EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee (claimant) UD1996/2011
MN2028/2011
Against
Employer (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. J. Reid
Mr C. Ryan
heard this claim at Dublin on 13th March 2013 and 8th October 2013
Representation:
_______________
Claimant(s) : Ms. Elaine Hickey, Eugene Smartt, Solicitor, Newlands
Retail Centre, Newlands Cross, Clondalkin, Dublin 22
Respondent(s) : Mr. Eamonn McCoy, Ibec, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
Both parties made extensive written (filed) and oral (noted) submissions to the hearing relying upon various legal authorities.
Respondent’s case
The claimant commenced employment with this Security Company in January 2007. He worked full time as a Fire Engineer.
The claimant’s Line Manager told the Tribunal that the respondent company were contracted to carry out routine maintenance in Dublin Airport. On 11th July 2011 while passing through Dublin Airport, the Line Manager noticed a sub-contractor employed by the respondent company working alone in the airport area. The sub-contractor told him he was on a routine service with the claimant. When the Line Manager asked where the claimant was, the sub-contractor told him that the claimant was not on the premises. This was at 10.30am and the start time is normally 8.30am.
The Line Manager told the sub-contractor to report the matter to his boss. Later that morning BD, Accounts Supervisor, told the Line Manager that the owner of the sub-contract company was in touch in relation to the matter. BD asked the Line Manager to look into the matter of the claimant’s absence. An investigation commenced into the claimants attendance at the Dublin Airport site.
The Line Manger told the Tribunal that in early 2010 he had an informal conversation with the claimant in relation to a number of issues after which there was an improvement for a short period. In March/April 2011 the Line Manager indicated that the same problems were outlined again to the claimant in a meeting with HR. The claimant acknowledged there was a problem and the Line Manager felt that matters would be sorted by the claimant going forward. A letter dated 2nd March 2011outlining the position was opened to the Tribunal.
Under cross-examination, the Line Manager stated he did not know whether the letter dated 2nd March 2011 was sent to the claimant. He denied that any bullying allegations in relation to BD were brought to his attention prior to the meeting of 28th February, 2011. In relation to the informal conversation in 2010 with the claimant, the Line Manager stated that there was no formal warning on record. He did not re-call instructing the claimant not to put non-billable hours on timesheets. Customer liaison hours were to be recorded on timesheets but not on work dockets.
In relation to the tracker devices on company cars, the Line Manager told staff that the purpose of the trackers was to account for a vehicle if it was stolen. He denied telling the claimant that as long as he was in his car at 8.30am he was considered to have started work. The Line Manager told the Tribunal that he had no involvement in relation to the sub-contracting of the entire Dublin Airport work. It was instigated after he left that area of the company after November, 2010.
The Line Manger confirmed that he had minimal dealings with DC, a work colleague of the claimant’s. He had no involvement in a meeting regarding redundancy the day after the claimant was dismissed.
BD told the Tribunal that he was Accounts Supervisor with the respondent company. He explained that he was asked by HR to assist in the investigation into the claimant’s activities in Dublin Airport. BD examined timesheets, work dockets, vehicular movements and e-flow records. EF from HR was also involved in the investigation. Records relating to the previous quarter were examined in relation to the investigation work.
The investigation found that there were variances between the claimant’s timesheets and vehicle activity. In particular a trip to Kimmage that had not been approved. Secondly, the investigation also showed no vehicle movement on three separate days when the claimant showed his location as being in Dublin Airport. The claimant had filled in a time sheet for these days and had been paid accordingly. At the investigation meeting, the claimant maintained he had used a private vehicle to get to the airport as that particular car required a repair. No evidence was supplied by the claimant to back this up. The lunch time trip was explained as a medical appointment. The claimant refused to provide details of his movements in Dublin Airport by way of the swipe card details. BD felt that this was somewhat unreasonable. While he could not compel the respondent to do this (as the information was not accessible by G4S without the claimant’s permission) he did not understand why, if the claimant was at work and could prove it with this information, he would not make some effort to obtain it. BD told the Tribunal that the claimant stated that he could be on the road at 8.30am and not necessarily on site. The claimant had told him he could be doing courtesy calls when not on site at 8.30am. BD understood that Engineers should have been at their place of work by 8.30am. BD was satisfied that the claimant was not in the airport on three of the dates he had submitted timesheets for.
Four meetings were held with the claimant which he attended with a union representative. The letter outlining the result of the investigation meetings dated 15th August, 2011 was opened to the Tribunal.
In cross-examination, BD stated he was not aware that the claimant had objected to him being part of the investigation team. He said he would have been removed from the team if an objection had been made. The claimant was not provided with details of how the investigation would proceed. BD did not put the allegations to the claimant in advance of the 25th July, 2011. He said the purpose of the tracker was to view the location of Engineers in case a call came in. BD did not know if the claimant was aware that e-flow records would be used to monitor him. He said he thought it was reasonable to ask the claimant to prove his location on certain dates.
The HR Advisor told the Tribunal that he was involved in the disciplinary meeting with the claimant. The claimant was requested to attend a disciplinary meeting by letter dated 17th August, 2011 and the allegations were set out in the letter. The HR Advisor was not aware of any objection made by the claimant in relation to BD being part of the investigation. The claimant stated at the disciplinary meeting that he had used his partner’s car on the dates in question and did not use the toll (on 13th June, 4th July, and 11th July, 2011). The claimant had indicated that he had been at work in Dublin Airport on those dates. The claimant also refused to get details of swipe access from the DAA as this would not be a good reflection on him. Furthermore he stated that some days he did not use the swipe card in the airport therefore such information would be irrelevant. After the disciplinary meeting the HR Advisor made enquiries about the non-use of the swipe card with two other members of staff who both stated that a swipe would have to be used at least once while working in Dublin Airport.
