The claimant was employed as a lorry driver with the respondent since January 2005. In June 2009, the claimant was put on a final written warning for a period of twelve months. This warning was in respect of the claim that he negligently caused an accident; which damaged company property and failed to follow health and safety rules. The claimant stated that the cause of the accident was insufficient lighting on the respondent’s premises and only superficial damage was caused. The claimant appealed the decision of the disciplinary hearing but was unsuccessful.
The second incident took place on the 19 November 2009. A delayed ferry caused the claimant to leave Dublin Depot approximately an hour and half late. The claimant then stopped on the hard shoulder of a motorway to accept a call from the Gerry Ryan radio show. Unscheduled stops were contrary to company policy. Subsequently, the claimant missed his exit and had to take a later exit and perform a U turn; which caused a further delay of approximately 25 minutes. The claimant cited an ear ache, which he had informed the respondent he was suffering from, as the cause of the error. There was a dispute between the parties as to whether the U turn was performed illegally or not.
The incident was investigated by the respondent and subsequently the claimant was requested to attend a disciplinary hearing. At the hearing, it was determined that Mr Cawley had caused a delay and his conduct was contrary to the Road Traffic Regulations. The claimant was dismissed for gross misconduct based on the final written warning and the gravity of the current incident. The claimant appealed and the decision was upheld. The claimant alleged that the dismissal was an unfair dismissal in the circumstances, and also claimed redress under other related legislation.
DETERMINATION
The Tribunal decided that the dismissal was unfair. The claimant was awarded approximately one year’s pay €30,000.00 in compensation under the Unfair Dismissals Act and a further €2,545.40 under Minimum Notice and Terms of Employment Acts, 1973 to 2005. The decision is based on the following:
* The Tribunal was not satisfied that the incident in June 2009 warranted the claimant being put on final notice.
* The Tribunal found that the claimant was dismissed as result of the events on the 19 November 2012. The Tribunal then considered whether the delay, unscheduled stop and the illegal and unsafe turn were sufficient to merit dismissal. The Tribunal found that the delay caused by the claimant was not substantial and only amounted to 8 – 10 minutes. The Tribunal did not believe that the claimant, being an experienced driver, made an unsafe turn. The claimant did however make an unscheduled stop in order to receive a telephone call; however a lesser sanction than dismissal would have been more appropriate in these circumstances.
LEGAL REVIEW
The Tribunal in this case closely examined the actions which lead to the dismissal of Mr Cawley. The Tribunal replaced the employer’s opinion, of what constituted a delay and unsafe driving, for its own. Employers should be aware that their reasons for dismissal should be capable of being objectively viewed as sufficient grounds for dismissal. Where the reasons for the dismissal are subjective concepts: employers should be aware that the Tribunal may substitute its view for that of the respondents.
Where the employer issues a final notice, prior to dismissal, the Tribunal will also scrutinise the offending incident. In this case it was found that the incident should not have attracted a final notice warning so the employer was unable to rely upon the final warning as a cumulative factor in the decision to dismiss and had to rely solely on the later event.
CONCLUSION
This case is a reminder to employers that they should ensure that their actions are proportionate to the conduct of the employee. The decision to dismiss should not be taken where a less severe action is more proportionate in all the circumstances of the case.
Full case Decision:
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