Complainant

Respondent

Parties

Denis  Coakley

Ashgrove Plant Limited t/a Ashgrove Recycling & Waste Management,

Representatives

Orla Meere BL instructed by Aoife McCarthy Douglas Law Solicitors LLP

Lorna Madden BL instructed by Mary Toher, Vincent Toher & Co. Solicitors

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-00063506-001

16/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063506-002

16/05/2024

The Complainant was employed as a Truck Driver by the Respondent waste management company for approximately nine years, having commenced employment with them in or around September 2014. The Complainant initially worked Monday to Friday from 9:00 a.m. to 5:00 p.m. Subsequently, in or around September 2023 his working hours were reduced to three days per week. Immediately prior to the Complainant's termination, he was earning approximately €20 per hour and working 24 hours per week. The Complainant’s employment was terminated on 24 November 2023 for alleged gross misconduct on the grounds of not reporting a traffic accident in a timely manner. The Complainant submits he was unfairly dismissed on the grounds that there were procedural deficiencies in the process employed by the Respondent to dismiss him and, furthermore, that the penalty of dismissal was disproportionate.

The Respondent submits that there were substantial grounds justifying the dismissal and the Respondent acted fairly and reasonably at all stages. The fact of dismissal is not in dispute;

Undisputed Facts:

The Respondent company works with Glassco Recycling Ltd, and the Complainant was driving a Glassco truck at the time of the incident. The Complainant was provided with both Induction Training and Practical Training by Glassco to allow him to drive Glassco trucks. The Complainant completed Practical Training on the 28 July 2023. The Practical Training states “All accidents, incidents and near misses must be reported to your manager immediately. There is no task or activity urgent, important or critical enough that it must be done in a way that would jeopardise the health and safety of any person” The Complainant was also provided with a Glassco phone. On the morning of 10 November 2023 at approximately 9:30am the Complainant’s truck hit a pole, damaging both the truck and the pole, and leaving the pole leaning. The Complainant was reversing up a one-way street at the time. It is not the normal course for a driver to reverse up this street unless he or she is unable to access it in the normal manner. The Complainant did not report the incident until after he returned to the yard and had fixed the truck, at around 3:30pm. The pole which the Complainant hit was on the property of the Dean Hotel. Before the Complainant reported the incident, the Dean Hotel contacted Glassco to report the incident, who in turn contacted the Respondent company. Glassco was unaware of the incident before the Dean Hotel made contact, as the Complainant had not reported it immediately.

Ms Sue Collins, Director, gave evidence on behalf of the Respondent. She was Director, with her brother, who had not an active part in the company, and there was an overall staff of fourteen. She said that the Complainant had hit a tree, a bollard, and a wall in the past, but he had reported the accidents immediately and no disciplinary action was taken at the time. The Witness exhibited emails from the Dean Hotel and admitted that she was shocked on the day that the Complainant had not reported the accident immediately. When the Complainant returned to the yard on 10 November 2023 she invited him into her office to give an account of what happened. The Complainant signed a statement accepting that he had hit the pole in the manner reported to the witness. The witness also took a statement from the maintenance employee, Mr Maurice McGrath describing damage to the truck and from Mr Alan Meade, Transport Manager describing his interaction with the Complainant on the day in question (exhibited). The witness said she drove to the scene of the accident on the following day (Saturday) and was shocked to see the precarious nature of the pole in the manner in which it was leaning. She expressed serious desquiet and said she could not sleep that night. On the following Monday, 13 November she instructed Mr Alan Meade to suspend the Complainant on full pay pending investigation. On 22 November 2023, the witness wrote to the Complainant to attend a meeting on the following day. The notes of the meeting were exhibited. Subsequently the witness informed Mr Meade to dismiss the Complainant on 24 November. A subsequent letter was sent on 27 November 2023 informing the Complainant of the reasons for the dismissal.

In cross examination the witness said she did not interview Mr Paul Cummins who was a helper on the truck on the day because he was direct employee of Glassco, and this company did not allow their employees to be interviewed by any third party.

Mr Alan Meade, Transport Manager, gave evidence of the Complainant’s contact with him when he returned to the yard at the end of his shift. Mr Meade attested to his written statement, which was exhibited. The witness said he attended the disciplinary hearing on 23 November 2023 and also informed the Complainant that he was dismissed on 24 November 2023.

In cross-examination the witness accepted that he may have had a telephone conversation with the Complainant on the night before his dismissal, instructing him to attend for work on the following day. The witness said he had informed the Complainant of his right to appeal by pointing to the disciplinary procedures which were opened and on his desk.

Respondent Argument:

In assessing whether a dismissal is unfair, the Respondent submits that the courts consistently apply the "band of reasonable responses" test, which evaluates whether the decision to dismiss an employee fall within the range of responses a reasonable employer might adopt.

