UD28/2014, MN484/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Justin Leigh

- claimant                                                                                                                  UD28/2014  

                                                                                                                                  MN484/2014

Against

Speedking Couriers Limited T/A Fastway Couriers (Midlands)

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr. N. Ormond

                    Mr P. Trehy

heard this claim at Portlaoise on 17th December 2014

Representation:

Claimant(s) : Ms Andrea Cleere, SIPTU, Liberty Hall, Dublin 1

Respondent(s) : Mr Liam Brennan, Midpoint HR, Woodchester House, O’Connor Square,

                         Tullamore, Co Offaly

The determination of the Tribunal was as follows:-

Determination

It was common case between the parties to these proceedings that the claimant was involved in a serious incident where a ‘banger’ was exploded in the work place causing injury to a number of employees.   The claimant admitted responsibility from the outset but claimed that there had been nothing wilful in his actions;   he had not appreciated the potential serious consequences of his actions which he appeared to categorise as “tom foolery” which was, he alleged, an established culture in the workplace.

It was the claimant’s position that the investigation into the issue was flawed and that he was not allowed union representation.

Having considered the totality of the evidence and the documentation submitted to the Tribunal, it is the decision of the Tribunal that the investigative and disciplinary processes were fundamentally flawed to the extent that the Tribunal considers and holds the claimant to have been unfairly dismissed.   The Tribunal cannot disregard these fundamental flaws particularly in a situation where the respondent had the advices of an external consultant in employment procedures available to it.

The Tribunal was particularly concerned at the overlaps between the investigative and disciplinary processes and the dual roles of both NOC and BK in particular.   The terminology of NOC who conducted the investigation in continuously using the noun “we” when referring to the decision to dismiss was clearly indicative of a failure to maintain the desirable separation between investigative and disciplinary processes.

On the 9^th of October 2013, the claimant was invited to a ‘fact finding meeting’.   He was informed of his right to bring a “fellow employee”. He was not informed of his contractual right to have representation. NOC, witness for the respondent, informed the Tribunal that the precedent in this workplace was to afford an employee the option of being accompanied by a fellow employee or other witness.   This was a clear departure from the claimant’s contractual right.

In a case such as this one, the importance of an employee being allowed his representative of choice in accordance with his contractual entitlement cannot be overstated.   The claimant was entitled to his chosen representative to assist him in seeking to have a sanction short of dismissal considered.

The respondent’s employee handbook is part of the employment contract.   Paragraph 56(c) of the employee handbook provides for a right to representation and that the employer will formally advise an employee to have such representation.   There is no suggestion that there are any parameters as to the claimant’s choice of representation. No formal advice of this entitlement was communicated in this instance.   Further, paragraph 55, in the context of the respondent’s grievance procedure, envisages that representation may take the form of union representation.   Clearly where it is expressly stated in the context of a grievance that a union representative may represent the employee it follows by extension that a union representative may also represent an employee in the disciplinary process.

It was clear from the direct evidence of NOC to the Tribunal that both the first ‘banger’ incident and the later more serious one were cumulatively taken into account in arriving at the decision to dismiss.   Yet, the first incident was not adequately investigated by him.

The respondent’s evidence was indicative of it believing that the admission by the claimant exonerated the respondent from adhering to best practice in both the investigative and disciplinary processes.   There should have been no departure from best practice in circumstances where, even where a sanction was inevitable, any fair consideration of the possibility of a sanction short of dismissal would have dictated that the claimant be given every reasonable opportunity to know the information being relied upon by the respondent and that he be afforded the opportunity to represent his position and to make fully informed representations.

Regrettably, the Tribunal found significant aspects of the respondent’s evidence to be unreliable.   NOC heavily relied on a copy of what were proffered to the Tribunal as a true copy of the minutes of the fact finding meeting of the 15^th October and where it was recorded, at paragraph 3V, that the claimant was advised of his entitlement to representation.   When the claimant produced a signed copy of the original minutes of this meeting it was clear that the copy presented to the Tribunal by the respondent reflected an amendment made after the minutes had been signed to include paragraph 3V.   The Tribunal found this to be extremely disturbing.

Further, NOC informed the Tribunal that BK heard the appeal as a person who was “not previously involved” in the process.   However, in his evidence, BK was clear that it was he who decided to dismiss the claimant.

It was not recorded in the minutes that the claimant had been advised of the potential for his dismissal prior to or at the meeting of the 15^th October and the Tribunal again finds the evidence that he had been so advised to be unreliable.

On the 17^th October, FC was interviewed and made a damning allegation that the claimant had encouraged him to throw the ‘banger’ bearing frisbee in the direction of a number of workers, a version of events which was the polar opposite of what the claimant had stated.   BK advised the Tribunal that, among other matters, he had considered the statements taken before arriving at a decision to dismiss. Yet, this particular statement was never put to the claimant nor was he afforded any opportunity to dispute the contents of this statement.

On the 21^st October the claimant was called to a meeting.   There was no evidence before the Tribunal that the claimant had received a written communication confirming this to be a disciplinary meeting, formally advising him to be represented (Paragraph 56(c) employee handbook) and setting out the issues which would be put to him at that meeting.   At the meeting he was given a letter of termination which was signed by NOC who, as investigator, should not have had a role at that stage of the process.

On the 31^st October an appeal was heard. Paragraph 56.4 of the employee handbook clearly states that the appeal should be conducted by a member of management not previously connected with the process. NOC sought to satisfy the Tribunal that BK had no such previous involvement.   BK, who heard the appeal, was, on his own evidence, the individual who decided to dismiss the claimant in the first place.   BK advised the Tribunal that he felt the appeal could only be to him as the most senior member of management.   Again the claimant was advised that he could have “a fellow employee present” and, indeed, was refused representation by a union representative.    

A properly constituted and conducted appeal represented the claimant’s final opportunity to make a case for mitigation.   He had a contractual right to his representation of choice which was refused to him on the spurious grounds that the union representative had not given prior notice of her attendance and did not produce the written consent of the claimant to her representing him.   The respondent’s position was completely disingenuous in this respect.   The Tribunal believes that the exclusion of the claimant’s union representative and the denial to him of his representative of choice was unfair and a fundamental breach of the claimant’s contractual entitlements.  

The failure to adhere to proper process in this matter constituted a fundamental breach of the claimant’s contractual rights and a disregarding of the principles of natural justice.

It is for the foregoing reasons that the Tribunal considers the claimant to have been unfairly dismissed and awards the sum of €1,500 to the claimant under the Unfair Dismissals Acts 1977 to 2007.

The Tribunal further awards the claimant €2663.32 in lieu of four weeks minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)