by Mary Gavin August-10-2017 in Employment Law

Reports of a van driver being dismissed for parking their employer’s van outside a pub overnight have made headlines recently as it was held by the Workplace Relations Commission to be reasonable to dismiss.

The employee alleged that he had been the subject of an unfair investigation and had been dismissed for taking his employer’s van home, when taking vehicles home was commonplace and was generally done to expedite work routines the following day.  On the day in question, a Saturday, the employee  informed the adjudication officer hearing the case, that he had received an urgent call regarding a family emergency and subsequently had taken the van to bring his mother to hospital.

The employer defending the claim was a high profile charity with their logo prominently displayed on the van.  The adjudication officer was informed that a colleague was called by the employee to retrieve the van from the car park of a public house in Ballyfermot the next day.  When the employee arrived for work the following Monday he was immediately suspended on full pay and an investigation was commenced.  

The employer argued that as a charity it is dependent upon public donations and emphasised the need to have a proper public image at a time when voluntary contributions to charities are increasingly under scrutiny.  Essentially a charity van being parked in the car park of a public house could only adversely affect their public image.   Furthermore, the employer argued that it had a vehicle policy and the absence of a company van for over 24 hours was completely unacceptable as it had no idea what the van had been used for during this period.  

It is important to note that in this instance, the employee did not have the requisite one year’s service to make a claim for unfair dismissal under the Unfair Dismissals Acts 1977-2015.  In order to make a claim for unfair dismissal, an individual must have one year’s service with their employer unless the dismissal is tainted by discrimination or is unlawful in any other way.   In the circumstances, the employee could not bring a claim under the specific unfair dismissal legislation.  In light of the employee’s limited options the adjudication officer dealt with the issue under Section 13 of the Industrial Relations Acts 1969, in effect as a trade dispute between the employee and the employer regarding the nature of the investigation of the matter and whether the  employer had adhered to the principles of natural justice.   

The adjudication officer analysed the opposing arguments of the parties with regards to the manner in which the investigation was conducted which appeared to have been somewhat fraught due to allegations of the employee’s aggressive behaviour and found that the employer had followed the proper procedures throughout the process.  Overall the decision to dismiss was found to be reasonable and it was held that the decision was one that an employer in a similar sector might take.

If the claim had been taken under the Unfair Dismissals Acts, arguably the outcome would have been the same, given the finding that the principles of natural justice had been adhered to and fair procedures followed although perhaps the adjudication officer may have had greater latitude for the employee if they had longer service.  The employee’s failure to meet the necessary requisite service meant that the force of his complaint lost traction from the outset.  

Interestingly, while the employee accepted that the van had not been returned to the company parking facility as required, the decision doesn’t provide any clarity as to why the van was retrieved from the car park of a pub.

 

For further information please contact Mary Gavin at Hayes solicitors mgavin@hayes-solicitors.ie


This article appeared in Legal Island on 31 August 2017.

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