Complainant

Respondent

Parties

Darren  Hogan

Cosgrave Transport Limerick Ltd

Representatives

 Gerard Tobin

 Peninsula Business Services Ireland

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-00056016-001

11/04/2023

The complainant was employed by the respondent as an articulated truck driver from March 2018 until 31st March 2023. The complaint was lodged to the Workplace Relations Commission (WRC) on 11th April 2023 and relates to an alleged unfair dismissal.

The respondent’s position is that the complainant was dismissed fairly in accordance with theprovisions of Section 6(4)(a) of the Unfair Dismissals Act, 1977. The respondent stated that the complainant was involved in three separate road traffic accidents between December 2022 and January 2023. The respondent’s position is that each incident was investigated in line with company procedures and the complainant was issued with a written warning in respect of the first incident, a final written warning in respect of the second incident and was dismissed following an investigation and disciplinary process regarding the third incident. The respondent stated that the complainant did not appeal either of the first disciplinary warnings but did appeal the dismissal. Despite arranging two appeal meetings of the dismissal, the respondent stated that complainant did not attend either of the meetings and did not respond to an email seeking clarification of his intentions regarding the appeal.

The respondent stated that it acted fairly and in line with is procedures regarding the actions of the complainant and its ultimate decision to dismiss the complainant was fair and reasonable having regard to all the circumstances.

Evidence

A principal of the respondent gave evidence by affirmation at the adjudication hearing. The witness stated that the complainant had accepted responsibility for the incidents that had occurred during his employment. In respect of the processes that followed, the witness stated that the respondent acted fairly and in line with its policies and procedures. As well as the investigation and disciplinary process that followed each accident, the respondent also arranged an occupational health assessment in case there were underlying medical issues which were affecting the complainant at work. The witness stated that any delays to that process were as a result of notification issues form the occupational health assessment provider. The witness noted that there were no underlying medical issues, however, after three traffic accidents between December 2022 and January 2023 the respondent had formed the view that each one should be investigated in line with company procedures which ultimately resulted in the termination of the complainant’s employment.

Mitigation of Loss

In respect of the complainant’s efforts to mitigate his losses and notwithstanding its view that the complainant was not unfairly dismissed, the respondent stated that where no loss accrues or where the complainant fails to show that efforts have been made to mitigate losses attributable to the dismissal, the maximum compensation payable to the complainant is four weeks’ pay.

The complainant’s representative stated that the complainant was placed on suspension and dismissed in unfair circumstances following a number of minor traffic accidents while at work. The complainant contends that the respondent delayed its disciplinary process and delayed arranging an occupational health assessment for the complainant. The complainant’s representative also stated that the respondent had hired a replacement for him while the disciplinary process was ongoing.

Evidence

The complainant gave evidence by affirmation at the adjudication hearing. The complainant mainly addressed his losses during his evidence and stated that he commenced new employment relatively quickly after his dismissal. The complainant confirmed that that while he was on suspension he did not receive his subsistence payments of €300.00 per week for the nine weeks in question and is confining his losses to that amount in respect of seeking compensation.

The complainant was dismissed from his employment on 31st March 2023.

 The Applicable Law

Section 6(4)(a) of the Unfair Dismissals Act, 1977. The relevant section of the act states as follows:

6(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,

Reasonableness

Section 6(7) of the Unfair Dismissals Act, 1967 at relevant part provides as follows:

6(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……..

The respondent contends that it acted reasonably in dismissing the complainant in accordance with Section 6(4)(a) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint the dismissal of the complainant was the proportionate sanction to the incidents having considered the matter in totality.

I note that in The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:

“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.”

Mitigation of Loss

The complainant secured employment on 11th April 2023 approximately two weeks after his dismissal. Acknowledging this fact, the complainant is limiting his losses to €2,700 which relates to the non-payment of subsistence payments while the complainant was on suspension from his employment.

Conclusions

I have reviewed the documentation submitted by the parties to this complaint and the case law cited by the respondent’s representative. The complainant accepted responsibility for each of the accidents and also that they could have been prevented. The respondent initiated an investigation and disciplinary process and the complainant was ultimately dismissed on the basis of his lack of competence/capability to carry out the duties of an articulated truck driver. Having reviewed the documents, I do not find that there were any procedural deficiencies in the manner that the respondent addressed the investigation and disciplinary process. I find that the complainant could have appealed each sanction as they were imposed and although he appealed the dismissal, he did not attend his appeal on two occasions and did not reply to management when they sought clarification as to his intentions. In considering the issue of the employer’s reasonableness, I find that the employer acted fairly towards the complainant and its actions to dismiss him were within the band of reasonable responses of a reasonable employer. Accordingly, the complaint of unfair dismissal fails.

For the reasons stated above, I find the complaint is not well founded.

Unfair dismissal,

Cases cited by the respondent:

Looney and Co v Looney UD834/1984

The Governor and Company of the Bank of Ireland v James Reilly [2015] 1IEHC 241

Barry v Precision Software Ltd (UD 624/2005) [2006] 10 JIEC 1801

Allied Irish Banks PLC V Brian Purcell [2012 23 ELR 189]

Pacelli v Irish Distillers (UD571/2001)

 Fanning v University College Cork [2002] IEHC 85

 Pungor v MBCC Foods Ltd (UD584/25)

 Aryzta Bakeries v Cacs (UDD1812)

A Sales Manager v A Manufacturing Company (ADJ-00023644)

An Employee v An Employer (ADJ-00000381)

Coad v Eurobase (UD1138/2013)

Sheehan v Continental Administration Co Ltd (UD858/1999)

Sea Contractors Ltd v Ronan Farrell (UDD205)

City Jet v Juan Ramon Sanchez Gil (UDD215)

McCafferty v Society of St Vincent De Paul (ADJ-00030506)

Lister v Hesley Hall [2002] 1 A.C. 215

Hickey v McGowan [2017] IESC 6

Geoghegan t/a Taps v A Worker INT 1014