UD2197/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

Vladomir Okuril                                                                                             UD2197/2011

                                                                        - Claimant

against

Stephen Colhoun Limited

                                                                        - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. E. Daly B.L.

Members:     Mr. D. Morrison

Ms. A. Moore

heard this claim at Letterkenny on 1^st July 2013

                                     and 16^th September 2013

             and 21^st January 2014

                                                and 31^st March 2014

Representation:

Claimant(s) : Denis O’Mahony, VP McMullin Solicitors, Port Road, Letterkenny,

                     Co. Donegal

Respondent(s) : Dessie Shiels, Solicitors, 16 Academy Court, St. Oliver Plunkett Street,

                        Letterkenny, Co. Donegal

The determination of the Tribunal was as follows:-

Background:

The respondent company was contracted by the forestry board to replant trees on various sites. They had between 12 to 15 sites with 3 teams of employees, 3 employees per team and were on the 2^nd year of their contract. The claimant, and the 2 others in his team, were dismissed for alleged fraud, theft and dumping of 3,000 new trees.

The respondent had tendered for the replanting contract and was successful. The claimant worked on various sites. On the site in question the site had been assessed and budgeted for a quantity of trees to be replanted by the respondent company. The site was inspected by the forestry board. On inspection it appeared more trees were required which was in excess of the budget.

A few days later 30 bags of trees containing 3,000 trees to the value around of € 6,500.00. They were found dumped 2-3 miles from the site in question. They had been dumped in a large hole beside a tree stump. The respondent was contacted and asked why they had been hidden. Three men had been seen walking out of the area and the person who views them knew they worked for the respondent.

The claimant and 2 others in his team were summarily dismissed.

Respondent’s Position:

On the second day of the hearing two employees (JG and IT) from the Forestry Board gave evidence. They explained how a site is budgeted for a replant. Each bag of trees has a code on it. The trees are ordered from the forestry board and delivered on site. They are then counted and signed off. In this case a receipt had been signed but was not available to be viewed by the Tribunal.

When asked one of the witnesses said that the person who spotted the men leaving the forest did not know their names. The trees were found out of their bags which were found close by.

The respondent / owner gave evidence.

He explained that he had contracts with both the Irish and Northern Irish Forestry Boards. The respondent company had tendered and was awarded a contract in August 2009 which would roll out until 2011 to plant trees on various sites. The claimant was employed as a Supervisor on one of the respondent’s teams, the claimant’s uncle also was employed on this same team and was the driver of the van. At the time they were working on a site in Ballintemple.

In 2011 problems arose. An Area Foreman (NS) informed the Forestry Area Foreman (JG) of inaccuracies in the amount of the stock of trees. On the 15^th May 2011, JG contacted the witness and informed him some sites were ordering extra trees for planting even though the quantities to be planted were already decided. JG was getting very frustrated and told the witness that he would investigate the matter.

JG brought the witness to a site and showed him evidence of trees having been dumped. The barcode of the trees identified them as the stock for the Ballintemple site. The trees were removed from their plastic wrapping which was discarded under a tree stump.

The witness told the Tribunal that these trees were chemically treated and could have an affect on the environment if not disposed of correctly.

When asked the witness said that he had not investigated the matter personally. He again met with JG to discuss the matter and he decided he would dismiss the claimant and his team. He went home that evening and wrote out a written warning. On the morning of the 16^th May 2011 he drove to the house the claimant, his uncle and some others were residing and spoke to the claimant’s uncle. He asked to speak to the claimant but he did not come to the door. He handed the letter to the claimant’s uncle and informed the uncle that they were dismissed.

The witness told the Tribunal that he felt he had dismissed the claimant and the rest of the team in a fair manner. Trust had completely broken down. The incident had ruined his reputation with the Irish and Northern Irish Forestry Boards. When put to him he said there had been no similar incidents after the claimant and his team were dismissed.

On cross-examination he said JG had given him no alternative but to dismiss the claimant had his team as the dumped trees had come from the site they had been working on. JG did not want them back on site. He again reiterated he had not carried out his own investigation.  

When put to him that he had dismissed 8 people he replied that some of those 8 had left of their accord. He said there had been ongoing issues in the past and this incident had been the final straw. When asked he said that he was not aware of any other teams working on the site in question. No other sites were investigated. He told the Tribunal that he had discussed issues regarding the claimant with JG in the past.

Claimant’s Case:

The claimant gave evidence. He explained that he had been happy working for the respondent and there had been no prior issues with his work. He had even been promoted to Supervisor while working there.

He explained to the Tribunal that he had kept his own written diary of work he and the team had carried out on site. (copies were handed to the Tribunal for their perusal). This record detailed the locations he worked on and the amount of trees delivered, planted and left over on location. He gave a formal account of the stock delivered, planted and left over to the respondent on a monthly basis. (These details were not available for the Tribunal). He told the Tribunal that if bags of stock were missing he would have contacted the respondent. If stock went missing he would not be paid for the work.

On the day the trees were allegedly dumped, the 10^th May 2011, he had been working in Ballina. On the 16^th May 2011 his uncle had handed in the letter of dismissal. He was shocked and could not understand why it had happened, he was a good worker.

The claimant gave evidence of loss.

On cross-examination he only became aware of the quantity and value of the stock discarded on the first day of this hearing. It had never been explained to him why he had been dismissed or that he could appeal the decision of dismissal.

Determination:

The Tribunal have carefully considered the sworn evidence and submission adduced over the three days of this hearing.

The respondent bears the onus to justify the dismissal of the claimant and they have failed to do so. There was an assumption of collective guilt which should not have occurred and the circumstances that existed did not justify a summary dismissal. The respondent did not follow fair procedures in this regard.

Accordingly the Tribunal finds the claimant was unfairly dismissed and awards him the sum of €19,024.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)