EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NOS.
EMPLOYEE – claimant UD 2376/2010
WT 1048/2010
against
EMPLOYER 1 – respondent 1
EMPLOYER 2 – respondent 2
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. L. Ó Catháin
Members: Mr. J. Hennessy
Ms S Kelly
heard this claim at Clonmel on 19th September and 21st & 22nd November 2012
and 01st & 02nd October 2013
Representation:
Claimant: Mr Frank Nyhan of Frank Nyhan & Associates, Solicitors,
11 Market Square (opposite Courthouse) Mallow, Co. Cork
Respondent: Mr David Gaffney for Peninsula Business Services (Irl) Limited,
Unit 3, Ground Floor Block S, East Point Business Park, Dublin 5
The claim under the Organisation of Working Time Act, 1997, was withdrawn.
Respondent’s case:
The respondent’s representative informed the Tribunal that respondent 1 had been the claimant’s employer and had come before the Tribunal to answer the claim. However the claimant’s representative maintained the claim against both respondents.
The respondent’s representative raised a preliminary issue and stated that the Tribunal had no jurisdiction to hear the claim because it was out of time. The claimant was informed of the decision to dismiss him on 8th January 2010. According to the S.I. of the 1977 Act the date of dismissal is the date on which the decision is communicated, unless the employee handbook makes other provision. In his opinion, backed up by case law, the Tribunal does not have discretion to extend the time limit for lodging a claim.
The claimant’s representative protested that there was no mention of time on the T-2 and he was given no notice that this issue would be raised. The hearing was adjourned to enable the claimant’s representative prepare a reply to the issue raised.
Preliminary point Determination:
On the second day of the hearing the Tribunal heard further argument as to the preliminary point.
On the preliminary point the Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 To 2007, is on time. The claimant’s date of dismissal was 08th January 2010. The appeal of the dismissal took place on 08th June 2010. The form T1A was submitted to the Tribunal on 09th November 2010. The Tribunal allows the claim under the Unfair Dismissals Acts, 1977 To 2007 and the Organisation of Working Time Act, 1997.
Substantive case:
Respondent’s case:
The Tribunal heard evidence from a witness for the respondent. He is the president of the respondent (aka ICC) which is a coursing club. He is also the chairman of another entity which is a sporting/coursing newspaper (aka SPL).
The respondent Board of management were about to appoint a new CEO. They were deciding whether to give the new CEO a company car and other matters relating to the monies and conditions to the new CEO. They asked the accountant who is the claimant for credit card details of the current or outgoing CEO (aka DR). The treasurer asked the claimant for the information and it was not done. The claimant told them that he would get the auditors to send the information. Eventually they got the cc details and spent two hours looking at the credit card details with the finance committee.
The witness explained that the executive committee asked him and another to investigate the matter. The witness explained that the investigation was not about the claimant but was about the former CEO, DR. They reported to the executive. DR was asked questions but did not give satisfactory answers. They then employed auditors to look into matter.
The witness was asked why the claimant had been involved from thereon. He explained that when he looked at the accounts for example the 2006 accounts he noticed that the insurance total was €166K but that they had borrowed €86K from a bank to pay the insurance bill which was €86K. Therefore there was a difference of €80K.
Minutes of an investigation meeting were opened to the Tribunal.
The witness found out that the claimant maintained that he was entitled to €3000.00 per annum for mileage. The claimant produced a letter to him from the auditors. However the letter stated that it was to be no more than or up to €3000.00 per annum but the claimant was stating that he was to get €3000.00. He looked over the cheques paid to the claimant for a period of seven years and they amounted to €60K to €70K; he did not think that the claimant would do that mileage. The claimant also maintained that he had an agreement that he would be paid 12.5% for any new advertisement revenue and this would be put down as mileage. The claimant however had taken 12.5% of all the existing advertising not just the new advertising.
The witness was cross-examined.
The Tribunal heard evidence from a witness from the respondent’s auditors.
The Tribunal heard evidence from a witness (BD) who is the president of the respondent club (ICC) and the chairman of the respondent press (SPL). The witness explained that they were going to appoint a new CEO and they had to decide if they were going to allow the new CEO a company car. They were to ask the claimant for credit card details and the treasurer did ask the claimant for those details. However the details were not forthcoming. The former CEO told them that he would get a well-known firm (E&Y) to organise the matter. They obtained the credit card details and spent two hours examining the CC details with the finance committee. The witness explained that the executive committee told him and another to investigate the matter. The investigation was not in relation to the claimant it was in respect of the former CEO (DR). DR was asked questions by them and he did not give satisfactory answers. At some point in time they asked auditors to investigate and DR was unhelpful.
The witness was asked what the connection of the situation was to the claimant. He explained that they employed new accountants. He or they noticed an anomaly in that the insurance aspect was €166K however they had borrowed €86K from BOI to pay the cost of €86K however there was a difference of €80K which was unaccounted for.
They had a disciplinary meeting with the claimant who was represented at the meeting. The meeting was to deal with the claimant allegedly misappropriating funds and falsifying accounts. The meeting took place on 08th January 2010. A document was opened to the Tribunal regarding the meeting. The minutes of the meeting were opened to the Tribunal. The meeting was attended by the Disciplinary committee which consisted of NH Chairman, JE, and TM. For the second named respondent present were G and R and DJH, and for the claimant were JS solicitor, JD former CEO of second named respondent, AH and DW formerly Auditor with E&Y. The minutes were opened to the Tribunal.
