EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Martin Casserley -claimant 1 UD520/2013
MN291/2013
Kevin Foy -claimant 2 UD521/2013
MN292/2013
against
AGI Media Packaging (Dublin) Limited -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. T. Ryan
Members: Mr J. Goulding
Mr N. Dowling
heard this claim at Dublin on 8th April 2014 and 16th October 2014 and 17th October 2014
Representation:
Claimants: Ms. Louise Fogarty B.L. instructed by
Mr Andrew Turner, Hamilton Turner Solicitors, 66 Dame Street, Dublin 2
Respondent: Ms. Mairead Crosby, IR/HR Executive, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Summary of evidence:
Dismissal as a fact was not in dispute. The respondent is a printing company. The Production Manager at the time of events gave evidence on behalf of the company. His role entailed overseeing production and maintaining work schedules amongst other duties.
The company produced print packaging for Company M, its largest customer. The print packaging produced for this company represented 70%-80% of the respondent’s overall print packaging. The lead times on printing jobs were set times and Company M graded the respondent company according to their delivery percentage. Delivery percentages of 93% had to be attained or else the respondent company risked penalties or losing the contract. Unfortunately, production for the Irish operation ceased in July 2013.
Each printing press had a number one and a number two printer allocated to it. The number one printer was the decision-maker and produced the job while the number two printer assisted with the printing. In this case claimant 1 held the primary role and claimant 2 assisted him. Claimant 1 had commenced his employment with the company in 2003 and claimant 2 had commenced in 2001. There were no previous disciplinary issues recorded for the claimants.
A company memo from 2008 was opened to the Tribunal as part of the company’s evidence. It stated that for health and safety reasons staff must clock in and out for their breaks. The memo further stated that disciplinary action would be taken if the memo was not adhered to. The Production Manager stated that if staff remained on the premises for their breaks they did not clock in and out. He added that in order to leave the premises permission must be given to employees.
On the 22nd December 2012 the Production Manager was not due to be present at the company premises. However, he was aware of an outstanding production issue from the previous evening (unrelated to the claimants) and as a result of this issue he attended at the premises.
He arrived at 11.20am and found the factory floor quiet. He assumed at first that the staff were taking their break in the canteen as the claimants’ twelve-hour shift had started at 6am. However, as time passed the only staff member who returned to the factory floor was the one who had taken his break in the canteen. In addition he found the mobile phones for the missing employees in the factory. The Production Manager stated that he would usually receive a telephone call, even on his day off, if an employee wished to leave the premises.
With the assistance of a colleague he checked the TMS logs. From the logs he could tell that claimant 1 had used his access swipe to leave the building at 11.10am. The Production Manager contacted the General Manager and informed him of the situation.
The employees including the claimants returned to the premises at 1.06pm. The Production Manager asked them to attend at his office to discuss the matter. The claimants and their colleagues outlined that they had left the premises to buy some lunch and had not brought their mobile phones with them. Unfortunately, their car became blocked by another vehicle which caused the delay in their return. The Production Manager called a halt to the meeting on the grounds that the employees should have representation for such a meeting. He made the decision to cease production for the day and informed the employees that they were suspended until the incident was further investigated. It was his evidence that he felt the actions of the employees was a blatant disregard to both him and to the customer. He added that regardless of how close to Christmas it was at that stage, Company M still considered each day coming up to Christmas as a production day and wanted the product stocked in their warehouse regardless of whether or not it was shipped before Christmas.
Later that day, the claimants made an approach through a colleague to the Production Manager to meet with them but the Production Manager stated that he had refused this approach on grounds that a meeting would be organised for a later date. It was accepted that the claimants had offered to stay late to make up the time but by then the Production Manager said he had already taken the decision to cease production. During cross-examination the Production Manager accepted that the claimants having worked since 6am were entitled to a break by 11am. By that time they had the option of a short break followed by a lunch break later or they could opt to take a longer break of one hour at that time.
