EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE (claimant) UD1475/2011
against
EMPLOYER (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington SC
Members: Mr. P. Pierce
Mr. S. O'Donnell
heard this claim in Dublin on 8 January 2013 and 29-30 May 2013 and 29 November 2013
Representation:
_______________
Claimant(s): Mr. Hugh Byrne BL instructed by
Howard Synnott, Solicitors, Ballyowen Castle, Ballyowen Shopping Centre, Lucan, Co. Dublin
Respondent(s): Mr. Rory White BL instructed by
Mr Jonathan O'Beirne, Flynn O'Driscoll, No 1 Grant's Row,
Lower Mount Street, Dublin 2
The determination of the Tribunal was as follows:
The claimant commenced employment with the respondent on 20 July 2009. The respondent operates a car sales company and dismissed the claimant on 18 April 2011 for an alleged act of gross misconduct. Both parties made extensive written (filed) and oral (noted) submissions to the hearing.
The HR Manager told the Tribunal that the claimant was promoted as the Mazda/Opel Service Manager on 29 January 2010. He was in charge of 5/6 technicians and had a hands on role in this position. The claimant would often work at the service desk when it was busy.
On 14 January 2011 a disciplinary meeting was held with the claimant in relation to not processing warranty claims in accordance with standard operating procedures at all times. At that meeting the claimant stated that he was confident he could recoup at least 30% of monies due by the end of February.
On 15th January, 2011 a written warning was issued to the claimant as a result of the disciplinary meeting. This letter was not appealed.
On 4th April, 2011 a second disciplinary meeting was held with the claimant in relation to WIPs (work in progress) and activity relating to an Internal Warranty Account and the fact that some allocations were in the wrong accounts. The HR Manager indicated that the claimant admitted he knew the allocations were wrong when he was doing them.
A second written warning was issued to the claimant on 5th April, 2011. This letter was not appealed by the claimant.
On 11th April 2011 a meeting was held with the claimant in relation to an invoice received by the respondent for €1,698.91 for work carried out on the claimant’s father’s car, a Skoda. The claimant had explained that his father had since settled the bill by credit card.
On 18th April, 2011 a disciplinary meeting was held with the claimant, which was followed by letter dated 18th April, 2011 terminating his employment. According to the HR Manager, this letter was not handed to the claimant at the disciplinary meeting and was issued following the meeting.
No grievance process was initiated by the claimant.
In cross-examination, the HR Manager stated that all Managers have a responsibility in relation to warranties. In reply to whether the claimant was given warranty training, the witness stated that the claimant was hired on the basis of his warranty experience. A figure of €51,000 had to be written off in relation to warranty losses. There was no Service Manager during January, 2011. The claimant commenced as Service Manager on 1st February, 2011.
According to the HR Manager, the deduction of €1,698.91 was a legitimate deduction, as it is company policy to deduct outstanding monies from pay. The claimant was aware that the amount had not been paid and was informed in writing on 20th April, 2011 that the amount would be deducted from his final payment. He was also told of the deduction at the meeting of 18th April, 2011 although it was not recorded in the minutes. The minutes of meetings were posted to the claimant but the HR Manager could not recall when. According to the HR Manager, all requests from the claimant in relation to documentation were complied with.
The HR Manager did not know if the claimant was advised in advance of the meeting in relation to the warranty figure.
The witness indicated she could not re-call if there was any documentation produced at the disciplinary meeting of 4th April, 2011 in relation to the outstanding warranty amount. The figure of €51,000 was a combination of WIPs and warranties.
The HR Manager submitted that the garage (garage A) that invoiced the respondent in relation to the outstanding amount of €1,698.91 confirmed to her that no payment had been made, which meant that the claimant had clearly not dealt with the matter.
The Service Advisor with garage A told the Tribunal that the claimant contacted her in relation to a noise problem with a skoda car. She understood that because it was a skoda car the claimant wanted to check if it was covered under warranty. As the car was not in warranty she told the claimant that she would speak to the warranty manager. She then rang the claimant to say that they would have to strip down the car and that it would be chargeable to the customer if parts were not under warranty. She later told the claimant that as it was wear and tear that Skoda would not be covering the cost. The claimant gave the instruction to go ahead and repair the car. She understood the invoice was to go to the respondent but it was subsequently returned on the basis that it was not a car belonging to the respondent. She tried to contact the claimant in relation to the outstanding amount to no avail. The witness said she could not re-call any credit card being given to her as payment, as she would have processed it.
The Service Advisor (SA) stated in evidence that he trained the claimant and handed over manuals in relation to the claims procedures.
In cross-examination, the SA indicated that the claimant worked at the desk with him for over a week, focusing on warranty procedures.
