Driver receives compensation for unfair dismissal on grounds of procedural flaw
Background
The Complainant, a driver since February 2015, was summarily dismissed by the Respondent in July 2023, following a paid suspension starting in April 2023.
His complaint alleged procedural failings during the investigation and disciplinary process, claiming it was triggered by an anonymous, later-withdrawn, witness statement. He argued he never received written notice of suspension, was denied the opportunity to challenge witnesses, and was not afforded fair procedures as per S.I. No. 146/2000. He sought reinstatement and €20,875.40 in financial loss.
The Respondent countered that the dismissal was due to multiple breaches of company policy constituting gross misconduct, including unauthorised vehicle use, home stops during work, failing logbook checks, and falsifying records. They asserted a formal investigation began in March 2023, uncovering additional infractions. Meetings took place from April to June 2023, with the Complainant represented by his trade union.
The Respondent maintained due process was followed, including providing a suspension letter and evidence disclosure. They argued that direct witness confrontation was not company policy and the anonymous complaint was not relied upon.
Complainant’s Case
The Complainant stated that preliminary investigation meetings in April 2023 informed him of a witness statement, which was later withdrawn and the witness remained unidentified. Despite this, the investigation continued, and he was suspended on April 26, 2023, though he claimed never to have received written notice.
Witness interviews occurred on May 22, 24, and 27, 2023. On May 22, the Complainant raised concerns about the anonymous witness and was assured the statement would not influence the outcome. His union requested the suspension be lifted, citing lack of transparency and inability to challenge the original complaint. The Respondent maintained their policy did not permit cross-examination.
On May 29, 2023, Mandate referenced S.I. No. 146/2000, arguing fair procedures required disclosure of allegations, sources, and the opportunity to question witnesses. Witness statements were shared on May 30, but the Complainant felt he wasn’t given a fair chance to respond.
On June 15, 2023, he was informed of a disciplinary hearing, which took place on June 29 and July 7. He alleged repeated denials of his requests to cross-examine witnesses. On July 25, 2023, he was summarily dismissed for gross misconduct without notice pay. His appeal was unsuccessful, notified on September 28, 2023.
The Complainant’s core arguments were:
- The investigation was flawed due to its origin in an anonymous, withdrawn statement.
- No suspension letter was received.
- He was denied a fair opportunity to defend himself.
- Alternative disciplinary measures were not considered.
- He was not permitted to cross-examine witnesses.
- He suffered financial and social loss, earning €564.20 per week, remaining unemployed for 33 weeks, a total loss of €20,875.40.
- He sought reinstatement.
He cited various legal precedents, including O’Leary v An Post [2016] IEHC 237 and Gearon v Dunnes Stores Limited UD 367/1998.
Respondent’s Case
The Respondent stated the Complainant was dismissed for gross misconduct on July 25, 2023, following a full investigation and disciplinary process, claiming adherence to relevant Codes of Practice and fair procedures.
On March 3, 2023, it was discovered the Complainant departed without completing mandatory vehicle checks. An internal review revealed multiple policy breaches: unauthorised vehicle use, home stops, late returns from breaks, improper logbook entries, and falsification of records.
Investigation meetings followed. On April 4, 2023, the Complainant, with union representation, was presented with concerns about time discrepancies and misconduct from February 20-25, 2023. On April 6, it was confirmed he lacked permission to take the van home, contrary to his assertion. His request to challenge this witness was denied.
On April 20, the Complainant was informed of gross misconduct allegations that could lead to dismissal. The investigation continued after further procedural breaches by him on April 25. He was formally suspended on April 26, 2023, with the Respondent asserting written notice was sent via registered post and received.
The investigation continued in May and June 2023, with union representation. Issues reviewed included:
- Non-compliance with the Safety, Health and Welfare at Work Act 2005.
- Falsification of documentation.
- Misuse of company time and resources.
- Breach of trust and honesty policies.
The Respondent highlighted the Complainant lost 280 minutes of working time, valued at €375.28, during the review period. His defense regarding lack of sanitary facilities was dismissed by a company audit. The anonymous complaint was explicitly excluded from the investigation, and the suspension and dismissal were based solely on substantiated breaches.
The Complainant’s request to confront or cross-examine witnesses was denied per company policy. The Respondent maintained he received all witness statements and could respond during meetings. Citing O’Leary v An Post [2016] IEHC 237, the Respondent argued a duty to balance the Complainant’s rights with witness protection, stating cross-examination was not standard practice and could be intimidating.
Disciplinary hearings on June 29 and July 7, 2023, led to dismissal on July 25. An appeal filed on August 3 was heard on August 17 and rejected, with notification on August 28, 2023.
The Respondent contended:
- The Complainant received due process per the WRC Code of Practice on Grievance and Disciplinary Procedures.
