UD1047/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                     CASE NO.

Austin Power  -appellant

                                                                                                              UD1047/2013

against the recommendation of the Rights Commissioner in the case of:

Oxigen Environmental           -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr. L. Tobin

                  Ms S. Kelly

heard this appeal at Waterford on 15th December 2014 and 15th April 2015

Representation:

Appellant:       Ms Anne Flynn, SIPTU, Liberty Hall, Dublin 1

Respondent:   Mr Tiernan Doherty, IBEC, Confederation House,

84/86 Lower Baggot Street, Dublin 2

Background:

This case came before the Tribunal by way of an appeal by the employee/appellant from a decision of the Rights Commissioner dated 27^th July 2013 (reference: r-130347-ud-13/EH) and wherein it was held that the appellant had not been unfairly dismissed. This appeal was heard simultaneously with UD1048/2013.

The appellant commenced employment with the respondent in February 2011 as a helper on the respondent’s waste collection system. The appellant’s annual gross salary was €19,200.00.   The appellant was dismissed on 24^th December 2012 for gross misconduct being the lifting of waste from his own home without being a paying customer of the respondent.   The appellant asserts that the free lifting of waste from his own home was a perk of the job and was custom and practice and accordingly he was unfairly dismissed.   The respondent asserts that the free lifting of waste constitutes gross misconduct entitling the respondent to dismiss the appellant.

The Respondent’s Case:

Evidence was given that the respondent had taken over routes previously operated by Waterford County Council and expanded into some new collection routes.

BC, Operations Manager for the respondent, said that on 12^th November 2012 he received a phone call that the appellant had injured his shoulder and he drove out to see how he was.   He said that the appellant and the collection vehicle driven by NC were close to NC’s house when he met up with him and he noticed that there were collection bins in the driveway of NC’s house and that they were not displaying the respondent's label.   He checked and discovered that neither the appellant nor NC were customers of the respondent.

A private investigator was hired by the respondent and surveillance was carried out on 21^st, 26^th and 29^th November and on 10^th and 13^th December 2012.   A video of the NC’s vehicle accompanied by the appellant lifting garbage from NC’s house on 26^th November 2012 was shown to the Tribunal and the appellant confirmed that this was NC’s house and that the garbage being lifted was his.  

BC gave evidence that a 25% discounted waste collection service had been offered to those employees who were not customers of the respondent and that the appellant was one of these employees.   He said he did this by way of memo dated 25^th October 2012 which he hand delivered to the employees with their wages at the time. The memo was opened to the Tribunal.   It was his position that after this memo was given to the appellant he could not be in any doubt about free collection being custom and practice. It was his evidence that the appellant continued lifting his own domestic waste without being a paying customer after he was furnished with this memo. The video taken on 26^th November 2012 was proof of this.

BC said that he called the appellant to meet with him on 14^th December 2012 and the appellant was handed a letter suspending him with pay.

Evidence was given that a disciplinary meeting was held on Friday 21^st December 2012 which was chaired by CD and in attendance was DM, HR Dept., the appellant and Ms. F from SIPTU accompanying the appellant. At this meeting the appellant confirmed that he had collected domestic waste using the respondent’s service. The appellant was asked if he was a customer of the respondent and he said he wasn’t.   The appellant was asked if he was a customer of another waste collection service and he said he wasn’t.   The appellant said he used the respondent’s service because he was told that it was a perk of the job and that prior to joining the respondent company he had used his mother’s bin.

As a result of this meeting the appellant was advised in writing on 24^th December 2012 that he was dismissed for gross misconduct. The appellant was advised of his right to appeal this decision. On 31^st December 2012 the appellant appealed the decision to dismiss him.

The appeal hearing was held on 10^th January 2013 and was chaired by AD and in attendance was PN, Operations Manager for the respondent’s midland region, the appellant, SIPTU representatives and JPB, the local shop steward.   AD said having reviewed all the evidence he decided to uphold the decision to dismiss the appellant on the grounds of misconduct.   The appellant was informed in writing of the outcome on 15^th January 2013.

In cross-examination it was put to BC, witness for the respondent that his garbage and that of another employee had been picked up free.   The witness said this was a different situation in that certain employees were given free collection for a short time because the respondent wanted to expand into the routes where these employees lived and in order to be seen in the area to attract new customers.   He said he now was a paid customer of the respondent.

It was put to BC that the appellant had not received the memo offering staff discount if they became customers of the respondent but BC said he delivered them himself in an envelope with the payslips.

The Appellant’s Case:

The appellant told the Tribunal that prior to working with the respondent in Waterford he had done training with a lorry driver for the respondent in Dundalk.   He said this employee who provided him with training told him he could collect his own garbage and that this was a ‘perk of the job.’ The appellant said it was custom and practice in the company.

The appellant named other employees of the respondent, including BC, who had waste lifted free.   The appellant said that employees who were not on routes serviced by the respondent brought in their garbage in plastic bags and threw them into the waste collection vehicles.

When shown the video made on 26^th November 2012 the appellant readily accepted that the garbage being lifted by him was garbage from NC’s house, that he lifted garbage from his own house and that he was not a paying customer of the respondent.

The appellant said that when he came to work on 14^th December 2012 he was asked by BC to wait back that he wanted to speak with him. He said NC, the driver, was also asked to wait back. He said he asked NC “what’s wrong”? The appellant said BC called in the foreman and a letter was handed to the appellant telling him he was suspended pending an investigation.   The appellant said that it was 19^th December 2012 when he was first made aware of the allegations against him and first became aware that collecting your own bin was a disciplinary matter.

In cross-examination the memo dated 25^th October 2012 was shown to the appellant and he said he never got it.

The appellant gave evidence of his losses and his efforts to mitigate his losses.

Determination:

Having considered the evidence of the parties adduced at the hearing the Tribunal finds as follows:

1. That there was a custom and practice of employees disposing of their own garbage in the respondent’s collection system without being a paying customer of the respondent.

2. That the respondent was entitled to disavow this practice and provided that the employees were unequivocally informed of same was entitled thereafter to discipline those employees who continued the practice.

3. That the appellant may not have been informed at all but at least was not unequivocally informed that the practice was to discontinue.

4. That rather than expend monies on a private investigator the respondent could have ensured that the employees were unequivocally informed that the practice was to discontinue and that the consequence of continuance would be the dismissal of employee in question.   The Tribunal is satisfied that a warning of this nature would result in employee compliance.

5. That a lesser sanction than dismissal would have sufficed in the circumstances.

Accordingly, the appeal is upheld and the Tribunal sets aside the recommendation of the Rights Commissioner dated 22^nd July 2013 and the Tribunal awards the appellant compensation in the amount of €9,600.00 for unfair dismissal.   In calculating the level of compensation the Tribunal took into consideration the efforts of the appellant to mitigate his losses which do not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)