EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD69/2014
CLAIM(S) OF:
Andrew Barron
- claimant
against
Applus Car Testing Service Limited
T/A NCT
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr E. Handley
Mr. S. O'Donnell
heard this claim at Dublin on 3rd March 2015 and 14th April 2015
Representation:
Claimant(s) : Ms Liz Murray, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent(s) : Mr Paul Twomey B.L. instructed by Janet Keane Solicitor
Kate Mc Mahon & Associates, 223 The Capel Building, Mary's Abbey,
Dublin 7
Summary of Evidence
The respondent operates the national car testing facility with centres nationwide. The claimant worked in the role of vehicle inspector based in the Mullingar centre at the time of his dismissal. He had previously trained at the Fonthill centre and gave sworn evidence of commencing his training in November 1999. His evidence was that he received his contract of employment around one year after commencing employment. The Tribunal heard evidence from the respondent’s HR manager that the claimant commenced employment in November 2000 and a contract of employment dated 20 November 2000 was opened to the Tribunal. The respondent further submitted that the company had a record of the claimant’s application for the role and an acknowledgement of the interviewing process dated October 2000.
The respondent furnishes all employees with terms and conditions of employment, copy of the code of ethics (code of integrity) and the employee hand book on commencement. The code of ethics acts as a guide to employees in a business that relies on trust due to the decentralised locations of its centres. The code provides that an employee is not permitted to test any vehicle owned or previously owned by them. Employees are advised to notify the team manager if they are presenting their vehicle for testing. Employees are not permitted to prepare a vehicle due for testing. This is based on trust. All employees may have their vehicles tested free of charge. When a vehicle is presented for testing the individual presenting must provide formal identification and if this is not furnished the vehicle automatically fails the test.
The respondent is regularly monitored by the AA and the RSA and must protect the integrity of the car test facility.
The HR manager gave evidence of the claimant’s staff number which he was assigned on commencement of his employment. The claimant’s training records and certificates of training completed were opened to the Tribunal.
The internal audit report carried out by the quality control department identified the claimant as the owner of a vehicle and further identified the claimant’s initials as the vehicle inspector on the vehicle inspection report (VIR). Once it was confirmed that the claimant had passed a visual inspection of his own vehicle an investigation meeting was arranged. In advance of the investigation meeting with the claimant a fact finding meeting was held with the claimant’s team leader (DK) and Mr Lehart. (DK) had tested the claimant’s vehicle originally on the 6 February 2013 and the VIR indicated that a visual re-test was required. The second VIR was dated the 6 February also and initialled by the claimant.
The regional manager (JMcH) has responsibility for managing ten test centres. He became aware of the claimant’s case in and around the 23 September 2013 after the quality department carried out a random check which identified the claimant. The witness was then tasked with the role of investigating the incident and began by attempting to establish the full facts. At the investigation meeting the claimant admitted breaching the code of integrity and his representative at the meeting presented the breach as a one-off incident. Following on from the meeting the witness carried out a further check on the claimant’s testing history and identified two further incidents where the claimant carried out a re-test on a vehicle he was the registered owner of in May 2009 and a full test on a vehicle owned by him on the 5 August 2011. A second meeting was arranged for the 11 October 2013 in order to put the additional allegations to the claimant. The claimant admitted he was the owner of the vehicles identified. He offered no explanation when the allegations were put to him. A disciplinary meeting was held on the 14 October 2013. The witness took the decision to terminate the claimant’s employment and the dismissal was confirmed in a letter to the claimant dated the 17 October 2013. No other sanction was considered by the regional manager.
The regional manger (GL) interviewed the claimant’s team leader as part of the investigation process. The purpose of the meeting was to establish what occurred on the 6 February 2013. He held two meetings with the team leader the first on the 23 September 2013 and the final meeting on the 7 October 2013 to further clarify the incident of the 6 February. The team leader confirmed to GL that he had tested the claimant’s vehicle.
The claimant’s team leader (DK) explained to the Tribunal that his vehicle inspector identification number is 450 with initials DE. The vehicle inspector initial DE appeared on the vehicle report produced for the claimant’s vehicle on the 6 February 2013. The witness confirmed to the Tribunal that he tested the claimant’s vehicle. He confirmed that there are no circumstances where he would authorise a vehicle inspector to test their own vehicle.
The operations manager (HO’D) explained that his responsibility was to ensure the company policy was implemented. The process involved the quality auditing which identified the claimant’s incident. HO’D conducted the claimant’s appeal of his dismissal. The appeal meeting was held on the 4 November 2013. The claimant admitted to the breaches of the code of integrity and submitted that the sanction was too severe. The witness considered the breaches as very serious and a fundamental breach of trust.
The claimant did not give evidence at the hearing.
Determination
The Tribunal carefully considered the evidence submitted by the respondent. The claimant was given an opportunity to give his evidence but declined to do so on the grounds that it was stressful.
The Tribunal is satisfied that the respondent has discharged the burden of proof and finds that in all the circumstances the dismissal was fair.
The claim under the Unfair Dismissals Acts, 1977 to 2007 is therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)