EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Ciaran Sealy UD863/2013
- Claimant MN422/2013
against
Melotrans Limited T/A Tallaght Auto Parts
- 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: Ms. P. McGrath B.L.
Members: Mr. D. Winston
Mr. J. Maher
heard this claim at Dublin on 19th August and 30th October 2014
Representation:
Claimant: Jamie Sherry, Business & Commercial, Solicitors, 32, Lower Leeson Street,
Dublin 2
Respondent: Colm Hickey of Arthur McLean, Solicitors, 31, Parliament Street, Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case:
A Director (MC) for the respondent gave evidence
He explained that the respondent company is a retail / wholesale auto parts business. The claimant was employed from the 19th April 2005 as a Van Driver and also dealt in customer sales. The claimant would also retrieve payments by cash or cheque from customers for goods supplied. The claimant was given a contract of employment and a copy of company procedures. These company procedures were re-issued to the claimant, and all other staff, in 2010.
On the 13th May 2012 an invoice was generated for 5 units of a product to be supplied by one of the respondent’s main supplier (JSAD) under an employee’s name (RM). However if was found that a purchase order was made for only 1 unit and no monies were received. This order was for a staff member of JSAD and appeared to be ordered by the claimant (his initials are CS and not RM).
The following day MC became aware of the situation and investigated the matter. He spoke to all the staff regarding the matter. He spoke to the claimant on a second occasion regarding the matter, having spoken to the staff member from JSAD who admitted to ordering the unit from the claimant. On the third conversation with the claimant he, the claimant, said he had the money for the unit and would bring it to the office. On his arrival to the office he threw the money on the desk and walked out.
MC had lost trust in the claimant before the incident that led to his dismissal. The claimant accepted a payment of €150 from a customer but on the CCTV he was seen putting only one €50 note into the till. The till was short €100 that day. The claimant was suspended without pay. MC got legal advice that as the claimant was not on notice that CCTV was in operation the evidence could not be used to convict him. The claimant was given a Written Warning.
The claimant as part of his duties drove a van. Each van driver has a Green Sheet to record all sales and money received. All money was to be given to a senior manager in the office. The Green Sheet was introduced in 1987. The procedures employees are expected to follow were given to all staff members on 6 June 2009. Revised procedures were distributed on 30 August 2010.
The matter came to light because 5 items were ordered by mistake not just the one required. When an item is ordered from a supplier a purchase order is generated. On foot of the purchase order an invoice is received. In this case the purchase order did not match the invoice so the finance officer contacted the supplier and requested a credit note for the 4 items ordered in error. She also looked for a sales docket for the item. There was no sales docket. When the matter was brought to his attention MC went to the counter and asked people what they knew about it. He found that the item had been for AG a staff member of JSAD. He phoned AG who eventually told him that the claimant had ordered the item. AG said that he had paid the claimant €77 for the item. The claimant told MC that he knew nothing about it. AG sent MC a copy of an exchange of text messages he had with the claimant.
MC phoned the claimant 3 times on that day 14 May 2013, hoping the claimant would say he had the money but it never happened. The claimant had not recorded the money on his Green Sheet. If the claimant had told MC that he had the money the matter would have been put to bed.
MC was satisfied that the claimant ordered the item and did not generate a sales docket for it and then he did not record receipt of the money as required by the respondent’s procedures. The claimant came to the office to meet MC. The claimant landed the money down and spoke very disparagingly to MC. MC summarily dismissed the claimant for gross misconduct.
AG gave evidence. He works in telesales for one of the respondent’s suppliers. He cannot buy parts from his employer. He needed a part and looked it up in the catalogue. He phoned DJ an employee of the respondent and asked about ordering the part. DJ said no problem and confirmed the price. Later he contacted the claimant who then ordered the part. The claimant collected the part and AG took it from him and handed over the money. He knew nothing about the mistake resulting in 5 parts being ordered.
