Complainant

Respondent

Parties

Szymon  Stolarczyk

Clare Distribution Services

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Stephen Sands HR Consultant

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-00060912-001

09/01/2024

CA-00060912-001

These matters came before the WRC dated 09/01/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 29/08/2024. 

The Complainant at all material times was employed as a van delivery driver.  The Complainant worked a 37.5-hour week for which he was paid €637.00 gross per week.  The Respondent specialises in the distribution of temperature-controlled products delivering chilled, frozen and ambient produce throughout Ireland.  The Complainant commenced his employment with the Respondent company on 01/12/2022 with such employment terminating by way of dismissal for gross misconduct on 29/12/2023. 

The Complainant submits on his WRC complaint form that he got dismissed from work while there was a misconduct investigation going on.    

The Respondent submits the only appropriate sanction was dismissal in light of the serious and unacceptable nature of the incident that occurred.  The Respondent submits it was reasonable, proportionate and appropriate for the company to provide the Complainant with a sanction of dismissal in line with the company disciplinary policy.

The Respondent filed a written factual submission and supporting documentation with the WRC in advance of hearing.  The Complainant relied on the narrative on his WRC complaint form set out hereunder in its entirety. 

CA-00060912-001

As per WRC complaint form

“I got dismissed form work while I was on my week notice.  I got misconduct investigation going on, after it was finished I was given by the company 7 days to appeal, unfortunately during this period I have received my final payment and got fired.” 

Direct evidence of Complainant

The Complainant wanted a transfer to Galway and he submits the Respondent should have just transferred him and he submits they did not empathise with him.  The Complainant submits he was never before in a disciplinary with the Respondent and they did not take that into account.  The Complainant submits his long service with the company was not taken into account. 

The Complainant confirmed he had no complaints about the investigation or any of the procedures.   The Complainant confirmed the only problem he had with it was that he should not have been dismissed “they could have just transferred him to Galway.”

The Complainant upon inquiry confirmed his length of service with the Respondent company was 13 months. 

CA-00060912-001

As per written submission

The Respondent submits the claim for Unfair Dismissal was lodged with the WRC ahead of the appeal hearing having taken place.   The Respondent submits in his complaint form, the Complainant stated that he was issued the opportunity to appeal within seven days however during this period he received his final payment from the Respondent.  The Respondent submits this is standard Company practice. The Respondent submits that once a dismissal has occurred, the employee is closed out on all company systems including payroll.  The Respondent submits that should the decision be overturned; the employee is then re-instated on all Company platforms.

The Respondent submits that on 15 December 2023, the Company was contacted by their customer to advise of a complaint that they had received.  The complaint stated that a girl (minor) had been stopped on the road in an estate and offered sweets out of the window of one of the company vehicles.   The Respondent submits the location and video footage data was pulled from the vehicle telematics and the drivers in the vehicle were confirmed, there were two employees in the company vehicle at the time of the incident one of whom was the Complainant. 

The Respondent submits that on 18 December 2023, the Complainant was placed on paid suspension and invited to attend an investigation meeting on 20 December 2023.  The Respondent submits the allegations to be discussed at the investigation meeting were; inappropriate behaviour towards a member of the public; and behaviour and actions which are likely to bring the Company into disrepute. 

The Respondent submits the Complainant was provided with a copy of the disciplinary investigation invitation, the company disciplinary policy and a statement taken in relation to a conversation that had taken place with the girl’s father following his complaint.   The Respondent submits the father of the girl had also contacted the Gardai in relation to this incident.   

The Respondent submits prior to the investigation meeting commencing, the claimant was shown the footage that was taken from the vehicle on the day in question whereby the vehicle on approaching the minor slows down on the side of the road and offers her chocolate out of the vehicle window.

The Respondent submits that on 22 December, the Complainant was sent the investigation outcome letter and an invitation to attend a disciplinary hearing on 27 December during which the Complainant, when asked, upon reflection, did he have any further thoughts on his actions he said no, and that he still thought the same, that it was stupid but that he thought the girl, with her father, were overreacting.   The Respondent submits that when asked if he felt that his actions on the day in question were inappropriate, he said no, that he did not believe they were appropriate. The Complainant was issued with a disciplinary hearing outcome letter on 29 December confirming that his employment had been terminated. 

The Respondent submits that on the 3 January, the Complainant responded notifying his intention to appeal the Company decision.  The Complainant’s grounds for appeal cited that (1) he was not provided with training that sharing food with people on the street was not allowed and (2) that he should have been issued with a penalty less than dismissal.