Individual investigation meetings were later held on 8 January 2013 with the claimants, a union representative, the Production Manager and the Management Accountant. It was the company’s position that the situation had jeopardised customer relations with the vendor and at the best of times the relationship was tenuous so for this reason it was imperative to satisfy Company M’s demands. For that reason the matter was progressed to a disciplinary process and meetings were held with the claimants under the disciplinary procedures on 16 January 2013. The letter inviting them to the disciplinary meetings stated that the meeting was to discuss the serious allegation that they had clocked in for work and then left their working posts and the site without authorisation and without clocking out for a considerable period of time. The European HR Director conducted these meetings with the Finance Director.
On 21st January 2013 the claimants were informed in writing that they were dismissed from their employment for gross misconduct. The European HR Director involved in the disciplinary process gave evidence to the Tribunal. She stated that even on Saturdays it was expected that permission would be sought to leave the site. If the Production Manager was not on site he could be telephoned for permission. The company memo was sent to staff reminding them of this and the memo was issued with their payslips.
The union did raise the issue of the claimants’ length of service. However, the European HR Director reached a decision to dismiss the claimants having considered the fact that the procedure for leaving the premises was not followed and also the length of time the claimants were absent for.
The European HR Director did not have the company clock-cards to know whether or not employees left the premises on their breaks but stated that as part of reaching the decision to dismiss she and the Finance Director had spoken with the Production Manager who confirmed that employees telephoned him about everything including leaving the premises for breaks at weekends which was contrary to what the claimants said about it being normal behaviour to leave the factory without permission.
It was very clear from the follow up with the Production Manager and other members of management that there were clear rules in place that were followed. However, the European HR Director acknowledged that there were no minutes or notes of these interviews.
The company’s disciplinary procedures outlines that gross misconduct is defined as a number of matters including the falsification of documents (especially of time cards), absence from the employer’s premise during working hours without prior permission or other offences of similar gravity. In response to questions from the Tribunal the witness stated that the claimants had falsified their clock cards through omission in this case.
The General Manager gave evidence that he was made aware of the incident when it occurred on 22nd December 2012. He recalled the date as it was a pressure point due to the service level agreement in place to deliver to Company M in a particular timeframe. Although the respondent’s factory was closed on 25th and 26th December, a delivery was due on 27th December.
On 22nd December 2012 the Production Manager informed him that he had suspended four employees and this decision was supported on the day by the General Manager. He had no further involvement until he heard the claimants’ appeals on 28th January 2013. The main ground for appeal put forward was that the company would reconsider the decision to dismiss and be more lenient on the viewpoint taken.
It was the General Manager’s position that even if the Production Manager was not present at the factory, the employees must telephone him in order to get permission to leave the premises. In considering the appeals the General Manager read the notes of the investigation meeting as well as the union agreement and he made the decision based on where the company was at that time, in relation to the situation with its customer and the circumstances of the company, to uphold the decision to dismiss the claimants. During the appeal he reached a fourth reason for the dismissal of the claimants which was the circumstances the company found itself in with regard to KPI’s with the customer. However, he did not discuss this fourth reason with the claimants.
He did not look at previous clock cards to consider whether or not there was a history of clocking out for breaks but he took advice on this matter from the Production Manager and other management regarding custom and practice on this issue. He did not keep any notes of these interviews with the Production Manager and other members of management.
The employees of the company did not have a contract of employment. Other than the memo and the custom and practice that existed it was not cited elsewhere to employees that permission must be given to leave the premises for their break. There were redundancies in the company in early 2012 but not at the time of December 2012.
TD gave evidence on behalf of the claimants that he has worked on two different occasions for the respondent company. The culture of the factory remained unchanged between those two periods of time despite there being two different people in the position of Production Manager. It was TD’s evidence that staff did not clock out for breaks. The only time permission was needed was if an employee was leaving the premises and not returning due to an emergency. There was a book available on the factory floor in which the employee could write in the nature of the emergency in situations where there was no member of management present.
TD departed the respondent’s employment in November 2011 and therefore could not given evidence about the placement or otherwise of the memo on the noticeboard.
It was Claimant 1’s evidence that as number one printer he was responsible for the production on the printing machine. As part of this responsibility he produced timesheets and as the machine runs 24/7 he would have always have had to account for any downtime on the machine and for this reason there was no intention to take a “long lunch” on the 22nd December as he would always be monitored via the machine’s timesheets. In addition Claimant 1 had requested leave for Christmas Eve and the Production Manager had said he would grant the request if the allotted work was completed.
