EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
William Murphy -claimant UD215/2013
MN128/2013
against
DWG Refrigeration Wholesale Limited -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: Mr D. Hayes B.L.
Members: Mr D. Moore
Mr J. Maher
heard this claim at Dublin on 21st March 2014 and 18th July 2014
Representation:
Claimant: Mr Mark Stafford, Stafford & Company, Solicitors,
2 New Street, Rathangan, Co Kildare
Respondent: Mr Michael McGrath, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
The claimant had been employed by the respondent, and its predecessors, since 2004. Since about 2008 he had been a general manager. The respondent is an English company and the claimant had worked for its Irish branch. His job involved a lot of travelling around the country to meet customers. As part of his job he was encouraged to entertain customers, in respect of which he was periodically reimbursed on submission of receipts.
The procedure for seeking reimbursement of expenses was that a spreadsheet would be compiled on a monthly basis by the employee in question and submitted to a director for approval while the receipts were separately sent to the respondent’s accounts department.
In October 2012, while he was in Dublin, AK, one of the directors, was given a number of receipts in respect of which reimbursement had been sought. He looked at them and noticed an anomaly between the receipt and the claim made by the claimant. A hole had been pierced in the receipt through the date, although the date did also appear at the bottom of the receipt. When the expenses claim was looked at it was noted that the claim had been for a breakfast meeting in Dublin on a particular Wednesday whereas the receipt was from a premises in Naas the following Saturday. The Tribunal was told that the claimant lives in Co. Kildare. On his return to England, AK checked through the other expenses claims made by the claimant in 2012 and noticed, what he considered to be, a significant number of anomalies. These were as follows:
- A claim for lunch on 12th January 2012 where the receipt was for dinner;
2. A receipt from 21st January 2012 where the top was missing thereby preventing a claim for reimbursement of VAT;
3. Two receipts with their tops missing so that neither contained a date, restaurant name or VAT number. One was submitted for a lunch in Tipperary on 27th January 2012 and the second for lunch in Dublin on 2nd February 2012 although both receipts had the hallmarks of coming from the same establishment;
4. A claim for lunch in Dublin where the receipt was for a dinner in Kildare;
5. The date of the receipt had been altered by hand. The claim was made for Dublin but the receipt was from Kildare;
6. The top was missing from a receipt thereby removing the date and VAT number;
7. A claim for lunch in Meath but the top was missing from the receipt so that the date, restaurant name and VAT number did not appear on the receipt;
8. A claim for a breakfast meeting in Dublin on 14th March 2012 where the receipt was from Kildare and dated St. Patrick’s Day. There was a hole through the date at the top of the receipt but the date had also been printed at the bottom;
9. A claim for lunch in Kildare on the 21st March 2012. One date had a hole through it but it was in fact a receipt dated 19th March 2012, which was a public holiday;
10. A receipt where the top was missing so that the date, restaurant name and VAT number did not appear;
11. A claim for lunch in Kildare on Monday 26th March 2012 where the receipt was for breakfast in Kildare on Saturday 31st March 2012;
12. A claim for lunch in Donegal on 17th April 2012 where the receipt was from Dublin and dated 19th April 2012. There was also a claim for a breakfast in Dublin for 19th April 2012;
13. An undated handwritten receipt for only a portion of the claim;
14. A receipt with a hole through the date;
15. A lunch in Kildare with a customer who was based over 130km away;
16. A receipt where the date had been changed from 19th June 2012 to 15th June 2012 by hand;
17. A claim for Cavan on 20th July 2012 and a further claim for Galway on 25th July 2012. The tops of both receipts were missing so that neither contained a date or a restaurant name. However both bore indications of being from the same establishment. Both also had the name of a particular café chain that does not have outlets in either Cavan or Galway city;
18. A claim for lunch in Galway on 24th July 2012. The top of the receipt was missing although its base bore a date of 21st July 2012. AK told the Tribunal that he believed that the restaurant in question was in a Dublin shopping centre rather than Galway; and
19. A claim for breakfast in Dublin on 26th September 2012. While the receipt had a hole through the top date, it was for Saturday 29th July 2012 and was from a premises in Kildare.