- Dismissal was proportionate for serious breaches of trust, record falsification, and policy violations.
- The Complainant had appropriate opportunities to respond to evidence.
- The right to cross-examine witnesses was not applicable under internal policy and legal precedent.
- Alternative disciplinary measures were unsuitable given the misconduct’s severity.
The Respondent argued the Complainant’s admissions (failure to complete checks, improper record-keeping) supported dismissal. The trust relationship was irreparably damaged, especially due to falsification of customer signatures and time records.
Regarding loss of earnings and notice pay, the Respondent contended:
- The Complainant failed to mitigate losses and provided no evidence, citing Murray v Meath County Council UD 43/1978 and Philip Smyth v Mark Leddy, Revenue Commissioners.
- The Complainant was not entitled to notice pay, referencing Bank of Ireland v Reilly [2015] IEHC 241.
- Dismissal fell within what a reasonable employer might conclude, citing Looney & Co Ltd v Looney UD843/1984 and Knox Hotel and Resort Ltd UD 27/2004.
The Respondent concluded the dismissal was fair, procedurally sound, and no compensation or reinstatement was warranted.
Findings
Burden of Proof: Under Section 6 of the Unfair Dismissals Act 1977, dismissal is presumed unfair unless the employer proves otherwise.
Anonymous Complaint: The Respondent argued the anonymous complaint did not influence the dismissal. Citing Rowland v An Post [2017] IESC 20 and Boyle v An Post [2015] IEHC 58, procedural errors may be rectified, and fair procedures, not perfection, are required. It was accepted the anonymous complaint did not influence the dismissal. The argument that additional matters should have been excluded was not persuasive; once safety and legal issues were raised, the employer had a duty to investigate.
Suspension: Evidence showed the Complainant received a suspension letter. Suspension, particularly for gross misconduct, is supported by case law and can be a neutral holding measure, as per Quirke v Bord Luthchleas no hEireann [1998] IR 83. Given the Complainant’s continued misconduct during investigation, suspension was justified and not unduly long, aligning with Martin v Irish Nationwide [2001] 1 IR 228.
Cross-Examination: The Complainant was not permitted to cross-examine witnesses. The Respondent cited O’Leary v An Post [2016] IEHC 237 and their policy, which allowed employees to ask questions but not explicitly cross-examine. Balancing the rights of all parties, and referencing Mooney v An Post [1998] 4 IR 288, it was concluded the Respondent did not prevent the Complainant from mounting a full defence.
Alternative Sanctions: The Complainant breached several policies and was not fully truthful, continuing misconduct during an investigation. However, based on Bank of Ireland v Reilly [2015] IEHC 241, a reasonable employer should have considered less severe sanctions, such as a final written warning. Failure to do so rendered the dismissal disproportionate and unfair.
Reinstatement: The Complainant sought reinstatement. Under Section 7(1)(a), this remedy is discretionary, typically for wholly unjustified dismissals, and a strong remedy for clear-cut cases, as per An Bord Banistíochta Gaelscoil Moshíológ v Labour Court [2024] IESC 38. Given the breakdown in trust and the Complainant’s current employment, reinstatement was deemed unsuitable.
Complainant’s Losses: The Complainant contributed significantly to the dismissal and committed serious breaches. He provided limited evidence of financial or personal loss beyond a claim through his representative: €564.20 per week for 33 weeks (€18,618.60) plus €2,256.80 for notice pay. He did not provide employment start dates or salary details from his new role.
Compensation: The Respondent considered the claimed losses excessive. Since the dismissal was unfair due to the failure to consider alternative sanctions, and reinstatement was unsuitable, compensation was considered. Under Section 7(1)(c), compensation is based on actual financial loss, not exceeding 104 weeks’ pay. Section 7(2)(c) requires mitigation of losses, of which no detailed evidence was provided. Following Cityjet v Ramon Sanchez Gil (UDD215), compensation must reflect actual loss. Considering the Complainant’s conduct and limited supporting evidence, compensation was set at €2,256.80 (four weeks’ pay) plus €1,000 on an equitable basis. The total award amounted to €3,256.80.
Recommendations
- Assess Proportionality: Even where misconduct is established, dismissal should be a measure of last resort. Employers must consider and document all reasonable alternatives—such as final written warnings—before proceeding to termination.
- Uphold Fair Procedures: All investigation and disciplinary steps must adhere to established policies. Employees should be given full opportunity to respond to allegations at every stage of the process.
- Ensure Clear Communication and Record-Keeping: Suspension notices, meeting minutes, and disciplinary outcomes should be clearly documented and shared with the employee. Where anonymous complaints arise, employers should confirm at the outset that such complaints are not relied upon in any final decision, to mitigate procedural risk.