The Respondent submits that on 12 January, the Complainant was invited to attend an appeal hearing on the 16 January 2024.  The Respondent submits that on the morning 16 January, the Complainant wrote to the Respondent advising that he was unable to attend the meeting and querying whether it could be rescheduled. 

The Respondent submits it was agreed by both sides that the meeting would go ahead for 18 January instead.

The Respondent submits the appeal outcome was issued on the 1 February upholding the termination of employment.  The Respondent submits that although the Complainant stated that he was apologetic, at no stage of the disciplinary process did the Complainant acknowledge the impact of his actions on the young girl.   

The Respondent submits that in fact, he stated other reasons for his behaviour such as, “Having never been told by the Company that he could not share food with someone on the street”, “No. I still think the same, it was stupid but I also think the girl was overreacting with her father”, and “in my Country it is normal.”

The other employee in the company vehicle was also dismissed for the same incident.

Company Position

The Repondent submits the Complainant offered chocolate from a company vehicle during work hours unsolicited and his actions were completely unacceptable. The Complainant acted in an irresponsible, unacceptable and inappropriate manner.  The Respondent submits the Complainant did not dispute that he and his colleague offered chocolate to the minor.  The Respondent submits there was no justification for his behaviour and the only rationale that he had for appeal was that he had not been trained not to offer sweets to a minor. 

The Respondent submits in light of his behaviour the only appropriate sanction was dismissal. It was reasonable, proportionate and appropriate for the company to provide the claimant with a sanction of dismissal in line with the company disciplinary policy. 

The Respondent submits that procedurally, with respect, the Respondent conducted a fair process and thorough investigation.  In relation to the procedures used, the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Respondent submits the Complainant was informed in advance as to the nature of the issues being investigated.   The Respondent submits the Complainant was also afforded the right to representation, during all stages.  He was further provided with a fair and impartial hearing, at which he was given an opportunity to respond to the allegations against him.  All the evidence in its entirety was considered before any decisions were made or action taken.

The Respondent submits the Complainant was afforded the right to appeal, which he exercised.  In light of all of the above, the Respondent believes it to be clear that the disciplinary process applied to the Complainant was procedurally fair in all respects.  It is submitted by the Respondent that it was entirely reasonable in so disciplining the Complainant and that sanction which it applied to the Complainant was within the bands of that which a reasonable employer in their position would have issued.

Summary of direct evidence of Respondent witness Marc Dixon on affirmation

The witness outlines that he was assigned to investigate the actions of the Complainant and he showed him the video footage and the statement provided.  MC, upon inquiry as to why the decision to suspend was taken, responded that it was deemed inappropriate to continue to allow the Complainant to drive and undertake home deliveries while the matter was being investigated due to the serious nature of the incident. 

Summary of direct evidence of Respondent witness Amanda Carroll on affirmation (hereafter AC)

The witness outlines that when she asked the Complainant during the disciplinary hearing if had reflected or had any further thoughts on the matter and the Complainant stated that he thought the father and daughter were overreacting.   AC submits was that there was a complete lack of empathy on the part of the Complainant and that he seemed not to have any true understanding of the seriousness of his actions and that because of this she was not comfortable that it would not recur in the future. 

When I inquired of AC if she had considered a lesser sanction, she said no she had not.  AC submits the girl that was approached was a 15-year-old minor and the Complainant had showed no acknowledgement whatsoever of the impact of his actions and for that and the reasons already outlined she believed that a lesser sanction was not in any way appropriate.

Summary of direct evidence of Respondent witness Lorna Conroy on affirmation (hereafter LC)

The witness outlines her role in the Respondent company as that of Head of Operations and she submits that she was appointed to hear the Complainant’s appeal against his dismissal.  LC submits she asked the Complainant to talk her through why the Respondent should reconsider.  LC submits the Complainant stated he wanted to relocate to Galway, and he had always obliged by doing overtime.

LC submits she had serious concerns about the fact the nature of the job the Complainant was undertaking was a home delivery service where he was entrusted to engage with potentially vulnerable customers in their homes when he delivered their groceries.    

The witness states the nature of the incident was such that that there was no option but to stick with the decision to dismiss.  LC submits she did take the training piece the Complainant had raised in his appeal into consideration.  However, she submits there would have been a focus or an expectation on a level of professionalism during training and she did not think they would have to tell the delivery drivers specifically that they should not offer sweets to minors while they were undertaking their delivery duties bearing in mind the common-sense element of this.    