AK passed his findings to the HR department. It was decided that the matter was sufficiently serious to suspend the claimant on full pay pending a disciplinary hearing.
Criticism was made of AK in cross-examination to the effect that he was conflicted in his investigation because he had initially approved the claims for payment. The Tribunal does not accept that there was any conflict on AK’s part and nor was there any inappropriate conduct in the manner of his investigation.
A disciplinary meeting was convened before NK, the sales and marketing director, on 25th October 2012. The claimant was provided with a copy of AK’s investigation report and with copies of the relevant expenses claim forms and receipts in advance of the disciplinary hearing. On foot of the hearing a decision was taken to dismiss the claimant. It was suggested to NK in cross-examination that he was aware that the claimant had dyslexia and that his dyslexia accounted for the errors in claims. NK told the Tribunal that dyslexia could not account for the number of receipts that had been defaced. Further, an explanation of dyslexia does not appear to have been advanced in any way at the disciplinary hearing.
It was also suggested that the various customers should have been contacted to ascertain whether they had been entertained by the claimant at the relevant times. This was not done because the respondent considered this to be an internal matter and did not want its customers drawn into it. The Tribunal accepts that this was reasonable in the circumstances of this case where the damage to the receipts and the errors in the claims, both in time and place, were so manifest.
A subsequent appeal against dismissal was heard by SS, the respondent’s distribution director. The claimant submitted a letter of appeal which referred to a number of letters from customers, including “a letter from MS” of M Co. The other letters were accepted by SS as being genuine. However, the letter from MS was handwritten on the respondent’s own headed paper. This caused SS to make further inquiries and MS confirmed to him that he had not written the letter and that any letter he would have written would have been on his own company’s headed paper. SS told the Tribunal that the claimant’s explanation for this was that it was in fact the transcript of a phone conversation with MS. It was put in cross-examination that the claimant had, in fact, told SS that the note had been transcribed by the claimant during a face-to-face meeting with MS in the course of which MS had dictated the letter.
It seems curious to suggest that MS would dictate a letter to the claimant rather than write it himself. It is also curious that, if MS had actually dictated the letter, he did not mention this to when asked by SS.
While SS accepted as genuine the cases where there were letters from customers, he nonetheless decided to uphold the claimant’s dismissal. The letter purportedly from MS was a factor in this decision. SS told the Tribunal that the claimant did not mention his dyslexia in the course of the hearing.
In his evidence to the Tribunal, the claimant had no real explanation why the dates and locations on many claims differed from the receipts. He told the Tribunal that he had not damaged or changed any of the receipts. It is of significance that he accepted in cross-examination that he had decided to say little at the disciplinary hearing.
It was a complaint of the claimant that he had not been allowed to contact customers and that he had not been allowed access to certain documents until the appeal. Further, he was required to travel to England for the appeal hearing. In the circumstances it might have been better for the appeal to have been heard in Ireland but the Tribunal is not satisfied that this amounted to an unfairness. The procedure adopted in the disciplinary hearing whereby he had not been allowed access to his documents was not satisfactory. However, the Tribunal is satisfied that it did not amount to an unfairness such that would render the dismissal unfair as he had full access to documents and customers by the time of the appeal and where the appeal was, in effect, a full re-hearing. Whatever unfairness there had been was cured by the appeal process.
The Tribunal is satisfied that there was sufficient evidence of misconduct such that a reasonable employer would have been justified in dismissing the claimant. It is not for the Tribunal to determine whether it would have come to a different conclusion on the facts. Rather the Tribunal must be satisfied that there were sufficient grounds to allow a reasonable employer take the course that was taken. While there were defects in the disciplinary process, they were not of such a nature or magnitude to require a finding of procedural unfairness. Accordingly, the claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 is dismissed. In the circumstances of the misconduct in this case, the Tribunal is satisified that the respondent was entitled to dismiss the claimant without notice. Accordingly the claim pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)