In Sylwester Michalski v Strandvous Limited the Respondent Company did not provide a translator to its Polish national employee with poor English, allow him access to all the witnesses and incorrectly determined his actions to constitute gross misconduct during the disciplinary process.

Facts:

This was the Respondent Company’s appeal to the Labour Court from a decision by an Adjudication Officers which found for the Complainant in an Unfair Dismissal claim.  The Complainant was a Polish national HGV driver who had worked for the Respondent Company for over 3½ years prior to his summary dismissal on the grounds of gross misconduct in November 2018.

The Complainant had been involved in two road traffic incidents on 2nd and 3rd October 2018.  The first of the incidents involved him colliding with a stationary car as a diversionary move to avoid an oncoming vehicle and the second was a ‘near miss’ where the driver of a car in the right-hand lane of the roundabout illegally left his land to exit the roundabout and pulled in front of the Complainant’s vehicle. The Complainant had to apply the brakes with force in or to avoid hitting the car that had crossed in front of his path.   Both incidents were reported by the Complainant to the Respondent immediately.

The Complainant was suspended on full pay pending an investigation which occurred shortly after the incidents.   The Complainant was not accompanied at the meetings but the Respondent Company did have a fellow Polish national attend in order to assist with interpretation due to his English being better than the Complainant’s.  The investigation found that as the Complainant drove in an ‘unsafe way’ and ‘failed to follow the rules of the road’, a disciplinary process was recommended, which duly commenced.

Immediately prior to the disciplinary meeting the Complainant provided a letter to the Respondent Company that had been drafted by his English speaking solicitor and which set out 12 points of concern with the disciplinary process to date.  The meeting went ahead and the points were dealt with in writing at a later date. The Respondent Company informed the Complainant that he could only be accompanied by a colleague and not his solicitor and proceeded to disciplinary hearing.  The Complainant insisted that he drove with the utmost caution and had done nothing wrong.  He was asked to comment on some CCTV footage but other angles were not available and the witnesses were not made available to him.  A disciplinary outcome letter was issued dismissing him for gross misconduct which the Complainant appealed on 9 grounds as follows:

  • It was not fair to deny legal representation when English is so poor
  • Company withheld evidence
  • Front facing CCTV was not provided and could have exonerated him
  • No opportunity to cross examine witnesses
  • The process was not conducted in accordance with natural justice
  • Letter at disciplinary was not dealt with
  • Decision to dismiss was taken with insufficient evidence and no attempt to get better evidence
  • Without Prejudice to assertion that he did nothing wrong, the penalty imposed was too severe

Denying a further request for legal representation at the Appeal stage, the Respondent Company did confirm that they would provide an independent translator.  The Appeal upheld the original decision and stated that there was a ‘fundamental breakdown of trust’ due to the incidents in October.

The Complainant won the Unfair Dismissal claim in the WRC and the Respondent appealed the decision to the Labour Court. The Labour Court issued its decision on 4th April 2022 and upheld the WRC’s decision. The Labour Court noted that the Respondent Company had given evidence that –

  • It was the combined events of both days that led to the breakdown in trust
  • It could not indicate what lesser sanctions, if any, were considered and why they were not suitable.
  • The incidents may have an adverse affect on the Company’s insurance
  • There was no sufficient reason given not to interview the driver of the car with which the Complainant had collided, other than a vague instruction from the Respondent’s insurance company not to engage with third parties

The Labour Court pointed out that it cannot re-run the disciplinary process but that it must establish whether ‘in all the circumstances a reasonable employer could have arrived at the decision that the Respondent arrived at’. It referred to the high bar to justify dismissal without notice for gross misconduct as set out in Lennon v Bredin, wherein the Court said ‘We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’

Decision:

In upholding the Adjudicator’s decision the Labour Court held:

  • The two incidents neither jointly nor severally met the bar for gross misconduct
  • The Respondent Employer never considered alternative, lesser sanctions
  • Although it did not agree that the Complainant should have been afforded a solicitor, it did state that he was at a significant disadvantage in not having an official translator throughout the disciplinary process and that the Respondent Company could not mend its hand on this at appeal stage alone.
  • The process was unfair and contrary to natural justice and fair procedures, especially due to failure to provide the translator at the disciplinary stage and not giving the Complainant access to the other driver’s contact details from the first incident. This was held to fall far short of meeting the requirements of the fundamental principle of ‘Audi alterem partem’

The Court awarded the Complainant all of his losses from the date of dismissal to the date he took up alternative employment.

Takeaway for the Employers: Where employees have a language barrier it is essential that the employer can prove that the employee was given access to a suitable translator at all stages of the disciplinary process. Furthermore, as the bar is very high for the WRC or Labour Court to uphold a summary dismissal for gross misconduct. Therefore, it is often worth considering paying the employee in lieu of notice when dismissing for misconduct rather than no notice whatsoever. In reaching a decision of dismissal, an employer should explain in the outcome why a lessor sanction was not appropriate and illustrate that it was considered.

Link  – https://www.workplacerelations.ie/en/cases/2022/april/udd2229.html

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