EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE - claimant UD1657/2011
RP2198/2011
MN1713/2011 WT657/2011
Against
EMPLOYER- respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr D. Hegarty
Ms. P. Doyle
heard this claim at Cork on the 4th March 2013 and the 1st and 2nd May 2013
Representation:
Claimant(s) :
Respondent(s) :
The claims under the Redundancy Payments Acts, 1967 to 2007 and Organisation of Working Time Act, 1997 were withdrawn at the outset of the hearing.
Summary of Evidence
The respondent operates as a ‘cash in transit’ security business. The claimant commenced employment with the respondent in July 2003 in its Cork branch (the branch). Having worked his way up to crew leader he worked Monday to Friday on a two man contract. The claimant was dismissed on 11 March 2011 for alleged failure to follow reasonable and lawful instructions amounting to gross misconduct. Of the twelve employees in the branch, at the time of his dismissal, the claimant was the only full-time employee working on a two-man crew.
BM began as branch manager in the branch in December 2010. Within five weeks of working there he received a number of complaints about the claimant. On the 27 January 2011 while the claimant was on a run to Tralee, BM phoned him and told him that complaints had been made against him. The claimant returned to the base at 6.30pm to obtain details of the complaints and collected a letter from the HR director (HRD) dated 26 January 2011, informing him that complaints made against him had been investigated and he was invited to a disciplinary hearing to consider his “failure to accept reasonable management instruction”. In the letter he was also informed that he was suspended with pay pending the hearing. The allegations against the claimant were outlined in a document dated 27 January 2011 (issues document), which was enclosed with the letter. This document was prepared by BM based on verbal complaints received from a number of employees, his own complaints arising from concerns raised by the claimant. The alleged incidents had occurred between 11 January and 26 January 2011. The claimant was very upset and stressed by the allegations, his position was that he was not guilty of any of these and could not understand where they were coming from. He cancelled his holiday and was certified unfit for work and submitted a number of medical certificates over a period of four weeks. He was signed fit by his doctor so he could attend the re-scheduled disciplinary hearing on 10 March 2011.
The complaints in the issues document can be summarised as follows:
1 On 11 January the claimant having (with his fellow crew member) arrived in the Dublin base, went to the canteen for lunch and ignored an instruction from an employee to take the van to the mechanic for repair. (The van had been unloaded before the crew went to the canteen.)
2 Staff in the Cork base complained that on 14 January he was uncooperative and disruptive in the yard taking more than 40 minutes to load a van, which had a knock-on effect on other drivers and delaying in loading ATMS.
3 Being late for a rendezvous with another driver in Kerry on 17 January 2011, because it took the claimant one hour and forty minutes to travel the one hour journey to Killarney, and resulted in the other driver having to adjust his schedule and suffer delays over the remainder of the day.
4 (a) On 18 January 2011, while on a trunk run from base to Dublin he had parked the van containing a large sum of money outside a local petrol station while having breakfast over a fifteen to twenty minute period, rather than having breakfast at the base.
4 (b) In addition the claimant had lodged a complaint that requiring him to travel to Dublin the same day every week is dangerous.
5 (a) The claimant complained that he was victimised by being put in the control room rather than being out on runs.
5 (b) Taking the decision to leave a collection centre, due to delay at the bank, without contacting BM.
6. Contacting the head of security, over BM’s head, on the dangers for the driver of a caddy van when supporting drivers of one man security vans on bank runs.
It was further alleged in the issues document that the aforementioned behaviour of the claimant was disruptive and affected morale and productivity.
