UD996/2013, MN497/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                           CASE NO.

William Murphy,                                                                                                

                                                                                                                   UD996/2013                                  

                                                                                                                   MN497/2013  

against

Provimi Ireland Limited,

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. M. Levey B.L.

Members:     Mr. N. Ormond

                    Mr N. Dowling

heard this claim at Dublin on 3rd November 2014

Representation:

_______________

Claimant:         Mr. Sean Grennan, Sean Grennan & Company, Solicitors,

                         7 South Main Street, Naas, Co Kildare

Respondent:     Ms Fiona Manning, Holmes O'Malley Sexton, Solicitors,

                         16 Hume Street, Dublin 2

Background:

The claimant was dismissed after he eventually admitted to the respondent that he had taken and sold scrap metal items that were on a pallet for recycling. The respondent told the Tribunal that the scrap was compiled by them in order to sell and that the monies raised were to be put in the company’s social fund. The scrap was noticed as missing on Monday morning 28^th May. A meeting was held the following morning to see if anybody knew anything about it. The claimant was in attendance but did not say anything. The respondent then contacted engineers who were on site and interviewed three staff members (including the claimant). They said they knew nothing. The respondent then contacted the electrician to look at the alarm log. There was an unauthorised entry on the Saturday morning and the code belonged to the claimant. He then admitted that he and a contractor had taken the scrap to sell and that they had received €560.00

The matter was considered theft of company property and the claimant was dismissed for gross misconduct as per the respondent’s policies and procedures.

In evidence the claimant said that he had offered to repay the money; he didn’t know why he did what he did; he was ashamed and wished he could turn back the clock.   He didn’t appeal the decision as he felt there was no point. Counsel for the claimant argued that he had an excellent record for 19 years before this event and that the punishment for taking the scrap was disproportionate.

Determination:

Section 6 (1) of the 1977 Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The claimant admitted theft of company property and therefore, from the evidence, it appears to the Tribunal that there are substantial grounds justifying the dismissal.

While one has sympathy with the claimant, who clearly regrets what he had done and owned up to the theft, albeit some days later, the reality is that the claimant was in a position of trust. He broke that trust which is fundamental to the employer/employee relationship and consequently in these circumstances the dismissal was fair.

The claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)