FACTS:
The employee in this case appealed the recommendation of the Rights Commissioner.
RESPONDENT'S EVIDENCE
The Tribunal heard evidence from the General Manager (the “GM”) of the respondent company.
According to the GM, since mid-2006, the appellant worked as a driver with the respondent company. The appellant did not have a contract of employment.
The GM informed the Tribunal that some issues arose with the appellant’s driving. He said that the appellant was sent home on two occasions as there was a smell of alcohol on his breath. In addition, there was an incident when a truck he was driving overturned. No disciplinary action was taken regarding these events.
The GM gave evidence that when the appellant drove a skip truck his driving was much slower than the other two drivers. He also said that the appellant’s final job with the respondent was to drive a truck collecting domestic waste.
A number of the appellant’s colleagues complained that he was not safe to drive the truck.
The GM hoped to rectify the issue informally.
On 5 December 2008, the GM invited the appellant to a meeting. Another employee was also present at the meeting. This employee no longer works for the respondent. The appellant was not given written notice of the meeting or the agenda. He was also not given a note of the complaints against him. The GM informed the appellant about the complaints. The appellant was not informed by the GM that he could bring a work colleague with him to this meeting.
The GM stated that, before the end of the meeting, the appellant became irate and ran out the door. It was clear to the GM that the appellant did not want to continue with the meeting. The GM did not make a note of what the appellant said. The appellant did not contact the GM again.
On the 10 December 2008 the GM wrote to the appellant. He enclosed pay, holiday pay and pay in lieu of notice. He also sent the appellant his P45. According to the evidence of the GM, the appellant subsequently contacted the GM asking for redundancy and the GM informed the appellant that he was not entitled to any redundancy. The GM stated that he did not meet the appellant and could not recall offering him money.
APPELLANT'S EVIDENCE
The appellant informed the Tribunal that he has driven trucks for 40 years. He denied that he came to work smelling of drink and he said he would never drink and drive.
With regard to the truck that overturned, the appellant stated that this wasn’t the first time this specific truck had overturned. He stated that he did not discuss these incidents with the respondent.
The appellant informed the Tribunal that he was given a verbal warning and fined €15 by the respondent for not having a net over a skip.
The appellant stated he was paid €1 an hour less for driving trucks. He said that he had to do this work however because the GM told him work was scarce.
The day before his meeting with the GM, the appellant hit a jeep. He said he phoned the depot manager immediately and informed him of the incident. The appellant subsequently received a text message from the GM to meet with him the next day. The appellant met with the GM, another employee who no longer works with the respondent company and the weighbridge operator. The GM said that the appellant hit a wing mirror on a car.
According to the appellant, the GM told the appellant that if he told lies they would part company in the near future. No notes were taken at the meeting and the appellant was not advised to take notes. The appellant was not given a copy of the staff handbook. The appellant was told to go home.
Later the appellant phoned the GM and was told to come to the office. At that meeting the GM told the appellant that he did not trust him to drive on housing estates. The GM then left the room and came back giving him a week’s notice.
The appellant then asked for redundancy but the GM said he was not entitled to this.
On 10 December 2008, the GM wrote to the appellant enclosing his P45. There was no explanation for the appellant’s dismissal.
Sometime later the GM phoned the appellant and asked for a meeting. They met at a truck stop and the GM offered the appellant €500. The appellant walked out. Later during a phone conversation, the GM offered the appellant €5000.
A friend of the appellant also gave evidence before the Tribunal that he had never known the appellant to come to work drunk.
DETERMINATION AND LEGAL REVIEW
Despite the conflict of evidence, the Tribunal found in favour of the appellant and overturned the recommendation of the Rights Commissioner. The appellant was awarded €22,000 by the Tribunal.
In making its determination, the Tribunal noted that the appellant was invited by text message to attend the meeting at which his employment was terminated.
The Tribunal also noted that the appellant was not told in advance that his employment was in jeopardy and he was not given details of the complaint against him.
The Tribunal stated that the appellant was dismissed without recourse to any procedures and found that the respondent did not establish that the dismissal of the appellant was fair.
This case clearly illustrates the importance of applying fair procedures when dismissing an employee.
According to the Unfair Dismissals Acts, employees should be furnished with the disciplinary procedure that will be followed in the event of dismissal being contemplated. In addition, in the course of a disciplinary hearing with an employee, natural justice should be followed (i.e. the issues being raised with the employee should be presented to the employee and he/she should be given an opportunity to defend himself/herself against the allegations).
If an employer acts in a manner that is procedurally unfair the dismissal itself will be held to be unfair by the EAT.
Employers should fully adhere to the Unfair Dismissals Acts 1977 to 2007 and ensure that fair procedures are followed.
CONCLUSION
Fair procedures were clearly not followed in this case. It is interesting to note that the Tribunal specifically mentioned the fact that the appellant was invited by text message to the meeting at which his employment was ultimately terminated. It is important that a fair disciplinary process is followed by employers and fair procedures are followed at all times.
Full case decision:
http://www.eatribunal.ie/determinationAttachments/a02085a1-e808-4bb7-8a0b-7032a858a06c.pdf
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