EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Marcin Iskrowicz - claimant UD2376/2011
Against
Alstom Ireland Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr E. Handley
Mr A. Butler
heard this claim at Dublin on 30th July 2013
and 14th February 2014
Representation:
____________
Claimant(s):
Mr. Ian McDonnell, TEEU, 6 Gardiner Row, Dublin 1
Respondent(s):
Mr. David Farrell, IR/HR Executive, IBEC, Confederation
House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Opening statement by respondent’s representative
The respondent company undertook maintenance of trains for LUAS. It employs 150
and has a collective agreement with the trade union which has been updated many times. The claimant was absent from work from the 2nd September 2010 until the 18th November 2010. At some point after the 14th September 2010 the claimant returned to Poland for treatment for his back injury He did not inform the respondent. JG, HR wrote to the claimant in Poland and he was referred to the company doctor to assess if he was fit to return to work. He was deemed fit on the 19th November 2010 to return for light duties. During his absence the claimant was paid in full by the respondent. The respondent paid for the claimant’s medical treatment when he returned to Ireland. On the 10th December 2010 the respondent became aware that the claimant had participated in a car rally on the 17th October 2010 while in Poland. A disciplinary hearing took place on the 20th December 2010. The respondent relied on information from the website.
At the disciplinary hearing the claimant stated that he was running a business in Poland and that he had rented five cars. The respondent concluded that the claimant abused the sick pay scheme. The fact that the claimant ran a separate business in Poland amounted to gross misconduct. The decision to dismiss the claimant was appealed on the 22nd December 2010 and the decision to dismiss the claimant was upheld.
Respondent’s Case
JG HR manager told the Tribunal that she became aware of the claimant’s absence from work second hand. She was informed by another manager that the claimant was absent from work due to an accident which occurred while he was undertaking work with the respondent. She tried to contact the claimant by e mail and by telephone so that she could send him to the respondent’s doctor. She could not recall when medical certificates were received from the claimant but it was prior to the 17th September 2010. The claimant did not tell her that he was returning to Poland. She met the claimant on the 27th October 2010 in the respondent’s depot.
She did not feel it was necessary for the claimant to return from Poland and his absence was managed in the normal way. It was normal procedure for employees to go to the OCC Health physician to ensure that they were fit for duty. The claimant was paid in full during his absence from the respondent. The follow up continued based on the fact that the claimant had participated in a car rally on the 17th October 2010. She contacted Dr. L Specialist Physician in Occupational Medicine to establish if the claimant was fit/unfit for work.
In cross examination she stated that the claimant sustained an injury while in work. On the 10th December 2010 the respondent’s doctor confirmed that the claimant was fit to return to work. She was of the view that the claimant was involved in rally driving as a result of information given to her by JM, operations manager.
The operations manager JM told the Tribunal that he was employed with the respondent since the 4th October 2010. He did not micro manage the claimant. The claimant was unable to undertake work above shoulder height and he could not work in confined spaces. He referred the matter to JG, HR Manager. He was advised that the claimant was not fit to return to full duties. On the 10th December Sean phoned the manager TO Brien and told him to look at the website.
On looking at the website he discovered that the claimant had won a stage of a car rally in Poland on the 17th October 2010. He printed a copy of this document on the 10 December 2010. The claimant’s name was removed from this document on the 15th December 2010. He knew on the 10th December that the document was put to the claimant.
A meeting took place on Monday 20 December 2010, in attendance were the witness, JG, HR, the claimant and BH shop steward. The claimant did not tell him that he had his own business that it was a hobby. The claimant told him that he had five rally cars but that he had not participated in the rally in Poland. He asked the claimant if he had evidence to indicate he was elsewhere on that day and he replied in the negative.
The core issue was that the claimant was in receipt of the respondent’s sick pay scheme while he participated in a car rally in Poland. The witness was informed that the claimant was elsewhere in the country and he had no verification for this.
