Complainant

Respondent

Anonymised Parties

Driver

Delivery Company

Representatives

Mr. Jacek Krawczyk

Mr. Ciaran White, McGovern Walsh & Co Solicitors

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-00054488-001

13/01/2023

The Complainant commenced employment with the Respondent on 7th July 2018. The Complainant was a permanent, full-time employee, receiving an average weekly payment of €540. At all relevant times the Complainant’s role was described as that of “driver”. The Complainant was dismissed on 11th August 2022 on the grounds of alleged gross misconduct.

On 13th January 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that his dismissal was procedurally and substantively unfair. In particular, he alleged that the alleged act of gross misconduct was a well-known custom and practice within the Respondent organisation. He further submitted that he was denied his right of appeal of the sanction of dismissal. In answering the complaint, the Respondent submitted that the dismissal of the Complainant respected his natural and contractual rights, and that the sanction of dismissal was proportionate in the circumstances.

A hearing in relation to this matter was convened for, and finalised on, 16th August 2023. Both parties issued extensive submissions in advance of the hearing, and expanded upon the same by way of oral argument during the same. The Complainant gave evidence in support of his application, while a Company Director gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Respondent made an application to amend the impleaded entity so as to reflect their correct legal title. This application was granted on consent. In circumstances whereby part of the Complaint’s defence implicates wrongdoing on other members of the Respondent organisation, I have elected to anonymise the decision in its published form. 

In circumstances whereby the fact of dismissal was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act and gave their evidence first. 

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Respondent is a courier company that delivers medicines and other pharmaceutical items across the north-west region. The Respondent, while an independent entity, delivers said items for one client, a large pharmaceutical manufacturer.  The Complainant commenced employment with the Respondent as a driver in July 2018. While the Complainant was initially employed on a part-time basis, he moved to full-time employment in January 2020.

Given the nature of the items the Respondent was charged with delivering, certain security precautions were put in place by their client. In particular, each courier is required to carry an EPOD (electronic proof of delivery) device that requires the receiver of each package to sign as proof of delivery. Each of these EPODS uses a geotag to record where and when a delivery was made.

In mid-2022, the Respondent’s primary client received a complaint from one of their customers. This complaint alleged that the client’s product had not been delivered by the Respondent, but by a third-party company. From the initial investigations carried out by the Respondent, it appeared that packages were being transferred by a driver to a third party, and then being recorded as complete on the EPOD device. Given the precise recording techniques of these devices, it became apparent that the Complainant was the driver implicated in this matter.

Having regard to the foregoing, the Complainant was invited to a disciplinary meeting on 28th July 2022 at the Respondent’s offices. When the allegations, along with the supporting data, were put to the Complainant, he made a full and frank admission of the matters alleged. In particular, he admitted that he handed the packages to a third-party delivery driver that was going to the prescribed destination. In this regard, the Complainant had come to an agreement with the driver that they would deliver exchange and deliver each other’s packages in a manner efficient to both parties. The Complainant further admitted that he was aware of the potential ramifications of this arrangement and stated that he had ceased the same. Following this meeting, the Complainant was placed on paid suspension while the matter continued.

Following this meeting, the Respondent determined that the actions of the Complainant, in handing over packages containing drugs and medicines, constituted gross misconduct. On foot of the same, it was determined that the Complainant should be dismissed. Correspondence confirming the same was issued to the Complainant on 11th August 2022.

While this correspondence allowed a period of ten days for an appeal of the outcome, no such appeal was received within that timeframe. As the matter appeared to be at a close, the Respondent engaged another member of staff to fulfil the Complainant’s duties. On 7th November, almost three months following the communication of the decision, the Complainant issued correspondence seeking to appeal the decision. Given the passage of time between the dismissal of the Complainant, along with the fact that the role had now been filled, this appeal was not facilitated, and the dismissal was deemed to have stood.

In evidence, the Managing Director of the Respondent outlined the sequence of events above. In answer to a question posed in cross examination, he accepted that he had his solicitor present at the meeting of 28th July. When asked whether he viewed the same as creating an oppressive atmosphere for the Complainant, he replied that in his view it did not, and that the Complainant was entitled to bring representation should he wish. In answer to a further question posed in cross examination, the witness denied stating that he was obliged to dismiss the Complainant by his client, but stated that the gravity of the breach was such that his client would expect the employee at fault to be dismissed.  The witness stated that he did not arrange an appeal on receipt of the Complainant’s correspondence as he had deemed the matter to be closed at that stage. Finally, the witness denied that the practice of swapping parcels was widespread within the company. While he accepted that he was obliged to speak with the staff as a whole in relation to the issue some months past, he denied knowledge of any other individual breaches.

