About this case:

• Citation:
  ADJ-00017791
• Judgment:
  External link
• Court:
  Workplace Relations Commission

Finding that the man was unfairly dismissed, Adjudication Officer Kevin Baneham did not accept that there had been a “cumulation” of wrongdoing and it was unreasonable for the firm to deem parking up at home as grounds for dismissal in circumstances where the driver had permission from his supervisor.

Background

The complainant was employed as a driver for the respondent plumbing firm in May 2008. In August 2018, he was dismissed on grounds of misconduct and thereafter he brought a complaint to the Workplace Relations Commission seeking adjudication under the Unfair Dismissals Act 1977, the Industrial Relations Act 1969, and the Payment of Wages Act 1991.

The complainant’s dismissal arose after he submitted overtime claims, and tracker information was provided for his van. The respondent stated that, in July 2018, the complainant was invited to an investigation into discrepancies in his driving hours claim. The complainant was told that his claim did not tally with official records and that there were days when his van was off the road for long periods of the working day.

At a disciplinary hearing in August 2018, the respondent did not accept that the complainant did not know the overtime structure, given that he had worked for the company for over ten years. The respondent also did not accept the complainant’s explanation that he could claim double-time for coming into work early, when the policy was clear that it was time and a half. Regarding the issue of the complainant parking up at home, it was noted that the complainant may have been at a funeral on one of the days in question. Notably, the letter of invitation to the disciplinary hearing did not state specific dates for the alleged discrepancies, which were then outlined in the course of the hearing.

The letter of dismissal referred to warnings from 2014, and two from 2017. The 2014 warning related to parking up at home, however, both the complainant and his supervisor did not agree that a warning was issued at this time. In 2017, one warning was issued when the complainant did not deliver an order to a construction site. The respondent stated that the complainant refused to deliver the order; however, this was “vehemently denied” by the complainant, who said that he had looked for a forklift to take the items off his van. The second warning related to items becoming dislodged as a result of being insufficiently strapped.

The respondent submitted that the issues raised were all conduct issues, even though they were of a different nature (for example strapping, unloading a vehicle and submitting an overtime claim).

Unfair dismissal

Adjudication Officer Baneham explained that where an employer dismisses an employee for misconduct following a series of warnings, it must show that this decision was within the range of reasonable responses and that fair procedures were adhered to. In this regard, Adjudication Officer Baneham considered Labour Court decisions Boots Retails Ireland Ltd v Glogoski (UDD187) and A.T. Donovan Ltd v Flynn (UDD1923).

Noting that the system for taking breaks was flexible, Adjudication Officer Baneham accepted that the complainant had obtained permission from his supervisor, who gave supporting evidence at the adjudication hearing. In any event, the complainant knew of the tracking system on his vehicle – so the respondent would easily find out the times he parked up. It was also noted that, in the years that the complainant had worked for the respondent, he had not previously sought overtime for early starts – and that he had submitted the overtime claim because he needed time off in lieu because his wife was having an operation. That being considered, Adjudication Officer Baneham said the complainant’s over-claim for double time and not time-and-a-half was an error and not an act of dishonesty.

Furthermore, the complainant had offered to repay any amount in excess of the allowable overtime. Taking all of these factors together, Adjudication Officer Baneham said the overtime and parking up issues did not amount to misconduct. Adjudication Officer Baneham was also satisfied that the issues in 2018 differed to the incidents that led to the 2017 warnings, that that there was no “cumulation” of wrongdoing, and that it was not reasonable to deem this as grounds for dismissal.

Finding that the complaint for unfair dismissal under section 8 of under the Unfair Dismissals Act 1977 was well founded, Adjudication Officer Baneham awarded the Complainant €9,000 as redress.

Adjudication Officer Baneham also concluded that the claim under section 6 of the Payment of Wages Act 1991 was well founded, and awarded the complainant €331 as redress for unpaid overtime.

Seeking adjudication under section 13 of the Industrial Relations Act 1969, the complainant also sought €3,806.60, being the shortfall in salary paid to him since 2014, but this strand of the claim was dismissed.

• by Róise Connolly for Irish Legal News