The General Manager (GM) confirmed he issued the e-mail of 2nd July, 2010 attaching a staff notice to all service staff informing them of, inter alia, warranty procedures. In relation to the letter of 10th January, 2011 to the claimant regarding the warranty rejections in 2010, the GM stated that the claimant had prepared the documents for warranties. He said the contents of the minutes of 14th January, 2011 were accurate. After the management meeting of 20th January, 2011 GR took over from the General Manager and the witness had no further role in the process.
The Warranty Controller, LH, told the Tribunal in evidence that the claimant had asked him if he knew anyone to assist in the cost of the works on the Skoda. LH spoke to two reps from the VW group and told the claimant to approach the respondent to make a goodwill request. The claimant contacted LH in April, 2011 and told him of his dismissal.
Giving evidence, MC stated that he is the owner of the Skoda car in question. When he left his car into the garage, his son rang him and said he hoped the work would be carried out under warranty or goodwill in garage A. He was then told there might by a cost. AC told him he needed to ring garage A in relation to payment. When he rang garage A, he had a casual conversation with the services advisor, who said he may be charged. He gave her his credit card details. When he picked up the car from the respondent, he paid for the service and was told “that’s all we want, everything is fine”. This lead MC to believe that there was no charge for the work carried out in garage A. He paid €102.22 for the service.
When AC told the witness that the bill was outstanding around the end of April, 2011, he asked him to contact garage A and explain that he had given his credit card details. MC telephoned garage A and left a message for SE to ring him. He did not receive a return call in relation to the matter.
In cross-examination, MC stated he was lead to believe that some of the cost may be by goodwill. He did not know why an invoice had been processed in the name of the respondent. After the respondent deducted the outstanding amount from the claimant, MC reimbursed him in or around the middle of May, 2011.
At the commencement of the Tribunal hearing on 29 November 2013 it was stated that all was resolved with regard to monies owed to the claimant and to the respondent with regard to payment of wages legislation in that an arrangement had been made to have all outstanding matters dealt with. It was stated during the hearing that the claimant had been paid a month’s notice on termination. Therefore, the only matter outstanding was for the Tribunal to decide whether or not the claimant had been fairly dismissed.
Giving sworn testimony, GR (the respondent’s dealer principal) said that he had twenty years’ experience and had been in his present position since the start of 2011. He said that he had heard the respondent’s earlier evidence in this case and that he agreed with it.
The Tribunal was referred to the 30 March 2011 letter from KM at AW (car dealers) relating to an outstanding invoice dating back to 29 September 2010. The letter stated that the claimant had booked in a car with AW’s service department, that it had been left in by a technician from the respondent’s service department and that AW had got working on it and found that it needed a gearbox overhaul ot repair damage. The letter said that the claimant had given authorisation to carry out the repair and that the car had been collected (by a technician from the respondent) and given back to the claimant. The letter pointed out that the claimant had admitted that the car was his father’s car and had said that it was not to be sent to the respondent. The claimant had queried whether the car was covered by warranty but AW had a bill outstanding and, being unable to get in touch with the claimant, were writing to the respondent (enclosing the bill) because the car had been left in under the respondent. The letter was seen by GH (the respondent’s chief executive).
LH had given evidence that the car was not covered by warranty.
The claimant was invited to a meeting on 11 April 2011 with GR and MA (from the respondent’s group HR department) at which GR had expressed concern at the respondent receiving a bill and at which the claimant stated that his father had given his credit card and that he would sort it out asap.
The Tribunal was next referred to a letter dated 14 April 2011 from GR to the claimant in which the claimant was requested to attend a disciplinary meeting in the respondent’s boardroom on Monday 18 April 2011. The letter stated that the claimant could be accompanied at the meeting by a colleague or representative of his choice.
The Tribunal was then referred to a letter dated 14 April 2011 from the claimant to GR stating that the claimant found “the constant request for Disciplinary meetings extremely stressful” and requesting that the next meeting be brought forward to that very day (Thursday 14 April 2011) or, at the latest, the next day (Friday 15 April 2011) as he did not want “another agonising weekend to go by anticipating what will be discussed at your next requested disciplinary meeting”. The letter alleged that “consistent disciplinary procedures” were “a form of bullying”.
Questioned by the Tribunal, GR accepted that there would not have been disciplinary meetings if AW had billed the claimant rather than the respondent.
