EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Fahavane Limited UD1719/2013
against the recommendation of the Rights Commissioner in the case of:
Sean Flood
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Killarney on 25th February, and 21st May 2015
Representatives
Appellant: Ms Una Glazier-Farmer B L instructed by
The HR Suite, Pier 17, Tralee, Co Kerry
Employee: Mr Pat O’ Donoghue SIPTU, liberty Hall, Dublin 1
This case came before the Tribunal by way of an appeal by the former employer against a recommendation of a Rights’ Commissioner reference r-119925-ud-12/GC
Herein the appellant will be referred to as the employer and the respondent as the employee.
Background
The appellant company owns a small family business operating in the security and audio visual market. Brothers DA and DB are the directors of the company, which has five employees. Its work involves inter alia the installation of social alarms in the homes of vulnerable elderly people on the instruction of Task, a community group. Each alarm has a unique identification number. The employee commenced employment with the employer in February 2004 as a sound engineer and an alarm installation technician and within a few years he became the primary alarms installation technician in the company. The employer operated a staff purchase scheme whereby employees could purchase electronic goods at a discount and on easy payment terms deducted over time from the employee’s wages.
Before taking annual leave on 6 July 2011 DA organised work for staff which included allocating a job in Cashel to the employee. On examining the work sheets on his return, DA noticed that the employee’s work sheet, which covered the trip to Cashel, did not indicate a finish time, which DA required to invoice the customer. The employee then filled in a return time of 6.00pm. When the employer received an enquiry in August 2011 about a social alarm he was surprised to discover there were none in stock and mentioned this to the claimant. Having received a commission document about an installation in Dublin, DA made enquiries and discovered that an alarm had been installed in the home of NF (having the same name as the employee) on 6 July.
With the help of an HR consultant (HRC), from a consultancy body, an investigation was initiated. The letter of 20 September 2011, inviting the claimant to the investigation, and enclosing a copy of the Disciplinary & Grievance Procedure, stated:
“Following from our recent discussions regarding an alarm being unaccounted for and installed without this being authorised by me or the company; this letter is to confirm that you are required to participate in an investigatory meeting as part of our disciplinary process to discuss the above issue “
The meeting did not go ahead as the claimant’s trade union official was not available and it was rescheduled for 3 October 2011. On that day the trade union official was still not available but the claimant was satisfied to go ahead without him. The meeting was conducted by HRC and DA and the employee admitted to them that he had gone to his parents’ home in Dublin on 6 July and installed a social alarm there without the employer’s authorisation. He explained that he had asked Eddie in Task, if he could install an alarm for his elderly parents and whether he could get it at special rate. Eddie had referred him on to Marie who agreed that he could have an alarm at a reduced rate but as they had none in stock she told him to take one from the employer’s stock and Task would replace it. He did not regard as inappropriate at the time but at the investigation meeting accepted that it was wrong and apologised. He accepted that he did not mention the installation in his parent’s house either when DA mentioned to him that there were no alarms in stock or when DA asked him to fill in his finish time on the 6 July work sheet. He used the employer’s van for the trip to Dublin and put €30 worth of diesel in it. The evidence was that the employee used the van outside work and the employer did not object. The claimant apologised to the respondent at the investigation. The employee had not taken steps to pay for the alarm at the time of the investigation.
The letter of invitation to the disciplinary arranged for 10 October 2011stated:
“I wish to invite you to a disciplinary meeting to discuss the outcome of the disciplinary investigation. This meeting will form part of our disciplinary process. At this meeting you will be informed of our decision following the recent disciplinary investigation meeting you attended.
Due to the seriousness of the nature of this allegation, we strongly encourage you to avail of this right (of representation).”
The employee had been furnished with the minutes of the 3 October meeting but he had not been provided with any findings of the investigation either prior to or at the meeting. In direct response to a question from HRC the employee said that he had nothing additional to say and again apologised. It was explained to the employer that there had been a serious breach of trust and that his employment was being terminated due to gross misconduct in taking the alarm and installing it without authorisation and payment.
The letter of dismissal dated 10th October 2011and signed by DA, stated:
In considering your responses I have taken into account the fact that you had no explanation for your actions and your apology, and I do not feel these adequately justify your behaviour. You had a number of opportunities at which you could have informed me that you removed the Company alarm and used it for personal use prior to us finding out. There has been a serious breach of trust following your behaviour and the bond of trust has been broken.”
HRC denied in cross-examination that the letter of dismissal had been prepared prior to the disciplinary meeting; her evidence was that although it was dated 10 October 2012 it had been drafted and signed some two days later. DA’s evidence was that trust in an employee was essential, in particular where that employee works in the security business and in the course of his work enters the homes of vulnerable people.
HRC accepted that no formal findings were presented to the employee following the investigation. However, the employee had already accepted and indeed apologised for his wrongdoing. HRC accepted that the employer had not informed the employee throughout the process that his job was in jeopardy. Her position was that this might indicate that a decision had already been made and pointed out that but such an outcome was included in the document on procedures given to him earlier. She was satisfied that sanction was warranted and that the case was dealt with in a fair and transparent manner.
