Background of the Case
An appeal was brought to the Labour Court on behalf of DHL Express Limited against an Adjudication Officer decision to reinstate an employee. The respondent had been employed by DHL as a courier/driver for 11 years until he was dismissed in November 2015 following a driving incident.
The Driver referred a complaint to the WRC for unfair dismissal. The Adjudication Officer found the “the sanction of dismissal for gross misconduct was disproportionate having regard to all the circumstances” and awarded reinstatement.
The respondent had been involved in a number of driving incidents where he caused damage to company vehicles in the past. A written warning was issued in 2012, followed by a final written warning in 2013. Both warnings were on the respondent’s file for a period of 12 months. At the formal written warning stage, the employee was offered three options: “redundancy; redeployment to a job in the warehouse; or a driver’s retraining programme”. The respondent opted to go on a driver’s retraining programme.
The respondent’s driving improved for a period of two years following the training, however, he was involved in a further incident in October 2015. The respondent was in the Cork depot in a seven-metre van. There was a truck parked in the entrance which resulted in it being difficult for other vehicles to enter. The truck driver was present at the entrance, however, the respondent continued to drive through the narrow gap. As a result, the respondent scraped one side of the van, causing €2,500 worth of damage.
An investigation took place, followed by a disciplinary meeting, and the respondent was summarily dismissed for gross misconduct. The dismissal letter stated the dismissal was due to the failure to safeguard company property. It also stated the disciplinary officer had taken into account his previous driving incidents.
It stated “This is an extremely serious issue in light of your history with causing damage to both the company van and customer property. The company has previously provided you with substantial training and has gone to extensive efforts to ensure that you were driving in a safe manner. The company has serious concerns about your ability to safely carry out your duties as a driver and can’t trust that you won’t have a similar lapse in judgment which may result in further damage or potential injury to yourself or others. The company cannot accept this level of negligence and poor judgment from a driver who takes a van on public roads on a daily basis”
The respondent appealed his dismissal and outlined one of his reasons for appeal as the fact the company took previous warnings that had expired into consideration in order to justify dismissal. The appeal was heard and the outcome stated the following;
‘Whilst I appreciate the point you have made that this latest incident was just an error of judgement, I do not accept that we cannot and should not consider the other serious incidents that you have been involved in over recent years. As a responsible organisation we have made every effort to assist you through retraining in an effort to address any driving skills; however, we now need to recognise the duty of care we have to the public, other staff and to you yourself. With that in mind, I feel I must uphold the finding of dismissal in the letter dated 24th November 2015.’
Labour Court Determination
The Labour Court concluded that the incident where the driver misjudged the width of the gap, although resulting in damage which cost the company €2,500, didn’t constitute gross misconduct, and as such, summary dismissal was disproportionate.
The Court noted the appellant failed to consider lesser sanctions and was critical of the reasoning given for dismissal in the dismissal letter as opposed to the appeal letter. The Labour Court also noted that the spent warnings were factored in the dismissal process and that the “decision to summarily dismiss the Respondent was, nevertheless, informed to no small extent by those previous incidents and associated which clearly provides for the expungement of disciplinary warnings on their expiry. For all of the above reasons the Court finds that the Respondent’s dismissal was unfair…” The Labour Court clearly outlined that the disciplinary policy “provides for the expungement of disciplinary warnings on their expiry” and therefore using them after they had expired was unfair.
The Court awarded the Respondent €72,042.88 by way of compensation, the equivalent of 104 weeks’ remuneration.
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