EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Ahsan Malik
- (claimant) UD844/2012
MN642/2013
Against
Ireland ROC Limited
- (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr. A. O'Mara
Mr F. Keoghan
heard this claim at Dublin on 11th September 2013, 13th March 2014, 14th March 2014, 2nd October 2014 and 3rd October 2014.
Representation:
Claimant: Mr.Owen Keany BL, instructed by Mr Hugh McCabe, Hugh McCabe, Solicitors, 47 Harrington Street, Dublin 8
Respondent: Ms Mary Fay BL, instructed by Ms Gill Woods, Arthur Cox, Solicitors,
Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Both parties made extensive written (filed) and oral (noted) submissions to the hearing relying upon various legal authorities.
Summary of respondent’s evidence
The respondent company which trades as a fuel retailer and convenience store employed the claimant in 2005. He was a good employee and worked his way up through the organisation.
The claimant was acting store manager leading up to his dismissal.
The territory manager (JVZ) gave evidence of the electronic clocking-in system operated by the respondent which was linked to the pay roll division known as the GTK system. Store managers have the facility to overwrite the GTK system. The respondent also uses software to set up rotas and shifts. The store manager has responsibility for inputting the data weekly and reconciling the GTK system with the rota. Each employee has a unique log in code to operate tills. The claimant was trained on site and attended training at the UK facility.
JVZ was not the territory manager for the site where the claimant worked but had known him as he was put forward for management training. The witness was conducting an appeal of a disciplinary with another employee (WH) when he was informed that the claimant was facilitating along with two others an arrangement whereby a student employed at the site was allowed work a shift for them. They would then reimburse the student who worked the shift in cash when they were paid. Students were restricted to work a certain number of hours per week and this arrangement meant the records kept the student within that limit. The witness spoke with one of the employees (RH) and it was confirmed to him that he had not worked a shift and he had reimbursed a student (MO) who worked the shift for him. This was enough evidence for the witness to investigate what was reported to him. He checked the CCTV and reported the matter to HR and the territory manager for that area . On the 16 February 2012 he asked the claimant about the alleged arrangement and the claimant confirmed he was aware of the arrangement since the previous day. Having consulted with HR and the facts the witness had before him, he was instructed to suspend the claimant that day.
Approximately two days later both JC and the witness met RH, WH and student MO to discuss RH and WH getting paid for shifts they did not work and then reimbursing MO in cash for shifts that he had worked for them.
It became clear that RH had been rostered to work several sixteen hour shifts on 10th January 2012, 17th January 2012 and 31st January 2012 but RH said he had only worked eight hours these days. He said that MO worked the extra hours and he was instructed by the claimant to pay MO in cash for the hours worked. The start and end times of approximately 23.00 to 7 am on till/shift receipts for 10/11 January, 17/18 January and 31 January/1 February 2012 were operated by MO and the claimant signed off on these receipts.
MO said it had been an arrangement between him and RH and that the claimant was unaware of it. An email was sent by the claimant to payroll for hours that both RH and WH had not been paid. JC approved this email.
Performance Support Manager (BP) was contacted by HR to conduct the disciplinary meeting. The meeting took place on 29th February 2012. In advance of the meeting BP read the investigation report. The claimant was furnished with a copy of the investigation report in advance of the hearing. BP looked at the facts outlined in the report. He was unaware that RH had changed his statement. BP noted that the claimant confirmed that he drew up the rosters for week ending 9th, 16th and 30th January 2012. The claimant worked the 7 am to 4 pm shift. It is uncommon for an employee to work a sixteen hour shift. The claimant explained that RH was rostered for a sixteen hour shift as he wanted more hours to pay for his visa and college course. The claimant instructed payroll to pay RH for hours he not been paid as at the time the GTK clock was broken. He reported it to AYS and he was instructed to reset the machine. He typed in all the clockings manually to 31st January 2012. When the machine was rebooted the claimant had to delete the typed in clockings and then sap mail payroll to pay RH for his hours.
The claimant never met MO face to face as he was always busy as he had no need to go into the store and worked in the office. The claimant said that both RH and MO were very good friends and he contended that they were trying to get rid of him.
After considering all the facts and taking into account the points raised at the disciplinary hearing for some time BP took the decision to dismiss the claimant. By letter dated 7th March 2012 BP formally wrote to the claimant and informed him the reasons for his dismissal were falsification of payroll documentation, a breach of student visa restrictions and a breach of trust and confidence. No other sanction was considered as there had been a breach of trust and confidence. The claimant was offered a right of appeal within ten working days.
DF, Territory Manager with responsibility for thirteen sites conducted the claimant’s appeal hearing on 30th March 2012. The claimant brought a friend along with him to the appeal hearing. DF relied on the investigation report, the disciplinary hearing minutes, the GTK print outs, the till receipts and three copies of the roster. The claimant stated that he had not been adequately trained on the GTK system. Rosters are prepared a week in advance and maintained by the Store Manager. The claimant stated that he did not check the shift sheets with the site roster. He also stated that he never met the nightshift staff. The claimant complained about the way he was suspended on site by JVZ while dealing with a customer. He also stated that he only became aware on 15th January that a SA should not have been on duty that day. A shift had been swopped. On 16th January he commenced investigating the matter and wanted to gather all the facts before calling his Team Manager.
DF took some time to consider the claimant’s appeal. The core issue had not changed. The claimant had paid staff who had not worked certain hours. Trust and confidence had been broken. The roster had been generated by the Store Manager. There was proof that the till receipts were signed off by the claimant and also proof that someone else was working these shifts. MO had not been recorded on the GTK system but his name was recorded on the till receipts. DF did not speak to WH, RH or MO prior to appeal hearing.
