THE INDUSTRIAL TRIBUNALS 

CASE REF:	9031/03

					

APPLICANT:	William Jones			

RESPONDENT:	Montgomery Tank Services		 

DECISION 

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.

Appearances:
The applicant was initially represented by Mr D. Dunlop, Barrister-at-Law, and thereafter 
by Karen Quinn instructed by MacElhatton & Co., Solicitors.    

The respondent was represented by Mr J. Dunlop, Barrister-at-Law, instructed by Carson McDowell Solicitors.

Summary Reasons

The tribunal found the following facts:-

1.	The applicant was employed by the respondent as a driver and on 2 August 2003, the applicant was involved in an accident on the Bailieboro Road in Virginia in the Republic of Ireland.  There was no-one else involved in the applicant’s accident.  The applicant’s vehicle did not manifest any defect;  the applicant accepted that the road conditions were quite reasonable;  the applicant was driving a twin pot tank that would take twenty three tonnes. 

2.	The only excuse for the accident given by the applicant was that he felt slap in the product.  The applicant was carrying palm oil and this is a product which the applicant accepted was in the neighbourhood of twenty three tonnes of oil being transported.  The applicant contended that despite the fact that the twenty three tonnes of oil was in a twenty three tonne tank, there was still space in the tank for the product to move and potentially over balance the vehicle.  The tribunal did not accept this contention as the applicant also said that he 

believed the tank was virtually full and the tribunal accepted the respondent’s contention that with a twin pot tank the potential for slap (running of the product from one side of the tank to the other was consequently reduced because the product was running across a shorter space.  The total amount of the product did not have a chance to create one great wave, it was reduced to two shorter waves).

3.	The tribunal on the balance of probabilities considered that it was more likely than not that the accident, whereby the applicant’s vehicle had over-turned into a field, was not caused by “slap” in the tank.  The tribunal noted from the applicant’s evidence that he did not make any complaint about the vehicle he was driving nor did he experience any ‘slap’ until he reached the site of the accident.  If the tank really was not as virtually full as the respondent contended, the tribunal considers that it is more likely than not that the applicant in his drive up from Dublin to Virginia would have experienced “slap” before the point of the accident.  There was certainly no evidence from the applicant to suggest that he had had any prior problems.

4.	The applicant contended that his dismissal had been procedurally unfair on the grounds that he was not involved in the investigation prior to the disciplinary hearing.  The tribunal does not accept the applicant’s contention.  The tribunal considers that the applicant was given an opportunity at his disciplinary hearing to hear all the allegations put against him and to answer them.  The tribunal does not see how failing to interview the applicant at the investigatory stage could have altered the fairness of the disciplinary process.  It was also contended that on appeal Mr Gracey had treated the applicant unfairly by placing undue emphasis on the fact that the vehicle’s tachograph was missing and that the damage to the applicant’s vehicle was consistent with it being driven at speed.  The tribunal does not consider it necessary to make findings on the issue of the tachograph being unavailable and does not consider that this played an operative part in Mr Gracey’s overall decision.  Basically, the decision was that in the management of the vehicle, the applicant placed his own life and the lives of other road users in danger and did serious damage to a tractor and trailer combination.  The tribunal considers that it is more likely than not on the balance of probabilities that irrespective of what evidence the tachograph might or might not have given, it is more likely than not that it was the way in which the applicant drove that vehicle at the particular corner in question that caused the accident.  It was not disputed that damage was done to the tractor and trailer.  It was not disputed that the applicant was trapped in the vehicle.  

5.	Mr Gracey simply upheld the decision of Mr McNeilly and did not in his decision letter of 10 September 2003 make any reference to the tachograph or the issue of the speed at which the vehicle was travelling.  The tribunal found no basis upon which it could find that the decision to dismiss the applicant was not in the band of reasonable responses given by a reasonable employer acting reasonably in the circumstances presenting in this case. 

6.	It was accepted by the applicant that he was entitled to put his contentions and be heard at all stages of the process.  Therefore the tribunal does not find that the decision and the disciplinary process in general were procedurally unfair.  For all of the above reasons, the tribunal finds that the applicant’s dismissal was not unfair.

Chairman:

Date and place of hearing:	6 April 2004, 28 January 2005, and 4 March 2005, Belfast.	

Date decision recorded in register and issued to parties: