EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD17/2013
CLAIM OF:
Philip Billingsley -claimant
against
Applus Car Testing Service Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 15th June, 16th July,13th & 14th November 2014, 27th & 28th January 2015
Representation:
Claimant: Mr Ian McKenna, O’Donnell McKenna, Solicitors, Waterloo Place, Donegal Town
Respondent: Mr Paul Twomey BL instructed by Kate McMahon & Associates, Solicitors, 223 The Capel Building, Marys Abbey, Dublin 7
Respondent’s Case
The respondent business is engaged in the testing of the roadworthiness of motoring vehicles. The claimant was employed as a Vehicle Tester. All staff, including the claimant, received a written contract of employment which included the company’s Code of Integrity Policy.
On the 29th March 2012 an anonymous call was received by the Training and Standards Manager (TC). The caller confirmed that they were aware of possible misconduct in the Testing centre the claimant was employed in. The caller named the claimant as the culprit.
A Private Investigator was retained by the respondent to carry out surveillance on the Testing Centre, including the claimant, for a period from April 23rd to 24th. A report was then issued to the respondent.
On the 6th April 2012 and Internal Auditor (NOB) received a telephone call and was informed that a package was left in a premises in Ballybofey. On retrieval the documents enclosed related to vehicles tested in the Centre employed by the claimant and it appeared these vehicles were tested by the claimant himself. Having viewed these documentation and in light of the anonymous call received it was decided a meeting would be called with the claimant.
On the 8th June 2012 the Regional Manager (TC) wrote to the claimant regarding allegations relating to a breach of the company’s Code of Integrity Policy whilst he, the claimant, had been testing vehicles on behalf of the respondent. An investigation meeting was scheduled for the 18th June 2012. A list with the details of three vehicles, a copy of photographs of these vehicles and three vehicle inspection reports (VIR) were enclosed with the letter.
On the 13th June 2012 the claimant’s solicitor wrote to TC querying the full details of the anonymous telephone call received regarding his client, the claimant, and the requesting the specific allegations relating to the listed vehicles and his client.
A detailed reply was sent on the 15th June 2012. The meeting took place on the 18th June 2012. TC, the HR Officer (KH), the claimant and his solicitor attended.
Following this meeting detailed correspondence crossed between the respondent and the claimant’s solicitor. A second meeting was held with the same participants of the 18th June 2012 on the 11th July 2012.
A letter dated the 13th July 2012 was submitted to the claimant to inform him he was suspended with pay and another meeting, an investigation, was to be held on the 18th July 2012. A letter dated the 18th July 2012 was sent to the respondent’s Company Secretary from the claimant’s solicitor regarding the entire matter. Correspondence then crossed between these parties.
A conference call took place on the 16th August 2012 at the request of the claimant’s solicitor. A second conference call took place on the 29th August 2012 again at the request of the claimant’s solicitor.
A letter dated the 29th August 2012 from TC recommended to the HR department that the claimant’s employment be terminated as he was in beach of the Code of Integrity on the grounds of
“- driving of vehicles to the test centre that is not your own vehicle
- Falsifying test results as outline
- Carrying out work practices that are untruthful/ unethical.”
A letter dated the 7th September 2012 informed the claimant he was dismissed.
The regional manager oversaw the running of all the nct centres in the northwest of the country. He was well acquainted with the claimant and described him as a good employee. In January 2012 he rated him highly in a staff appraisal exercise and agreed he was a suitable candidate for possible promotion. By the end of August that year this witness recommended to the human resource manager that the claimant be dismissed. That recommendation was grounded on his belief that following an investigation he concluded that the claimant had breached the company’s code of integrity.
By early summer of 2012 it had come to this manager’s attention that certain allegations were being levied against the claimant regarding his work practices. This witness wrote to the claimant outlying some of those allegations and invited him to attend an investigative meeting. Prior to that meeting on 18 June this witness exchanged correspondence with the claimant’s solicitor. He described this meeting which was attended by that solicitor as heated and adjourned it pending further correspondence. He denied suspending the claimant and then almost immediately lifting that suspension. Towards the end of that month this manager despatched a detailed letter to that solicitor and the claimant. At this stage the respondent had supplied photographs and vehicle reports to those two gentlemen.
Following another meeting between the parties on 11 July 2012 the regional manger placed the claimant on suspension as he deemed that the ongoing investigations would need to continue. The witness was not satisfied with the claimant’s responses to the allegations put to him. Those allegations at that meeting centred on the claimant’s involvement in testing and assessing vehicles’ road worthiness. Certain anomalies with the claimant’s test results were exposed as part of that investigation. However, this witness never directly accused the claimant of engaging in fraud or falsifying test results.
Mention was also made of the claimant driving a vehicle to the test centre. The claimant accepted he did this and such a practice was against the rules of the company. It was also stated that the claimant was under pressure from his team leader. However, he was expected to follow all reasonable and lawful instructions given to him by that leader.