The operations director (OD), at the request of BM, conducted a disciplinary meeting on 10 March 2011 and BM attended as an observer. The claimant was represented by his shop steward (TU). The claimant sought the names of the complainants but was only told that the complaints had been made by members of staff. The claimant denied each of the six allegations and suggested that the employees who had accompanied him on the days of the alleged incidents could confirm this. OD suggested a number of alternative positions/options for the claimant including a job in the control room, training to upgrade to a class C licence, and to drive the caddy van as a support van on bank runs. TU engaged in a discussion with OD about the options for the claimant. The claimant was confused and did not know what was going on. He was concerned that the disciplinary issues were not being fully addressed and TU and the claimant left the meeting to have a private discussion. It was TU’s evidence that the claimant was not interested in any of the options and wanted ‘to stay as he was’. There was a dispute as to whether the claimant returned to the meeting. OD had neither interviewed the complainants nor did she know their identity. OD’s position was that as the claimant would not accept any work option and did not wish to continue with the meeting, she had no option but to dismiss him.
Written statements by the complainants were not in existence on 10 March for the disciplinary meeting and the only written version of the complaints available to the claimant were those in the issues document prepared by BM. OD could not recall when she received the list of issues but confirmed it was in advance of the disciplinary meeting. She had not carried out an investigation and was unaware of the names of the complainants. In her evidence OD acknowledged there were some flaws in the procedure adopted by the respondent.
HRD heard the appeal on 29 April 2011. The claimant was concerned that HRD was hearing the appeal of a decision made by his superior, OD, but eventually agreed to the appeal going ahead. In advance of the appeal he received copies of the statements made against the claimant, which formed the basis for his dismissal. The work options were not raised at the appeal meeting. HRD upheld the decision to dismiss as no new evidence was introduced. In the letter communicating his decision to the claimant HRD stated inter alia:
“As part of the appeal process, I have undertaken further investigation in order to confirm the facts already established
…
The evidence provided by management and employees in a supervisory position reflect the true facts that that your actions have been detrimental to the smooth operation of the business, and as such prove gross in their entirety.”
The claimant provided phone records, AA route planners and a letter from CL, relating to the events on 14 January, to HRD in support of his appeal. It was HRD’s evidence that at some stage after the appeal hearing he had spoken to the complainants but he could neither confirm nor deny whether he had spoken to each one of them. He neither sent the minutes of those interviews to the claimant nor made them available to the Tribunal. It was the claimant’s evidence that HRD informed him that BM and OD had carried out the investigation. The written ‘statements’ were prepared before the appeal, and made available to both HRD and the claimant. Each statement bore the signature of the four complainants, as the complainants did not want ‘to individualise the complaints. SV, one of the complainants gave evidence that the signature purporting to be his, was not in his handwriting.
The Allegations(hereinafter a particular allegation will be referred to as A with the relevant number added)
A 1. On 11 January 2011 the claimant was part of a crew delivering a large quantity of cash to the company’s base in Dublin. The evidence of AS was that he had instructed the claimant to drop the van to the company mechanic once he had unloaded the cash but AS subsequently received a phone call from the mechanic enquiring as to why the van had not yet been delivered to him; AS then rang the claimant who told him that the crew were on their lunch break and that the van would be brought to the mechanic after lunch. It was not disputed in evidence that the van had been unloaded before the crew went to lunch.
The issue for AS at the hearing was that the van had not been delivered to the mechanic before the claimant and his fellow crew member went on their break. However, in his written statement the issue for AS was that the claimant and his fellow crew member had not unloaded the van before going for their lunch. Furthermore, in his written statement AS indicated he was in Dublin when the incident occurred but his evidence to the Tribunal was that he had been in Cork at the time he issued the instruction to the claimant. The claimant’s position was that as normal the van was unloaded on arrival in Dublin and that AS had not phoned him that day.
A.2 & 3. These allegations were made by the supervisor (SV). As regards A 2, CL who was the claimant’s fellow crew member on 14 January corroborated the claimant’s denial of this allegation. Their evidence was that having loaded the van, which took the usual fifteen minutes, the biometric hand scanner was not working and they could not enter the van. It was SV who resolved the problem for them. This problem was not mentioned in either the issues document or by SV when he committed the complaint to writing.
