A truck driver who lost his job after relieving his bowels in a warehouse loading bay in what he said was a case of “urgent” diarrhoea has lost a discrimination claim against his former employer.
The Workplace Relations Commission ruled there was “insufficient evidence” before it to find that that the cramping and diarrhoea he described had been brought on by a peptic ulcer condition.
In rejecting a disability discrimination claim by the driver, Edward Riordan, against his former employer, All-Star Logistics Ltd, the tribunal made no finding on a dispute in evidence on the firmness of the stool discovered in the loading bay by one of the man’s colleagues a few days later.
In his evidence, Mr Riordan said: “I got a pain in my stomach, there was no toilet – the only thing I could do was to go under the truck. If I had to go through two buildings to get to the toilet there was no way I’d have made it,” Mr O’Riordan said.
The nearest lavatories at the Flextronics site in Cork, where the incident took place in September last year, were between a minute and a minute and a half away, the tribunal was told.
Mr Riordan’s barrister, Thomas Wallace-O’Donnell BL, submitted a report from his client’s GP stating that the complainant had suffered a “gastrointestinal flare” that month associated with “cramping and an urgent need to pass a bowel movement”.
The doctor’s note was challenged by the company in legal submissions, with its representative, Ellen Walsh of Peninsula Business Services, arguing that the firmness of the stool discovered by one of Mr Riordan’s colleagues was inconsistent with diarrhoea.
“As far as I was concerned, it was diarrhoea,” Mr Riordan said when it was put to him.
When Ms Walsh put to him that his colleague found “solid excrement” in the loading dock he said: “I thought it would be washed away in 20 minutes. Is her word to be taken over mine?”
Questioned further on why he did not use tissues he had in a bag in the cab of the lorry to clean up, he said: “I couldn’t pick that up with tissues, in fairness, in a thunderstorm.”
Helen Kelleher, another truck driver working for the company, said she went to remove a piece of wood from the loading bay to avoid a puncture while backing in, and brought it to a Flextronic worker to dispose of.
“One of the lads said: ‘What’s stuck to the timber?’ I saw there was excrement on it and I just picked it up. With that the Flex employee said he’d have to report it to health and safety. I went into the toilet to wash my hands,” she said.
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“If you would take it that excrement can have a consistency, that there’s a spectrum of consistencies – you can have absolutely liquid and – I’ve been struggling to think how to describe the other end, an absolutely solid piece of faeces ... where on that spectrum would you put it? Would it be like mashed potato?” Mr Wallace-O’Donnell asked.
“I suppose it would, yes,” Ms Kelleher replied.
The tribunal heard Mr Riordan was later identified on CCTV, admitted responsibility, and was then sacked for gross misconduct.
The company’s HR manager, Caroline Murphy, said it had to stop sending Mr Riordan on the delivery run because of how “serious” the defecation incident had been.
However, she said the complainant’s failure to clean up the faeces or report the matter to either the client or his own employer contributed to the company’s finding that he had committed gross misconduct.
It would have been “totally understandable” otherwise, she said.
In evidence, the logistics firm’s managing director Paudie Murphy said: “To say no one would see it on the loading bay – 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 bay.”
“He didn’t care. When I asked did he care about our reputation, the other staff, his exact words were: ‘Why would I?’ It’s unbelievable,” he told the tribunal.
The company also denied a further complaint of discrimination on age grounds by Mr Riordan, who also alleged the company had reduced his hours because of his age before ultimately assigning him no shifts at all.
In her decision, adjudicator Ewa Sobanska agreed with the respondent side on the discriminatory link point – calling a letter from Mr Riordan’s general practitioner “scant on detail”, with “no detail as to what the condition entails”.
“Even if the complainant’s evidence as to the consistency of the excrement discovered was accepted, there was not sufficient evidence proffered to conclude that cramping and diarrhoea in this case were manifestations of peptic ulcer disease,” she wrote.
The adjudicator rejected the disability discrimination claim on the basis that she had insufficient evidence before her to establish that Mr Riordan had a disability at the time of the loading bay incident.
Ms Sobanska also rejected the age discrimination claim on foot of Mr Riordan’s confirmation that an initial reduction in his hours had been “by agreement” with his employer and the later decision to assign him no more work was related to the defecation incident.
