UD1715/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                CASE NO.

EMPLOYEE    – claimant                                                                              UD1715/2011

Against

EMPLOYER – respondent

C

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:         Ms M.  Levey BL

Members:         Mr P.  Pierce

Mr J.  Maher

heard this claim at Dublin on 4th March 2013 and 25th July 2013

Representation:

_______________

Claimant(s):                  In person

Respondent(s):

The determination of the Tribunal was as follows:-

Summary of evidence:

The claimant was employed as a Dublin based regional sales manager for an office supplies company.  His employment commenced in April 2008.  At his request he stepped down to the position of regional sales manager in June 2009.  Part of his role was to accompany the sales representatives in his team on sales calls and to record these visits on field accompaniment visit forms (FAVs).  He was dismissed by reason of gross misconduct on 18^th February 2011 for falsifying three FAV forms.  Prior to his dismissal the claimant had been involved in a disciplinary process in relation to work performance.

The company instigated a disciplinary process in September 2010 to address the claimant’s poor performance and failure to supply reports.  He was issued with a verbal warning as a result of this.  A further disciplinary meeting was held in November 2010 to address the claimant’s poor performance which resulted in a written warning being issued.  The claimant appealed this.  The appeal meeting occurred on 13^th January 2011 but the sanction was upheld by letter of 11^th February 2011.

On 1^st February 2011 the claimant was suspended pending an investigation into allegations that he falsified three FAV forms on 9^th March 2010, 10^th January 2011 and 18^th January 2011.  A disciplinary meeting was held on 18^th February 2011.  The claimant disputed the allegations concerning the FAV form from 9^th March 2010.  He was assisting the sales representative in question who was having personal difficulties.  He agreed that he had falsified the two other forms, but he contended that this was to assist a new sales representative so he would have the correct number of field accompaniments achieved by week 5.  He accepted that he made a bad judgement call.  He contended that he was under pressure in January and had a lot of issues going on.  The claimant was summarily dismissed the same day for gross misconduct.

The claimant requested an appeal and this was heard on 9^th March 2011.  The decision to dismiss was upheld by letter of 17^th March 2011.

The claimant argued that he had 11 sales reps to supervise rather than the usual eight.  He had two new sales representatives to supervise in January.  He did not feel he had sufficient support from his manager.  He was diagnosed with a (threatened?) brain aneurysm in late 2010.  He did not inform the company of this at the time and stated back pain on illness certificates.  He had initially informed his line manager but did not wish for it to be known to others.  The company was aware of this from 11^th February 2011 when the claimant emailed to request for a later disciplinary hearing date due to a recent hospitalisation.  He did not cite this as an excuse for falsifying forms.

He agreed that he had falsified forms but he had not done so maliciously and felt that the sanction had been overly harsh.  He believed that the respondent did not pursue other employees for misconduct, albeit for different offences. 

The officer who dismissed the claimant gave evidence that he considered other sanctions but there was a fundamental breach of trust and the respondent company could not be confident in returning the claimant to his position.  The claimant held a senior position in the company.  He worked remotely and so was not easily monitored.  He had induced employees subordinate to him to collude in signing documents which reported incorrect information.  He did not refer to his brain aneurysm during the disciplinary hearing.  He raised it at the appeal hearing.  The first allegation predated the claimant’s diagnosis. 

Determination:

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)