EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Nicholas Coady -appellant UD1048/2013
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 appellant from a decision of the Rights Commissioner dated 27th July 2013 (reference: r-130256-ud-13/EH) and wherein it was held that the appellant had not been unfairly dismissed. This case was heard simultaneously with UD1047/2013.
The appellant commenced employment with the respondent on 7th February 2011 as a lorry driver on the respondent’s waste collection system. The appellant’s weekly gross salary was €517.50. The appellant was dismissed on 24th 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 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 12th November 2012 he received a phone call that AP the helper on the appellant’s collection vehicle had injured his shoulder and that he drove out to see how AP was. He said that the appellant, AP and the collection vehicle were close to appellant’s house when he met up with them and he noticed that there were collection bins in the driveway of the appellant’s house and that they were not displaying the respondent's label. He checked and discovered that the appellant was not a customer of the respondent.
A private investigator was hired by the respondent and surveillance was carried out on 21st, 26th and 29th November and on 10th and 13th December 2012. A video of the appellant’s vehicle accompanied by AP lifting garbage from the appellant’s house on 26th November 2012 was shown to the Tribunal and the appellant confirmed that this was his 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 25th October 2012 which he hand delivered to the employees with their payslips 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 26th November 2012 was proof of this.
BC said that he called the appellant to meet with him on 14th December 2012 and the appellant was handed a letter suspending him with pay.
Evidence was given that a disciplinary meeting was held on Friday 21st 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.
As a result of this meeting the appellant was advised in writing on 24th December 2012 that he was dismissed for gross misconduct. The appellant was advised of his right to appeal this decision. On 31st December 2012 the appellant appealed the decision to dismiss him.
The appeal hearing was held on 10th 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 15th 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 he had worked as a lorry driver. He said when he commenced with the respondent JPC, an employee of the respondent who provided him with training, took him on the collection route in order to familiarise him with the route and its customers. The appellant said that JPC 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 26th November 2012 the appellant readily accepted that the collection vehicle in the videowas his vehicle, was driven by him, that the garbage being lifted by AP was garbage from his house and that he was not a paying customer of the respondent.
The appellant said that when he came to work on 14th December 2012 he was asked by BC to wait back that he wanted to speak with him. AP, the appellant’s helper, was also asked to wait back. The appellant said he wondered what was wrong. The appellant then noticed that another employee, Mr B, who was not rostered for that shift had come into work and the appellant shortly after realised that this employee was going to take out the appellant’s vehicle.
The appellant said he thought “what did I do wrong now” and that AP said to him “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 he was shocked and that it was 19th December 2012 when he was first made aware of the allegations against him.
In cross-examination the memo dated 25th October 2012 was shown to the appellant and he said he never got it. He accepted that memos were distributed with the wages generally but that if BC delivered the wages twice during his time that was as much as it was and that he would remember if BC had given him that memo.
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:
- 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.
- 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.
- That the appellant may not have been informed at all but at least was not unequivocally informed that the practice was to discontinue.
- 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.
- 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 22nd July 2013 and the Tribunal awards the claimant compensation in the amount of €13,452.00 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)