EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD668/12
Employee - claimant
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr P. Pierson
Mr J. Moore
heard this claim at Longford on 5th November 2013 and 13 January 2014.
Representation:
Claimant: Ms Cliadhna M. Sheridan, Cliadhna M. Sheridan Solicitor,
Main Street, Granard, Co. Longford
Respondent: Ms Róisín Bradley, IBEC Confederation House, 84/86 Lower
Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is a bread manufacturer employing 400 staff, 200 of which are based in Co. Longford. The claimant commenced employment in early 2002 and was promoted to Packaging Supervisor in the Packaging Department on 26th July 2004. His role entailed supervision and management of packaging staff including break rosters, holiday rosters discipline and grievance handling.
Generally three teams work fifteen shifts and the claimant supervises six to seven staff.
The respondent places great emphasis on punctuality and monitors each employee’s time keeping record. It has set policies on breaks. A fifteen minute break is permissible one to one and half hours after commencement of work. There is no requirement to clock in/out at this time. However, employees must clock in/out for the duration of their lunch break which is thirty five minutes. A ten minute break is permissible towards the end of a shift provided all work has been completed. Taking two breaks together at any given time is not allowed. The respondent operates a biometric system (finger recognition) for clocking in/out and the leniency is three minutes. CCTV cameras are positioned above the clocking in system. Should an employee need to leave the premises permission is sought from his manager and a shift report is completed.
Supervisors come in ten minutes before the commencement of shifts. A supervisor allocates breaks for staff each day. The respondent monitors the clocks on a continuous basis.
The claimant reported to PK, Packaging Manager and had been a good time keeper. Some seven other supervisors also reported to him. Three shifts operate in the Packaging Department. PK found the claimant to be a good worker. He consulted the claimant when he was hiring staff.
Management meetings occur weekly. Following issues arising at a meeting in July 2007 FB, Human Resources Manager sent a memo to all staff drawing their attention to such issues as clocking in/out, timekeeping/absence and uniforms.
The claimant was invited to an investigative disciplinary meeting on 25th January 2010 following his unauthorised and unscheduled breaks in the week of 3rd January. 2010. At that meeting the claimant accepted that he had been taking unauthorised breaks and was issued with a final written warning and a fine of two weeks on his supervisor allowance. The warning remained on his file for a period of eighteen months. At that time it was stressed to the claimant that any occurrence of unauthorised absences could lead the company to invoking the disciplinary procedures and lead to sanctions up to and including dismissal.
PK became aware that the claimant had been absent for some time during his evening shift on 29th /30th September 2011. He investigated the matter and reviewed CCTV footage. He observed the claimant leaving and returning to the company. FB asked PK to suspend the claimant with pay.
The claimant was invited to a disciplinary meeting on 4th October 2011. He fully acknowledged that he did not follow company procedures regarding his unauthorised absence/breaks. He explained that his son had been ill and he had to return home. That morning he had also given two employees a lift home. He had left the premises for two periods of approximately fifty minutes. The claimant had verbally told some colleagues during his shift that his son had been ill.
By letter dated 3rd November 2011 FB requested the claimant to return to work with immediate effect but that he was to be demoted from the role of supervisor. He was also issued with a final written warning. He was offered a right of appeal.
The claimant sought legal advice. His appeal was heard by DF on 21st November 2011. DF revoked the claimant’s pending demotion from supervisor to operator.
The claimant returned to work in December 2011. PK then investigated the claimant’s further unauthorised absences from work on 5 January, 10 January and 12 January 2012. The claimant attended a disciplinary meeting on 20th February 2012.
The claimant was dismissed on 27th February 2012.
AM Operations Manager told the Tribunal that supervisors have responsibility for the day to day running of plant, they report to their line managers, who in turn report to him. He was not involved directly with the claimant or his previous grievances which were dealt with by HR and his line manager but was aware of his disciplinary record. He was asked by HR to become involved in the disciplinary because of a sense of fairness and impartiality. He had an open mind and got copies of shift reports, clock card, packaging reports and CCTV.
The claimant declined representation and was happy for the disciplinary to proceed. They went through each occasion that the claimant had left the building individually. The claimant didn’t think that the times shown on the CCTV were correct. He said he sometimes took two breaks at the same time. He also said that on one occasion he went to the packaging store across the road to get wholegrain wrapping paper. AM checked, no wholegrain was wrapped that night, so he would have no reason to get it. AM was also happy with the times shown on the CCTV.
The claimant had a final written warning two months previous for time issues. AM felt that because of the claimant’s disciplinary record (he was a supervisor on a final written warning) he had no option but to dismiss him for gross misconduct.
Claimant’s case:
The claimant gave evidence of working his way up from machine operator in 2001 when he joined the respondent, to supervisor. He had 7/8 people to supervise and reported to PK. His first warning came in 2010. It was Christmas time and the respondent did not allow any holidays or time off over Christmas or the New Year. He had extra staff and extra shifts to manage and could be working up to 14 hours per day. It was not a problem to go home on breaks.
On the second occasion his child was sick, his wife phoned and said “come straight away”. It was 2am and he tried to call PK but he didn’t answer his phone. Production was finished, wrapping was happening and it was only clean-up to be done. L, the quality checker took care of things. He told PK what had happened the next morning and was taken to the office and suspended. The claimant contended that the CCTV footage was poor, he disagreed with the times of his absences and on occasion would not have time to take his first break so would take both together later on. On one occasion he did fall asleep at home but no longer that 30mins.
Under cross examination the claimant said that on the night of 28th September (the night his child was ill) he did give people a lift, in the opposite direction to his home. It was only a few minutes in the opposite direction and his wife said the child had a temperature, she didn’t say come straight home. He didn’t think his misdemeanours were too serious. He didn’t appeal the final decision because it would take too long (he was suspended without pay) and he needed work and money to support his family.
Determination:
The Tribunal has carefully considered the evidence adduced. The claimant was dismissed for gross misconduct following a series of breaches to his time/keeping. He was a supervisor with responsibility for fellow employees and the respondent company conducted an investigation and a disciplinary process. The claimant had a final written warning on his file for similar occurrences a few weeks earlier. The claimant was offered leave to appeal the final decision but did not avail of this offer.
The Tribunal is satisfied that the dismissal was not unfair and the claim under the Unfair Dismissals Acts 1977 to 2007 fails and are hereby dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)