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19.11.2018

Van driver who failed to turn up for work on ‘fed-up days’ wins unfair dismissal claim

A Dublin-based van driver who failed to show up for work for eight working days and who was subsequently dismissed by his employer has been awarded €2,879 in unpaid wages including an award for unfair dismissal.

Fed up days

The van driver gave evidence to the Workplace Relations Commission (WRC) outlining that he missed a number of days’ work which he referred to as his ‘fed up days’. The employee confirmed that he was absent from work in May 2017 and that when he returned to work he was advised by his employer that there was no longer any work for him. The man also alleged that the employer had withheld his wages.

No disciplinary procedure

The employee claimed that he was unfairly dismissed as no disciplinary process was entered into and no disciplinary warnings were recorded on his employee file.

Post dismissal evidence

The employer noted that it took the decision to withhold the complainant’s wages after it emerged that twelve TV’s which were in the driver’s possession had gone missing and that the customer who owned the TV’s was seeking compensation of €2400. The employer alleged that a raid on the man’s home by an Garda Síochána had uncovered the twelve missing TV’s. In addition, the company alleged that CCTV footage showed the van driver and his son loading seventy-two TV’s into the driver’s van but only offloading sixty at the customer’s premises. The employer only became aware of the alleged theft of the TV’s after the van driver’s dismissal which it argued justified summary dismissal for gross misconduct.

The WRC’s determination

The WRC agreed that the employee had contributed to his own dismissal by withholding information from his employer in relation to his return to work. The employee’s action (or non-actoin) required the employer to make alternative arrangements to cover the man’s absence and previous instances of unauthorised absence.

Employer failure to follow fair procedures

The WRC ruled that irrespective of the van driver’s actions or degree of his alleged wrongdoing, “the employer must follow fair procedures” and that the employee in this instance, “was deprived of any process conforming to the requirements of natural justice…..there was no advance notice that dismissal was being contemplated, no process, no right of representation offered and no appeal procedure provided”.

The employer’s decision to withhold the employee’s wages in this instance was also unlawful and the WRC ordered the company to pay the driver his unpaid wages.

The WRC also noted that the allegations relating to the disappearance of the TV’s was a matter for an Garda Síochána to investigate.

Key learnings

Employers should follow their own policies and procedures in a fair and reasonable manner.

The principles of natural justice must always be upheld. Even if employees have breached expected standards, they are entitled to benefit from fair procedures, in other words to be informed of the charge or complaint against them, to be given an opportunity to respond to the charges and to have their response duly considered by an impartial, unbiased and independent party.

It is crucial that disciplinary processes comply with fair procedures. Please call our advice line on +353 1 886 0350 to discuss the above or any other HR issues.

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