On the 22nd December, the claimants decided along with some of their colleagues to buy some lunch. Their car was blocked by another vehicle and this caused a one hour delay in returning from their break.
On his return to the factory Claimant 1 immediately went to speak with the Production Manager but was told to “shut up and get out.” Thereafter, both claimants were called to the office and informed that they were suspended. Another employee attempted (at their request) to mediate with the Production Manager on their behalf but to no avail. The claimants offered to work for free the rest of that day until the work was completed.
Both claimants gave evidence that they were never told to ask permission when leaving the factory for their break nor had they ever clocked out for such breaks. Claimant 1 refuted that he telephoned the Production Manager the week before when he left the premises to collect a prescription.
Claimant 2 gave evidence that on a daily basis he left the premises to attend the shop on his break. He often would take food orders from other employees or members of management as well when leaving. He was not told or reminded to clock out when he was leaving nor did he ask permission to leave on his break. Claimant 2 stated that had the company checked the company clock card records they would only show a clocking for his arrival to work and his departure from work despite the fact that he went to the shop on a twice daily basis. For this reason he did not feel that he was doing anything wrong on 22nd December 2012. On that date they took the opportunity to take their break when the machines were undergoing the washout process between printing jobs. It was their intention to be back to start the next print job after their break. As they only expected to be gone for 20 minutes they did not bring their mobile phones with them.
Claimant 2 stated that in the past the Production Manager had told him to only contact him about production issues when he was not present at the factory. The Production Manager refuted this in his evidence.
Both claimants stated that they did not see the memo proffered by the company until the Tribunal hearing. Claimant 1 did not recall the memo being placed on the noticeboard in September 2012 but he acknowledged that memos were sent out on a regular basis from the company.
Claimant 1 gave evidence of his loss and efforts to mitigate that loss which has included accepting a position 160 kilometres away from home. Claimant 2 gave evidence of his loss. As he did not receive a reference from the respondent he did not feel he could seek alternative employment with other print companies. He remained without work until 2014 when he gained employment as a sales assistant albeit on a lesser rate of pay.
Determination:
In reaching its Determination the Tribunal noted the following:
- The claimants had no contract of employment hence there was no provision that employees had to clock out for their breaks or get permission to do so.
- No evidence was given to the Tribunal that the claimants were advised verbally that they would have to get permission to leave or clock out.
- According to the respondent there was a notice put on the notice board dated 14th September 2012 that all staff members “clock in and out on a daily basis (including breaks).” The claimants’ claim that this notice was put up after they left.
- Evidence was given by T.D. that employees never had to clock out for breaks. The only time an employee clocked out or sought permission, was if an employee was leaving the premises and was not coming back. There is not much work that can be done during the washout process.
- The claimants offered to work on for free to finish off the printing. The Tribunal considers it extraordinary that this offer was not accepted by the respondent.
- It was the employees’ evidence that they only telephoned the Production Manager on production issues or if there was something wrong with one of the machines.
- The Tribunal is satisfied that it was custom and practice to go on a break during the washout process.
- The Tribunal determines that leaving the premises was not gross misconduct. The Tribunal fully accepts that the employees were acting in a completely reasonable and acceptable manner. They went on a legitimate break. It was high handed to suspend them.
- The respondent company claimed that the notice about clocking in/out and/or getting permission to leave the premises was put in their pay packets. The Tribunal notes that the respondent did not offer in evidence the person who was supposed to have put this notice in with the claimants’ wage packet. The claimants denied that they ever received such a notice.
Employers must act reasonably in taking a decision to dismiss an employee on the grounds of misconduct. Indeed Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides that the reasonableness of the employer’s conduct is now an essential factor to be considered in the context of all dismissals. Section 5, inter alia, stipulates that:
“….in determining if a dismissal is an unfair dismissal, regard may be had … …to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”
In all the circumstances the Tribunal determines that the claimants were unfairly dismissed and awards Claimant 1 €75,000 under the Unfair Dismissals Acts 1977-2007, together with €3,908 (being the equivalent of four weeks’ gross pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The Tribunal awards Claimant 2 €33,000 under the Unfair Dismissals Acts, 1977 to 2007 and €3,420 (being the equivalent of six weeks’ gross pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)