UD129/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

Michael Kilcoyne                                                                                         UD129/2013

                        -Appellant                                      

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

Michael Kilcoyne

-v-

Arrabawn Co-Operative Society Limited

                 -Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. M. Gilvarry

Members:       Mr. D. Morrison

Mr. T. Gill

heard this appeal at Castlebar on 22nd October 2014

                                            and 25th February 2015

Representation:

Appellant: Ms Martina Weir, Siptu, Liberty Hall, Eden Quay, Dublin 1

Respondent: Mr. John Brennan, I B E C West, Ross House, Victoria Place, Galway

Background:

This case is before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner, ref: r-121639-UD-12/EOS, under the Unfair Dismissals Acts, 1977 to 2007.

The Respondent is a dairy co-operative. The Appellant was a permanent relief driver for the Respondent sales team.   The Claimant was dismissed on 07^th February 2012

Respondent case:

The Tribunal heard evidence from the human resources manageress, who worked in the Respondent for 7 years. She told the Tribunal that she was involved in the investigation of the Claimant regarding allegations of misconduct.   The Claimant was a van driver and the van drivers collect monies and confirm transactions by use of an electronic device or by a paper docket. The driver then lodges the money into a bank account. Some customers have standing orders and debit accounts.

She investigated the matter in November 2011 into the matters that had allegedly occurred in September 2010. The Claimant had suffered a heart attack in February 2011, hence the time frame. There was no formal investigation until he recovered. The witness interviewed the Claimant and his team leader. The Claimant, on two occasions declined to have a representative at two meetings. A report was issued and she and a Mr. JL signed the report.

The Claimant confirmed the procedures that were required to process transactions. The Claimant confirmed that the procedures had not changed. He confirmed that he was required to lodge the money on a weekly basis but that he lodged it on a three or four weekly basis. The Claimant confirmed the situation regarding the hand held device (HHD).   He confirmed that once he received the money that he was responsible for it.   The Claimant could not account why the monies had not been lodged. The Claimant told them that he was responsible for the money and offered to pay it back should he have to.

In cross-examination the witness told the Tribunal that she could not say whether the predominant way of transactions was by docket or by hand held device.   She also confirmed that she was not part of the team that reviewed the discrepancies. The formal investigation did not happen until November 2011 when the Claimant returned and she was not involved in the investigation until then. The witness also explained the situation regarding another employee who was subject to disciplinary procedures and that, that employee was still employed in the Respondent. However with the Claimant there was a “whole litany” “multiple instances with the Claimant, the money has not been accounted for, it was considered to be gross misconduct”.

The witness was asked if the Respondent had changed the system regarding transactions and she replied that the system had been upgraded.

The Tribunal heard evidence from the finance manageress.

Claimant’s case:

The Tribunal heard evidence from the Claimant. He outlined his duties to the Tribunal. He explained that he had never received letters of warning.

The Claimant explained that the Respondent took over the previous company. Whilst he worked for the previous company he had a key for the night safe. However when the Respondent took over he no longer had the key because the Respondent changed the bank they dealt with.

The Claimant was asked to explain the events leading up to his dismissal. He explained that on 24^th February he suffered a heart attack whilst he was loading a van in the work depot.   He was brought to hospital by ambulance and he had quadruple by-pass surgery.   He was in hospital for a week. He was medically certified absent form work for a long period of time. He kept in contact with the Respondent.   He contacted the hospital secretary who gave him a letter for his employer.

At some point in time he got a letter from the Respondent to say that they were not happy with the letter that was from the hospital.   He contacted the surgeon who told him it was a very private matter and that he would not provide the Respondent with the details.

He did have a meeting about returning to work with the Respondent and agreed to provide an update on matters. He contacted his GP who advised him to get more details from the hospital/ the surgeon. The hospital advised that if he was going to return to work he had to do so slowly.

He returned to work on or about 24^th November 2011.   He called to the office to hand in a return to work cert and to discuss a return to work date. He was told that there was an investigation regarding money and he was shocked.

“LETTER OF SUSPENSION

Further to our meeting on Thursday 24 November at which MC was also present. I confirm that I am suspending you on full pay to allow further investigation to take place into the following

El Alleged irregularities in relation to money/cash transactions LI collections and lodgements

Suspension from duty, on full pay, is not regarded as disciplinary action but merely a holding measure pending further investigations.

The duration of the suspension will only be for as long as it takes the investigation to be completed. During this period I must remind you that you remain an employee of the Company and it may be necessary for me or the person conducting the investigation to contact you during your normal working hours and should this be the case then, you are required to make yourself available.

Should the investigation indicate that there is some substance to the allegations you will be required to attend a disciplinary hearing. You will be provided with all relevant documentation prior to the meeting and you will be notified in writing of the time, date and venue.

During the course of your suspension you are instructed not to contact or to attempt to contact or influence anyone connected with the investigation in any way or to discuss this matter with any other employee or client of the company. However, should you wish to contact any employee who you feel could assist you in preparing an explanation for the allegations made against you, then please contact me in order that the arrangements can be made for them to be available for interview.”

The Claimant attended a meeting with JL and MT. he did not bring a representative because he did not think he needed one.   He then attended a second meeting.   They spoke to him about “a cheque in Bellmullet, but (it was) other drivers responsibility”. They spoke to him about other monies but he did not know what they were speaking about as this was a year later and he had been through a serious medical process.

The Claimant told the Tribunal that at some point he realised that he could not go through the process/ meetings. He was getting phone calls that were not nice and he was not fit for confrontation. He felt that it was a witch hunt that they wanted to get rid of drivers.

The Claimant said that he had nothing to hide. He had said he did not misappropriate money. He lodged exactly what he collected except the amount of coins in his house and he was waiting for a key for that.   Regarding lodging money on a weekly basis only two or three drivers did that. He admits that he did not lodge on a weekly basis. Sometimes when he finished work the bank was closed.   He never saw written procedures as to lodging money. There was no set system for lodging money   he also lodged money for other drivers and other drivers lodged money for him.

`

The Tribunal heard evidence from JB. He had been a driver with the Respondent until he was made redundant. He gave examples of errors that occurred and also due to software failure and the HHD’s. Stock control was incorrect on HHDs and the HHD did not show correct customer statements. Regarding the lodgement off money he did not always lodge the money on a weekly basis; he often lodged it fortnightly or even every three weeks.

Determination:

Dissenting minority:

Dissenting with no comment is the employer member who finds the Claimant was fairly dismissed.

Determination majority:

The Tribunal by majority determines that the actions of the Claimant and the evidence of the Respondent to say that the Claimant offered to repay any monies indicate that the Claimant was not concealing anything. A final warning would have been appropriate in this case.

The Tribunal by majority determines that the Claimant was unfairly dismissed and accordingly upsets the Recommendation of the Rights Commissioner, ref: r-121639-UD-12/EOS, under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal determines that the most appropriate remedy is compensation. However, having heard evidence as to his loss and mitigation of loss and noting that the Claimant expressed that his wish is to clear his name of wrong doing the Tribunal determines not to award the Claimant a sum of money as compensation; the award of compensation is set as nil.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)