EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Derek Dooley (claimant) UD1282/2013
Against
Pacon Waste & Recycling Limited
(respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr D. Moore
Mr. J. Dorney
heard this claim at Dublin on 5th December 2014
Representation:
_______________
Claimant(s) : Mr Pat Cuffe, "Panamays", 38 Admiral Park, Baldoyle, Dublin 13
Respondent(s) : Mr Patrick Garvey, Pacon Waste & Recycling Limited, Unit 4f, Fingal Bay Business Park, Balbriggan, Co Dublin
The determination of the Tribunal was as follows:
Summary of respondent’s case
The respondent operates a waste and re-cycling plant. The claimant worked for the respondent as a Sales Administrator, commencing employment in 2008. Giving evidence PG, Company Director, told the Tribunal that on 11th April 2013, a customer, who operated a public house, ordered a midi skip. The customer was a long standing and valued customer of the respondent. The list price for the skip was €125 but PG instructed the claimant to charge €100.
The skip was delivered on 11th April, 2013 and returned that same day. The claimant had arranged to collect payment from the customer in the public house. On Saturday 13th April, 2013, PG received a telephone call from one of his employees, AW, who was a friend of the customer. AG told PG that the customer was being harassed by the claimant for payment of the skip while at his child’s christening. PG told AW that he would deal with it on Monday 15th April, 2013.
PG indicated that he arrived at the office at approx. 11.30 on 15th April, 2013. The claimant had been in the office earlier and had gone home sick. When PG checked the system he found that the job in question was entered by the claimant as having been paid but the administration staff confirmed that “no cash” had been handed in. In the meantime, the customer contacted the respondent looking for an invoice in respect of the payment made to the claimant in the bar on the previous Saturday. When an invoice was issued for €100, the customer rang and stated that the claimant had requested and was paid €110. PG double checked all the facts and brought the matter to the attention of HMcG, Co-owner and Director of Finance. Although the staff in accounts normally mark each job as paid, all staff denied that they had marked the job in question as paid on the system. This led PG to believe that the claimant had marked the job as paid.
The claimant was subsequently called to a meeting for the purpose of outlining the situation to him and to hear his side of the storey. The claimant stated that he got paid for the skip and said €110 was paid to him. When PG asked the claimant why he had charged an extra ten euros, the claimant replied “a little twist in it for me”. The claimant denied marking the job as paid on the system and indicated he had put €100 in an envelope in the folder in the office. There would normally be an envelope for this purpose in the office. PG stated that the claimant then said “maybe I didn’t put the money in the envelope”. The claimant offered to pay the respondent the €100 but the respondent declined.
The claimant was called to a meeting on 19th April, 2013 and was suspended with pay as the respondent was not satisfied with the claimant’s responses. The claimant was advised that he would be invited to a further meeting on 29th April, 2013. As nothing had changed regarding the matters arising, the claimant was dismissed for gross misconduct. A letter of dismissal was issued on 29th April, 2013.
Under cross-examination, PG stated that he had no factual proof that it was the claimant who marked the job as paid on the system. He did not inform the claimant in his letter of 18th April, 2013 what the meeting on 19th April would be about. PG denied that the letter dated 18th April inviting the claimant to a meeting on 19th April was handed to the claimant at the end of the meeting on 19th April. As the claimant did not show up for the meeting on 19th April at 17.30, PG had to telephone him to come to the office. It was after the meeting of 19th April that PG decided the matter was a case of gross misconduct on the part of the claimant. The letter dated 18th April informing the claimant of the meeting on 19th April was placed on the claimant’s desk on 18th April.
Summary of claimant’s case
Giving evidence, the claimant told the Tribunal that the customer, who was a friend of the respondent, ordered the skip on 11th April, 2013 for same day delivery and return. According to the claimant he did not receive the letter of 18th April, 2013 inviting him to a meeting on 19th April until the end of the meeting on 19th April. The letter was handed to him by HMcG, Co-owner. The claimant closed up and left the premises on Friday 19th April unaware that he was expected at a meeting. He received a phone call at approx. 18.20 from PG telling him to come to the office now. PG would not tell the claimant what the meeting was about. When the claimant returned to the premises, there was no-one there. The claimant telephoned PG who said he would be there in 5 minutes. The meeting took place at 18.40. The claimant was suspended at this meeting. No notes of the meeting were taken.
The claimant further indicated that at the meeting on 29th April, 2013 he told the respondent that he did not steal the money nor had he entered the job as being paid. It is not the claimant’s job to enter paid work on the system. PG told the claimant that he knew the claimant had marked the job paid. The claimant stated that the respondent could provide no evidence that this was the case.
Under cross-examination, the claimant told the Tribunal that this particular customer always paid him in the bar. He denied that he hassled the customer for the money. He had been instructed by accounts section to chase the customer for the money. It was not unusual for the respondent to instruct the claimant to collect money on a Saturday. The claimant placed €110 in the book as per company procedure. He denied that he told the respondent that he charged the extra ten euro “as a twist” for himself. The claimant thought the charge was 110 euro and stated that he made a mistake in that regard.
The claimant gave evidence of loss and his efforts to mitigate his loss.
The customer who hired the skip gave evidence. He stated that it was normal for him to pay for skip hire in cash through the claimant. The customer was not annoyed that the claimant rang him on the Saturday looking for payment as the claimant was not a stranger to him. He did not complain to the respondent that the claimant had harassed him. The claimant was not aware that the customer was at a christening. The customer indicated that he would normally pay the claimant in the public house, of which he is one of the proprietors. The claimant would often text him to say when he would be in the pub to collect money due.
The claimant’s partner, SD, told the Tribunal that she collected the claimant at 5.30pm when he had finished work on Friday 12th April, 2013. He is normally the last to leave the premises as he usually locks up. They left the premises and went shopping. After a while the claimant received a telephone call and said he was being called back to the office. SD dropped the claimant back to the office at approx. 6.30pm but there was no-one there. The claimant telephone PG and soon after PG and HMcG arrived. SD remained in the car while the claimant went into the office. After about 40 – 60 minutes the claimant returned to the car and told SD that “they are trying to get rid of me” and stated that he was asked to hand back his phone and keys.
Determination
The Tribunal determines, Mr. Moore dissenting, that the procedure used by the respondent in dismissal of the claimant was on the balance of probabilities unfair in all the circumstances. The claimant was given no notice of the meeting or the subject matter of the meeting and was not given an opportunity of giving consideration to the allegations made against him or an opportunity of verifying the identity of the person who inputted the payment entered on the computer. The meeting at which he was suspended was called without an investigation or adequate investigation of the allegations made and when this is considered along with the notice of the meeting, given to the claimant of the meeting, the decision that the claimant had acted in a manner that constituted gross misconduct was unfair. The Tribunal find that the most appropriate remedy is compensation and awards the claimant the sum of €25,000.00. under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)