A note of the meting of 18 April 2011 stated that it had been attended by GR, the claimant and MA (from the respondent’s group HR department) and that the claimant had said no when asked if he wanted to be accompanied. GR asked the claimant to explain the circumstances surrounding his father’s private car being brought to AW motor dealers and being booked in for repair in August 2010. The claimant was stated to have replied that this had nothing to do with the respondent, that his father had given his credit card and that this was “sorted”. Thereupon, GR asked the claimant for confirmation that the bill had been settled by his father by credit card. When the claimant replied in the affirmative MA put it to the claimant that this invoice had been followed up by AW with the respondent’s accounts team as recently as 15 April 2011 (the previous Friday). GR then said that AW had sent the respondent information that payment had not been received, that no credit card details were held and that AW had maintained that the claimant’s father’s car had always been booked in as a respondent car. GR then asked the claimant to explain why AW said that the bill was still outstanding to the respondent if the claimant was saying that it had been paid by the claimant’s father on credit card. The claimant declined to reply.
GR then put to the claimant that this was a very serious matter in that the claimant was a respondent manager who had abused company resources by sending his father’s car to AW as a respondent car and had used the respondent’s credit facilities without authorisation to facilitate this and that the claimant had not advised him or the respondent’s accounts department. Again asked for comment, the claimant again declined to reply.
GR then told the claimant that he was leaving the respondent with no choice in that he had knowingly used company credit facilities without authorisation and a bill of €1,698.91 still outstanding was affecting the respondent’s credit facilities with AW not to mention the long-standing relationship built up. GR continued by saying that, in light of this act (classed by GR as gross misconduct) the respondent had no choice but to terminate the claimant’s employment with immediate effect. However, GR followed by saying that the claimant would receive his full notice. (There was no minimum notice claim as the claimant received full notice payment of four weeks’ pay.)
The meeting-note concluded by stating that the meeting ended by the claimant standing up, shaking hands with GR (and MA) and stating that he was going downstairs to say his goodbyes to the team.
A letter dated 18 April 2011 from GR to the claimant issued confirming that the respondent did not accept the explanation offered by the claimant in relation to the circumstances surrounding the servicing of the claimant’s father’s vehicle by AW motor dealers on 25 August 2010. The letter stated that the respondent was satisfied that the claimant had committed acts of gross misconduct. It was stated that:
he had knowingly and willingly used his position as service manager with the respondent to present a third-party vehicle to AW for service and diagnostic work:
in carrying out this transaction, the claimant did not request or receive authorisation to use respondent credit account facilities to carry out credit account facilities other than those directly associated with the respondent:
the claimant had used his position as service manager to misappropriate valuable company resources including personnel to deliver a third-party vehicle to AW for servicing:
the claimant’s actions resulted in AW forwarding an invoice for €1,698.91 to the respondent for payment:
the claimant’s failure to notify the respondent’s accounts department on time or at all regarding this private commercial transaction resulted in unwarranted disruption to the respondent’s business, credit facilities and professional reputation with AW.
The letter concluded by stating that the claimant had a right to appeal against the respondent’s decision to terminate his employment by 3 May 2011 outlining the grounds of appeal.
Under cross-examination GR was asked if the claimant had been dismissed solely for the reasons given in his 18 April 2011 letter to the claimant. GR replied that this was the third incident but this third incident alone would have led to dismissal for gross misconduct. GR accepted that he had not mentioned the two previous incidents earlier.
It was put to GR that he had not put in writing in advance that he could face dismissal. GR did not dispute this or that he had said verbally to the claimant that it was not looking good for him.
Asked if there had been a pre-determined outcome, GR said that it would have been the end if the bill were paid and that the claimant had said that it would be.
GR did not accept the contention that the dismissal was wholly disproportionate. He did acknowledge that the claimant had been ruled out of time to appeal although the claimant had sought documentation from the respondent.
GR accepted that the claimant had been moved from his office and that he had asked the claimant to move to the service desk. When it was put to GR that the claimant’s car had been downgraded GR dismissed this saying that the respondent were motor dealers who changed cars all the time.
By letter dated 22 April 2011 GR told the claimant that €1,698.91 was deducted from his final severance payment. In a reply dated 28 April 2011 the claimant wrote that he and his father were conducting their own investigation with AW and referred the respondent to his letter dated 20 April 2011 wherein he advised the respondent that AW were provided with his father’s credit card details from the very beginning and, at no stage, was the respondent ever involved in this transaction. This reply concluded with a request that documentation previously requested be furnished to the claimant.
By letter dated 29 April 2011 GR wrote to the claimant that the respondent would not accept any further e-mailed correspondence from him relating to the termination of his employment. By letter dated 6 May 2011 the claimant replied saying that he needed specified documentation from the respondent in order to appeal his dismissal. However, by e-mail dated 13 May 2011 GR wrote that as the claimant had failed to lodge an appeal within the specified timeframe the matter was now closed.
Asked at the Tribunal hearing about the contention that the credit card details of the claimant’s father were given early on, GR said that the claimant had done nothing to get the bill paid.