The following is a summary of the authorities cited by the Respondent:

In Bank of Ireland v Reilly [2015] IEHC 241, the High Court considered this test. Noonan J., referencing section 6(7) of the Unfair Dismissals Act 1977, emphasised that the court should not substitute its judgment for that of the employer, but assess whether the dismissal was within the range of reasonable responses of a reasonable employer.

Similarly, in Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Judge Linnane in the Circuit Court affirmed that it is not the role of the court or the EAT to substitute its view for the employers, but to determine whether it was open to the employer to make the decision it did.

The EAT endorsed this view in Bunyan v United Dominions Trust [1982] ILRM 404, stating that the fairness of a dismissal should be judged by the objective standard of how a reasonable employer in similar circumstances would have acted.

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT clarified that in cases of gross misconduct, the test is whether the employer had a genuine belief, based on reasonable grounds following a fair investigation, that the employee was guilty of the alleged wrongdoing.

In A Warehouse Operative v A Logistics Company (ADJ-00018729; 10 September 2019), the Adjudication Officer applied the band of reasonableness test, upholding the dismissal of an employee for failing to attend work on four public holidays, recognising the high threshold required in misconduct cases.

Regarding procedural fairness, the respondent in this case relies on Shortt v Royal Liver Insurance Limited [2008] IEHC 322, where Laffoy J. noted that the fair procedures required depend on the specific employment terms and circumstances.

 In a General Operator v The Manufacturing Company ADJ00019005 the WRC  accepted that fair procedures vary case by case, emphasising that the key consideration is whether any procedural deficit exposed the individual to the risk of an unfair hearing or result.

In Woodies DIY v Ikoro UDD1739, the Labour Court stressed that an investigation must be comprehensive enough to support conclusions on the balance of probabilities following the disciplinary process.

In conclusion in this case, the Respondent argues that the dismissal was justified after a fair investigation found that the Complainant had reversed up a street, hit a pole, and failed to report the incident as required. The Complainant admitted to the facts, the investigation was thorough, and the Respondent concluded that dismissal was an appropriate response given the circumstances.

The Complainant in evidence that he had no dispute with the fact that he had hit the pole in the manner described by the Respondent, save that he took a shortcut down a bus lane in Alfred street because he saw that there was a truck unloading in Railway Street and this would mean he would have to make a circuitous route down Lower Glanmire Road and around Penrose Quay to get to the glass depository by the Dean Hotel. He said that had the Respondent rang immediately after hitting the pole “they would have told me to come back up and fix the lift” (which was damaged in the collision).

The Complainant said he was shocked to have found that he was dismissed because there was no mention by Susan Collins nor Alan Meade of a disciplinary process prior to dismissal, nor was the term “gross misconduct” used in any of the meetings or correspondence. He said that he had a conversation with Alan Meade on the Thursday night (23 November), and he was never told he was dismissed in that conversation. Mr Meade told him to show up normally for work on the following day and he turned up duly kitted out in his work gear only to find that he was dismissed. He also said that Mr Meade never told him of his right to appeal nor had he ever seen a copy of the disciplinary procedures save when he started work a number of years ago.

Complainant’s Argument:

The Complainant submits that there were serious procedural deficiencies in the process executed in advance of his termination in that:

i. He did not receive notification in writing setting out the alleged reasons for his termination on the grounds of alleged gross misconduct;

ii. The Respondent failed to take a witness statement from Mr. Paul Cummins who accompanied the Complainant as his helper on the day in question;

iii. The Respondent failed to provide the complainant with a copy of the company’s disciplinary procedure; and

iv. The Complainant was not afforded recourse to appeal the decision to terminate his employment.

Disproportionate nature of the dismissal:

 The Complainant submits that the termination of his employment was disproportionate and constitutes unfair dismissal. The Complainant has accepted responsibility for the incident from the outset. Whilst the Complainant accepts, he may have acted differently in hindsight, he asserts that at the time, he made a reasoned decision to reverse down the one-way street due to an obstruction. The Complainant argues that the Adjudicator must consider not only the Complainant’s conduct but, in addition to the procedures, whether the sanction lies within a range of what night be considered reasonable, having regard to the nature of the respondent’s business activity. The application of the “band of reasonable responses” in the context of unfair dismissal was discussed in Allied Irish Banks v. Purcell [2012] 23 ELR 189, in which Linnane J commented (at p. 4):  

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘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 submits this was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. Mr Justice Noonan underlines the requirement for reasonableness in the decision-making. The Complainant respectfully submits that the Respondents decision to dismiss him does not meet the test of reasonableness set out in this judgement.

