FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : J.J. MCCREERY LTD - AND - A WORKER (REPRESENTED BY BUILDING AND ALLIED TRADES UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR14486/03/TB.
BACKGROUND:
2. The issue involves the worker being dismissed for alleged irregularities over petrol receipts. The Union claims that the dismissal was unfair. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 31st October, 2003, the Rights Commissioner issued his recommendation as follows:
“Based on the evidence I do not consider this to have been an unfair or wrongful dismissal. The complaint is not upheld".
On the 7th November, 2003 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th January, 2004.
UNION'S ARGUMENTS:
3. 1 The Company did not adhere toprocedures prescribed by the Industrial Relations Act, 1990, Code of Practice on Grievance and Disciplinary Procedures (S.I.146 of 2000).
2. The alleged reason for the worker's dismissal did not warrant instant dismissal and under no circumstances could it be seen as a case of gross misconduct.
3. The Company did not take into account the worker's length of service (over 6 years) which includes 3 years as a supervisor without any warnings.
4. The Company over reacted, and this was due to the worker's decision to join a trade union.
COMPANY'S ARGUMENTS:
4. 1. All installation staff have been made aware of the need for computerised-typed till receipts for diesel expenses due to the VAT number requirements.
2. The worker who was a supervisor in charge of deliveries admitted that he had acquired a blank receipt book and submitted fake receipts.
3. The disciplinary procedures outlined in the staff handbook state that gross misconduct by stealing may lead to summary dismissal.
DECISION:
The Court has given careful consideration to the submissions of the parties in this case and to the evidence presented at the hearing. The Court is satisfied that the employer failed to follow procedures prescribed by the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). This cannot be overlooked and on that basis the Court must conclude that the dismissal was technically unfair.
There are, however, some features of this case which indicate that the employee contributed significantly to the dismissal. The Court finds it extraordinary that the claimant offered what appears to be a cogent explanation as to how he came to submit the receipt in question for the first time at the hearing of this appeal. This explanation was not relied upon in the course of direct discussions with the Company immediately following the dismissal nor was it offered to the Rights Commissioner. Furthermore, it should have been possible for the claimant to have obtained evidence to corroborate his version of how the receipt in question came into existence and to support his contention that other employees claimed reimbursement on foot of similar receipts. No such evidence was produced.
In all the circumstances of the case, the Court finds that the dismissal was procedurally unfair. However, in the circumstances the Court does not believe that compensation is warranted.
The recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
26th January, 2004______________________
JB/Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.