UD894/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr G. Hanlon

Members:     Mr J. Horan

                     Mr J. Dorney

heard this claim at Dublin on 3 September 2013

         and 13 March 2014

Representation:

Claimant:

                    Mr Conor Bowman BL instructed by Mr David Christie,

         Christie & Gargan Solicitors, Unit 2, Stewart Hall,

         Parnell Street, Dublin 1

Respondent:

         Mr Alan Haugh BL instructed by Mr Ciaran Ahern,

         A & L Goodbody Solicitors, IFSC,

         North Wall Quay, Dublin 1

The determination of the Tribunal was as follows:

The claimant was employed from October 2008 as a pre-loader in the small package area of the respondent’s Finglas facility where there are some 160 employees. The work involves the packages being sorted and loaded into containers which are ready for loading onto aircraft. The respondent is a regulated agent licensed then by the Department of Transport and now by the Irish Aviation Authority. As the holder of a licence it is allowed to x-ray packages for security purposes prior to their shipment. The respondent is at all times subject to audit of its compliance with the regulations governing the industry. It was common case that the claimant was good at his job and a dependable employee always prepared to work anti-social hours.

As a result of European Directive 185/2010 on aviation security and it being transposed into Irish Law by Regulation it became necessary for the respondent, along with all others in the industry, to complete pre-employment checks on all prospective employees going back over the preceding five years. In the case of existing employees it was necessary to go back five years from the effective date of the Regulation. To this end the human resource manager (HM) issued a PCM (pre-work communications meeting) on 28 July 2011 setting out that there was an ongoing human resource audit for all employees in order to ensure that all personnel files were compliant from a legislative perspective. Compliance requirements included; five year reference history, proof of PPS number, proof of eligibility to work in Ireland, proof of address, proof of ID such as birth certificate or driving licence. The PCM set out among other things that failure to respond promptly, or to provide the information would not be accepted as it was an official requirement that the file be 100% complete and accurate, a necessity for every file. All employees were also supplied with a three-page set of audit guidelines setting out the requirements in detail. Included in the guidelines was a requirement that gaps in employment/education history of more than 28 days were required to be covered by a reference. There is a note on the guidelines which states

Where the individual cannot provide an acceptable reference they must seek a signed affidavit from a solicitor to validate this period.

Employees were given until 31 July 2012 to complete this audit process. In the case of the claimant an issue arose regarding the period from January 2007 until this employment began in October 2008. It was common case that the claimant was approached on various occasions after the issuing of the PCM until January 2012 without satisfying the requirement concerning his employment history. The claimant further accepts that his attitude when dealing with members of management was, on occasion, inappropriate. The claimant was able to show that he had been involved in a FAS training course from October 2007 until March 2008.

On 17 January 2012 HM wrote to the claimant pointing out the deficiencies in his response to the PCM. The claimant was warned that failure to comply could result in disciplinary action up to and including dismissal. The appellant provided the respondent with correspondence from the Revenue Commissioners, dated 24 January 2012, which showed a period of employment with a particular employer from January until October 2005 whereas the claimant had asserted that he had worked for this employer in 2007. The claimant’s position was that he had worked cash in hand for this employer in 2007 and cash in hand for another employer in 2008.

On 31 January 2012 at the completion of his day’s work at 7-30am a human resource supervisor attempted to give the claimant a letter, dated the previous day, in which the claimant was told that he was suspended with pay pending the outcome of a disciplinary hearing for failure to provide the respondent with the information as set out in the letter of 17 January 2012, he was invited to a disciplinary hearing on 1 February 2012. Again the claimant was warned that action up to and including dismissal could be taken against him. The claimant was rude to the supervisor and refused to accept the letter, which was later delivered to the claimant’s home.

The disciplinary hearing was re-scheduled for 6 February 2012 and was conducted by the Brokerage/Feeder Manager (BM) and the human resource officer (HO) who had been part of the compliance team associated with the PCM over the previous six months. The claimant declined the opportunity to be accompanied or represented. At this meeting the claimant gave further details of his employment in the missing period but stated that he was unable to get references as both employments had been on cash in hand basis. He apologised for his conduct when the supervisor attempted to give him the letter of suspension. The claimant sought the opportunity to swear an affidavit but this was not accepted on behalf of the respondent. The claimant was given a further week in order for him to provide further information about the gaps in his employment history.

When the disciplinary meeting reconvened on 13 February 2012 the claimant had by then supplied the respondent with a birth certificate thereby satisfying the requirement regarding his identity, which had hitherto also been outstanding. The claimant was unable to provide any more information about the gaps in order to satisfy the respondent. At the end of the meeting the claimant was told that he re-engaged if he could provide the relevant information.

On 24 February 2012 BM wrote to the claimant confirming the decision to dismiss him for failure to follow a reasonable request. The claimant was given two weeks’ pay in lieu of notice. He was advised of his right of appeal to the country manager within five days. No request to implement the appeal procedure was made until the claimant’s solicitor wrote to BM on 19 April 2012 seeking an extension of the time in which to lodge his appeal. The respondent’s solicitors replied on 14 June 2012 denying this request and confirming that the dismissal stood.

Determination:

During the second day of hearing after the issuing of a subpoena duces tecum it emerged that the respondent had accepted affidavits from seventeen employees other than the claimant in respect of gaps in their employment history over the relevant five-year period. The guidelines issued with the PCM as previously noted provide

Where the individual cannot provide an acceptable reference they must seek a signed affidavit from a solicitor to validate this period.

At the disciplinary meeting on 6 February the claimant sought to provide an affidavit and was rebuffed. The respondent’s position being that there was insufficient information on which to base the affidavit. Having had the opportunity to peruse the seventeen affidavits which were provided the Tribunal is satisfied that the claimant was not treated fairly by the respondent with respect to the level of detail in several of those affidavits and the acceptance of those documents to ensure those employees compliance with audit requirements when compared to the claimant’s situation. The Tribunal cannot be satisfied that the claimant has not been singled out for some reason in that regard. Accordingly, it must follow that the dismissal was unfair. Nevertheless the Tribunal found the claimant’s evidence to be unsatisfactory in several aspects. Whilst being adamant that he had worked for the particular employer in 2007, despite the Revenue making it clear that the claimant worked there in 2005, the claimant asserted that he had only worked there for one period, that was in the summer of 2007 for some four months out of an apparent nine-month gap. During the disciplinary process the claimant insisted that the respondent had found the wrong employer for the 2008 gap. It was only when giving evidence to the Tribunal that the claimant revealed that this employer had died before the respondent’s enquiries began. Taking these matters into account and not being satisfied that the claimant has made serious efforts to mitigate his loss the Tribunal measures the award under theUnfair Dismissals Acts, 1977 to 2007 at €2,000-00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)