By submission, the Complainant submitted that this dismissal was both substantively and procedurally unfair.

In this regard, the Complainant broadly accepted that he committed the misconduct complaint of. He stated that it was a widespread practice within the Respondent, and other delivery organisations, that parcels would be exchanged between drivers. Theses exchanges allowed for the drivers to create efficiencies in their routes by avoiding a trip to an area to deliver a single package. In evidence, the Complainant submitted that he found his route difficult to complete without arranging such exchanges. He further submitted that this practise was widespread, stating that others engaged in the practice.

Notwithstanding the foregoing, the Complainant stated that he discontinued the practice in mid-2022. In this regard, he stated that the was conscious of the nature of the items being delivered by him, and accepted that it was not best practice to exchange the same in this manner.

Thereafter, the Complainant agreed with the sequence of events regarding his dismissal. He stated that the was surprised to be invited to meeting in respect of deliveries he had completed some months previous. He stated that at the meeting he made a full and frank admission of the wrong-doing alleged, and hoped that this would stand in his favour in due course The Complainant stated that he was intimidated by the formality of the meeting, particularly the presence of the Respondent’s solicitor. Thereafter, without any further meeting or input on his behalf, he was dismissed by the correspondence dated 11th August 2022. This naturally came as a complete shock to the Complainant, and he found himself unable to appeal the sanction within the prescribed timeframe. Nonetheless, following the expiry of a period of time, the Complainant sourced professional representation and issued a fulsome appeal in due course. Following receipt of the same, the Respondent refused to process the appeal and his dismisal was deemed to have stood.

In answer to a series of questions posed in cross examination, the Complainant accepted the legal and contractual prohibitions on exchanging medicines during their delivery. He further accepted the calamitous effects such a practice could have on his employer. The Complainant denied that his route was easily achievable within the timeframe allowed and stated that traffic in the towns had increased dramatically in recent months. The Complainant accepted that he did not raise the alleged custom and practice of other drivers exchanging parcels during the meeting in relation to the same, but stated that he found the process to be overly formal and oppressive.

By submission, the Complainant submitted that the Respondent did not take his mitigating factors into consideration when electing to dismiss him. In particular, he submitted that the given his long, un-blemished record, the fact that this was his first offence and the fact that the practice was wide-spread within the Respondent, rendered his dismissal substantively unfair. In addition to the foregoing, the Complainant submitted that the Respondent’s failure to facilitate his appeal rendered the process procedurally unfair.

In the present case, the Complainant has alleged that this dismissal, on the grounds of alleged gross misconduct, was both procedurally and substantively unfair. In denying these allegations, the Respondent submitted that the wrong doing accepted by the Complainant clearly constituted gross misconduct and that the sanction of dismissal was within the band of reasonable responses available to them.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“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 [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

Regarding the substantive issues leading to the dismissal, no material dispute exists as to the relevant factual matrix. In this regard, it is accepted that the Complainant exchanged packages in his care with a third-party driver and did not deliver them personally. It was further accepted that the Complainant then falsified the delivery records thereafter to record himself as the person that completed the delivery. To his credit, the Complainant immediately accepted these allegations both during the internal process and at the hearing. He further accepted this these actions constituted misconduct and that he was likely to be subject to some form of disciplinary sanction on foot of the same.

In this respect, a distinction may be drawn between more minor misconduct that will give rise to a lessor disciplinary sanction, and gross misconduct, that may lead to an employee’s dismissal. While the terms gross misconduct has remained somewhat elusive in its definition, in the matter Brennan -v- Institute of Technology Carlow UD281/2000, the Employment Appeals Tribunal held that,

“…gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”

Having considered the sequence of events presented by the parties, it is apparent the wrong doing accepted by the Complainant constitutes gross misconduct. In this regard I am guided by the fact that the packages to be delivered by the Complainant contained prescribed, and strictly controlled, medications. Each person along the chain of delivery of such medications is obliged to adhere to by strict rules regarding the delivery, handling and recording of the same. The Complainant, by his actions, served to breach these obligations and, in so doing, exposed his employer and their client to significant liability. In addition to the foregoing, the Complainant was well aware that the Respondent services a single client, and that his actions could potentially endanger this contract and consequently, the jobs of his colleagues. Finally, it is noted that the Complainant accepted that he was aware that the practice was wrong while he was committing it, as evidenced by the fact that he ceased the same some weeks prior to the disciplinary meeting. 

