EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Conor Rafter -Claimant UD48/2014
against
Connaught Gold Co-Op - Aurivo Co-Op Society Limited
T/A Aurivo Co-Operative Society Limited
-Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr M. Carr
Mr T. Gill
heard this claim at Sligo on 27th March 2015 and 25th June 2015
Representation:
Claimant: Ms Fidelma Carron, SIPTU, Membership Information &,
Support Centre, 8th Floor, Liberty Hall, Dublin 1
Respondent: IBEC, 3rd Floor, Pier 1, Quay St., Donegal Town
Background:
The respondent case is that the claimant was dismissed for writing a comment about a fellow employee on the top of a carton of milk. The carton then was sent out to an agent (as part of a multipack) for distribution.
Respondent’s case:
SB site manager at time of the alleged incident gave evidence of receiving a telephone call from a milk agent on 15th July advising him of a written message on a carton of milk in a pack of 10. SB asked that the pack be retuned and was relieved that the agent had spotted the message as it could have ended up on a supermarket shelf. He was able to deduce that the carton was produced on 9th July at 14.11pm and he also knew who was on the work rota at that time.
At a staff meeting of 17th July the issue was brought up as part of the agenda. SB invited people to approach him if they knew anything about the incident. The claimant was in attendance at that meeting. A few members of staff talked to SB and thought that the respondent should look at the handwriting used so SB went down the route of getting a graphologist to check the handwriting of four of the people on the rota for that day. She came back with very strong support that the writing was that of the claimant.
The claimant was called to a meeting on 6th August, he was advised to bring a representative and was asked if he knew anything of the incident. He denied it and was shown the report from the graphologist. He was advised of the seriousness of the allegation and was suspended on full pay pending further investigation. He was also asked if CCTV could be viewed and he gave his permission for the respondent to do so.
SB told the Tribunal that from the CCTV there was further evidence that the claimant was in the vicinity of the machine at the time of the incident and that he took a carton off the run. When asked about it he said he was doing a quality check.
A further meeting was arranged for 14th August….the claimant was dismissed.
Hearing adjourned.
Hearing resumed on 25th June 2015:
The Tribunal heard evidence from DT who is the head of finance with the Respondent company. The witness explained that he was the person to whom the decision to dismiss was appealed. He gave extensive evidence to the Tribunal. He was satisfied that the procedures taken by the Respondent were fair. He had considered a lesser sanction to dismissal. However because of the reputation of the Brand and that it was only pure luck that the writing was found. He felt that the punishment was justified. He felt that the process was fair and that the Claimant was given adequate representation.
Claimant’s case:
The Tribunal head evidence from the Claimant. He explained his employment history in the Respondent company. He was the Union shop steward in the Respondent. He was competent in a number of work areas of the company. At some point in time SB and JmcG called a meeting with in the canteen. All of the employees were asked to attend. They were told of the vulgar comment on the carton of milk. SB did ask who wrote the comment but the Claimant told the Tribunal that it would be hard for anyone to admit to it because of the nature of the comment and the repercussion.
He was asked to attend a meeting at the office. He did not know what the meeting was about. The Claimant gave evidence as to the cartons and that the cartons were sealed. He was not allowed to view his handwriting sample (comparison). The Claimant gave further evidence as to the location of the carton/s and as to his location and the logistics of the situation. He did agree that he was not confined (to one area) in the workplace.
Regarding the cctv footage and the carton/s it was not possible to match up any one carton or the carton in question because the production line took two or three minutes to revolve. It was also possible that the carton in question could have came from the production line of the previous day. Regarding the graphologist finding he did not agree with the graphologist finding because it was not he who wrote on the carton.
The Claimant was asked if it was he who wrote on the carton and he replied “No”. He did not agree with the sanction because he had put “heart and soul into the company”. He did not agree with the process because the investigation, disciplinary and decision to dismiss were all done by the same person.
Determination:
This case centred around a comment written on the top of a milk carton in relation to another employee in the Respondent’s company, which had dark undertones. The carton was contained in a pack of ten cartons comprised in a shrink wrapped cellophane, destined for the consumer market.
Investigations were carried out by the Respondent in relation to the writing on the carton which included their obtaining of a Report from a handwriting expert, and the results of both their investigation and the hand-writing expert led the Respondent to believe that the Claimant was the person who had written the comment on the carton.
There were two disciplinary meetings, one of the 6th August and one on the 9th August. At the meeting on the 6th August, the Claimant was suspended on full pay. At all times, the Claimant denied writing the comment on the carton. A further meeting was held on the 14th August at which the Respondent decided to terminate the Claimant’s employment with him and this was confirmed to him, via letter, on the 16th August.
The Claimant appealed the decision and this was heard by the CFO of the Company on the 11th August who confirmed the decision to dismiss the Claimant and this was communicated to him via letter of the 30th September 2013.
It is clear from the evidence furnished to the Tribunal that heavy reliance was placed by the Respondent on the CCTV footage and Report of the handwriting expert. However, it is further clear from the evidence furnished at the hearing that the findings in both these matters were far from conclusive. The Tribunal itself viewed the CCTV Footage and all the members of the Tribunal were unanimous that it did not contain the evidence as represented by the Respondent.
Under Section 6 (4) (b) of the Unfair Dismissals Act 1977 an Employer is entitled to dismiss an Employee for ‘conduct’. No definition is given to this term in the Act. Accordingly, an act, minor in one situation, can be gross misconduct in another situation. All will depend on such factors as the nature of the work of the employee, the ‘conduct’ involved and the level of responsibility accorded to the employee. There are no hard and fast rules. Every case must be decided with regard to the facts of that particular case.
The role of the Tribunal in unfair dismissal cases is not to establish an objective standard but to ask whether the decision to dismiss comes within the band of reasonable responses an employer might take having regard to the particular circumstances of the case. The test of reasonableness is applied in deciding whether or not the dismissal of the employee was unfair, which includes the nature and extent of the enquiry carried out by the employer prior to a decision to dismiss, and, the conclusion arrived at by the employer on the basis of the information resulting from such enquiry.
In this case, the Respondent carried out a full and detailed investigation into the matter and it appeared that the Claimant was aware of all allegations and complaints against him and was given an opportunity to deal with same.
Once the investigation has been concluded, one must look at the reasonableness of the conclusion arrived at and the test for ‘reasonableness’ was established in the EAT case of Noritake (Ireland) Ltd V Kenna UD 88/1983, in which three simply tests were set down to determine same, namely,
(1) Did the Employer believe that the Employee misconducted himself as alleged, ? if so,
(2) Did the Company have reasonably grounds to sustain that belief ? If so,
(3) Was the penalty of dismissal proportionate to the alleged misconduct?
It is clear from the evidence furnished at the hearing that the answer to Question 1 is yes, as they believed that the Claimant had misconducted himself. However, the reply to Question 2 must be in the negative, in that while the Respondent had some grounds to sustain the belief, the evidence on which they based this belief was not conclusive. This leads us on to the third question of whether the dismissal was proportionate to the alleged misconduct and, it is the opinion of the Tribunal that the dismissal was not a reasonable response
There was no danger to life or limb herein, nor do we accept that the Respondents name, reputation or product would have been as negatively impacted as suggested by the Respondent. The Claimant had a strong employment history with the Respondent. He was an employee with ten year’s service. He had an unblemished record and it would appear that, contrary to the evidence furnished at the hearing, no consideration whatsoever was given to these matters, in either the initial investigation or the appeal hearing.
In the circumstances, the Tribunal finds the dismissal of the Claimant unfair and awards a sum of €25,000.00, by way of compensation, under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)