interests noting that the meeting concluded with Mr Sinnott and his support person ending the meeting and walking out. On the balance of probabilities there were abusive comments about   Mr Keane and or his family at that meeting The Respondent was entitled to take the view from that meeting  that the trust and confidence in their working relationship had broken down completely at that stage.

The dismissal of Mr Sinnott and indeed the entire conduct of the disciplinary procedures in 2022 was flawed in every conceivable way from a procedural perspective and it is important to note that Mr Sinnott was attending the meeting in July on the back of written warnings from a flawed procedure over preceding month. The dismissal meeting was but one further stage in that flawed sequence of events. However, I have decided to award minimal compensation amounting to approximately one weeks wages for the following reasons:

Mr Sinnott was at no financial loss of wages given the payment of notice pay and the later improvement in his pay with his new employer. On this point it should be noted that the gross and nett pay in the Respondents employment included a significant amount of untaxed subsistence with gross wages being of the order of €450 on average in the weeks before his dismissal.

Mr Sinnott’s overwhelming contribution to the reasons for the disciplinary sanctions including dismissal which commenced and concluded with his own conduct.

Compensation is clearly the only possible redress in this case as the relationship is not one which could be restored and Mr Sinnott has moved on in his working life.

CA-00052437-001 The Complainant was unfairly dismissed by the Respondent on procedural grounds. GDP Transport is to pay Jason Sinnott €450 compensation in respect of his unfair dismissal.