DHL Supply Chain (Ireland) Ltd (Represented by Irish Business and Employers' Confederation) v Mr Marius Retter (Represented by Services Industrial Professional Technical Union)

JurisdictionIreland
CourtLabour Court (Ireland)
Judgment Date20 February 2020
Judgment citation (vLex)[2020] 2 JIEC 2003
Docket NumberFULL RECOMMENDATION DETERMINATION NO.UDD2016 ADJ-00017214 CA-00022293-001

Labour Court

FULL RECOMMENDATION

UD/19/153

DETERMINATION NO.UDD2016

ADJ-00017214 CA-00022293-001

PARTIES:
DHL Supply Chain (Ireland) Ltd (Represented by Irish Business and Employers' Confederation)
and
Mr Marius Retter (Represented by Services Industrial Professional Technical Union)
DIVISION:

Chairman: Mr Geraghty

Employer Member: Ms Connolly

Worker Member: Mr Hall

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:
1

1. Appeal of Adjudication Officer's Decision No. ADJ-00017214.

BACKGROUND:
2

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 12 July 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 13 February 2020. The following is the Determination of the Court:-

DETERMINATION:
Background
3

This is an appeal by Mr. Retter, (‘the Complainant’), against a Decision by an Adjudication Officer, (‘AO’), that he had not been dismissed unfairly, in accordance with the terms of the Unfair Dismissals Acts 1977 to 2015, ‘the Acts’, by DHL Supply Chain (Ireland) Ltd., (‘the Respondent’).

4

The Complainant was employed as a driver, working initially for Stobart Ltd and then, following a transfer of undertakings, for the Respondent. He earned €695 per week.

5

On 21 February 2018, an employee of a service provider to the Respondent saw one of the Respondent's trucks stopped on the R132 near Swords, Co. Dublin. He advised his manager that he had seen somebody take something black and heavy from the truck, which was then dropped in nearby bushes. The manager reported this to the Respondent. Following a subsequent search of the location, a large parcel wrapped in black plastic was found, in which there was a 25 litre drum of diesel and some tubing.

6

The Respondent's vehicle tracking system identified the truck concerned as that being driven by the Complainant. The Complainant stated to his Shift Manager that he had taken a route and made a stop in order to go to the toilet. The Complainant was suspended on full pay pending an investigation.

7

On 16 March 2018, an investigation meeting took place, at which the Complainant was represented by his Shop Steward. The Complainant outlined at the meeting that he had been returning from Wexford to his base in Donabate, Co. Dublin when he took an indirect route in order to go to the toilet. He denied carrying anything from the truck and stated that he was wearing a black jacket that could have been open.

8

The Complainant said that every morning he checked the fuel level in his vehicle and, if necessary, he topped it up. He said that he could not recall if he had done so on the morning concerned. He stated also that he stopped at that location sometimes to go to the toilet. It was put to the Complainant that, as the depot was only 5–10 minutes away, why had he not gone there to use the toilet facilities? He replied that he would have to fill the truck with fuel first and it would take too long. It was argued for the Complainant that the package found at the location was a coincidence and that there were no reports of a diesel smell from the Complainant or in the truck cab. The Complainant confirmed that he did not have a bladder condition and re-stated that he had not taken anything from the truck but that his black jacket was open.

9

The investigator also met the employee of the other company, who affirmed his earlier statement about what he said he had seen.

10

The investigator found that the Complainant had put in 27.4 litres of fuel into the truck that morning; that there was a pattern of the Complainant putting in extra fuel and making unplanned stops on the same day, giving him the opportunity to siphon fuel. He felt that there was a case to answer and that the matter should proceed to a disciplinary hearing.

11

A disciplinary hearing took place on 29 March 2018. This was conducted by Mr. Tony MacNamee, General Manager, and the Complainant was represented again by his Shop Steward, Mr. Pat Doolin.

12

At this meeting, the Complainant reiterated that he stopped sometimes in unusual places but that he never took diesel. He denied a suggestion that he topped up the tank for every trip but stated that it was the policy of the previous employer, Stobart, to ensure a full tank before leaving the depot every morning. He was unsure if that was current company policy and he confirmed that he filled the tank at the end of each day.

13

The Complainant reiterated that he would have been delayed going to the toilet if he had gone back to the depot on the relevant day. He denied that he carried anything from the truck and re-stated that the find of a drum of fuel and tubing at the location was a coincidence. His Shop Steward questioned how he could have got a 25 litre drum into the cab. He also noted that the truck had an anti-siphoning device, to which the General Manager responded to note that if the tank was filled to the top, it was possible to siphon the amount above the device.

14

At a subsequent meeting on 11 April 2018, the General Manager confirmed that an independent analysis had confirmed that the content of the drum found was uncontaminated diesel.

15

The disciplinary outcome was issued on 11 April 2018. It found that 2 unscheduled stops had been made in locations where there were no toilet facilities; the stated reason for not returning directly to the depot was that the Complainant would have to fill the truck with fuel and this would take too long, noting that a 2–3 minute detour had been taken when the stop was only 5km from the depot; that a report had been received that the Complainant had been seen removing something heavy from the truck and leaving it in the bushes and that a search of the exact location had found a 25 litre container of diesel. It was found that, on the balance of probability, the Complainant had siphoned fuel from the company vehicle, that this constituted theft, which amounted to gross misconduct. The General Manager set out that he had considered options short of dismissal including redeployment to a non-driving role but that there were no positions available. The Complainant was dismissed.

16

An appeal hearing took place on 8 June 2018 and the Complainant was represented by a union official. On 29 August 2018, the appeal decision was issued upholding the decision to dismiss.

17

The Complainant brought a case to the Workplace Relations Commission. The AO decided that the dismissal was not unfair. The Complainant appealed to the Court.

18

Respondent arguments

19

The respondent acted in accordance with s. 6(4) of the Acts and terminated the Complainant's employment for gross misconduct.

20

In the case of Mullane v Honeywell Aerospace Ltd, UD 111/2008 the Employment Appeals Tribunal, (EAT), noted that it was not required to determine if the claimant carried out the alleged act, rather that it was required to establish that there had been fair procedures, that a reasonable conclusion had been reached ‘on the balance of probabilities’ and that the decision to dismiss was a ‘proportionate response’.

21

The Complainant was made fully aware of the allegations against him. He was provided with an opportunity to respond at all stages of the comprehensive, investigation, disciplinary and appeal hearings. He was also afforded the chance to be represented and he availed of this at all stages. All information was taken into consideration and the decision makers were impartial. A right of appeal was provided and the Complainant availed of it.

22

It was reasonable to conclude on the balance of probabilities that the Complainant had placed the container in the bushes.

23

The sanction was proportionate, as any reasonable employer could not be expected to continue to trust an employee in the circumstances. The destruction of confidence in an employee was upheld as a valid basis for dismissal by the EAT in Moore v Knox Hotel and Resort ltd UD 27/2004 and the employer had acted as a ‘reasonable employer’ as required in Looney and Co. Ltd v. Looney, UD 843/1984.

24

Complainant's arguments

25

After the Complainant had completed a second journey on the day in question, he was called into the office and ambushed with an accusation. Despite the fact that he was given no notice of the purpose of...

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