Worker

Employer

Anonymised Parties

A truck driver

A company

Representatives

Noel Cantwell

Jerry Lane, Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00041074-001

17/11/2020

The Worker commenced his employment with the Employer on 18 November 2019 as a truck driver. He was dismissed on 9 October 2020.

On 17 November 2020, the Worker referred his dispute to the Director General of the WRC alleging that he was unfairly dismissed.

The Worker submits as follows.

The Worker commenced his employment with the Employer on 18 November 2019. His employment was uneventful until 2020 when he failed to wear a Hi-Viz jacket.

The Worker submits that during his employment he made complaints to the Health and Safety Officer and to a named manager (‘the Manager’) regarding a customer who, in the Worker’s opinion loaded the Worker’s truck in an unsafe way. The Worker submits that on 8 October 2020, the same customer was loading the Worker’s truck. When the Worker informed him that the load was unsafe and asked to have it loaded correctly, he used abusive and threatening language. The Worker submits that he told the customer that he would report him to the Health and Safety Authority (‘HSA’) regarding health and safety on his site. The Worker lodged a complaint with the HSA immediately after leaving the customer’s premises.

The Worker submits that on Monday 12 October 2020, he was informed by the Manager that he was dismissed over the incident of Thursday 8 October 2020.

On 15 October 2020, the Worker requested a written statement of reasons for his dismissal from the Manager. The Worker submits that in January 2021 he received a letter from the Manager regarding his dismissal.

The Worker submits that during his employment he never received his terms of employment, a handbook or disciplinary procedures.

The Worker denied that he received his contract of employment and said that he had never seen the documents presented by the Employer regarding the warnings issued. He said that he had never heard of the verbal warning issued to him on 23 June 2020. He said that he did not do the delivery on that day but told the Employer he would do it on the next morning.

The Worker denied that he was given a warning on 6 August 2020 and said that the “whole situation never happened”.

The Worker denied that he was issued a warning on 12 August 2020 and said that he “did not have this conversation”.

Regarding the incident related to an unauthorised break, the Worker said that at the time his father was in a hospital and he travelled a lot to see him. He was tired, he pulled in and fell asleep. The Worker did not believe that he should have reported to his Employer that he was tired to the extent that he would fall asleep on the side of the road. The Worker said that the issue was that he did not come back to the base so the Employer could give him another job.

The Worker confirmed that he did not appeal the decision to dismiss him.

In light of the references made to the Protected Disclosures Act and the Safety, Health and Welfare at Work Act, the Worker was asked at the adjudication hearing to clarify whether he was claiming penalisation under either of the Acts. The Worker was afforded a short recess to consult with his representative and it was confirmed that his claim is that of unfair dismissal under section 13 of the Industrial Relations Act, 1969 and not of unfair dismissal under the Unfair Dismissals Act or penalisation pursuant to either the Protected Disclosures Act or the Safety, Health and Welfare at Work Act.

The Employer submits as follows.

The Worker was employed as a truck driver from 18 of November 2019. His employment required him to move materials and large items between the company base and customers’ yards.

In or about April 2020 the Worker raised an issue about transporting a slurry tank to and from a customer’s yard. The Employer agreed that there were issues about the safety of the load and worked alongside the customer to create a ‘cradle’ where the slurry tank was loaded into which was safe and secure. This resolved the issue of safety that the Worker had and there were no further issues that arose out of this.

The Worker continued to carry out his duties, but a number of issues arose. On or about 23 June 2020 the Worker was out delivery loads to customers. He had a load to deliver to a named customer on that date. He did not complete this delivery and returned to the yard of the Employer with the load still on his lorry. The Employer asked him why he had not completed the delivery of the load and the Worker responded that he ‘was pissed off and having a bad day’. The Employer advised the Worker that this was unacceptable and issued a verbal warning to that affect.

On or about 4 August 2020 the Employer received a complaint from a customer about the Worker’s behaviour at the customer’s site. The customer alleged that the Worker was rude and aggressive to the customer when he was doing a delivery. The Employer questioned the Worker about the incident and asked him for his recollection of the incident. The Worker did not deny the allegation and his response was that the customer was ‘only a cunt’ anyway. The Employer issued a second and final verbal warning to the Worker and indicated that this behaviour was totally unacceptable as the drivers are the representatives of the company and cannot act in this manner.

The Worker received a separate warning on or around 12 August 2020 for failure to wear proper PPE and failure to follow the proper loading/unloading protocols for his assigned vehicle.

