19 Sep Maximum 2 Years Compensation Awarded for Unfair Dismissal

A recent Labour Court Determination DHL Express (Ireland) Ltd v. Michael Coughlan (Ref No. UDD1738) gave some useful guidance on the use of spent disciplinary sanctions in determining subsequent disciplinary sanctions. The maximum compensation of 2 years salary for unfair dismissal was awarded.

The determination arose from an appeal by DHL Express (Ireland) Ltd against the decision of an Adjudication Officer in the Workplace Relations Commission, who had found that their employee Mr Coughlan had been unfairly dismissed and that he should be re-engaged.

Mr Coughlan had been employed as a courier/van driver with DHL since 2002 and was dismissed for gross misconduct following an incident involving his van that occurred on 19^th October 2015. Mr Coughlan had been involved in a number of incidents previous to this (in 2012 and 2013) that had resulted in damage to his employer’s vehicle and had received a written warning for the 2012 incident and a final written warning for the 2013 incident. Both warnings were live for 12 months after issuing. Mr Coughlan was also required to complete a driver’s retraining course after the 2013 incident which DHL paid for. There were no further incidents for two years until the incident which occurred on 19^th October 2015 when Mr. Coughlan scraped one side of a Company van whilst driving into the depot. There was an articulated truck parked near the entrance to the depot which left the space available to vehicles entering or leaving the premises extremely narrow and Mr Coughlan said that he believed that that driver of the truck beckoned at him to continue to drive his van through the available gap.The cost of repairs to the van was €2,500.00 and following an investigation meeting at which Mr Coughlan admitted to misjudging the space available to him, he was asked to attend a disciplinary meeting in respect of his “failure to protect and safeguard company property” and was informed this could result in disciplinary action up to and including dismissal for gross misconduct.

At the disciplinary meetingwhich was conducted by Mr Butler Area Operations Manager, extensive references were made by Mr. Butler to past driving incidents and the final written warning issued to Mr. Coughlan dated 2013, even though the final written warning had expired more than 12 months previously. Mr Coughlan was then summarily dismissed with immediate effect for gross misconduct for failing to protect and safeguard Company property.

The dismissal letter also said:

• ‘It is the company’s opinion that you were driving carelessly and your poor judgment caused over €2,500 of damage to the driver’s side of the van when you collided with the fencing.
• 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.’

Mr. Coughlan appealed the decision to dismiss him and cited that the Company had wrongly relied on previous spent sanctions to justify his summary dismissal. The appeal was not upheld and Mr. Farrell who dealt with the appeal stated that he did not agree that the other serious incidents in recent years could not be considered in making the decision to dismiss. He also stated that the Company needed to recognise the duty of care it had to the public, other staff and to Mr Coughlan.

The Labour Court took the view that DHL based its decision to summarily dismiss Mr. Coughlan on numerous grounds not referred to at all during the investigation stage or in the letter inviting Mr. Coughlan to the disciplinary meeting. They also determined that the dismissal decision had been somewhat based on previous incidents with the van, even though the warnings had long expired. It was further determined that there was a contradiction between Mr Farrell’s letter setting out the decision on the appeal, which said that his decision was based on the company’s ‘need to recognise the duty of care we have to the public, other staff and to you yourself’ when the allegation of which Mr. Coughlan was notified of and on which the dismissal was based was ‘failure to protect and safeguard company property’.

The Labour Court also stated that in any event the decision to dismiss summarily was disproportionate and the incident that occurred on 19^th October 2015 could not reasonably be considered to amount to gross misconduct and that they felt that the circumstances amounted to an error of judgment. The Court also found that DHL did not give due consideration to imposing an alternative and more proportionate sanction on the employee.

Mr. Coughlan’s dismissal was found to be unfair and he was awarded a sum of €72,042 by way of compensation, being the equivalent of 104 weeks’ remuneration and the decision of the Adjudication Officer was varied.

Lessons for Employers:

This case provides some useful reminders about how to conduct disciplinary hearings:

• An employee cannot be punished twice for the same offence and warnings which have expired may not be taken into account for subsequent disciplinary proceedings;
• Offences on which disciplinary decisions are based must be put to the employee and may not be added on during a process without a full right to reply;
• Sanctions imposed under disciplinary policies must be proportionate;
• Gross misconduct incidents must be sufficiently serious to warrant being classified as gross misconduct;
• Alternative sanctions short of dismissal should be considered where appropriate.