EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Malachy Nee - claimant
MN281/2013
UD487/2013
against
Arinos Limited
t/a The Oil Company - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr W. O'Carroll
Ms H. Henry
heard this claim at Galway on 6th November 2014 and 3rd February 2015
Representation:
Claimant : Ms Kate Kennedy BL instructed by
Fair & Murtagh, Solicitors, Society Street, Ballinasloe, Co Galway
Respondent : Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway
Respondent’s Case
The respondent operates a plant hire business and one of its main activities is to provide liquid fuel to its customers. The company employed the claimant mainly as a driver who delivered fuel to the customers. In most cases the claimant also refilled the tanks of those customers. A particular tank known as a bowser played a prominent role in this case. A bowser was described as a tank on wheels shaped and transported as a trailer.
On being contacted by the respondent, a long standing customer known as (P) explained his reasons for the cessation of his business with the respondent. He felt that he was being “done” on the amount of fuel ordered and paid for. He relayed his complaints to the manager and alleged that the claimant left him short on the amount ordered and actually supplied to his tanks. (P) had lost trust in the claimant’s integrity. As a consequence, he changed supplier. Following his conversation with the manager, a meeting was arranged between this customer, the claimant and the manager. The trio met in Clifden, Co. Galway on 8 September 2012 where a tank filling exercise was conducted which resulted in the bowser being filled to a capacity of 1371 litres whereas customer (P) had been charged for 1402 litres by the claimant. There was a dispute as to what constituted empty and full tanks and the matter remained unresolved. There was an issue concerning the accuracy of the measuring gauge and this, among other issues, resulted in differences between the parties. Notwithstanding those differences, customer (P) was certain he was not getting the fuel he was paying for. Later that month, this customer got a call from the manager saying he wanted the issue sorted.
The manager of the respondent known as (J) told the Tribunal that the claimant was both a work colleague and a friend to him. He stated that he did not have a formal employer/employee relationship with him. This witness described the claimant as obliging, dependable, and hard working and was the public face of the company to many customers. He stated that the claimant was the “driving force” of a new company which was established in 2009. Up to September 2012 there had been “no issues” with the claimant as regards his work.
Following a phone conversation with the first witness, this manager met with the claimant in early September 2012 and relayed the customer’s comments and concerns to him. The claimant seemed surprised and shocked on hearing these allegations. A bowser filling exercise took place in Clifden on 8 September and differences emerged on the capacity of that tank. The next day this manager and the claimant met and had what the witness described as a heated meeting. The claimant was clearly irked and agitated as they discussed the ongoing subject of fuel and filling tanks. The witness had no memory of telling the claimant that he” knows what he has to do”. The manager was trying to find a solution between appeasing his customers and dealing with the claimant and the allegations against him. At that time he was receiving other reports of possible malpractice on the claimant’s part while delivering and discharging fuel into tanks. Details of these reports were given in evidence to the Tribunal and included the claimant allegedly supplying incorrect quantities of oil to customers and a delivery being made to the wrong tank of a customer. In some of these cases the company incurred financial losses due to the claimant’s actions. The witness accepted that the exact details of these reports and the names of the customers involved were not provided to the claimant during the investigation. He told the Tribunal that he did not do so as some of the customers were neighbours of the claimant and he felt to do so would only have exacerbated the situation. He was trying to deal with the matter as privately as possible and he did not want third parties involved in the matter. These customers had spoken to him in confidence and he had taken their word when they spoke to him. While he questioned the claimant on those reports, the witness focussed on the case of customer (P). He accepted that the claimant requested to have a work colleague or his wife present with him at the meetings. He refused this request and accepted on hindsight that he may have been wrong not to allow this.
The witness met the claimant on the 14 and 22 September 2012 respectively, and addressed these ongoing allegations. The manager stated that this was the most serious situation he had faced in his business life. He told the Tribunal that these meetings were formal disciplinary hearings and denied being aggressive and abusive in conducting them. His attempts to find a solution were proving unsuccessful as no matter what outcome emerged he felt he was on a “loser”. The witness stated that there were rumours that the respondent was “short changing” customers and the competition was gaining from the company’s difficulties. He concluded that he could not run a business and ignore all the reported discrepancies and concerns of customers. The company’s reputation and interests had to be protected and it was in that context that he decided to dismiss the claimant. Besides, he asserted that the case of customer (P) was “open and shut”. The witness was satisfied that his investigations regarding the claimant’s case were thorough. He did not place the claimant on suspension while matters were being investigated. He was hoping to find a solution and trying to find a reason to keep the claimant in employment. Unfortunately, he could not do so and on 7 October 2012 the claimant was dismissed from his employment.
