WRC rules delivery driver fired over failure to disclose his convictions unfairly dismissed

Seán McCárthaigh

A van delivery driver was unfairly fired over his failure to disclose criminal convictions and a prison sentence from almost 20 years earlier, as well as an ongoing prosecution for assault, an employment tribunal has found.

The Workplace Relations Commission ruled that Kenneth McMorrow had been unfairly dismissed from his job with Clare Distribution Services of Kingswood Business Park, Baldonnell, Co Dublin.

The company, which distributes frozen and ambient goods nationwide, claimed the dismissal followed a disciplinary process which complied with the principles of fairness and natural justice.

It stated the dismissal was justified on grounds of gross misconduct over the complainant’s failure to disclose his criminal convictions.

Mr McMorrow (46), a native of Sligo but living in Co Meath, claimed he was dismissed from the job he had held for two and a half years in August 2024.

He told the WRC that he was informed the reason was his failure to disclose convictions which had occurred around 20 years earlier on his job application form.

Mr McMorrow noted that no colleague or customer had ever complained about his work with the company.

He gave evidence that he was informed by a HR executive in July 2024 that he should submit his notice or he would be sacked.

The complainant said the HR executive explained that it was due to social media reports about him.

The WRC also heard that Mr McMorrow was absent without leave from his job in early July 2023.

He stated that his brother had been killed in a road crash, and his pay slip showed he had received three days’ bereavement leave.

Mr McMorrow admitted he had been arrested and charged for his involvement in a fight on the night before his brother was buried.

The WRC heard that the incident was the subject of an ongoing criminal case before the courts in Sligo at the time of the hearing before the employment tribunal last August.

Mr McMorrow said he had secured alternative employment two weeks after his dismissal.

A representative of Clare Distributions Services said Mr McMorrow had left a section on his job application form about past criminal convictions blank which had not been followed up by the company.

He said the failure to disclose such convictions, combined with his unexplained absence from work in July 2023, had led to a loss of trust and confidence in the driver who had posed a reputational risk to the company.

The executive told the WRC that the disciplinary process arose after the company had been contacted by one of its clients, Dunnes Stores, who had been asked by gardaí about the movements of a van and details of its driver, who was Mr McMorrow.

The witness said the Garda inquiry prompted the company to carry out an internet search on the complainant which revealed his hitherto unknown convictions and prison sentences.

He recalled how the complainant admitted he had received prison sentences for criminal convictions after Mr McMorrow was shown media reports about his convictions for drug-related offences in 2003 and for obstruction in 2008 at a meeting in July 2024.

The HR executive said Mr McMorrow was evasive when shown press reports about his being charged with assault causing harm and being remanded on bail by a court in Sligo in July 2023.

WRC adjudication officer, Máire Mulcahy, said the complainant’s failure to disclose his previous convictions on his application form was a serious matter.

Ms Mulcahy noted that Mr McMorrow did not dispute the contents of various press reports about him but claimed he had tried to turn things around for his family’s sake.

However, she said his evidence about the dates of his brother’s death and his contact with his employer around that time were “inconsistent and unreliable.”

“I accept that the ongoing charges against the complainant for an assault, his recurring failure to avoid situations resulting in criminal charges – aside from his previous convictions – eroded the respondent’s confidence and trust in the complainant’s character and his employability in a customer-facing role,” said Ms Mulcahy.

As Clare Distribution Services faced reputational damage employing a van driver with a public criminal record who was facing an assault charge to deliver goods in branded vehicles, Ms Mulcahy said there were substantial grounds for Mr McMorrow’s dismissal.

However, she said he was still entitled to a fair and impartial process.

The WRC adjudicator said his evidence that he was asked to resign rather than be sacked was before any disciplinary process was not challenged.

Ms Mulcahy said this “short circuiting” of the stated procedure by “nudging him into the resignation lane” suggested a predetermined outcome which rendered his dismissal unfair.

The WRC heard that the complainant had estimated his loss at €3,698.

In fixing an award of compensation, however, Ms Mulcahy said the evidence showed he had contributed “to a very large extent” to his dismissal.

She awarded Mr McMorrow compensation of €648 – the equivalent of one week’s pay.