EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Richard Mooney UD703/2013
-Claimant
against
Schneider Electric It Logistics Europe Limited
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. Mc Nally
Members: Mr. L. Tobin
Mr. F. Dorgan
heard this claim at Waterford on 17th December 2014
and 6th May 2015
and 7th May 2015
Representation:
Claimant: Ms Sarah Lea BL instructed by Mr Sean Ormonde solicitor, Ms Hazel Atkins solicitor, Sean Ormonde & Co., Solicitors, Suite 9, The Atrium, Canada Street, Waterford
Respondent: Ms M P Guiness instructed by Mr. Jim Trueick solicitor
Eversheds Solicitors, One Earlsfort Centre, Earlsfort Terrace, Dublin 2
Background:
The Claimant representative argued that the Claimant was dismissed for an incident that happened during his own time and not during working hours. The Respondent argued that the Claimant was paid up until he reached home, that is he was paid travelling expenses up to the time he reached home.
Respondent’s case:
The Tribunal heard evidence from PS who is the managing director of PSEP. PSEP is a company that is a direct competitor of the Respondent company. The witness explained that he was seeking to hire someone and the Claimant was recommended to him by a former employee. The Claimant attended an interview and subsequently he himself interviewed the Claimant. They issued the Claimant an offer of employment on 13th September 2012. The Claimant telephoned to say he accepted the offer. The Claimant commenced on 01st October 2012.
The Claimant worked with them until 11th October 2012 when he phoned them to say he could no longer work for them. He received a call from the Respondent whereby the Respondent asked him if the Claimant was working for them. The witness was asked if the Claimant had told him at his interview that he was on paid suspension for the Respondent and he replied “NO”. the witness was asked if the Claimant indicated that he was medically unwell or unfit for work and he replied “NO”.
The Tribunal heard evidence from DO’N who is the service operations manager in the Respondent company. He is in charge of 12 service engineers and the Claimant was one of those.
On or about 29th May 2012 the witness received a phone call regarding a complaint about an engineer from a customer. He asked for the name of the customer and the name of the engineer. He then rang the customer to ask about the complaint. He was told that there had been an incident in which an engineer had a dispute about the amount of a toll charge at a toll plaza. He was told that the engineer got aggressive and the engineer told the customer that he would shut the systems down.
He phoned the Claimant and told the Claimant about the complaint and asked him for his side. The Claimant told him that there had been an incident at a toll plaza but that it had nothing to do with the Respondent (his employer).
The witness explained that the Claimant was on company time because he was paid until he reached home. The Claimant did use his own van but the Respondent pays the expenses of the van. The witness opened other evidence to the Tribunal
The witness agreed that there was a lot of investigation into the matter up until the time the Claimant was dismissed and that he was not involved in the matter up until the Claimant was dismissed when he and BK dismissed the Claimant.
Before the Claimant was dismissed the Claimant was on paid suspension. The Respondent found out that the Claimant was working for another company whilst on suspension. This company was a competitor of the Respondent.
The witness was asked why he felt the decision to dismiss the Claimant was the decision to make. He explained that they were going through the process of disciplinary / investigation when they found out that the Claimant was working for PSEP whilst on suspension / sick leave so he / they felt that the Claimant should be dismissed.
The Tribunal heard evidence from the toll supervisor. A transcript of the incident was opened the Tribunal. In essence the Claimant refused to pay a €3.30 toll charge for his vehicle and disputed that his vehicle was being classed as a commercial vehicle. The Tribunal heard evidence from the toll manager. He explained that they did not call the Gardaí but it was the Claimant who called the Gardaí.
The Tribunal heard evidence from AC who is the HR person in the Respondent. She explained that she wrote to the Claimant to inform him that the Respondent was carrying out an investigation on foot of the complaint from the customer. The Claimant went on sick leave, however the company doctor assessed that he was fit to partake in the investigation meetings. At some point in time DO’N phoned her to say that the Claimant had been employed by PSEP. She phoned the Claimant to ask him if he had taken up employment with another company and the Claimant denied it. The witness gave extensive evidence as to the disciplinary investigation and process. The witness explained that towards the end of November 2012 she went on Maternity leave. The matter was taken up by BK the HR manager.
The Tribunal heard evidence from, BK the HR manager. They held a meeting with the claimant. She then met with DO’N and both he and she felt that it was appropriate to dismiss the Claimant. BK told the Tribunal that it was decided to dismiss mostly because of the second job that the Claimant had worked as he had still been an employee of theirs.
The Tribunal heard evidence from Doctor McN in respect to his medical opinion that the claimant while he was unfit to work, he was fit to partake in the investigation process. In his evidence Doctor McN felt is was beneficial for the claimant to partake in the investigation process.
Claimant’s case:
The Tribunal heard evidence from the Claimant. He told the Tribunal of the background prior to the incident at the toll. His father had a medical problem and he was involved in his care. He himself had a heart problem and was on heart medications. He had another illness and had personal problems at the time. Regarding the incident, he told the Tribunal that he had had an argument the previous day with someone and did not recall the journey to the toll. He did not know what happened when he arrived at the toll. He did not know what happened regarding the incident, it was out of character for him regarding what had happened. He had read the transcript of the exchange and could still not believe what had happened. He does not deny what had happened. The Claimant gave evidence as to his mental state at the time.
The Claimant explained the situation regarding PSEP. He had been on paid suspension. He was a loose end, and needed to work. He met PS of PSEP. He did this because he believed that the Respondent had made up their mind to dismiss him and that he needed a job. He did some work for PSEP. However, on one occasion he was led to believe by DO’N that he was not going to be dismissed, that he would get a written warning. He believed he would be taken off suspension by the employer. He therefore phoned PS to tell him he could not work for him.
He had not shared any of his knowledge of the Respondent company to any other company. Nor did he entice customers of the Respondent to change to PSEP. However, at a later time he got a letter of dismissal from the Respondent.
The Claimant gave evidence as to his loss.
Determination:
The Tribunal are not satisfied that the procedures employed were sufficiently robust in terms of an adequate distinction between the investigation process and the decision to dismiss.
It is noted by the Tribunal that following the letter of resignation from the employer the claimant responded setting out his dissatisfaction with the decision to dismiss and his reasons for his dissatisfaction. Additionally the Tribunal considers that the date set as a deadline for the appeal should have been re-emphasised in the replying correspondence to the Claimant, seeking the Claimant to clarify if he was appealing the decision to dismiss him.
The Tribunal further considered that the substantive basis for the dismissal was deficient and unfair whereby the two issues were looked upon by the Respondent individually and failed to take into account the overlap that existed in the circumstances surrounding both issues.
However the Tribunal were satisfied that the Claimant contributed to his dismissal by his actions, and his admitted untruths furnished during the process which frustrated the process.
The Tribunal determines that the dismissal was unfair, and awards the Claimant the sum of €10,000.00 as being just and equitable under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)