The next witness gave evidence that he joined the respondent company in September 2012 and worked alongside the claimant. He gave evidence that the claimant trained him in the usage of hand held computers (pods) that were used to record deliveries. He told the Tribunal that he accompanied the claimant on a delivery where an over delivery of 451 litres was made to a customer. He gave evidence that when the claimant discovered this he stated “F… it we will make it up at the hotel at the end of the month”. The hotel referred to was part of the respondent’s overall business. He gave further evidence of oil being delivered by the claimant to a “wrong tank” at a customer’s house. He described this “wrong tank” as a plastic tank. When the claimant realised the error he discontinued filling the oil and began filling the oil into the correct tank. The oil was not removed from the “wrong tank”.
The next witness gave evidence that he is a consultant forensic engineer and was engaged by the claimant’s representative to inspect and report upon the capacity of the fuel bowser of customer (P). He was not permitted to inspect the actual bowser involved but carried out an inspection of a similar bowser manufactured by the same company.
He gave evidence that the nominal capacity of the bowser is 1364 litres but that capacity is subject to temperature variation and the bowser being located on level ground. He told the Tribunal that there is a fluctuation of 2.5% based on a temperature variation of 30 degrees. He gave evidence that the bowser has an overall capacity of 1607 litres and a delivery of 1402 litres is well within the capacity of the bowser
Claimant’s Case
The claimant gave direct evidence that he worked 90/100 hours per week for the respondent following the establishment of the business in late 2009. He had previously worked for (J) for many years and enjoyed a very good relationship with him. He gave evidence that he (the claimant) was the driving force behind the new business and canvassed every house in the community for business. He worked day and night putting in a huge effort to secure new customers.
He told the Tribunal that there were no issues with his work performance until he was called to a meeting by (J) on 1 September 2012. He was not told of the nature of the meeting in advance. At the meeting (J) alleged that he was short filling tanks and told him of the allegations made by customer (P). He was very hurt by this allegation and immediately offered to refill the bowser at (P’s) house to show that he was not short filling the tank. He told the Tribunal that the tank at (P’s) house was located on a slope. He was not allowed to do this but was instructed to fill the bowser at the mart in the company of (J) and (P). He gave evidence that when he commenced conducting this exercise there was already “a good drop of oil” in the bowser. He filled the bowser as instructed and the bowser was filled to capacity on 1371 litres.
The claimant gave evidence that he subsequently met with (J) at a number of meetings and described (J) as being” like a madman” at some of the meetings. He told the Tribunal that (J) shouted and cursed at him at the meetings, accusing him of short filling (P’s) tank. (J) also raised issues regarding other customers and said “you know what you’ve done wrong”. The claimant said that he was not given the names of these customers and when he attempted to offer an explanation he was not allowed to do so as (J) kept shouting profanities at him. He sought to be provided with dockets and log sheets in order to help him provide an explanation but these were never made available to him. He asked to have a work colleague or his wife present at the meetings but this request was denied. He told (J) that he had done nothing wrong and continued working for the respondent during this time. Finally, at a meeting on 7 October 2012 he was informed by (J) that he could no longer remain in employment. He gave evidence that (J) told him that he had a “bad name” and it was over.
Following his dismissal, the claimant was subsequently made aware of the names of the customers other than (P), to whom (J) had alleged that he (the claimant) had not delivered the correct amounts of oil. The claimant accepted that he had made genuine mistakes in some of these cases but these were genuine mistakes and he was never allowed to offer an explanation for these issues prior to his dismissal. He gave evidence to the Tribunal in relation to his efforts to mitigate his loss since his dismissal and details of his actual loss were provided to the Tribunal.
The Tribunal heard further evidence from (M), one of the customers referred to in the above paragraph. He told the Tribunal that he was quite satisfied that he had had received all the deliveries of oil made by the claimant and he had no issues with him in that regard. It was his recollection that he was provided with dockets for all deliveries that he had received.
Determination
The Tribunal carefully considered the evidence adduced by the parties. There is no doubt that the respondent company believed that the actions of the claimant had damaged the reputation of the company. However, it was not proven to the satisfaction of the Tribunal that the actions of the claimant were knowingly dishonest and caused significant financial loss to the company.
The Tribunal finds that the investigation/disciplinary process carried out by the respondent was flawed in that the claimant was not afforded the opportunity of responding to all of the allegations made against him. Furthermore, when he requested information as to the identity of parties other than (P), he was not furnished with this information nor their specific allegations.
Taking all the circumstances into consideration, the Tribunal finds by majority decision that the claimant was unfairly dismissed, but also finds that he significantly contributed to his dismissal. Therefore, the Tribunal awards the claimant the sum of €10,000.00 under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal, furthermore, awards the claimant the sum of €1,428.52, this sum being the equivalent of two weeks pay under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)