EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Occipital Limited, UD283/2013
TE44/2013
against the recommendation of the Rights Commissioner in the case of:
Miroslaw Wojtun,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr. T.P. Flood
Mr S. O'Donnell
heard this appeal at Dublin on 10th April 2014
Representation:
_______________
Appellant(s):
Ms Catriona Forsyth, IBEC,
Confederation House,
84/86 Lower Baggot Street, Dublin 2
Respondent(s):
Mr. Richard Grogan
Richard Grogan & Associates, Solicitors,
16 & 17 College Green, Dublin 2
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employer appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-125815-ud-12/SR and under the Terms of Employment (Information) Acts, 1994 and 2001, against Rights Commissioner Decision r-125811-te-12/SR.
The Tribunal has carefully considered the evidence adduced in the course of this hearing. This matter comes before the Tribunal on foot of an appeal from the finding of the Rights Commissioner dated the 9th of April 2013 under the Unfair Dismissals and Terms of Employment legislation.
The employee (hereafter referred to as the claimant) worked with the employer company (hereafter referred to as the respondent) as a contract cleaner. The claimant had worked for four years with the respondent employer and had had an incident-free employment duration. The claimant had distinguished himself with his employer to the extent that he was a supervisor and, as such, greater trust and reliance was placed on him by the employer.
The respondent company had a contract with the Tesco distribution centre in Donabate. Evidence was given to the effect that the issue of security was very important on site. In evidence it was said that, in the course of day-to-day business, high-up members of management would only be authorised into certain areas and excluded from certain areas. The claimant was unusual in that, as a contract cleaner, he had access all areas and could move freely through all the areas in the course of carrying out the duties.
Another interesting aspect of this workplace is the arrangements in place regarding personal belongings. All personnel on site, be it Tesco employees, or contract workers were obliged to keep all their personal items in assigned lockers for the duration of the working day. Needless to say, security around the locker rooms would have to be significant where items of value such as wallets, watches and phones were being left there for the working day.
On the 25th of July 2012 the claimant, together with RD (an employee from Tesco), were found in the locker room attempting to prise open a locker. It subsequently turned out that the locker belonged to RD and that the two men had impulsively and without thought set about the task of prising open this locker as RD wanted to return or give something therein to the claimant.
The claimant, to his credit, never resiled from the fact that he and RD were in the act of forcing open the locker when MK (a manager from Tesco) saw them. There is no question of theft as the contents of this locker were owned by RD and RD was compliant in the act.
The Tesco management notified the respondent management and the claimant was immediately suspended on full pay pending an investigation.
The Tribunal accepts that the respondent’s position was difficult. A much trusted and valued employee had been caught in the act of wilfully damaging property belonging to its client. In the commercial world contracts of this sort are highly prized and the respondent company has to protect its own commercial position when an employee turns “rogue” in the manner that the claimant appears to have.
However, the Tribunal does not accept that the situation can allow for an abandonment of the tenets of fair procedure and rationality and even-handedness. It is quite clear from the interviews conducted that no malice emanated from the claimant. The decision to try to force open a locker (which, incidentally, was done with remarkable speed and ease) was rash and lacked foresight and certainly was never in the claimant’s mind an act which could lead to his dismissal.
The Tribunal has been invited to consider the manner in which the investigation was conducted and it is accepted that there were a number of flaws in the processes. So, for example, where the procedures allow for a two-man investigation, only one investigator conducted same. Reliance was placed on a statement which was never shown to the claimant. More important has to be the underlying premiss that the claimant seemed to have no idea that this matter was moving in the direction of a summary dismissal and the claimant was clearly disadvantaged by the fact that he did not by choice obtain representation, was ignorant as to the seriousness of the situation and was never invited to make a “plea in mitigation” and it is this last matter which the Tribunal takes most seriously as the Tribunal is not persuaded as to the proportionality of the sanction imposed.
Whilst the Tribunal has to accept that to return the claimant to the Tesco site might have been sensitive, the Tribunal does not accept that the only alternative was dismissal. Any lesser sanction would have been sufficient and, thereafter, there was nothing to prevent the respondent company from making a bona fide attempt to place the claimant in an alternative position, when another arises, albeit stripped of his supervisor status. The Tribunal does not know if this would have been possible but no attempt was made and the sanction of being dismissed in response to the claimant’s impulsive action is too great.
In assessing compensation the Tribunal has to be mindful to the contribution made by the claimant to the final consequences and the fact that no concerted effort to mitigate loss was made and awards €20,000.00 in varying Rights Commissioner Recommendation r-125815-ud-12/SR under the Unfair Dismissals Acts, 1977 to 2007.
Regarding the appeal under the Terms of Employment (Information) Acts, 1994 and 2001, against Rights Commissioner Decision r-125811-te-12/SR, the Tribunal does not upset the said Rights Commissioner Decision and, therefore, upholds the award therein of €500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)