The Complainant cites the case of Caplis v Transdev Ireland Limited UDD1932 the Labour Court found that the dismissal of a Luas tram driver for occasionally moonlighting as a taxi driver was a disproportionate response to the breach of Transdev’s policy against double-jobbing. The Court noted that there is little, if any, dispute between the parties in relation to the key facts. In reaching its decision, the Labour Court took the following factors into account:

•                     The employee had admitted his conduct from the outset of the investigation and offered an explanation for that conduct and outlined the reasons for same;

•                     There was no evidence of a breach of the daily and weekly rest break requirements in the OWTA as a result of his actions; and

•                     The employee had over 12 years' service with Transdev and had no previous disciplinary issues.

Having regard to the above, the Labour Court found the dismissal was disproportionate and ordered that Mr Caplis be re-engaged by Transdev.

 The Complainant argues the sanction must be proportionate to the alleged offence according to Flood J. in Frizelle v New Ross Credit Union [1997] IEHC 137. The Court stated that, in examining the principles to be established to support the decision to terminate an employee’s employment for misconduct:

“the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

In conclusion, the Complainant submits he has a long working history with the Respondent and contends that there were no issues with his conduct prior to the within incident and prior to his dismissal. The Complainant submits that the decision to summarily dismiss him was disproportionate having regard to his long service with the Respondent and his prior unblemished record. The Complainant argues that his conduct does not remotely meet the threshold of 'gross misconduct.’ He submits that the severity of the sanction imposed is grossly disproportionate, placing it well beyond the range of “reasonable responses” that a fair and reasonable employer might adopt. It is the Complainants assertion that the Respondent failed to give thoughtful consideration to alternative sanctions other than summary dismissal and failed to provide him with the company’s disciplinary procedure and/or inform him of any recourse for appeal.

CA-00063506-001 Unfair Dismissal

There is no dispute regarding the facts surrounding the incident. The Complainant’s case centres around his argument that the Respondent acted unreasonably in dismissing him: (1) In that there were deficiencies in procedures and (2) That that he did not engage in gross misconduct on the day  and therefore the decision to dismiss him was  disproportionate.

Section 6 of the Unfair Dismissals Act, as amended, (“the Act”) states:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the 1977 Act provides:

"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 (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act."

It is important to note that procedural flaws alone do not automatically make a dismissal unfair, and the soundness of an employer's procedural approach may take a back seat to the substantive merits of a particular case. Significantly in this case, I find that any purported flaws must be judged in the particular circumstances of the employment and the gravity of the conduct in which he had engaged. He was a professional driver of a Heavy Goods Vehicle. His conduct on the morning was by his own acknowledgement in contravention of the Road Traffic Acts and by any objective judgement, reckless and dangerous. He proceeded illegally down a bus lane, reversed the wrong way up a one-way street, knowingly hit a pole and left it in a precarious position and then left the scene of the accident without informing the owners of the pole nor his employer at the requisite time. The obligation to inform immediately is contained in the following mandatory instruction “All accidents, incidents and near misses must be reported to your manager immediately. There is no task or activity urgent, important or critical enough that it must be done in a way that would jeopardise the health and safety of any person” . The Complainant was well aware of this and therefore cannot  reasonably claim surprise then, given his behaviour on the morning, that he had engaged in potential  gross misconduct. His conduct posed an evident risk to members of the public and raised obvious  legal for both him and the Respondent. I am satisfied that the substantive merits of the charge against him outweigh the procedural flaws in the dismissal process. It was a small firm with a total of fourteen employees. The matter was investigated, he was allowed someone to accompany him, and I am also satisfied that whilst he was not expressly told of an appeal, such a flaw, took a back seat to the seriousness of the admitted complaint. I am satisfied that the Complainant was well aware that when he was suspended that a disciplinary hearing was in the offing, though it had not been expressed in those exact words.

The determination of the process was that an incident of reckless, and ultimate dangerous behaviour occurred that resulted in a significant breach of trust and confidence occurred. This determination led the Respondent to reasonably believe that the behaviour of the complainant constituted gross misconduct. Therefore, I deem the decision to dismiss as rational and proportionate and falling within the spectrum of reasonable actions expected from an employer, consistent with the guidance from the High Court in Reilly. Consequently, I find that the Complainant was fairly dismissed.

CA-00063506-002 Minimum Notice:

As I have found that the Complainant was fairly dismissed for gross misconduct, I find that this complaint was not well founded.

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.

CA-00063506-001: For the reasons outlined above, I find the Complainant was not unfairly dismissed.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00063506-002:

As I have found that the Complainant was fairly dismissed for gross misconduct, I find that the Complainant was not entitled to statutory minimum notice under the Minimum Notice and Terms of Employment Act 1973.

Unfair Dismissals Act 1977, Gross Misconduct, Minimum Notice.