MH gave evidence. She does accounts and administration. She posts out the invoices. She checks that the purchase orders match the invoices. In this case one item was ordered but 5 were invoiced. She contacted the supplier and a credit note was faxed to her.
She then went to see where the one item was. It was not entered on the system. She phoned the supplier again and spoke to AG. He told her that it had been for him and that the claimant gave it to him and he in turn paid the claimant. The initials RM were on the purchase order so MH then spoke to him. RM told her he knew nothing about it.
RM gave evidence. His initials are on the purchase order but it was not made by him. According to the CCTV footage another person whom he identified as the claimant was using the computer at the time the purchase order was made.
DC gave evidence. He is a salesman with the supplier. MC phoned him and asked him to investigate his end. He spoke to AG who told him the part was for him and that he had given the claimant the money for it. DC phoned MC back and told him what he knew.
DJ gave evidence. AG phoned him a day or two before the order was placed. DJ told AG that he could order the part and priced it for him. DJ did not place the order.
SO’C confirmed for the Tribunal that she took notes of the meetings between the claimant and MC. She later typed up the notes and gave them to MC. She prepared his last wages and paid him for a Saturday he had worked, for his holidays and an extra week.
Claimant’s Case
The claimant gave evidence. He worked for the respondent for 8 years and he has enjoyed his job.
When he came back from suspension following the earlier incident MC asked him where they were going from here and mentioned redundancy. The claimant was about to get married and he returned to work. After that MC ignored him and would not talk to him.
The claimant did not place the order complained of. He would not place an order in someone else’s name. The CCTV shows him taking an order from a customer.
He collected orders all the time. He does not remember what he collected on the day in question on that day he was asked by both MC and DJ to collect parts. AG gave him money to give to DJ. He put the money in his pocket with his driving licence. He did not give AG a receipt. He did not observe the process and later he forgot to hand in the money because he had to do a delivery on his way home.
MC phoned him and asked if he knew about the part for AG and in reply he said no but he had the money. On the morning of 14th he was in the office but he forgot to hand in the money. He was not trying to get away with it. He would not risk his job for €77.
The claimant said that MC did not phone him 3 times but once only. The claimant went into the office to do a docket and MC asked for his keys and his phone. He gave MC the money and was given the sack. The claimant started to cry because he had lost his job.
Determination
The Tribunal has carefully considered the evidence adduced. In effect, the claimant was summarily dismissed for gross misconduct on the 14th of May 2013. MC gave evidence as a director acting for the respondent company and as the person who ultimately imposed the sanction of termination of employment the Tribunal must be satisfied that his actions were reasonable and justifiable in all the circumstances.
There was an enormous conflict in the evidence adduced by the many witnesses heard on behalf of the respondent and the claimant on his own behalf. But the ultimate issue was one of whether a breach of trust had occurred such that allowed the respondent to summarily dismiss an employee in circumstances which clearly demonstrated that this employer company had very little in the way of an operating disciplinary process recognising the rights of the individuals.
The Tribunal was told that there were clear processes for the purpose of handling cash and issuing invoices. The claimant accepted that he was not ignorant of these processes such that when he exchanged a part obtained through his employer for cash there was an onus on him to issue an invoice, document the cash exchange and indeed deposit the cash into the office cash box with a witness in attendance.
There can be no doubt that while there were no disciplinary processes to speak of in this company some carefully constructed cash handling processes had been created and the Tribunal recognises that these cash handling practices have been developed to avoid any confusion arising and concerning the mishandling of employer money.
The claimant gave evidence to the effect that he had not followed the proper procedures of which he was well aware and that he therefore accepted that a mistake had been made.
The question which the Tribunal must ask itself is whether this ‘mistake’ as a stand-alone incident once discovered entitled the employer to summarily dismiss the claimant in the manner that he did.
On balance the Tribunal has to find that MC, who in the past had reason to discipline the claimant for failure to follow procedures, was justified in dismissing the claimant summarily in the manner that he did. The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)