Case Number: ADJ-00000051. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberADJ-00000051
Date24 February 2016
PartiesAn Employee v An Employer
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000051

Complaint(s)/Dispute(s) for Resolution:

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-00000087-001

06/10/2015

Date of Adjudication Hearing: 15/12/2015

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Preliminary Matters

At the outset of the hearing the details contained in the Complaint Form were confirmed by both parties. The parties agreed that the gross weekly rate of pay of the Complainant was €511.30. It was also agreed that employment commenced, inclusive of a transfer of undertakings, on 13 January 2003. The preferred redress of the Respondent was compensation. The preferred redress of the Complainant was re-instatement.

Respondent’s Submission and Presentation:

The Respondent had tendered a detailed submission in advance of the hearing and supplied supporting documentation on the day. The submission contained a short background and chronological summary of events. The Respondent read through the submission and referenced the appropriate supporting documentation.

The Respondent opened his evidence by stating that the Complainant was employed as a HGV driver with the company until his dismissal on 1st July 2015, in various company plants.

In October 2014 the Complainant was subject to disciplinary proceedings and was issued with a Final Written Warning relating to his driving. The Complainant appealed the decision to issue him with a Final Written Warning but he did not succeed in this appeal.

The Respondent went on to outline the events which lead to the dismissal. The Complainant was suspended with pay on 4th June 2015 following an incident the previous day in which there had been a spillage from his truck onto a public road. A letter was issued to the Complainant on 4th June confirming details of the suspension and potential next steps in the process. Enclosed with this letter were copies of the company's Disciplinary and Grievance policies in English and Russian.

An investigation was carried out by the HR Manager, into the matter. Written statements were obtained from the manager of the plant and a company director.

On 5th June 2015 the HR Manager wrote to the Complainant inviting him to a disciplinary hearing which was scheduled to take place on 9th June 2015.

On 9th June 2015 the Complainant attended at the scheduled time for the disciplinary hearing. He was reminded of his right to representation and given copies of the statements obtained during the investigation. The Complainant requested an adjournment as he wished to speak to his legal advisor, which had been arranged for 5.00pm that evening. An adjournment was agreed until the following day.

Om 10th June the Complainant contacted the HR Manager by phone requesting that the hearing be postponed until after the 29th June 2015. The HR Manager said she would not postpone the hearing until after the 29th June. A friend of the Complainant, then came on the line and stated that it was the legal advisor who had suggested a postponement until after 29th June. A subsequent phone call from the Complainant's friend advised they were both willing to attend the hearing scheduled for the following day.

At 11.45 on 10th June 2015 the Complainant, accompanied by his friend attended head office for the hearing. At this hearing the Complainant said that he would not make any comment on the matter until he had spoken with his legal advisor. This meant he would not answer any questions or discuss the incident until after 29th June. The meeting was adjourned. On 11th June 2015 the company wrote to the Complainant confirming that the hearing would reconvene on 29th June 2015.

On 29th June 2015 the Complainant attended for the hearing and was accompanied by a work colleague. The Complainant had a prepared statement regarding the incident of 3rd June, which was written in Lithuanian, his colleague translated the statement. The Complainant also supplied some photographs of the materials in his truck on the day the spillage occurred.

The Complainant's manager wrote to him in on 1st July 2015 informing him that a decision had been taken to terminate his employment. The letter included information on the right of appeal and a copy of the minutes from the disciplinary hearing.

On 3rd July 2015 the Complainant wrote to the HR Manager appealing the decision to terminate his employment.

The appeal hearing took place on 16th July 2015 at which the decision to terminate the Complainant's employment was upheld. The Complainant was informed of this in a letter dated 21st July 2015. The Complainant's P45 and final payslip were posted to his address some time after this.

The Respondent submitted the following documents:

  1. A letter from the Head of HR to the Complainant dated 5th November 2014 informing him of the decision to issue him with a Final Written Warning.
  2. A letter from a company director to the Complainant dated 24th November 2014 informing him of the decision to uphold his Final Written Warning.
  3. A letter from the company to the Complainant dated 4th June, suspending him from duty.
  4. A copy of the company’s Disciplinary Policy in English and Russian.
  5. A copy of a witness (1) statement dated 4th June.
  6. A copy of a witness (2) statement dated 4th June.
  7. Photos taken of the spillage.
  8. A letter from the HR Manager to the Complainant dated 5th June inviting the Complainant to a disciplinary hearing to be held on 9th June.
  9. Handwritten notes from the meeting held on 9th June.
  10. A letter from the HR Manager to the Complainant dated 9th June regarding the adjournment of the hearing and a provisional rescheduled date.
  11. Handwritten notes of phone conversation regarding the rescheduled hearing.
  12. Letter from the HR Manager to the Complainant dated 10th June, agreeing to reschedule the disciplinary hearing to 29th June.
  13. A handwritten letter in Lithuanian from the Complainant to the HR Manager dated 29th June.
  14. Notes of the disciplinary hearing held on 29th June.
  15. Copies of SOP Training exams completed by the Complainant.
  16. Letter from the Technical and Operations Manager to the Complainant dated 1st July confirming the outcome of the disciplinary Hearing held on 29th June.
  17. Handwritten letter from the Complainant to the HR Manager dated 3rd July appealing the decision to dismiss.
  18. Letter from a company director to the Complainant dated 8th July informing him of the date for the appeal hearing.
  19. Notes of the appeal hearing held on 16th July.
  20. Letter from the company director to the Complainant confirming the outcome of the Appeal Hearing held on 16th July.
  21. Copy of Complainant’s P45.

Complainant’s Submission and Presentation:

The Complainant tendered a written submission on the day of the Adjudication Hearing. The Complainant's representative read through the submission.

He...

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