The employee’s appeal of the decision to dismiss him was heard by DB (the co-director and brother of DA) and AL of the same HR body as HRC who had participated in the investigatory and disciplinary process. The employee and his trade union representative were given a full hearing. Having been unable to contact Maria of Task the employer was not contesting the employee’s evidence regarding his contact with her. DB, having considered the six grounds of appeal, upheld the original decision to dismiss the employee. DB was satisfied that the procedure and sanction were correct and fair and that the employee’s behaviour amounted to a serious breach of trust between him and the company.
Employee’s Case
The employee believed that the social alarms were the property of Task community services. They come in from Task with the individual serial number on them. When an alarm is fitted, he phones in its identification number to Task and that number is assigned to the house giving full traceability. The employer is notified through the commission sheet where a particular alarm is, when it was installed and receives commission from Task. He was aware of the commission; he had been told about it and shown a commission sheet when a query about an alarm had been raised with the office sometime previously.
Sometime prior to July 2011 the employee together with his siblings agreed that their parents needed a social alarm in their home. He spoke to Marie in Task about it and she told him to take the alarm box in the employee’s stock and Task would replace it. When he had completed company work in Cashel around 3.00pm on 6 July, he drove to his parents’ house in Dublin, installed the alarm, checked it was working and returned to Kerry, arriving around 11.00pm. He later put 6.00pm as his return time in the work sheet as this would have been the approximate time of his return had he not continued on to Dublin from Cashel. At the time he did not inform his employer of the Dublin trip and did not think his behaviour amounted to any wrongdoing. That attitude was partly based on his understanding that the alarm box was the property of Task and Marie’s assurances about replacing it. It was only during the disciplinary process when he received the letter of 20 September 2011 from DA, inviting him to a “Disciplinary Investigatory Meeting” about “an alarm being unaccounted for and installed without this being authorised by me or the company” (from para 1, set out above) that he realised that he realised that the alarm box is the employer’s property, that he had done something wrong and that Task had not replaced the one he had taken from stock. While he realised he was in trouble he believed he would get a “telling off” or a warning. When there was no one from SIPTU available to represent him at the meetings he was willing to go ahead with the meeting because he did not realise the seriousness of the situation.
He did not mention the installation in his parent’s house either when DA mentioned to him that there were no alarms in stock or when DA asked him to fill in his finish time on the 6 July work sheet because while their relationship had been good over the years it had changed in July 2010 when the employer wanted to impose a 10% pay cut or make redundancies and he and others had joined SIPTU; he had indicated to DA that if redundancies were being considered, he would opt for redundancy. From that time onwards he experienced a marked deterioration in his relationship with DA; when work was available others were getting it and on one occasion an outsider was brought in to do a job and he (the employee) was sent home; he felt “emotionally bullied” by DA and tended to avoid contact with him. DA had made a generalised comment a number of times about the alarms in stock; he had never asked him if he had removed or installed a particular alarm.
The first time his behaviour was classified as “gross and serious misconduct” was towards the end of the meeting of 10 October 2011 when he was informed hat he was being dismissed. He had not been informed and did not realise that his job was in jeopardy. He accepted that he did not fully read the company’s Disciplinary and Grievance Procedures. He had not raised any objections to the notes and minutes of meetings as he “did not think anything of them and just signed them”
Determination
There were a number of procedural flaws in the disciplinary procedures which render the dismissal unfair.
A full and fair investigation involves some exploration of the core facts established. Having established at the investigation meeting that the employee knew that the alarm was company property there was no further exploration of this fact. It was only at the hearing before this Tribunal that this was fully explored and hence the full facts or their veracity were not considered by the decision makers.
In reaching both the decision to dismiss and the later decision to uphold the dismissal on appeal emphasis was placed by the decision maker on the fact the employee had failed to avail of the opportunities “to come clean” and inform DA that he had removed the alarm from the company and installed it in his parent’s home. The Tribunal holds that relying on an inference when there is an opportunity to put a direct question to an employee is unfair.
The failure to advise the employee that the disciplinary process could end in his dismissal was fatal and resulted in the employee attending the disciplinary meeting without his trade union representative. While the respondent did advise the employee before the disciplinary meeting and again reminded him at the commencement of that meeting of his right to have his trade union representative present, the employee, not being aware that the ultimate sanction of dismissal might be imposed on him and expecting only a “telling off” or a warning, went ahead without representation.
Finally, on the procedural issues, although aware that this is a small employer, the Tribunal is not satisfied that there was sufficient independence between those deciding on the dismissal and those determining the appeal. This offends against the principle/maxim that “Not only must justice be done but it must be seen to be done.”
On the substantive side the Tribunal accepts on the balance of probability that the employee was aware that the respondent is paid commission by Task and that DA would inevitably become aware of the installation of the alarm in his parent’s home.
For the above reasons the Tribunal finds that the dismissal was unfair. Thus, the employer’s appeal under the Unfair Dismissals Acts, 1977 to 2007 fails. Having taken the claimant’s contribution to his dismissal into account, the Tribunal awards the employee compensation in the sum of €15,000.00. .
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)