UD795/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Richard Mark Mathews    –   claimant                                                          UD795/2012

against

Applus Car Testing Services Limited    –   respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms J. McGovern B.L.

Members:        Mr A. O'Mara

                        Mr J. Flannery

heard this claim at Dublin on 18th October 2013 and 8th May 2014

Representation:

_______________

Claimant(s):                 Mr Paul Henry

Siptu, Liberty Hall, Eden Quay, Dublin 1

Respondent(s):            Mr Paul Twomey BL, instructed by:

                                    Ms Janet Keane

Kate McMahon & Associates, Solicitors,

                                    223 The Capel Building, Mary's Abbey, Dublin 7

The determination of the Tribunal was as follows:-

Background:

The claimant’s employment with the respondent company, a national car testing company, commenced in 2002. He was dismissed on 29^th November 2011 for driving vehicles belonging to other people to the test centre for testing and testing them himself. The claimant disputed the allegation.

Summary of Respondent’s Evidence:

An investigation was commenced in August 2011 after a call was made to the company’s recently established whistle blower phone line. The caller provided a list of registration numbers of cars which the caller alleged that the claimant had tested and that he had known the people who owned the cars. The caller later sent photos of cars to the regional manager who investigated the allegations. The company has a code of integrity that employees receive annual training on which includes the regulation that “driving a vehicle that is not your own to the test centre for a test is not permitted”. The claimant gave evidence that he was familiar with the code of integrity.

Investigation meetings were held with the claimant, his trade union representative, the regional manager and the HR manager on 25^th October 2011 and 24^th November 2011. The meeting on 24^th November 2011 was erroneously described as an investigation meeting but was in fact a disciplinary one.

The claimant was questioned about the following car tests:

1. 97ke Nissan Micra – tested on 10^th July 2011 at 12.04.
2. 01LH Mazda 121 – tested on 8^th May 2011 at 8.33am. Alleged that the claimant knew the owner as the claimant had been in a relationship with a person who shared the same surname. The claimant denied knowing this person.
3. 00LH Toyota Avensis – tested on 11^th June 2010 and retested on 17^th June 2010. Both tests carried out by the claimant. The claimant stated this was not unusual as the system assigned the tests to the testers.
4. 00MH Ford Puma – tested on 26^th February 2011 at 18.06 (after closing time).
5. 98MH – tested on 28^th August 2011 at 12.11. Registered to an address where the claimant lived. The claimant contended that he moved from this address in March 2011 and that he did not know who lived there afterwards. The company had a medical certificate on file which showed this address from the summer of 2011. The claimant contended that this was the address his GP had on record for him.
6. 00C Honda Civic – tested on 26^th January 2010 in Waterford.   This car was owned by the claimant’s son and was registered to the same address as the previous car listed.
7. 05LH Toyota Yaris – tested on 23^rd July 2011 at 17.52.
8. 01D Volvo – tested on 22^nd April 2011 at 20.56 (after closing time).
9. 04MN VW Bora – tested on 20^th November 2010 at 12.03. The company contended that the centre was closed at this time. The claimant disputed that the Saturday closing time was 12pm, and often there was a backlog that they tried to get through.
10. 05LH Mazda 3 - no evidence was adduced on this test, the Tribunal were asked to disregard this test.
11. 07CN Opel Corsa – tested on 23^rd April 2011 at 9.24. This car was registered to a neighbouring address of the claimant’s. The claimant denied knowing the person.
12. 01MN Audi A4 – tested on 21^st May 2011 at 18.28. This car was registered to a person with a similar but differently spelled name as the claimant.
13. 01LH Toyota Corolla – tested on 30^th April 2011 at 18.28.

The claimant denied any association with the cars tested, other than his son’s car, which had been tested at a different centre. Following the meeting of 24^th November 2011 the claimant was dismissed by letter of 29^th November 2011. The letter stated that the claimant was in breach of the Code of Integrity for driving vehicles to the test centre that were not his own and testing them. In addition to that the letter noted unacceptable procedures carried out by the claimant in regard to end of day procedure, daily record sheets and efficiency.

The regional manager investigated and made the decision to dismiss. He stated that he had followed the disciplinary procedure. The claimant did not appeal.

The whistle-blower was anonymous but indicated they were willing to be identified. The claimant was not advised in the letters to him that his job was a risk. There were no written statements given to the claimant and no witnesses were pursued. There was no issue with the actual tests were carried out. The regional manager said that the claimant tested cars alone after hours when there had been test gaps during that the day and he clocked out afterwards so also gaining time on the clock. There is no rule about testing after 6pm but he did not like it due to health and safety and that code of integrity. Staff should notify the company if testing after hours. He selected the 13 cars due to the whistle blower and going though the computer system.