The HR Advisor did not accept that it was possible not to use the swipe card at least once during a working day in the airport given the level of security at the airport. The claimant was given an opportunity to produce receipts at the time to show work was carried out on his partner’s car, which he failed to produce at any stage prior to his dismissal. It was the respondent’s conclusion that the claimant was not in work on the three dates specified.
Following the disciplinary meeting, a letter of dismissal was issued to the claimant on 22nd August, 2011 for gross misconduct.
The Head of the HR Department told the Tribunal that he carried out the appeals process. After examining the case in detail, the Head of HR issued a comprehensive outcome of his decision by letter dated 29th September 2011 agreeing with some but not all of the reasons for dismissal but ultimately upheld the decision to dismiss.
Claimant’s Case
DC, a former Fire Service Engineer with the respondent company told the Tribunal that he was told by their Line Manager that as long as they were on the road by 8.30am it was accepted as a start time. He stated that courtesy calls were not put down as part of billable hours on timesheets. The day after the claimant was dismissed DC was informed he would be made redundant at the end of September, 2011.
Giving evidence, the claimant indicated that he had a difficult relationship with BD who, as far as the claimant was concerned, was a Senior Engineer. According to the claimant, BD was hostile towards him and verbally abused him in front of others. The claimant had complained on numerous occasions about the behaviour of BD towards him and had raised concerns with his union representative that BD was part of the investigation team.
On 18th July 2011 when the claimant was leaving the airport at 5pm he received a telephone from EF, Assistant HR Manager telling him he was suspended. A letter was waiting for him when he arrived home that evening indicating suspension with pay. On 19th July 2011 the claimant received a letter stating that he was to attend an investigation meeting on 20th July, 2011. The letter outlined the allegations against him
The claimant told the Tribunal that in relation to the alleged ‘lates’, his Line Manager had informed him that once he was on the road by 8.30am he was deemed to have started work. It would not be unusual for toll records to show activity at 9.48am as he would often do courtesy calls on the way to work. In relation to the 3 dates alleging absence without leave, the claimant stated that he was in attendance at the airport on those dates and that the reason there was no toll activity on the company car was because he drove his partner’s car on those dates as he was getting work done on the car on the way home from work. He did not use the toll on those dates and so could not provide toll evidence. The claimant stated that there was no point in requesting swipe card evidence from the DAA as his swipe card did not allow him access to 98% of the airport. It was possible for him not to have to use his swipe on a given day while working in the airport. He was advised by his union to decline access to his swipe records in the airport. The claimant told the Tribunal that when he subsequently requested swipe records from the DAA, his request was declined on the basis that the information was for security purposes only. He made this request after the investigation had taken place.
The claimant explained that there was a certain amount of flexibility within the company as at times he could be working in the evening on paperwork. He stated he was never provided with minutes of meetings until he requested them after his dismissal. He did not give permission for tracker records to be accessed. The claimant endeavoured to retrieve receipts to prove that work had been carried out on his partner’s car on the three dates in question but he could not locate them and duplicate receipts could not be issued by the garage. A receipt of sorts was presented to the Tribunal on the second day of the hearing.
If he had been told by the respondent that the start time of 8.30am meant on site attendance, he would have complied with this. The claimant gave evidence pertaining to loss and his efforts to mitigate the loss.
Under cross-examination, the claimant stated that he documented courtesy calls in his diary. Managers were not told of these types of calls unless there was a problem. He did not raise the issue of the DAA refusing the swipe access information at the appeal meeting as he felt it was useless information. The work carried out on his partner’s car was in relation to work on the tyres, balancing problems and break pads. The claimant did not re-call any documentation being enclosed with the letter dated 19th July 2011. The reason he was going through the toll after 8.30am on various work days was because of courtesy calls, collecting stores etc. He confirmed he was in the airport on 13th June, 4th July and 11th July, 2011 and had sent the sub-contractor home early on those date as there was no work for him.
Determination
The Tribunal considered all of the evidence very carefully. There was a direct conflict in this case in relation to the main issues. The claimant was dismissed following an investigation into his attendance as a subcontractor at Dublin Airport. The results of investigation alleged, inter alia, that the claimant failed to appear for work on certain dates, he falsified records (e.g. time sheets), he was off site without permission and had a generally poor attendance record. It is not within the Tribunal’s remit to replace the decision of the respondent but rather asses whether it, in dismissing the claimant, acted fair and reasonably in all of the circumstances.
It is the claimant’s case, inter alia, that even if he was supposed to be on site at work at 8.30 rather than, as he understood in his car available for work at 8.30, it is his perception of the acceptable practice that the Tribunal should consider (Heffernan v Dunnes Stores). Furthermore, in relation to the falsified records/attendance issues the claimant believes that the respondent should have taken his explanation as reasonable.
In assessing all of the evidence before it the Tribunal prefers the evidence of the respondent. While the policies and procedures applied in this case may not have been perfect the Tribunal believes the respondent to have acted reasonably in all of the circumstances. The claimant was adequately informed of the case against him and was given every opportunity to address the issues raised. He chose not to co-operate fully with the investigation and the ensuing disciplinary procedure for whatever reason and it was not unreasonable of the employer to come to the conclusion it did in terms of his attendance at work.
In conclusion the sanction of dismissal was not unreasonable in all of the circumstances. Accordingly, the claim fails under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal awards the claimant his statutory entitlement of €2,020.00, being the sum due for two weeks’ notice, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)