UD193/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Employee        -          claimant                                                                                  UD193/2012

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. E. Murray

Members:     Mr. D. Hegarty

                    Mr. D. McEvoy

heard this case in Cork on 23rd September 2013

                         and 28^th and 29^th January 2014

Representation:

_______________

Claimant:         Mr. Pat Guilfoyle, T.E.E.U., Old Fire House, 23 Sullivans Quay,Cork

Respondent:    Ms. Catherine Day, Peninsula Business Services, Unit 3 Ground Floor, Block S, East Point Business Park, Dublin 3

Respondent’s Case

The respondent is a motorway toll operator with which the claimant was employed as a supervisor. The Senior Operations Manager (DH) gave evidence. In four of the motorway lane tolls there are automatic coin machines. The money from these machines is manually collected by the supervisor by extracting the machine vault and carrying it into the cash office where it is emptied into another machine and sorted. The vault can be opened in the underpass before it reaches the cash office. It came to the respondent’s attention that there were discrepancies between the amount of money actually collected and the ‘expected’ amount as per the respondent’s computer system during the claimant’s shift.

As the coin machines are automated and no change is given there is consequently, a significant level of surplus expected. On occasion cars are ‘pushed through’ when there is some difficulty with the machine, or issue with the motorist regarding the exact payment. Surplus monies from the coin machine negates any possible negative figure for ‘push throughs’.

After a painstaking investigation it became clear that there was a distinct pattern of “underages” on the claimant’s shift. The claimant was suspended pending an investigation.

The allegations were detailed as follows;

‘1. Alleged theft, namely it is alleged that during a company cash audit it has come to light, that there are some discrepancies in the Automatic Coin Machine lanes cash reconciliation during the shifts you were responsible for.

2. Alleged breach in trust and confidence, namely it is alleged in relation to the above mentioned allegation, we allege that if these matters are proven, represent a gross breach of trust in your role of shift supervisor.’

The disciplinary process commenced; the claimant was represented throughout. A number of disciplinary meetings were held. The claimant maintained at all times that the “push throughs” accounted for his “underages” and that he needed what were known as the “log files” from the computer system to prove this. DH explained that the spreadsheets were derived from the “log files” but the claimant insisted on seeing the actual “log files” themselves.

After a final disciplinary meeting on the 16^th of December 2011, DH informed the claimant of his decision by letter of the 23^rd of December 2011. DH concluded that they had a situation of mistrust in the claimant. As the claimant could not adequately explain the level of “underages” on his shifts it was determined that his actions amounted to gross misconduct;

‘As your actions amount to gross misconduct you are summarily dismissed and will not return from suspension.’  The claimant appealed this decision.   

The appeal officer, SH gave evidence. An appeal meeting was held on the 13^th of January 2012. The appeal invitation stated that, ‘You have requested in your disciplinary hearing that further documentation be provided in respect of the company’s systems and evidence of the discrepancies which occurred. I can confirm that I will ensure that these documents are received by you in advance of our appeal hearing as per your request.’  It transpired that due to intellectual property rights the raw coded log sheets could be given to the claimant but he could not be given access to the software used to translate them into useable data.   This information was not conveyed to the claimant before or during the disciplinary process.

She satisfied herself that the claimant’s explanation had no substance. SH upheld the decision to dismiss the claimant and informed him of same by letter of the 18^th of January 2012 outlining her reasons for upholding the decision to dismiss him.

 Claimant’s Case

On the 16^th of November 2011 the claimant was informed of the allegations against him when he arrived for work. When asked for an explanation for the deficits the claimant said he believed they related to “push throughs” but required more documentation to prove this and specifically, access to the “log files”. There are two types of push through; a customer with no money and a customer short of money, either one can result in a deficit figure.

The claimant was shocked to be called to the disciplinary meeting as he believed more investigation should have been done by the Respondent.   He was represented throughout the process. The claimant was shown all the data based on the transaction detail report. The spreadsheets were projected on the wall during the meeting. DH showed the claimant an example of what a push though looked like, which the claimant believed came from the “log files”.

He contended that the only documentation that would show “push throughs” are the “log file”. DH showed the claimant examples of log files but failed, notwithstanding numerous requests to give the claimant all the “log files”. This was the only manner in which the claimant alleged that he could prove the deficits related to “push throughs”. The rate of “push throughs” varies but there could be approximately 10 in a 12 hour shift; roughly 10,000 cars could go through the toll in a shift. The claimant accepts that “push throughs” are not common but maintained that he did not have the documentation relied on to check the “push throughs” himself.  

Determination:

Having carefully considered the evidence adduced the Tribunal find that the disciplinary procedure used in the claimant’s dismissal was defective. The respondent failed to provide the “log files” or any adequate explanation as to why they would not be made available to the claimant. It appears from the evidence that the Claimant thought that he would ultimately get this data, and that misapprehension may have impeded him in formulating a defence. Having regard however to all the evidence adduced in this case the Tribunal determine that though the dismissal was unfair, find that an award of €3,000 is just and equitable in all the circumstances.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)