A 3. Contrary to the contents of this allegation in the issues document, SV’s evidence to the Tribunal was that his problem with the claimant on 17 January was that he had instructed him to travel via Mallow as there were road works in Macroom but that instead the claimant had travelled via Macroom. SV accepted in his oral evidence that the journey from the base in Cork to Killarney was one hour and fifteen minutes and not forty minutes or one hour as respectively alleged in the issues document and in his written complaint. The claimant’s position was that on 17 January he made the rendezvous in Killarney and it was he who had to wait for the other driver. He produced the relevant documentary evidence to confirm his evidence. The claimant had never heard this latest version of SV’s allegation at any time prior to the hearing.
A 4 (a) AS had reported to BM that on 18 January 2011 when on a trunk run to Dublin the claimant had parked the van, containing large sums of cash, outside a local petrol station for around twenty minutes while he was having breakfast. The claimant’s evidence, corroborated by CL, was that it was normal practice at the time to stop to refuel and get refreshments at the local petrol station before heading for Dublin as there was no fuelling facility at the base at that time; one man would remain in the vehicle while the other would refuel and purchase refreshments; this being a trunk run the exit of a crew member from the vehicle was controlled from the base. A day or so after his suspension a notice had been posted on the premises directing that henceforward refuelling was to be done the evening before the trunk run. This change was confirmed by AS but SV could not recall it.
A 5(a) This allegation consisted of BM’s response to the claimant’s concern at being put in the control room rather than being out on runs. The claimant, for the first time ever had been assigned to work in the control room twice in mid-January 2011 and on one of those days two part-time workers were on a two man run. BM’s evidence was that no two-man run was available on the days. The claimant was concerned about his two man contract, as the company had been seeking one man crew contracts and he feared that he would be assigned to the control room on a full-time basis and would later be told there was no more work for him.
A 5(b) In his evidence BM alleged that the claimant left a cash centre without making a cash collection on the morning of 13 January due to some delay in the bank and furthermore that the claimant left the cash centre without consulting him, which showed a lack of respect to him. BM was adamant that the claimant failed to make a collection that morning and that he had to arrange with two other workers to make the collection that day. BM’s written account of this incident refers to a delivery. The claimant’s evidence was that the standing instruction at the time (from the previous branch manager was not to wait more than ten minutes at a location) and they had waited forty minutes. On that day he was crew leader and took the decision to leave and return later to the site to make the delivery, which he did later that day with no disruption to service. The claimant’s account was borne out by documentary evidence.
A 4 (b) & 6 These allegations were the respondent’s response to concerns raised by the claimant. The claimant’s concerns respectively relate to the risk involved in his travelling on the same trunk run to Dublin on the same day each week, with no break in pattern, and his other concern was that as a driver of the caddy van, supporting a one man security van on bank runs, he was exposed to risk in the caddy van, which has no security. The claimant was the only employee who was regularly on the Dublin trunk run. BM’s issue in A 6 was that the claimant had gone over this head and directly contacted head of security. The claimant’s position was that on the 26 January he phoned the base looking to talk to BM but he was otherwise engaged and SV gave him the phone number of the head of security. SV could not recall advising the claimant to contact the head of security on a concern the claimant had raised regarding security.
BM later contacted him and was angry and argumentative with him and asked if he was refusing to drive the caddy van to which he replied, “No”. Phone records were opened to the Tribunal highlighting the sequence of telephone calls made by the claimant.
BM accepted that raising a security issue with the head of security was not a reason to discipline an employee. The issue for him was that in directly contacting head of security the claimant had gone over his head.
BM denied that the claimant’s two man contract had any bearing on the case and that this was not an attempt to change the terms of his contract. Two man crew jobs were only available two or three days per week. On days where there was no two man jobs he could assign the claimant control room duties. He did not accept that the claimant had legitimate concerns for his position with regard to his assignment to control room duties on the 14 January 2011.
While the claimant raised concerns about some of the work he was asked to do he never refused to carry out any duties assigned to him.