In conducting my investigation, I have reviewed the Respondent’s submission and supporting documentation.  I have carefully considered the oral evidence adduced at hearing by the Complainant and the Respondent witnesses.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The Relevant Law

Unfair dismissal.

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.]

The combined effect of the above provisions of the Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established that it is not the role or the function of an Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent’s position and circumstances, would have done so.  This is the standard against which the Respondent’s actions must be judged.  The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair.  As part of discharging this burden of proof, the Respondent must show that fair process and procedures were applied throughout. 

The approach to whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J in the High Court case of Bank of Ireland v O’Reilly [2015] 26 E.L.R. 229 where he held as follows: 

 “…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.”

The dismissal of the Complainant, as a fact, 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 facts of the incident that led to the dismissal are not in dispute between the parties albeit the interpretation and perspective from which the incident is viewed by both parties could not be more polarised.    

The Complainant has asked me to conclude that the dismissal was unfair because of what he perceives as 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.”

It falls to me to consider whether the dismissal was both substantively and procedurally fair

Proportionality of sanction

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

“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?”.

Substantive Fairness

I find that the dismissal was substantively fair for the following reasons.  There is no dispute on the facts regarding the incident that occurred on 15 December that led to the dismissal of the Complainant on the ground of gross misconduct.  The Complainant fully accepts he offered chocolate out of the window of a company van in which he was present with a colleague to a 15-year-old girl walking by herself along the street.       

I note the Complainant attributes his actions on the day to a lack of training in regard to having never been told by the Respondent that he could not share food with someone on the street.  I note the Complainant acknowledges his actions were stupid, but he maintains the girl overreacted and so did her father.  I note on the basis of the aforesaid reaction of the Complainant there appeared to have been absolutely no insight whatsoever on the part of the Complainant in regard to the inappropriateness of his behaviour.    

I find that the undisputed actions of the Complainant to be of an extremely serious nature on many levels and I am of the view that any reasonable person would so find.  However, there appeared to be no acceptance or even more worryingly no comprehension on the part of the Complainant that his actions in approaching a minor in such a manner were in any way inappropriate.  I am satisfied the Complainant’s undisputed actions caused the Respondent to have serious misgivings about the Complainant’s judgement.     

It is my view that the Complainant’s failure to actually comprehend or to acknowledge the level of inappropriateness of his actions meant that the trust that the Respondent is entitled to have in the Complainant was entirely severed. 

I have reached the conclusion that any reasonable employer in the Respondent’s position and circumstances would have imposed the sanction of dismissal.  I note the Complainant’s role in the Respondent company was the home delivery of groceries where he was entrusted to engage with customers in their home and I accept the Respondent’s position that there could be vulnerable persons with whom the Complainant might have to interact. 

I find the actions of the Complainant were such that the bond of trust was broken by those actions, and I am of the view any reasonable employer faced with the same set of circumstances would so find.   

I deem the decision to dismiss as rational and proportionate and falling within the spectrum of reasonable actions expected from an employer consistent with the guidance from the High Court in  The Governor and the Company of Bank of Ireland v. James Reilly. 

Procedural Fairness

Prior to making a decision on whether the dismissal was unfair, I must also examine if it was procedurally fair.  I find the dismissal was procedurally fair for the following reasons.  I am satisfied that the Complainant was made fully aware of the precariousness of his situation from the moment he received the letter inviting him to a disciplinary meeting.   I note firstly that the Complainant was afforded a full investigation of the allegations made against him, that he was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given his full rights of appeal in respect of the dismissal and was afforded the opportunity to be accompanied at every stage of the process.

I note that apart from the Complainant’s assertion that it would have been more appropriate to issue him with a lesser sanction and to allow him relocate to Galway, the Complainant made no argument that the procedure followed by the Respondent in the lead-up to his dismissal was unfair.   I find that the procedure was consistent with the standard of fairness set out in the WRC Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146 of 2000 and in accordance with the respondent’s own Disciplinary procedures.

Given that the dismissal was reasonable as well as both substantively and procedurally fair, I find that the Complainant was not unfairly dismissed.

CA-00060912-001

For the reasons set out above I find that the decision of the Respondent to dismiss the Complainant in this case was reasonable and proportionate and I also find that the process was fair.  Accordingly, I have decided that the complaint under the Unfair Dismissals Act is not well-founded.