Asked if it was fair to rule the claimant’s appeal out of time when the claimant was still seeking documentation, GR replied that the claimant could still have lodged an appeal within the time specified in GR’s 18 April 2011 letter to him.
Giving sworn testimony, the claimant said that he had had difficulty with the respondent when he tried to use up his remaining leave at the end of 2010 rather than lose it because it could not be carried forward into 2011. GH (the respondent’s CEO) had thanked staff for attending work despite the heavy snow in December 2010 but was not pleased to learn that the claimant had taken leave. The claimant was called in to a meeting with GH and CK (the then dealer principal) in January 2011 and, after a subsequent warranty meeting, he was in fear for his job. He sent the respondent a letter in April 2011 setting out his position in great detail. He got a written warning about warranty deficit. He had received two written warnings prior to his ultimate dismissal.
The claimant’s father paid for a vehicle service but was having an operation. The claimant took over dealing with his father’s car, sent it to AW in respect of a whining gearbox, followed up with a phonecall but was told that it was out of warranty. He asked about a bill and was told that a good will application was being lodged. He could not pay because the vehicle was in his father’s name and the good will application had to be decided on by the vehicle’s manufacturer. The claimant told the Tribunal that he would not try to get the respondent to pay for other (unrelated to the respondent) work.
Asked why he had not spoken up for himself at the disciplinary hearing at which he was dismissed, the claimant replied that he “did not reply to a whole lot when they were going to let me go”. He had been puzzled as to why a bill on his father’s vehicle was still outstanding because his father’s credit card details had been given in August 2010. GR had told the claimant that it was “not looking good” for him. The claimant told the Tribunal that he was not attempting any misappropriation. Asked if his father could have been billed, the claimant replied that AW had not done up their bill before the servicing was over. The claimant thought that he had explained all in an early meeting but GR had said that it was not looking good.
Asked about the fact that he was recorded as not having given an answer to certain questions asked at the final meeting, the claimant said to the Tribunal that he had previously explained that he was investigating, that his father had been on holidays and that there had been no disagreement with AW during the period when the possibility of a good will warranty was being explored. He had no problem with GR or MA. He (the claimant) had been the service manager and could send a vehicle out from the premises of the respondent.
The claimant had intended to appeal his dismissal but had wanted to first receive documentation requested from the respondent. Also, his wife had been expecting their second child around this time.
Regarding financial loss incurred since dismissal, the claimant said that he had tried his very best to mitigate his loss by getting work inside and outside the motor industry. He applied to garages and shops. He was a qualified motor technician. He got work nearly a year after his dismissal as a garage service manager. However, the garage where he got work closed in December 2012.
Under cross-examination, the claimant said that he had met his targets with the respondent in all but his last month. He had applied for many jobs but admitted that he had very little documentation as evidence of this. He had done a lot of job-hunting on websites.
Regarding his dismissal from the respondent, the claimant said that he did not accept that his father’s car had been out of warranty. LH had said that he would look at this and no payment was sought. The claimant said that warranty included good will warranty and that he had given his father’s details to AW (and to KM from AW in particular). The claimant accepted that there might be a bill if there were no good will gesture. He had said that it was his father’s car but had thought that it was being covered by good will. He had told the respondent not to pay it. KM of AW had the credit card details of the claimant’s father from the beginning. In April 2011 the claimant rang AW and said that his father would pay.
It was put to the claimant that, after the invoice was issued, he had wanted to pass off his father’s car as a respondent car. The claimant told the Tribunal that the respondent had been upset at how he wanted holidays and that an individual could not apply for good will; rather, it could only be paid to a retailer. Asked why he had not followed up with AW, the claimant replied that he had “thought it was being sorted”. Asked why he had not given the instruction that the credit card details be processed, the claimant replied: “They could have done it. I would need to contact Dad.” Asked why he had not appealed before receiving the requested documentation, the claimant replied: “I did not know I could do that.”
Determination:
The Tribunal carefully considered the various aspects of this case. It was felt that the claimant had been very careless and irresponsible. Some six months passed without him correcting the invoice situation. The respondent ended up involved in the billing.
However, it was believed that the respondent was wrong in being too hasty when deeming the claimant’s appeal against out of time given that the claimant had requested documentation from the respondent. This flaw was sufficient to render the claimant’s dismissal procedurally unfair although the claimant, when it came to the handling of the bill, did contribute very substantially to his dismissal.
In all the circumstances of the case, the Tribunal allows the claim under the Unfair Dismissals Acts, 1977 to 2007, in that it finds that the claimant’s dismissal was procedurally unfair within the meaning of the said legislation under which the Tribunal is unanimous in deeming it just and equitable that the respondent pay compensation to the claimant in the amount of €5,000.00 (five thousand euro) for the claimant’s procedurally unfair dismissal under the said Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)