The incident occurred on the 17th October 2010 and it was brought to his attention on the 10th December 2010. The claimant told him that he was not driving the car on the 17th October. The meeting was adjourned and then reconvened some minutes later. The claimant then admitted to owning a business. He had concerns in relation to the Organisation of Working Time Act, 1997 as if the claimant was working four days in Poland he was in breach of this Act. He would expect that the respondent should be aware if the claimant was working elsewhere. He asked the claimant if he had any evidence to prove that he was not driving a rally car on the 17th October 2010 and the claimant denied that he was driving. The claimant was dismissed immediately due to grounds of gross misconduct.
In cross examination he stated that he never attended the investigative hearing. He did not accept the claimant’s word that he was not driving a car as he had evidence which indicated that the claimant was driving a car. The claimant was given the opportunity to give mitigating factors. The claimant told him that he was not fit enough to drive a car. He did not investigate if the claimant had a rally company in Poland.
In answer to questions from the Tribunal he stated that it did not occur to him to contact the rally company to establish if the claimant was the driver. He first heard that the claimant was hiring out cars on the day of the disciplinary. He became aware on the 20th December 2010 that the claimant was driving a rally car. A product manager became aware on the 10th December 2010 that the claimant was a rally driver.
Claimant’s Case
A witness on behalf of the claimant BH told the Tribunal that he was a shop steward at the time the claimant was dismissed. He was the claimant’s immediate supervisor and the claimant was always trustworthy and reliable. He stated that the disciplinary was not carried out in accordance with the respondent procedures.
The claimant told the Tribunal that he commenced employment with the respondent in November 2005. During that time he never abused the sick pay. He suffered a back injury in work and he submitted medical certificates to the respondent. He did not have a private business. He did not participate in a car rally in Poland on the 17 October 2010. His friend drove his car in the rally. He found out that his name appeared on a result list and he was the car owner. He was 200 kilometres away with his sister on the day of the rally. SA, Project Manager in the respondent contacted the person who drove the car. If SA contacted his sister she would have proof that he was not at the rally. He provided SA with the driver’s telephone number. SA called the driver of the car but she did not contact his sister. SA took on board everything that JM said.
At the appeal hearing SA told him that he had a business which was not true. He was very disappointed when he was dismissed. He would have liked to remain in the country for another five to ten years and he thought he could transfer later on. It is very difficult to find a job and he is currently unemployed. He returned to Poland two months after the final appeal. He applied to Social Welfare and he received €800.00 per month and he could not afford to live on that.
In cross examination he agreed that his name was on a race list which took place on 17 October 2010. He did not know why his name was on the result sheet and the racing organiser knew who the driver was. He queried why his name was on the list. He explained to JM that he lent a car and he did not say he rented cars. He never said he had a business and he showed friends to drive on the race track. He did not get remuneration for this. He did not own the track and if he wants to drive he has to pay. He does this once a week.
He could not recall if he was advised prior to 31 December 2010 that a meeting would be convened. He does not own five cars, he has two cars. He along with his friend P run the venture. He returned to Poland at the end of March 2011. He sought employment, is difficult to find work and he is unable to do hard physical work. He drives a little bit and he does not feel pain when he drives as he has a special car. He is unable to do the job he was employed to do.
Determination
The Tribunal determine that the procedure used by the employer was faulty in that the investigation conducted was not exhaustive enough. Further, in the Appeal the Tribunal determined that all the witnesses of the claimant whose names were furnished to the Appeals officer should have been contacted and questioned on where the claimant was on the 17 October 2010 even though some of these witnesses may have been considered prejudiced in favour of the claimant by the respondent. It is up to the deciding officer to establish this fact or otherwise but he should have interviewed them.
The jurisdiction of the Tribunal was the first matter raised at the hearing. The claimant was dismissed initially on the 20 December 2010 however the finding of the Appeal was not communicated to the claimant until the 28 February 2011. The Tribunal accepts that the claimant was dismissed on this date and therefore it has jurisdiction to hear the case.
The Tribunal determine that the claimant was unfairly dismissed and that the most appropriate remuneration is compensation. During the claimant’s own evidence he stated that he is still unable to perform the duties for which he was employed and therefore he can have no loss for which the Tribunal can compensate him.
The Tribunal therefore awards him the maximum allowed under the Unfair Dismissals Acts, 1977 to 2007 which is €4,088.00
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)