The HR Manager gave evidence. She believed that claimant had a full knowledge of all the company’s policies and procedures. He was a team leader in the test centre. The code of integrity is revisited annually. The disciplinary procedure identified four stages (verbal warning, first written warning, final written warning/suspension without pay, dismissal) but provides for dispensing with any of those stages if the offence is serious enough and this was invoked on this occasion. There were a number of car registrations which possibly belonged to relatives or neighbours and as integrity is the core of the business they could not leave the circumstances open to the scrutiny of the public.

Prior to the meeting of 25^th October 2011 the respondent provided a list of questions, below, to be asked at the meeting at the request of the claimant’s representative. She believed that the claimant was asked these questions at the meeting. His responses, as she recalled, follow the questions:

At the request of the claimant’s trade union representative the company provided a list of questions intended to be asked at the meeting of 25^th October 2011 in relation to the 13 car registrations being queried as follows (the claimant’s answer follows each question):

• Did you drive this vehicle to the test centre for testing? No
• Do you know the owner of this vehicle? No
• Have you ever tested family, friends’, neighbours’ vehicles? No
• Have you ever tested vehicles out of hours? If so, why? Once as efficiency down
• Have you ever tested vehicles after hours alone? Yes
• Have you ever reassigned vehicles to yourself? Yes
• Have you ever turned vehicles away that were due for testing? If so, why? Witness (HR Manager) did not recall the claimant’s answer
• Can you confirm whether you were a resident of [address given]? No

The witness was not satisfied with the answers the claimant gave and believed that the claimant knew the people whose vehicles were being tested or with the claimant’s reasons for reassigning cars to himself.

She believed that the claimant was aware of the seriousness of the situation and that the process was coming to an end. The company kept the whistle blower’s identity anonymous as it was felt that the evidence was sufficiently strong and it would not have added any value to reveal his/her identity. To her knowledge the decision to dismiss was based on all of the car registrations outlined in the letter.

Summary of Claimant’s Case:

The claimant gave evidence that he arrived early on a daily basis to unlock the premises. Occasionally a friend came to the test centre and he reassigned their test to someone else. The assigning system was automated. He knew the integrity code well. He did not know any of the people whose car registrations were put to him besides his son, whose car had been tested in Wexford prior to his owning it. He did not know Ms T. She was not related to his ex-partner as far as he was aware. He never drove any vehicles to the test centre for testing. He did not know the owner of car no.11, the address was not that of the house next door but is two doors down. When reassigning he assessed need. He reassigned tests to be fair to all the testers. He had no idea that the investigation meeting on 24^th November 2011 was a disciplinary meeting. He was surprised when he received the letter of dismissal after that. He gave evidence of his loss.

The claimant was cross-examined. He stated that the allegations against him were untrue and that he believed he was targeted by a disgruntled colleague who did not like taking instructions from him. The company had made assumptions. His medical certificate had his old address on it as the doctor still had that address. His job was to ensure the number of tests was up and that customers were happy. There was a productivity scheme. Sometimes people left their car in to be tested on standby. He did not appeal as he was shocked and disheartened that he had been dismissed without a disciplinary meeting and had not been given the minutes of meetings when requested. He did not believe he would get a fair hearing due to the way the process had been handled.

Determination:

Having reviewed the documents and heard the evidence from both parties the Tribunal believes that the decision arrived at by the respondent was unreasonable in all the circumstances. Much of the evidence grounding the allegations seemed tenuous at best. The employer made assumptions based on addresses and names that seemed to be without foundation. When they were disputed by the claimant the respondent made no effort to investigate further but simply did not accept the claimant’s position.

The process lacked rigour and even when questioned by the Tribunal on the VIRs the respondent could not explain why one appeared before the Tribunal but had previously given evidence that it relied on all 13 occurrences and VIRs in coming to the decision to dismiss.

The letter dated 29th November 2011 outlined the reason for the dismissal as follows:

I am writing to confirm my decision to terminate your contract of employment with the company for breach of the Code of Integrity with immediate effect. I have reached this decision after reviewing all the evidence along with your responses to the questions asked of you at the above meetings.

You are in breach of the Code of Integrity procedure on the following grounds:

• You drove vehicles to the test centre that were not your own and subsequently tested them.

The Tribunal, having reviewed the meetings and evidence of the employer can find no evidence that the claimant drove vehicles to the test centre on behalf of others and subsequently tested them. It seems to have been a statement put to the claimant with no supporting evidence save for the respondent saying the whistle blower said it.

No evidence was adduced at the hearing or during the investigation that the claimant drove vehicles to the test centre for testing, so for this to appear in the letter of dismissal is unreasonable. However, we also believe it was unreasonable for the claimant not to appeal the decision. If the claimant believed the process to have been so unfair it would appear a logical decision to appeal. The Tribunal also feels that the claimant did not give adequate proof of his efforts to mitigate his loss.

In the circumstances the Tribunal finds that the claimant was unfairly dismissed and the Tribunal awards him €47,500 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)