Determination
This was an unusual case. The evidence of OD, who took the decision to dismiss the claimant, was that had the claimant accepted any of the job options put to him at the disciplinary meeting on 10 March 2011 he would still be employed by the respondent. In the event, he was dismissed for gross misconduct on the basis of allegations made against him. The Tribunal will deal later with the claimant’s dismissal for gross misconduct and will firstly address the issue of the options ‘offered’ to the claimant. The nature of the meeting became conciliatory, without this fact being flagged to the claimant and as a result he was confused and concerned that the allegations against him were not being addressed. The Tribunal accepts that the claimant told his representative in their private consultation, towards the end of the meeting, that he was not interested in any of the options and wanted ‘to stay as he was’. However, the respondent failed to inform the claimant or his representative that the claimant’s failure to accept one of the options put forward by it would result in his dismissal. This failure in communication ultimately led to the claimant’s dismissal and the case before this Tribunal.
At the core of this case was the claimant’s contract of employment being a two man crew contract and the decline in the requirement for such crews. From the evidence adduced the Tribunal is satisfied that the respondent failed to sufficiently and adequately communicate its position to the claimant. The Tribunal accepts that the claimant had never refused to carry out an instruction. The respondent accepted that the claimant was entitled to raise the concerns he had about driving the caddy van and doing the trunk run to Dublin on the same day each week. Raising a concern about a practice is not a refusal to engage in the practice. The Tribunal accepts OD’s evidence that her intention in coming to the disciplinary meeting on 10 March was to find a solution and retain the claimant in the employment. A full and frank disclosure of the respondent’s position to the claimant at branch level or at the disciplinary meeting on 10 March 2011 may well have achieved this. Instead, the claimant was dismissed on grounds of gross misconduct, for his alleged failure to accept reasonable management instruction, based on the allegations of others in the employment and some of which arose from the fact that the claimant raised issue about a number of his concerns. The allegations were set out in the issues document (summarised above). Having considered the matters set out herein leads the Tribunal to the inescapable conclusion that the real reason for the claimant’s dismissal was his failure to accept one of the options put forward at the disciplinary meeting.
The Tribunal finds that the respondent failed to follow fair procedures on a number of grounds.
The respondent failed to carry out a full and fair investigation into the allegations against the claimant. The claimant and the crew member with him on the trunk runs to Dublin on both 11 and 18 January and the crew member with him on 14 January were not interviewed as part of the investigation. A fair investigation would have disclosed the flaws and inconsistencies in the allegations being put forward against the claimant. It seems to the Tribunal that the respondent accepted the allegations on their face and gave no consideration to the claimant’s denials at the disciplinary hearing on 10 March, which leads the Tribunal to believe that the respondent approached the disciplinary meeting with a closed mind. The claimant was not presented with the complainants’ written allegations at the disciplinary hearing. The Tribunal is satisfied that this left the claimant at some disadvantage
The procedures adopted at the appeal stage were unfair. A fair procedure at the appeal stage would have brought the inconsistencies in the complaints against the claimant to light and alerted the respondent for the need to carry out a thorough investigation. Similarly, if due weight had been given to the documentary evidence produced by the claimant at the appeal hearing it would have alerted HRD to some underlying problems in the case against the claimant. The Tribunal feels that HRD either approached the appeal with a closed mind or is not fully aware of the essential elements of a full and fair investigation.
Having considered the entirety of the evidence adduced the Tribunal unanimously finds that the claimant was not guilty of misconduct and that his dismissal was both substantively and procedurally unfair. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Having considered the changing requirements of the respondent’s business the Tribunal finds that re-engagement to one of the positions discussed at the meeting on 10 March 2011 or any combination of those or other position acceptable to the claimant with the proviso that he receive any training and a further proviso that he be rostered for any two man runs that might still be available, is the remedy awarded. The Tribunal determines that his re-engagement is effective from the date of the last payment of his salary in 2011 and thus, the payment of his salary from that date, incorporating any changes made in the interim to that level of salary. The Tribunal also determines that the claimant’s continuity of employment be preserved.
As the award includes the payment of his salary from the relevant date the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(Chairman)