Notwithstanding the foregoing, the Complainant submitted that the Respondent should have take his long, unblemished record into account when considering the appropriate sanction in relation to be applied. In this regard, the test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

The Complainant’s position in this regard is that his long service and lack of previous disciplinary sanction served to move his dismissal out of the “band of reasonable responses” available to the Respondent. Having considered this argument, I find that I cannot agree with the same. The misconduct conceded by the Complainant was of a nature that would attract a serious sanction,  with the fact of the Complainant’s service  and clean disciplinary record doing little to mitigate the severity of the same.

In addition to the foregoing, the Complainant also submitted that the practice of exchanging parcels was widespread within the organisation, and that he was being unjustly singled out for termination. However, having reviewed the record of the disciplinary meeting, it is apparent that this matter was not raised prior to the Complainant’s dismissal and could not be considered as part of the same.

The Complainant further alleged that the process adopted by the Respondent was deficient in several respects. Firstly, the Complainant stated that the presence of the Respondent solicitor at the disciplinary meeting, created an “inequality of arms” and an oppressive atmosphere. In addition to the same, the Complainant submitted that the Respondent’s failure to progress an internal appeal rendered the procedure unfair.

In the matter of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332 the Laffoy J. held that,

"…the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

Regarding the first allegation put forward by the Complainant it is not clear that the presence of the Respondent’s solicitor at the disciplinary meeting serve to imperil the Complainant’s right to a fair hearing. In this regard, the evidence of the Managing Director was that the Respondent did not have a human resources function. In circumstances whereby he was unused to such disciplinary procedures, he engaged the services to his solicitor to ensure the process was carried out correctly.

Regarding the matter of appeal, it is apparent that the termination letter allowed for a period of ten days for the receipt of the same. While the Complainant did issue a notice of appeal, this was received almost three months later. Not unreasonably, the Managing Director of the Respondent indicated that he had moved on from these matters at that point, and had made arrangements for other members of staff to cover the Complainant’s route. In this regard, the timeframe set for the receipt of internal appeal is not a strict statutory period. Consequently, a reasonable employer would be expected to demonstrate a good degree of latitude as regards the receipt of appeals outside of this timeframe. Notwithstanding the same, a delay almost three months is entirely unreasonable on the Complainant’s part. In this regard, an employer is entitled to consider a process to be finalised at a certain stage, without an employee being able to reactivate the same at an arbitrary point in the future. It is also apparent that the Respondent had, at this point, also made arrangement regarding the Complainant’s route, and had to be mindful of the rights of these parties.

A more troubling point is that the Respondent did not arrange any form of investigation meeting in relation to the issues raised. From the evidence of the Managing Director, it is apparent that he reviewed the relevant records, determined that the Complainant was at fault and invited him to a disciplinary meeting in respect of the same. In almost every circumstance, a finding of fault on the part of an employer without taking a statement from the employee in question would constitute a significant procedural flaw. However, as matters transpired, the Complainant at all times accepted the wrong-doing alleged, rendering the purpose of the investigation somewhat moot. In this regard, I note that in Shortt referenced above, Laffoy J. held that a decision maker must not operate so as to imperil a fair hearing or a fair result. In circumstances whereby no material dispute existed as to the subject matter of the disciplinary hearing, in these very particular circumstances, I find that the Respondent did not act in a manner that might imperil either a fair hearing or result.   

Having regard to the totality of the foregoing points, I find that the dismissal of the Complainant was procedurally and substantively fair. As a consequence of the foregoing, I find that he was not unfairly dismissed within the definition of the Act and his complaint is not well-founded. 

I find that the Complainant was not unfairly dismissed within the definition of the Act and that his complaint is not well-founded. 

Fair Hearing, Procedures, Gross Misconduct