Case Number: ADJ-00001367. Workplace Relations Commission

Docket NumberADJ-00001367
Date30 January 2017
CourtWorkplace Relations Commission
PartiesA Driver V A Logistics Company
ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001367

Complaint 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-00001933-001

14/01/2016

Date of Adjudication Hearing: 28/09/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

A Driver V A Logistics Company

Respondent’s Submission and Presentation:

The respondent outlined the background to the case. The complainant was employed as a courier driver with the respondent from 2 September, 2002. He worked a 40 hour week. He earned a performance bonus in addition to the base salary.

The respondent submitted that the complainant was dismissed from the company following a thorough, detailed investigation and disciplinary process on 24 November, 2015. The dismissal was on the grounds of gross misconduct.

The respondent disputed that the dismissal was unfair. Instead, they contended that that the dismissal was fair and reasonable in the circumstances and in accordance with the Company’s Disciplinary procedure.

The company operates across a number of bases around Ireland and has 350 employees based in Ireland. It is part of a global enterprise.

The complainant attended an investigation meeting on 4 November, 2015. This was required following an incident on 19 October, where the complainant caused significant damage to a company delivery truck when collided with a fence in the company depot yard. The damage was estimated at €2,500 euro.

During the investigation meeting attended by Mr U, ( employee representative )Mr M, (service centre manager) and supported by phone by Ms Hr, the company highlighted that there was an

“ extra degree of seriousness” to this incident due to previous incidents with the complainants driving.

The complainant was suspended on full pay pending the completion of the disciplinary investigation .The company convened a Disciplinary meeting on 16 November .The complainant was informed of his termination of employment by letter on 24 November, 2015.

The complainant appealed the decision and the appeal was not upheld .The dismissal was confirmed on 15 December, 2015.

The respondent sought the application of Looney and Co Ltd V Looney UD 834/1984, citing the EAT determination:

“…..It was not the Tribunals role to establish innocence or guilt or to substitute its views or opinions for that of the employer .The Tribunals responsibility is to consider against the facts what a reasonable employers position and circumstances at that time, would have done and decided and to set this up as a standard against which the employers actions and decisions be judge “

The complainant had damaged company vehicles on 6 previous occasions since 2012.He was investigated under the company policy for all these incidents and was issued with a Final written warning, stop short of dismissal in December 2013.

As a result of these incidents, the complainant was provided with Driver training .It was stated in the Final Written warning that any further incident would result in dismissal from the company.

The respondent told the hearing that the complainant had vetoed a severance package offered by the company in the wake of a previous incident in 2013. The company also offered an option for the complainant to relocate within the service. This was not accepted by the complainant. The respondent regretted that the 2013 options put to the complainant were not workable .

The company vehicles were insured for third party incidents alone and the company did not adopt the policy of charging employees for misdemeanours while driving. Consequently, they had not sought to recoup the cost of rectifying the door of the vehicle.

The company contended that the complainants continued employment with the company was untenable as his driving skills, even following retraining, were such that his own safety, the safety of the public, other road users and the safety of property were at risk.

Complainant’s Submission and Presentation:

The complainant commenced work with the respondent, as a driver in 2002.On 19, October, 2015, the complainant accidentally damaged a company van when entering a gateway. He understood that he was safe to undertake the manoeuvre as he was responding to a contractors signal that he had enough room to enter the yard.

Following an investigation process, the respondent deemed the accident to be gross misconduct and dismissed the complainant. The Appeal was unsuccessful.

The Union on behalf of the complainant took issue with the disciplinary process, stating that a final written warning, which had expired in December, 2014 had been taken into account in the deliberative process. In addition, the complainants P45 had been issued prior to the appeal; hearing, which the Union contended rendered the appeal process pointless.

The Union contended that the incident which resulted in the complainants dismissal in November, 2015, was a lesser incident that the incident of 2013, which has attracted the sanction of final written warning. The damage was not malicious in origin. The final written warning had expired in December 2014.

The complainant had been loyal to the company for thirteen years and had worked hard over this period .He had an arthritic condition and had been unable to secure employment since his dismissal and had sustained a 44 week loss ,up to the day of hearing which amounted to €30,490.68. Evidence was given on mitigation and loss.

The complainant sought the redress option of re-instatement.

Decision:

The hearing in this case was first set at 4 August 2016. The respondent presented on that day . The complainant had not received notification of the hearing . I decided to resume the hearing to do justice to the parties and I apologised to the respondent for the inconvenience associated with a second day of hearing .This hearing resumed on 28 September, 2016.

Section 8(1B) of the Unfair Dismissals Act, 1977 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. Legislation involved and requirements of legislation:

Unfair Dismissals Act 1977

Section 6

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(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the...

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