UD2042/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms N.  O'Carroll-Kelly BL

Members:        Mr N.  Ormond

Mr S.  O'Donnell

heard this claim at Dublin on 20 March 

               and 4 September 2013

Representation:

_______________

Claimant:

                        Ms Aideen Keane BL instructed by Ms Emma Woodlock,

            Able Solicitors, 199 Emmett Road, Inchicore, Dublin 8

Respondent:

                        Mr Padraig O'Grady, IBEC, 3rd Floor, Pier One, Quay Street,

                        Donegal Town on the first day. Ms Caitriona Forsyth, IBEC,

                        Confederation House, 84/86 Lower Baggot Street, Dublin 2

                        on the second day

The determination of the Tribunal was as follows:-

The claimant was employed as a delivery van driver from November 2009. The respondent operates a cooking oil supply and recycling business with some 200 employees across five depots in both jurisdictions on this island. The claimant worked with a colleague (AC) as a two man team whereby both could drive the van and effect deliveries to and collections from clients’ sites, their roles are interchangeable.

On 15 September 2011 the claimant and AC made a delivery at a client’s site in North Leinster. For this delivery AC performed the delivery of the cooking oil and collection of the waste oil whilst the claimant who was driving the van performed the administrative or paperwork aspect of the transaction. At the conclusion of the delivery AC found two plants next to the bins, which he believed to have been left out for disposal, and put them into the van.

The following day the client contacted the respondent to complain about the removal of the plants. The depot manager (DM) became aware of this complaint on Monday 19 September 2011 and later that day called to see the client and to view CCTV of the events of 15 September. As a result of what he had seen on CCTV DM spoke to both the claimant and AC about the incident around lunchtime on 20 September 2011.

The following day DM gave the claimant a letter from the human resource manager (HR) in which he was suspended with pay following allegations of gross misconduct due to his involvement in the theft of the plants on 15 September 2011. He was warned that if the allegations were proven they could result in his dismissal and was invited to a disciplinary meeting on 26 September 2011. He was advised of the opportunity to be accompanied by a work colleague and to be provided with the assistance of an interpreter.

The disciplinary meeting was conducted by HR along with the operations manager (OM); an interpreter was also in attendance. At this meeting the claimant accepted that he knew AC had put the plants in the van. His position was that AC was a garden fan and the plants looked dead. The claimant was not given the opportunity of seeing the CCTV footage of the incident.

On 7 October 2011 OM wrote to the claimant to inform him of his dismissal due to his involvement in theft from a customer’s premises. He was advised of his right of appeal to the managing director but did not avail of this opportunity.

Determination:

The claimant was dismissed from his employment by letter dated 7 October 2011.  The dismissal letter states that he was dismissed for his “involvement in theft from the customer’s premises.  As theft is regarded as an act of gross misconduct in accordance with the company disciplinary procedures you are therefore being dismissed with immediate effect without notice and without pay in lieu of notice.”

The claimant himself did not steal the plants in question.  His colleague removed the plants in the mistaken belief that they were rubbish.  They were situated beside bins in the customer’s yard.

Following the respondent’s evidence it became apparent that the claimant was in fact dismissed for not reporting the matter to his superiors.  The dismissal letter, the investigation notes and all of the evidence are silent on this crucial issue. 

The claimant did not appeal the dismissal.  That is a serious flaw in the claimant’s case.  Whilst it is normally fatal to a claimant’s case not to exhaust the disciplinary process, there are exceptions.  The claimant was dismissed for his involvement in a theft.  However, it is now clear that the real reason for his dismissal was the fact that he did not report it.  Even if the claimant had appealed the matter this issue would not have been dealt with.  The first time anyone was made aware of the real reason was during the hearing of the matter. It is a very unusual situation, so unusual that it remedies the claimant’s failure to appeal the decision.

The respondent in evidence did not state that failure to report a matter equates to gross misconduct.  The respondent handbook is also silent on the matter. The claimant was not given an opportunity to respond to the allegation that he did not report the matter.  

The Tribunal finds that the claimant had little or no role to play in the misappropriation of the plants and that he was formally dismissed for his involvement in the theft and not for failing to report the matter.  On that basis the Tribunal finds that the claimant was unfairly dismissed.  The Tribunal finds that the respondent’s treatment of the claimant was appalling.  To accuse somebody of theft without actual factual evidence of same is extremely serious.  It has an extremely detrimental effect on a person’s reputation.  As a result the claimant failed to find alternative employment.  The Tribunal awards the claimant €22,500-00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)