Truck driver fired after relieving himself on loading dock during ‘urgent diarrhea’ incident, loses discrimination claim
“I had a stomach ache, there was no toilet – I could only go under the truck”
The Workplace Relations Commission ruled that it had “insufficient evidence” to establish that the cramps and diarrhea he described were caused by a stomach ulcer.
In dismissing a disability discrimination claim brought by driver Edward Riordan against his former employer, All-Star Logistics Ltd, the court made no finding on an evidentiary dispute about the strength of the stool that the complainant’s colleague used in the loading dock discovered a few days later.
In his statement, Mr Riordan said: “I had a stomach ache, there was no toilet – all I could do was go under the truck. “If I had to walk through two buildings to get to the toilet there was no way I would have made it,” he said Mr. O’Riordan.
The nearest toilets at the Flextronics site in Cork, where the incident occurred in September last year, were between one and a minute and a half away, the court was told.
Mr Riordan’s lawyer, Thomas Wallace-O’Donnell BL, submitted a report from his client’s GP which said the complainant had suffered a “gastrointestinal attack” this month, which was accompanied by “cramps and the “urgent need to defecate”.
The medical certificate was challenged by the company in legal submissions, with its representative, Ellen Walsh of Peninsula Business Services, arguing that the firmness of the stool noted by one of Mr Riordan’s colleagues was inconsistent with diarrhoea.
“For me it was diarrhea,” Mr. Riordan said when the illness was presented to him.
When Ms. Walsh told him that his colleague had found “solid excrement” in the loading dock, he said: “I thought it would be washed away in 20 minutes. Should her word replace mine?”
When further asked why he didn’t use the tissues he had in a bag in the cab of the truck to clean up, he said: “To be fair, I couldn’t use tissues to clean up in a thunderstorm.”
Helen Kelleher, another truck driver who works for the company, said she removed a piece of wood from the loading dock to avoid a flat tire while reversing and took it to a Flextronic employee for disposal.
“One of the guys said, ‘What’s stuck to the wood?’ I saw that there was poop on it and just picked it up. With that, the Flex employee said he had to report it to the Health and Safety Department. I went to the bathroom to wash my hands,” she said.
“If you assume that feces can have a consistency, that there’s a spectrum of consistencies – you can be absolutely liquid and – I’ve been struggling to think about how to describe the other end, an absolutely solid piece of feces … where.” Would you place it on this spectrum? Would it be like mashed potatoes?’ asked Mr Wallace-O’Donnell.
“I assume so, yes,” replied Ms. Kelleher.
The court heard Mr Riordan was later identified on CCTV, admitted responsibility and was subsequently dismissed for gross misconduct.
The company’s human resources director, Caroline Murphy, said it had to stop sending Mr Riordan on the delivery route because the defecation incident was so “serious”.
However, she said the complainant’s failure to clean up the faeces or report the matter to either the customer or his own employer contributed to the company’s finding that he had committed gross misconduct.
Otherwise it would have been “completely understandable,” she said.
Proving this, the logistics company’s managing director, Paudie Murphy, said: “Saying no-one would see it on the loading dock – that’s like saying no-one would see it at the front door of your house, it’s a warehouse, Everything goes in and out of the loading dock.”
“He did not care. When I asked if he cared about our reputation and that of other staff, his exact words were: ‘Why should I?’ It’s unbelievable,” he told the tribunal.
The company also dismissed another age discrimination complaint from Mr. Riordan, who also claimed that the company reduced his hours based on his age and ultimately did not assign him shifts at all.
In her decision, Judge Ewa Sobanska agreed with the defendant on the discriminatory context, describing a letter from Mr Riordan’s GP as “sparse in detail” and “lacking details about what the illness entails”.
“Even if the complainant’s evidence regarding the consistency of the feces found were accepted, there was insufficient evidence to conclude that the cramps and diarrhea in this case were manifestations of peptic ulcer disease,” she wrote.
The judge rejected the disability discrimination claim, saying she did not have enough evidence to show that Mr. Riordan had a disability at the time of the loading dock incident.
Ms. Sobanska also dismissed the age discrimination claim on the grounds that Mr. Riordan confirmed that an initial reduction in his working hours was “in agreement” with his employer and that the subsequent decision not to assign him further work was related to the defecation incident .