Prior to participating in a conference call with the claimant on 29 August 2012 the regional manager had decided on his recommendation. Since the claimant was unable or unwilling to explain the allegations against him this witness felt the sanction should be dismissal. At that time he was aware of the claimant’s ongoing grievance against the respondent but had no involvement in it. He told the Tribunal that he did not act as the investigator, judge and executor in this case.
The quality and operations’ manager told the Tribunal he had no direct involvement in the investigation and decision to dismiss the claimant. However, he was the recipient of the claimant’s grievance over the way the respondent was treating him in the course of that investigation. This witness neither spoke to him nor acted upon that grievance as he considered it was not the proper timing to do so as the investigation and possible disciplinary process had not concluded.
This witness who was the regional manager’s supervisor detailed aspects of a productivity and bonus scheme. Each vehicle tester had their own unique password and was not permitted to allow others to use or share it. Driving someone else’s vehicle to the test centre for an nct was a dismissible offence. This manager commented that the purpose of the reports and photographs was an attempt to show the claimant’s manipulation of the testing system.
The human resource manager stated it was her decision to dismiss the claimant. At that time she was aware of the claimant’s ongoing grievance process and supported the stance taken by the quality and operations’ manager. In reaching her decision to terminate the claimant’s employment this witness said she considered all the circumstances and facts of the case and concluded his behaviour amounted to gross misconduct and was in breach of the integrity policy. The claimant was fully aware of that of that policy which was designed to protect the respondent and its employees.
The witness accepted she had some discretion in this case yet felt she had no choice but to impose that sanction on the claimant. This manager felt obliged “to abide by the rules”. She was satisfied that the claimant had been given every opportunity to explain and defend the allegations of wrongdoing against him. However, she did not meet the claimant prior to dismissing him as she considered this unnecessary. This witness commented that the disciplinary process had begun with the regional manager and she accepted the findings and recommendation of that manager.
Claimant’s Case
The claimant was a vehicle tester for the respondent from 2002. The claimant’s employment ran smoothly until the events leading up to his dismissal. The claimant maintains that family difficulties and an ensuing dispute resulted in his brother making false allegations about him to the respondent. The claimant only became aware after his dismissal that his brother was the source of the complaint against him.
Initially the claimant was not overly concerned after receiving the letter informing him that the test centre was under investigation as all 6 members of his team received the same letter. He was invited to an investigation meeting regarding ‘a possible breach in the code of integrity whilst testing vehicles/alleged misconduct within the test centre’ scheduled for the 18th of June 2012. The letter of invitation contained a list of vehicles that were under investigation. The claimant sought advice and his solicitor, on his behalf requested that the allegations and in particular the source and detail of the allegations be outlined. The respondent would not detail the complaint or the source of the complaint.
The investigation meeting took place on the 18th of June 2012. Again the claimant requested the allegation against him to be outlined. He was informed that his job could be at risk and that the allegation amounted to Gross Misconduct; the claimant realised how serious the situation was. If the integrity procedure is breached the respondent procedure states that, ‘It will be necessary to put the complaint in writing, and you should keep an accurate record of all incidents, dates and witnesses, if possible. If the complaint is disputed, it is helpful to support the allegation by witness corroboration.’ The respondent did not comply with this procedure. The claimant was also not made aware that he had been under surveillance.
The claimant was suspended for failing to co-operate with the investigation as he would not answer questions until the allegation was outlined. The respondent then retracted the suspension. The meeting was adjourned pending clarification of the allegations. The letter of the 27th of June 2012 outlined the ‘issues to discuss’ with the claimant.
The claimant gave detailed evidence refuting the allegations except one, which is that he drove a car that was not his to the test centre for a test. This was common practise and one which was known by the claimant’s supervisor. It was also necessary to perform brake tests on 4-wheel drives on the road outside the test centre as there was not enough space in or around the test centre.
The claimant lodged a grievance on the 16th of July 2012 regarding the way he was being treated; the company made no effort to resolve this. The claimant believes that the respondent had predetermined the outcome of the disciplinary process so the decision to dismiss him did not come as a surprise. The claimant did not meet with the HR Manager who ultimately made the decision to dismiss the claimant; he was dismissed on the recommendation on the Investigator.
The claimant gave evidence of his Loss and attempts to mitigate his loss.
Determination
The Tribunal has to decide whether the breach of fair procedures amounted to a fundamental breach so as to render the decision to dismiss to be unfair.
The Tribunal finds that on the balance of probability the claimant did understand the allegation that was made against him and that the evidence that was put before him inferred that the allegation was that he was using one car to pass another car’s test. Even though these words were not specifically put to him at the disciplinary meeting, it is not credible to say, in light of what was put before him, that he did not understand the nature of the allegation being made against him. The claimant knew his job was in jeopardy and that it was as a result of breaches of the company’s integrity procedures.
The respondent’s view, in the absence of an explanation or contradiction by the claimant, that he had used one car to pass another car’s test was reasonable and the dismissal that resulted from this finding is fair.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)