BD gave evidence that he investigated the allegations and he brought the information or reverted to the committee. He spoke to the claimant and the claimant had told him that he was to be paid €3K annually for mileage however on reading the supporting document it actually said that the claimant was to be paid “no more than €3K”. He went through cheques that had been paid to the claimant and the claimant told him that he was entitled to be paid for advertising. He surveyed payments made over a seven year period. An amount of between €60 to €70 thousand euro had been paid to the claimant over that period and “there was no way that was mileage”. The claimant said that it was also to do with advertising that two named people (G and T) guaranteed him that any new advertising he brought in or that came in he was to be paid 12.5 % commission and that it was to be processed or put through as mileage. On further examination he found that it did not add up that the claimant took 12.5 % on all existing adverts. Booklets were opened to the Tribunal. A sum of €65,738.21 was paid to the claimant from 2000 to 2007. He presented the evidence to the parties.
The witness was extensively cross-examined. It was put to the witness that he asked the committee to dismiss the claimant and the witness agreed. He was asked why he did it and he replied that it was because the claimant falsified the accounts and the claimant was facilitating a cover-up and moving funds.
A witness (IR) for the auditors/ accountants for the respondent gave evidence to the Tribunal. The witness explained accounts and journal entries (JE’s). He was concerned about the JEs and he asked the claimant for an explanation about the entries. The claimant initially told him that they were false JE’s and were put there on the instruction of the CEO to make the accounts look correct. He asked the claimant if he would write a statement to that effect and the claimant said he would. He got a list from the claimant of 24 entries and a narrative to say that they were put there for commercial reasons. The witness gave other examples to the Tribunal. The witness was asked to describe the accounting and he stated that he would call it “false accounting” and “proper accounts were not made”. The accounts were made to look consistent to prevent questions being asked. The witness gave other examples of the claimant’s accounting and when the witness was asked if the claimant ever did the accounts correctly he replied “No”. The witness stated, “I am appalled to see a professional carry out such (methods)”.
The Tribunal heard evidence from the current CEO (DH) of the ICC and its subsidiaries. All of the employees report to him. Any decisions that are made by the committees are implemented by him. The witness gave evidence that he had noted a mileage claim made by the claimant for attending a coursing meeting. He himself had attended the meeting and had not seen the claimant present. He spoke to the claimant and the claimant confirmed he had not attended but that he was entitled to claim €300 per month as part of his salary package and submitted the claim forms as trips, to obtain the amount. He told the claimant that it was not correct and to set up a monthly car allowance whereby he could obtain the payment. The claimant did this.
The witness explained the sequence of events surrounding the claimant dismissal. When the allegations of misappropriation became known the claimant was arrested. The claimant was then suspended. Evidence was put before the disciplinary committee. A number of letters of correspondence were opened to the Tribunal. A disciplinary hearing took place on 08th January 2010 and he had no involvement in that. He had no involvement in the decision to dismiss. He did have an involvement in an appeal.
The Tribunal heard evidence (NH) a member of the committee. The committee decided to dismiss the claimant. It was by a majority decision. This was on the basis that on the evidence of the claimant himself that he falsified documents.
The Tribunal heard evidence from JK.
Claimant’s case:
The Tribunal heard evidence from the claimant. He outlined his career. He outlined the structure of the respondent. He explained that on a day-today basis he looked after the invoicing, purchasing and sales. On a quarterly basis he looked after the management accounts. He mainly reported to the treasurer which was latterly JE.
He first realised that there was a problem with his work when new auditors arrived in 2008. They were not happy with some of his journal entries. The accounts were re-stated. The next accounts were in 2009. The claimant explained that the next accounts were in 2009 and “there was positive feedback and “everyone was happy”.
He did have a conversation with DH regarding mileage and he took his advice to put expenses in as car allowance.
Regarding journal entries he did move expenses from one area to another. This was decided in a conversation with the CEO. The CEO was concerned about performance of one of the entities and the profit of the entities.
Regarding his salary this was set by the auditors and the finance committee. After that his increments were agreed by the CEO.
His “out of pocket” expenses of €3,800.00, was agreed by the auditors or accountants and the finance committee. He was also due monies from advertisements that he brought in. He had agreed this with the CEO, and EY and the auditors/accountants. The claimant outlined the amounts that he earned to the Tribunal.
Regarding the disciplinary process the claimant was asked if he was subjected to a disciplinary process and he replied, “No, I arrived into work and the Gardaí arrived and arrested me”. The Gardaí investigated all of his accounts, his credit union accounts and his wife’s accounts. The claimant was asked if he was prosecuted and he replied, “Absolutely not no”.
The claimant told the Tribunal that he made his expenses known and the treasurer was quite happy with them. The books were always made known to the treasurer and the auditors and no money was missing
The claimant gave evidence as to his loss.
The claimant was cross-examined.
Determination:
Having heard the evidence adduced the Tribunal makes the following Determination. Procedurally the initial investigation was not as independent as it should have been. The Tribunal finds that the dismissal was unfair. However the claimant is a qualified accountant and is seen by the Tribunal to have contributed to his dismissal. The Tribunal determines compensation to be the most appropriate remedy in this case. Accordingly, the Tribunal awards the claimant the sum of €35,000.00, as compensation under the Unfair Dismissals Acts, 1977 To 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)