On or about 8 October 2020 the Worker was called to a meeting with the Employer in respect of his failure to complete another load on 6 October 2020. The Worker took an unauthorised break of 90 minutes on 6 October 2020 and as a consequence did not complete his runs for that day. The Worker stated that he did not want to do that run anyway and that as far as he was concerned ‘it wasn’t a problem’. He offered no apology or explanation, nor did he make any reference at this point to any health and safety concerns. The Employer indicated that it would have to consider the position and would revert to the Worker. At the adjudication hearing, the Manager said that the Worker had two routes to do but only one was completed on that day. He investigated the matter, and it transpired that the Worker took a break of 90 minutes. When the Worker returned to the base it was too late to do the second route.

The Worker was subsequently advised to attend a meeting on 12 October 2020 with the Manager and the Health & Safety Officer. The Worker was verbally dismissed on this date due to the persistent issues which had arisen over the months prior to this.

The Worker was dismissed based solely on performance issues and he had received numerous warnings. The Worker did raise a health and safety issue in or about April 2020, but this issue had been satisfactorily resolved and no further health and safety issues were ever raised.

The Employer submits that it is incumbent upon the Worker to mitigate his losses. Should the Adjudication Officer find that the Worker was unfairly dismissed, which is denied, it was noted that the Worker at the time of lodging his claim had secured alternative employment. Furthermore, the Employer submits that that it would be just and equitable to award zero compensation should it be found that he was unfairly dismissed as he contributed significantly to his dismissal through repeated incidents of poor behaviour.

The Manager told the hearing that he drove a truck himself, so he knows what it is like to drive with an unsafe load. He said that the Employer takes health and safety matters very seriously.

The Manager confirmed that he issued the Worker’s contract.

The Manager also confirmed that he issued the documents presented at the hearing and they were hand delivered to the Worker:

·        a document dated 23 June 2020 stating that he issued the Worker with a verbal warning;

·        a document dated 6 August 2020 stating that he issued the Worker with a second and final warning;

·        a document dated 12 October 2020 advising that the Worker’s employment was terminated.

The Manager also confirmed that he received an email from the Health and Safety Officer stating that on 12 August 2020, the Officer issued a verbal warning to the Worker relating to non-wearing of PPE.

The Manager said that the Employer did not receive the letter that was allegedly sent on 15 October 2020. The Employer received the letter of November 2020 and the Manager replied to the Worker on 4 January 2021. In that letter, he acknowledged that the Worker was not given the right of appeal when he was dismissed. The Manager offered the Worker the right to appeal the decision to dismiss him at this juncture. He did not do so. He did not express any concerns about the nominated appeals officer.

The Employer stated that it has had Peninsula on board since 2016, hence the contract, procedures, etc. in place. The Worker would have attended an induction when the contract and handbook are given, and health and safety training is delivered.

The Employer confirmed that at the time of dismissal, it was not aware of the Worker’s complaint to the Health and Safety Authority against the named customer and only learned of same when the WRC complaint was received.

A customer of the Employer attended the hearing. He said that he had been 37 years in business and dealt with the Employer since 2012. He met a variety of drivers and any issues that were raised were always addressed and resolved. The customer said that he rang the Manager on 4 August 2020 asking not to send the Worker to him. He said that he was afraid of an accident. Every time the Worker came, there was an issue. He was throwing tantrums and was aggressive.

The customer said that he was annoyed when he got the HSA’s letter but at the end the Authority was quite happy with him.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, it does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

The Labour Court emphasised the importance of fair procedures in Beechside Company Limited t/a Park Hotel Kenmare and A Worker, LCR21798, noting: “… it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:    

·        That employee grievances are fairly examined and processed.

·        That details of any allegations or complaints are put to the employee concerned.

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In reaching my conclusions in this dispute, I am mindful of the recommendation of the Labour Court in LCR22391 C&W O'Brien Architects v A Worker, wherein the Court took into account the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which, in the words of the Court: “emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her and to know any case being made against her and to have a fair opportunity to respond to any such case. The Code also emphasises the importance of the availability of an internal mechanism wherein a sanction which has been imposed can be appealed.”

At the hearing, the Employer submitted that the Worker was dismissed because of the concerns with his performance he had been told about on several occasions. While the Employer is fully entitled to address any performance concerns, this can only be carried out where the Employer adheres strictly to fair procedures.

The WRC and the Labour Court had consistently held that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss a worker. 

In the circumstances, I must conclude that the Worker’s dismissal was unfair and without due regard for fair procedures. In particular I note that the Worker was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

In deciding the appropriate level of redress, I am conscious that the Worker’s unsatisfactory standards were the main reason for his dismissal.

I recommend that the Employer pay the Worker the sum of €500 in compensation for his unfair dismissal.

Unfair dismissal – no fair procedures-