Worker

Employer

Anonymised Parties

A Truck Driver

An Environmental Services Company.

Representatives

Self-Represented

Mr Stafford / Employer Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00063165-001

30/04/2024

The Dispute concerns the alleged Unfair Dismissal of a Driver by an Environmental Services Company.

The employment began on the 4th March 2024 and ended on the 26th April 2024.

The rate of pay was stated to have been €1,000 gross for a 45-hour week.

The Worker stated that he had raised a number of safety complaints regarding the road worthiness of some of the Trucks in the Company fleet. His complaints were never taken seriously by the Management. He had annoyed some Managers and when the opportunity arose, he was dismissed without notice or any proper procedures.

He had been a former Worker who had been reengaged by the Company. His mechanical/truck handling experience was first class and should not have been ignored.

The Company/Employer had refused to support him in a dispute with a Wastewater Processing Company. His view on the events in the Processing Site was not taken into account.

He was dismissed without any notice or any proper employment procedures.

The Employer refuted the mechanical /roadworthiness allegations of the Worker. All the Trucks were roadworthy and had the relevant Road Worthiness Certificates. They would have been impossible to insure without this.

The Worker was on probation and the Dismissal was simply a recognition that the job was not working out for either side.

The Employer collects industrial wastewater from a variety of Manufacturing and other large facilities. The Wastewater is brought by Tanker /Truck to a Wastewater processing facility in the Dublin Docks. For Safety reasons this facility is governed by a wide variety of Driving/Vehicle Safety Procedures.

The Worker was involved in an incident at the Water Processing facility. The Employer had sent their H & S Officer to the Waste Processer. A full picture had emerged that was not to the Workers’ credit. He had, in effect, been banned from the Site by the Waste Processing Company.

The Worker had also been the subject of some other customer complaints, lesser in nature but not to the liking of the Company.

Accordingly, it had been decided to end the Employment. It was not a hasty response but had been considered by the Employer in conjunction with the Company Yard/Operations Manager, Mr H and the site H&S Manager, Mr M. Efforts to discuss the situation with the Worker had been abortive as he was quite aggressive to Managers.

Vigorous cross examination took place between the Parties relating to the Wastewater Facility incidents. The Worker maintained that he had been unfairly treated especially by the Site Security Officer. A complete site “ban” was completely disproportionate.

3:1       The Legal Position.

It is now well recognised that an employee on probation is not without Legal rights. SI 146 of 2000, the Statutory Code of Practice on Grievance and Disciplinary Procedures applies equally regardless of the length of employment service. However, this is also balanced by the view that Probation has to mean Probation. An Employer cannot be found at fault if, following fair procedures, a decision to end an employment “Fail probation” is taken.

Ms Justice Costello in the Court of Appeal (O’Donovan v Over -C technology) [2021] IECA 37 is worth quoting at Paragraph 49 of the judgment.

It is common case that Mr. O’Donovan was still serving his six-month probationary period when his employment was terminated on 7 January 2020. In my judgment, the trial judge failed to give adequate weight to the fact that the termination occurred during the probationary period. That is a critical fact in this case. During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an Employer (other than for misconduct, which does not arise here) during the probationary period, as this would negate the whole purpose of a probationary period.

(Underlining by Adjudication Officer.)

However legal precedents notwithstanding all cases have to rest on their own context and particular circumstances. These must be considered below.

3:2       Review of the evidence presented.

Oral testimony was crucial in this case. From the Oral testimony of the Employer, it was clear that a Ban on the Worker at the Wastewater Treatment site effectively made the Worker unemployable as a Driver with the Company. It was without doubt the reason for the Dismissal.

The Employer had sent the H&S Officer down to the Waste Treatment site to gather information and view CCTV. Evidence had been taken from the Waste Site Security Officer.

The Worker was off the view that the Employer should have been more supportive of him and pleaded his case more effectively with the Waste Site Operators to get the ban lifted.

The Employer referred to other Customer complaints in relation to the Driver.

The Worker had only been employed for approximately six weeks and it was better, in the view of the Employer, to end the relationship. Things were simply not working out satisfactorily between the Parties.

In terms of the actual physical dismissal, it appeared to have happened quite abruptly when the Worker had returned, some days later, with his truck to the Employer Company yard. Certainly SI  146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures was not much in evidence.

The Oral testimony of the Manager was professional and clear cut. The Worker was inclined to rely on opinions and views that were not necessarily supported by enough strong evidence.

3:3        Adjudicator conclusions

On the basis of strict Employment and Legal procedures the Worker had a fair case. However, the incidents at the Wastewater Yard, which had been investigated, pointed to a decision by the Employer that dismissal was the only option.

In mainstream Unfair Dismissal cases, under the Unfair Dismissal Act,1977, the concept of the “Band of Reasonableness” is developed – in other words was it “Reasonable” for an Employer in the same situation to dismiss the employee.

The Adjudicator is cautioned against taking his own personal view. It is what the Body of Employers in the Industry concerned, in a similar situation, would do is what is critical.

On careful review the only answer has to be that almost all Employers would terminate the contract of a very short-term employee (six weeks) after the Employee being “banned” from the Wastewater Treatment site. It was important to note that the Employer had taken steps to investigate the incidents.

The Adjudication view has to be that, procedural shortcomings none the less, the Employer position here has to be accepted.

Unfair Dismissal, Industrial Relations Act,1969