EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Brendan McNally UD701/2013
against the recommendation of the Rights Commissioner in the case of:
Olhausen's Limited (In Receivership)
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. N. Ormond
Ms M. Maher
heard this appeal at Dublin on 5th June 2014
Representation:
Appellant: Mr Vernon Hegarty, SIPTU, 8th Floor, Liberty Hall, Dublin 1
Respondent: Ms Rosemary Budd, BDO, Lower Mercer Street, Dublin 2
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-128460-ud-12/JC.
Respondent’s case:
The respondent is a meat processing and distribution plant and the claimant worked there as a delivery truck driver from 1st November 2006 until his dismissal on 5th June 2012.
An employee (SB) reviewed CCTV footage of the warehouse and observed the claimant selecting and loading goods into his truck while on duty in the late evening or early hours of the morning on four separate occasions from 2nd March to 31st March2012. There was no record of these items being paid for. SB referred this footage to a manager (HP). Normally orders are filled and loaded to the trucks by warehouse staff (other than the drivers) with some exceptions. Therefore HP decided to conduct a preliminary investigation meeting with the claimant on 17th April to look for an explanation as to why he was loading this stock. Present at this meeting was HP, SB and the claimant. The claimant told HP that the stock was for staff orders and that he had forgotten to pay for them. He then offered to pay for the items but HP told him it was too late as the investigation had already started.
There was a procedure in place with regard to staff purchase of goods and this procedure had changed in November 2011. HP was satisfied that the claimant was aware of the new system but there had been no orders filled by the claimant since November 2011.
HP also spoke to the Warehouse Manager (AB) who was disappointed at what he saw on the CCTV footage. AB told the Tribunal that the claimant would normally write down what stock he had taken on a piece of paper and later give this paper to AB who would then write it up on a docket and enter it on the system as per procedures. Sometimes AB would have to chase up on the claimant for payment, often up to two weeks later.
Having carried out the preliminary investigation HP referred the matter to an independent third party (PG) for further investigation. PG carried out an investigation and interviewed the claimant and AB. The claimant admitted that he had removed the stock and not paid for it at the time. PG was also satisfied that the claimant knew what the procedure was in relation to paying for stock he was removing but had not adhered to this. AB had told PG that the claimant offered to pay for the goods but that AB told him it was too late as an investigation had already started. PG concluded her investigation and referred the matter back to the respondent.
HP then took charge of the disciplinary process and convened a meeting with the claimant and his union representative on 1st June 2012. Present at this meeting was HF, SB and the claimant. The claimant was informed of his right to have a union representative present but declined. At this meeting the claimant was handed a copy of the investigation report to take away and consider. A further meeting was scheduled for 5th June 2012 to allow the claimant time to respond to the investigation report and by which time HF was to have further considered the matter.
At the meeting of 5th June 2012 the claimant had nothing to add and HF continued with the dismissal. A letter of dismissal had been prepared prior to this meeting and was handed to the claimant at the meeting.
The claimant appealed the decision to dismiss him and an appeal hearing took place on 20th June 2012. Present at the meeting on one side was a Manager (LM) together with an independent HR Consultant (BM) and on the other side were the claimant and his Union Representative.
At the appeal hearing the claimant put forward the fact that he was on medication as a possible reason why he had forgotten to pay for the items he had taken. The claimant had been going through a difficult time personally and was suffering from depression. LM took this into account when making a decision and found that this was a further breach of trust as the medication may have affected the claimant’s ability to drive and he ought to have informed the company of this at the time. The decision of the appeal board was to uphold the dismissal of the claimant.
Claimant’s case:
It was the claimant’s position that he did not steal goods from the respondent but that he had taken them and forgotten to pay for them at the time. There was an ad-hoc system for recording and paying for goods and his line manager AB would sometimes have to chase him up for payment a number of weeks after receiving goods. At the preliminary investigation meeting of 17th April 2012 the claimant informed HF that he had recorded on pieces of paper all items taken on the dates in question and had them in his van but had forgotten to give the details to AB and he offered to pay for them at that point. A further meeting was then arranged for 24th April to allow the claimant to present these records (pieces of paper) and at the reconvened meeting of 24th April 2012 the claimant did present these records. The claimant placed a total of €750 on these items and offered to pay for them. However the claimant was told that it was too late as the investigation had already started.
The claimant never raised the issue of his medication until the appeal stage of the disciplinary process because he did not realise during the previous stages that this medication may have affected his memory.
It was the claimant’s position that fair procedures were not followed in his dismissal and that due consideration was not given to the affect his medication may have had on his memory.
Determination:
The Tribunal gave full consideration to the evidence given in this case. It noted the change of procedures implemented by the employer in the purchasing of stock by staff. It is also noted that the warehouse manager had to chase the Claimant for payment of his purchases from the stock of the Company. When the matter of what was on the CCTV was put to the claimant he offered to pay for what was taken. He at all times was aware that what he was taking was recorded on CCTV. His practice was to record his purchases on a piece of paper and in this case he was able to produce that paper to support his contention. It was acknowledged by the respondent that this was an ad hoc arrangement which they had taken into consideration at the time of making their decision. This paper was not admitted to the investigation by the respondent. It is noted also that in the appeal the question of the taking of medication by the claimant was considered as another factor in deciding to dismiss the claimant without informing the claimant of this fact or without obtaining medical evidence to make such a finding. It is also noted that the letter of dismissal was written prior to the meeting at which they were to make a decision on his employment which indicated that they had decided the issue prior to the meeting.
The Tribunal must determine that the claimant was unfairly dismissed in all the circumstances. The claimant was unfit for work after his dismissal and therefore had no loss of earnings however in October 2012 the entire workforce were made redundant and in considering the award the Tribunal took cognisance of Section 7(3) of the 1977 Act, which states:
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
In the circumstances the Tribunal overturns the decision of the Rights Commissioner Ref: r-128460-ud-12/JC and awards the claimant the sum of €18,175.30 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)