At the conclusion of the appeal hearing DF upheld the decision to dismiss the claimant. By letter dated 5th April 2012 he formally wrote to the claimant outlining his decision and enclosed a copy of the appeal minutes.
Summary of claimant’s evidence
Territory Manager, JC was called by the claimant’s representative to give evidence and told the Tribunal that the site had been transformed in a positive way since the claimant became site manager. The claimant had no official training since he came to site B and learned as he went along. JC explained that there may at times be cause for a manual adjustment to the GTK system but this did not mean intentional falsification of records.
JC confirmed that he had approved the sap e-mail of 6th February, 2012 authorising the payment of unpaid shifts. JC was present at the investigatory interview but had a passive role, as JVZ was leading the investigation and stated that he was not aware of a change in statement by RH. JC stated that if he had heard there had been another statement he would have corrected the situation. He did not recall having a conversation with the claimant in relation to the alleged change of statement by RH. A transcript of the telephone conversation of 28th February, 2012 was opened to the Tribunal. JC accepted that the claimant telephoned him and he acknowledged that the claimant had raised a few issues during the conversation and that the transcript had reminded him of the telephone call. JC accepted that the claimant mentioned that RH’s original statement was not the same statement referred to in the investigation report. He did not recall saying he would be a witness for the claimant – he was not witness to any statement made. He told the claimant that RH had come back to JVZ at a later stage.
Under cross-examination, JC, stated he was non-committal to the claimant during the conversation when the claimant mentioned the change in statement. He had assumed that RH had returned to the site in order to speak with JVZ.
In reply to the Tribunal as to the importance of the concerns of the claimant in relation to RH and what was said, JC indicated that he told the claimant to raise his concerns with the respondent. He himself was not present at the disciplinary meeting or the appeal.
Giving evidence, the claimant told the Tribunal that he received 6 weeks training for site manager when he was based on site G. The claimant was impressed with his UK training but stated that his onsite training was very poor. He had told JVZ that he was not confident in operating the GTK system. The claimant would approve clock times and forward to payroll twice a month.
The claimant explained that he only became aware of the shift swopping between the 3 employees on 15th February, 2012. He had intended completing his own investigation into the matter but on 16th February, 2012 he was approached by JVZ who asked him was he aware of the matter. He confirmed he was aware since the previous day but that he had no involvement. He was then suspended on full pay that same day.
An investigation meeting was held on 17th February, 2012. The claimant did not receive any documentation in advance. JVZ stated at the meeting that RH had stated that the claimant was not aware of the shift arrangement. WH was the only person stating that the claimant was aware of the arrangement. The claimant maintained that he did not falsify the payroll system.
The claimant was never given a statement made by RH in order to have the opportunity to respond. The claimant attended a disciplinary meeting on 29th February, 2012 and was subsequently dismissed by letter dated 7th March, 2012. The claimant’s follow up appeal failed.
Under cross-examination, in relation to the relevance of the GTK payroll system, the claimant indicated that if he had been properly trained he would have known what to check. The claimant found that it was a complicated payroll system. RH told the claimant there was a few shifts missing and that he had not been paid properly. He became aware of the situation on 15th February, 2012 when he saw MO working when someone else was rostered. He did not have the opportunity to carry out an investigation.
MO, a former employee gave evidence and stated that the claimant did not have any part in the arrangement with the three people involved. He indicated that the claimant confronted him on 15th February, 2012 when he noticed MO in the garage. The claimant told MO to come to talk to him the following day. MO went to the garage the following day but while he was waiting for the claimant, JVZ arrived to speak to the claimant. At the investigation meeting, MO told JVZ that the claimant was not involved in the arrangement. JVZ indicated that RH said the claimant was not involved but later MO was contacted by JC who stated that RH had changed his statement to say the claimant was in fact aware of the arrangement.
Under cross-examination, MO stated that he was told by RH not to clock in or out during the shifts he had worked when not rostered to do so. The statement that JVZ read out at the investigation meeting indicated that RH had stated the claimant was not aware of the arrangement between the three staff members.
In re-examination, JC stated that the reason he telephoned MO was to clarify matters.
Determination
The claimant seeks relief under the Unfair Dismissal Acts 1977 – 2001 (and also for Minimum Notice) regarding the manner in which his employment terminated in early 2012. The Tribunal has to assess both the reasons for the dismissal and further, the procedures adopted by the respondent in the investigative/ disciplinary process which led to the dismissal of the claimant. The Tribunal must be satisfied that all rules of natural justice were used throughout the process that led to the termination of the employment.
In assessing all the factors in the case and after hearing evidence over a period of 5 days and the submissions were made by both parties, the Tribunal is satisfied that the claimant was unfairly dismissed. There were flaws in the procedures utilised which made the process itself flawed. Natural justice was denied to the claimant.
After coming to such a finding, the Tribunal must assess the remedies available. The Tribunal does not hold that reinstatement or reengagement in this case is an appropriate remedy. Therefore, the appropriate remedy is compensation. In deciding on the appropriate level of compensation, the Tribunal bears in mind Section 7 (2) of the Unfair Dismissals Act as amended. The Tribunal makes an award to the claimant in the sum of €12,500.00.
The claimant is also entitled to 4 weeks’ notice totalling €2,708.33 under the Minimum Notice and Terms of Employment Acts, 1973- 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)