ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049818
Parties:
| Complainant | Respondent |
Parties | Brian O'Neill | Total Highway Maintenance Limited |
Representatives |
| Harry Carpendale Solr., H.G. Carpendale & Co |
Complaint:
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-00061166-001 | 23/01/2024 |
Date of Adjudication Hearing: 30/08/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015.
In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6) of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 23rd of January 2024) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there was to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
This hearing was conducted by me n person in the Workplace Relations Commission situate in Lansdowne Road. This was a hybrid hearing. To facilitate the Respondent, the Employer evidence was heard by way of remote attendance which is provided for pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that neither the Complainant nor the Respondent was prejudiced by having a part of this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions, and I made all relevant inquiries in the usual way.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 23rd of January 2024.
At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a
“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was not provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent representative. The Complainant attended in person as he had not been able to secure the necessary connection to attend a remote hearing. The Complainant alleges that he was unfairly dismissed. The Complainant places particular emphasis on the manner of his dismissal which was summary decision taken by the Employer. The Complainant says he was never given notification in writing as to why he was dismissed and was never given a right to defend his position nor appeal the decision made. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained and by whom. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent entity was represented by Managing Director (NC) who was the only witness to give evidence on behalf of the Respondent. No objection was raised in connection with the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant. The Respondent stands by its decision to dismiss the Complainant in view of the circumstances leading up to the Dismissal. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. As the fact of Dismissal was not in dispute, the burden of proof rested with the Employer to establish that the Dismissal herein was fair and reasonable in the circumstances. There can be no doubt that there is something of a prehistory to the events which gave rise to the Dismissal. Over the course of 2023 the Complainant had had a number of formal warnings issued to him in connection with speeding and other road safety concerns. As the Complainant was engaged as a driver how he handled himself on the roads and with the machinery was a priority for the Employer. The reasons for the Dismissal were not connected to the Complainant’s driving but were seen as a last straw from the point of view of the Respondent. On the 28/09/2023 the Complainant started work at 05:30am. He had started at the depot in Kilkenny and picked up a truck and drove from Kilkenny to Dublin and completed his normal work duties. He was due to head home when his line manager called him and asked if he could work on some extra hours. The Complainant was asked to collect an order of concrete which was pre ordered by the office to be picked up in Tallaght in Dublin. As I understand it, the concrete gets deposited into the flat bed of the Complainants truck. It’s in a semi solid state but when he delivered the Concrete to the relevant customer, it seems that only about a third of the load was required. The Complainant returned to his home depot in Kilkenny and it was about 8.30 pm when he got back. It seems therefore the Complainant had been out and about for well over twelve hours. The Complainant said that by the time he had completed delivering the load with his customer it was already too late to deposit the excess concrete as all the places he would normally use to get rid of any excess waste were closed. The Complainant proceeded to return to the said home depot in Kilkenny and arrived there at approximately 20:30. The Complainant said that he had the intention of cleaning the excess out the following day as it was sitting on soil and not damaging any work equipment and he was exhausted from a 15 hour working day. The Complainant confirmed in evidence that he knew he was leaving the truck in a bad state and that it would be unusable the next day. The Complainant confirmed that a Mr. C had told him to be sure and clean out the flatbed on his return to the home depot. The Complainant says he had the very definite intention of cleaning the truck out the next day. The Complainant’s employment was terminated the next day the 29th of September for returning the truck in that state. It seems that the concrete set overnight and rendered the flatbed truck unusable for up to two days as up to two other members of staff had to Kanga hammer the set concrete out of the back of the truck. The Complainant says he was given the heads up by his own Manager Mr. C the next morning that Managers were not happy that the truck had been left in that state. Nigel Crobsie the Company director sent a WhatsApp message to a group chat saying: "Thats some state to leave a lorry back in the yard its to be cleaned when you get home" The Complainant messaged back saying that it is "no bother I will clean it when I get back this evening". However, by the time the Complainant returned to work on the evening of the 29th of September it seems that another Manager Mr. L (who I perceive to be Mr C’s Manager) had said that that the Complainant’s employment was to be terminated. Mr. C told the Complainant that this decision had been made and whilst Mr. C had hoped to talk to Mr. L about reversing the decision he was not able to do so. Mr. C confirmed that the Complainant was not to return to the workplace. The Complainant was paid his wages to date and annual leave entitlements were paid too. Mr NC the Managing Director gave his evidence. He noted that eh Complainant had never contacted him in the aftermath of the Dismissal even though he had been the person who had hired the Complainant. NC believed that the Complainant should not have left the flatbed truck in the state that he had left it in. The contents should at the very least have been tipped out – something the Complainant confirmed he did not think to do. Mr. NC agreed that no Appeal process had been offered or given to the Complainant. The Complainant did not get a letter confirming the fact of his termination nor stating the reason for his termination. He agrees that had he, NC, heard the Appeal he might have had a different outlook. He acknowledged that the issue with the truck was also the final straw as the Complainant already had two warnings on file. I accept the Complainant’s contention that there was a failure to implement any procedures whatsoever. It seems strange to me that the individual who terminated the employment is the individual who never said one word to the Complainant. There was no due process. That said, the Complainant himself knew he was bound to vex his Employer with the decision he had made. The Complainant justified it in his head because he had worked such a long day. The Complainant was fortunate enough to return to work within a few weeks of losing this job. The loss of earnings was therefore limited to four or five weeks. On balance I find that whilst the manner in which the Complainant was dismissed might have been procedurally lacking, the Complainant knew or ought to have known that his actions could give rise to a sanction up to and including the Dismissal that ensued. The unfairness of this dismissal is therefore minimised.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00061166-001 - The Complainant was Unfairly Dismissed. For the reasons outlined I assess compensation in the amount of €2,000.00
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Dated: 07-11-24
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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