UD471/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

Kevin Phelan                                                                                                  UD471/2013

- Appellant

against the recommendation of the Rights Commissioner in the case of:

Rentokil Initial Limited

                                                            - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. R. Maguire BL

Members:       Ms. A. Gaule

                        Ms. N. Greene

heard this appeal at Dublin on 10^th April 2014

                                         and 1^st October 2014

Representation:

Appellant:       In person

Respondent:    Ms. Claire Bruton BL instructed by:

Dundon Callanan, Solicitors, 17, The Crescent, Limerick

This case came before the Tribunal by way of an appeal by the appellant (the employee) against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-126565-ud-12/JC).

Preliminary Issue

The recommendation of the Rights Commissioner is dated 18 February 2013. The appeal was lodged by the appellant with the Workplace Relations Customer Service by way of letter dated 7 March 2013 and received by the Workplace Relations Customer Service, O’Brien Road, Carlow on 11 March 2013. The Workplace Relations Customer Service subsequently forwarded the letter of appeal to the Employment Appeals Tribunal, Davitt House, Adelaide Road, Dublin 2 on 15 March 2013. The respondent submitted that as the notice of the appeal was not directly served on the Employment Appeals Tribunal the provisions of the Unfair Dismissals Act had not been complied with and the Tribunal did not have jurisdiction to hear the appeal.

Summary of Case

The appellant was employed by the respondent pest control and contract cleaning company from April 2006 working in the contract cleaning area of the business. He was subsequently promoted to a supervisory position in the company.

The Tribunal heard evidence from witnesses for the respondent that a complaint was received from Kilkenny Co. Council in May 2012 concerning a quantity of the respondent’s pest control bait boxes being left in a public area adjacent to a residential area. The company, on receipt of this information commenced an investigation into the matter and the Tribunal heard evidence from a service technician known as (TA) that that the bait boxes containing large quantities of poison had been left unsecured in a number of different areas in that location. The company contended that the bait boxes and poison posed a serious hazard to the public and animals. Photographic evidence of the said bait boxes was provided in evidence to the Tribunal. In sworn evidence to the Tribunal the contents of the photographic evidence was disputed by the appellant as he claimed that one photograph showed a box of bait closed and another photograph showed the same box open.

The Managing Director of the respondent company conducted a disciplinary meeting with the appellant on 30 May 2012. The appellant was provided with a copy of the company’s disciplinary procedures and was offered the right of representation at the meeting. The appellant accepted that he had taken the bait boxes from the respondent’s company premises and placed the bait boxes at the location. This had been done without the company’s authorisation. The appellant provided a statement at the meeting whereby he stated that it was a spur of the moment act of stupidity on his part. He had required the products himself during a depot move in 2011. He was not thinking of himself as an employee of the respondent but as a foolish parent. He never meant any harm to the company name, nor to any wildlife or especially children and offered his sincerest apologies for his actions. This was the only time he had taken possession of the company’s product.

In sworn evidence to the Tribunal the appellant accepted that he had laid the bait boxes in the location but he never intentionally put anyone at risk. The boxes were secured and he denied that they provided any danger to the public or to wildlife. He did not believe that his actions were dangerous. He had placed the boxes in the area as he had been told by residents in the area that there were rodents in the vicinity. He visually checked the boxes every two/four weeks and he replenished the bait in the boxes from time to time with bait purchased from a car boot sale. He did so by opening the boxes with a screwdriver. He did not gain from his actions in any way and admitted to his actions. In hindsight he accepted that he had done something wrong but believed that the sanction of dismissal imposed on him was too severe. He was a hard worker with a good work performance with no previous disciplinary issues. He accepted that he was not employed by the company in the pest control area and he had never been provided with any training by the company in relation to pest control.

