EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1422/13
CLAIM OF:
Richard Godsland - claimant
against
Applus Car Testing Limited - respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr C. Lucey
Mr J. Jordan
heard this claim at Dublin on 2nd February 2015 and 8th April 2015.
Representation:
Claimant: Ms Helen Whately BL, instructed by Mr Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 9, The Atrium, Canada Street, Waterford
Respondent: Mr. Paul Twomey BL instructed by Kate McMahon & Associates, Solicitors, 223 The Capel Building, Marys Abbey, Dublin 7
The determination of the Tribunal was as follows:-
The respondent is engaged in national car testing which is its core business. Its head office is situated in Spain.
Summary of the Evidence
The claimant commenced employment as a vehicle inspector on 9th June 2003 and was promoted to Team Leader on 2nd April 2005. This is a more senior role which carries responsibility for sustaining business. He was furnished with a contract of employment and employee handbook. The handbook is also available on the internal intranet. The Code of Ethics Policy Document accompanied the claimant’s Statement of his Terms of Employment. The claimant was fully trained in vehicle inspection and customer care.
The respondent is open to scrutiny and heavily invests in the integrity of the company.
Employees receive one free car test per year. The AA carries out significant audits on behalf of the RSA. The RSA have a live lead into the centre. Any irregularities should be reported to GL, General Manager.
The respondent was satisfied that the claimant had been fully trained in his role. The claimant acknowledged receipt of the Employee Handbook outlining the policies and procedures on 26th May 2003.
NCTS take integrity as one of the central factors which underpin its business. Should an employee feel that he is in a situation which is proving difficult, the following guidelines help the employee make the correct decision:
- Avoid situation that may require you do something which you know to be illegal or unethical
- Company property may not be used for your own benefit
- Do not engage into any transaction which does not have a genuine, legitimate business purpose
- Ask yourself whether any contemplated transaction or business practice would withstand the scrutiny of the public eye
- Do not do anything which could require you to be untruthful
- See advice when in doubt.
It is important that all employees avoid any situations where the interest of NCT diverges from one’s own personal interest or those of persons with whom one is in close personal/business contact.
- If one has any history pertaining to a vehicle presented to him for a test, he must disclose this to his TL/Manager who will organise another inspector to test the vehicle
- Driving a vehicle that is not one’s own to the test centre for the test if not permitted
- Should a family member or friend present a vehicle for inspection at one’s test centre, one’s TL/Manager will arrange for another inspector to carry out the test.
It is forbidden to test one’s own vehicle or one belonging to family members. The claimant tested his own vehicle on 10th March 2012. He paid for this test. The claimant denied that he was ever informed that testing his own vehicle would result in his dismissal.
In February 2013 lodged a complaint against the respondent’s attempt to unilaterally increase his hours of work.
On 21st June 2013 the Regional Manager wrote to the claimant inviting him to an investigative meeting concerning his testing of his own car. There was no explanation of how the matter came to his attention or why this action was being taken more than a year after the incident occurred. During the interval the claimant continued to work and no further incidents arose. The meeting was held on 8th July and the claimant accepted that he had reassigned his car to be tested by himself, in “an effort to get things started early”. At the second investigative meeting on 29th July 2013 the claimant described as a lapse in judgement the behaviour deemed serious misconduct by the Regional Manager.
The disciplinary meeting was held on 15th August 2013 and concluded with the claimant being suspended with pay pending a final decision. The Regional Manager wrote to the claimant on 16th August 2013 informing him that his employment would be terminated with effect from 27th September 2013. The claimant appealed the decision unsuccessfully.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case and compliments the legal representatives for the very high quality and unusual clarity of their legal submissions.
The facts of this case are not in dispute. The claimant, who was an experienced and long standing employee of the respondent, NCT tested his own car at 7.16am on the morning of 10th March 2012. This action was contrary to subparagraph 3 of Regulation 3 of the NCT Integrity Programme which states:
If you have any history pertaining to a vehicle presented to you for a test, you must disclose this to your TL/Manager who will organise another inspector to test this vehicle.
The claimant accepted that he should not have tested his own car while maintaining that he was never informed that testing his own vehicle would result in dismissal. He was dismissed by letter dated 15th August 2013 from his regional manager.
The Tribunal had to determine whether the action of the claimant was of a seriousness to justify dismissal and whether the respondent in dismissing the claimant acted in a manner that was not arbitrary, unfair or irrational.
The claimant’s action had the potential to embarrass the respondent and to undermine its reputation if his action came to the attention of the external auditors. The respondent had no option but to take serious issue with the claimant’s action.
However, for more than a year, the respondent either remained unaware or overlooked the claimant’s action. In the Tribunal’s view this delay undermines the decision to dismiss the claimant. The claimant continued to work for the respondent and no further issues concerning his behaviour arose. The claimant heard of the respondent’s issue with his action in a letter dated 21st June 2013 calling him to an investigative meeting. This delay in addressing the issue amounted to unfair process.
In all the circumstances the Tribunal finds that the dismissal of the claimant was unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. Taking account of the claimant’s contribution to his dismissal the Tribunal awards him the sum of €35,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)