Following the conclusion of the disciplinary meetingthe appellant was suspended on full pay until he was informed of the outcome of the investigation on 1 June 2012. The Managing Director informed him by way of letter dated 1 June 2012 that he had no option but to dismiss him with immediate effect for gross misconduct /gross negligence in the discharge of his duties. He came to his conclusion by reason of the following:

• “You took a quantity of bait boxes and a large amount of poison from the Company without any authorisation or permission.
• You kept these materials since 2011. This is a significant period of time and at no time during that time did you make any attempt to return any of this material to the Company as you should have done.
• You placed these bait boxes and a very large quantity of poison which far exceeded safe limits in an area which they never should have been, thereby causing a very significant danger to the safety and welfare of children, adults or any passers by.
• The bait boxes were unsecured and were therefore liable to be moved about with large quantities of poison in them by passers by or children.
• You exposed the Company to very significant risk of damage to its good name and reputation by these actions and more importantly caused a serious danger to the public.”

The appellant was afforded the right to appeal the decision and he exercised his right of appeal. In that regard he submitted two detailed e-mails outlining his grounds of appeal. His appeal was considered by the Managing Director for UK, Ireland and the Baltics who upheld the decision to dismiss the appellant.

Determination on Preliminary Issue

The Tribunal first considered the submission of the respondent that the appellant had not submitted his appeal correctly and that therefore the appeal was not properly before the Tribunal. The respondent submitted that under s.9(2) of the Unfair Dismissals Act 1977 Act as amended by the Unfair Dismissals (Amendment) Act 1993, the appeal was not properly before the Tribunal. The determination of the Rights Commissioner was dated 18 February 2013. The letter written by the appellant stating that he wished to appeal was dated 7 March 2013 and was stamped as “Received Workplace Relations Customer Service 11 March 2013” and stamped “Employment Appeals Tribunal 15 March 2013.” It was submitted, in line with the decision of the Tribunal in UD 640/2012 in Patrycja Zorawek v. Yves Rocher Ireland, that as the document was not apparently directly served on the Employment Appeals Tribunal, s. 9 (2) of the Act had not been complied with as the notice in writing was apparently not directly given to the Tribunal.

Section 9(2) as amended states as follows:

“(2) An appeal under this section shall be initiated by a party by giving, within 6 weeks of the date on which the recommendation to which it relates was given to the parties concerned, a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act for the purposes of section 8 (8) thereof) to the Tribunal and stating the intention of the party concerned to appeal against the recommendation and a copy of the notice shall be given to the other party concerned by the Tribunal as soon as may be after the receipt by it of the notice.”

The Tribunal does not agree with the submission that this section requires an appellant to give the notice of intention to appeal directly to the Tribunal within 6 weeks. There is no specification in the legislation to that effect, and there is no prejudice to the other party to the appeal caused by a notice of appeal being forwarded to the Tribunal within the relevant period by another person or body who may have been sent the notice in error.

It is clear that the appellant submitted a document addressed in the body of the document to the Employment Appeals Tribunal, and it was in fact received by them within 6 weeks of the date of the Rights Commissioner’s decision.

Further and in any event, the Tribunal is not satisfied that the notice was not sent directly to Tribunal. The address that the document should be sent to is contained on the form submitted by the respondent as:

Employment Appeals Tribunal

Department of Jobs, Enterprise & Innovation

O’Brien Road

Carlow

Simply because a stamp stating Workplace Relations Customer Service is on the document and that non-statutory body has the same address as the Tribunal in Carlow does not prove that it was sent to the incorrect body.

In any event, the Tribunal is satisfied that the appellant made his appeal and it was received appropriately within the time frame and that the respondent was not disadvantaged and that the Act was complied with. The appeal was therefore properly before the Tribunal.

Determination on the substantive issue

The Tribunal finds that the appellant’s actions constituted such a fundamental breach of trust that the actions of the respondent in dismissing him were reasonable. The appellant knowingly took company property without authorisation. However, the more fundamental breach of trust by the appellant, which was the central concern of the respondent in its internal process, was the fact that the appellant misused the toxic and dangerous property concerned and endangered members of the public and the respondent’s reputation. The appellant was afforded a fair internal process and the sanction of dismissal was not unfair in the circumstances.

In all of the circumstances the Tribunal finds that appeal fails and the Tribunal upholds the recommendation of the Rights Commissioner.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

               (CHAIRMAN)