UD1728/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                              CASE NO.

Sebatian Wijata           -appellant

                                                                                                                      UD1728/2014

against the recommendation of the Rights Commissioner in the case of:

Zatori Results Limited            -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Hennessy

                    Mr A. Butler

heard this appeal at Carlow on 15th December 2015 and 9th February 2016

Representation:

Appellant:       Ms Ewa Kolodziej, 103 Rosevale, Portlaoise, Co. Laois

Respondent:    Mr. Jim Waters, Waters & Associates, Solicitors, Unit 1a,

                        Hyde Court, Shaw Street, Dublin 2

Background:

This case came before the Tribunal by way of the employee appealing against the Rights Commissioner Recommendation reference: r-141029-ud-13/DI.

The respondent company operates a costume supply business from its warehouse. Orders are received through the company’s website and then processed and despatched in the respondent’s warehouse. Given the nature of the respondent’s business the busiest periods for the business are Halloween and Christmas.

Dismissal as a fact was not in dispute between the parties. The appellant was employed for approximately five years at the time of his dismissal. During his employment he was promoted to Warehouse Manager but he was demoted from this position a year prior to the dismissal.

Both parties spoke of a number of historical issues that were not relevant to the disciplinary process that led to the appellant’s dismissal; as the sanctions for those matters had expired by January 2012.

Issue of Christmas leave:

The first disciplinary issue relevant to these matters arose in December 2012. The appellant sought annual leave during the Christmas period in December 2012 but this request was refused by the Operations Manager as it was one of the busiest times of the year for the company.

It was the appellant’s evidence that his contract of employment did not preclude the taking of annual leave in the period he was seeking and that on three previous occasions he had taken annual leave at Christmas. Under the heading of annual leave the appellant’s contract of employment stated that holidays cannot be taken between 1^st October and 1^st November or between the 18^th November and 18^th December as it is the company’s busiest time.

The Warehouse Manager’s evidence was that the appellant said he wanted to travel to Poland fro Christmas and that he intended to take the time regardless of it not having been approved. The Warehouse Manager raised this with the Operations Manager in confidence as he was concerned about the staffing levels over the Christmas period in light of this. The appellant refuted the Warehouse Manager’s evidence.

On the 22^nd December 2012 the appellant telephoned the Operations Manager and sought compassionate leave for the 27^th & 28^th December 2012 on grounds that his grandfather, who resided in Poland, had suffered a stroke. The Operations Manager gave evidence that given the circumstances he granted the request for leave but on the proviso that the appellant would produce both flight documentation and if possible medical confirmation of his grandfather’s condition.

The appellant was due to return to work on the 31^st December 2012. His flight arrived into Ireland at 1pm but he contacted the Operations Manager for leave on that date. It was his evidence that the Operations Manager approved a sick day for that date and as a result of this he sought to protect the Operations Manager by altering the boarding pass to show an arrival into Ireland at 7pm that day.

On his subsequent return to work the appellant produced flight documentation in the form of boarding passes. Upon inspection the Operations Manager suspected that the boarding pass for the return flight was forged to alter the departure time of the flight from Poland on the 31^st December 2012. It was his evidence that the documents suggested to him that the reasons for the requested leave were not legitimate. It was the appellant’s evidence that he had altered the boarding pass to ensure the Operations Manager would not get into any “trouble” for granting him leave for the 31^st December 2012.

A disciplinary meeting was held with the appellant on the 7^th January 2013 and the appellant submitted a written statement at this meeting. The appellant admitted to forging the boarding pass.   At that meeting it was also put to the appellant that in addition to the suspected forging of the boarding pass, the medical evidence that he had produced stated that his grandfather was suffering from dementia. The Operations Manager issued the appellant with a week’s suspension and a final written warning which would remain active on the appellant’s file for 12 months. The appellant did not appeal this decision. It was his evidence that the Operations Manager told him that there was no point to appealing; as it became the CEO’s decision and he could decide a more severe sanction. The Operations Manager refuted the appellant’s evidence in this regard.

It was the company’s case that there were ongoing performance issues with the appellant from the time of the final written warning.  It was the evidence of the Operations Manager that he coached the appellant with regard to these issues but without success. It was the company’s case that there were ongoing performance/conduct issues with the appellant leading up to and during the busy Halloween period in 2013.

The respondent’s premises were burgled on the 28^th October 2013. The result of which was that the company could not operate its morning shift on the 29^th October 2013.

A further disciplinary meeting was held with the appellant on the 5^th November 2013 at which three matters issues were put to the appellant:-

Issue 1- that he had failed to lock up the premises on the night of the break-in. It should be noted that it was confirmed by the company that the area which the appellant had failed to lock up was not the cause of the burglary.

It was the appellant’s evidence that it was usually his duty to lock up the premises but that the month of October differed from the other 11 months of the year and that there was no formal agreement that he was to lock the entire warehouse. During the month of October locking up was shared and the task was flexible in that whomever was available assisted in this task. The appellant on those occasions only locked upstairs. He stated that there were also occasions when the CEO was working late and the appellant would be asked not to lock up on those occasions.

The appellant’s evidence was disputed by the Warehouse Manager who stated that the locking up procedure did not change during the month of October nor did he issue the appellant with an instruction not to lock up. The appellant was responsible for locking up the bollards, shutters and the upstairs of the warehouse. It was not the CEO’s role to lock up.

The Shift Manager also confirmed in his evidence that it was the appellant’s duty to lock up the premises and the appellant finished work 30 minutes later than other staff to allow for this.

The appellant also raised an issue in evidence that the fittings for the locks were broken. The Warehouse Manager stated that the damage to the shutters was caused by the appellant but had been repaired.

Issue 2 – that the appellant had taken an unauthorised break contrary to the instructions of the Shift Manager on one of the busiest days for the company.

It was the Shift Manager’s evidence that following the burglary he addressed all of the employees on the 29^th October and asked them to defer their break time due to the difficulties facing the company. It was the busiest time of the year for the company and due to the burglary the morning shift was unable to operate and there was a backlog of orders. It was for this reason that he asked the employees on the evening shift if they would defer taking their lunch break until after the courier had departed at 8pm in order to despatch as many orders as possible.

However, he subsequently saw the appellant and two temporary employees in the canteen at 5pm which was even earlier than the usual break time. He queried this with the appellant who subsequently apologised. During cross-examination he disagreed that the appellant might have believed that the instruction did not relate to him as he had a different role to others in the warehouse.

It was the appellant’s evidence that as his role involved enquiring into failed actions in picking and processing, his role differed from the pickers and processers whom were managed by the Shift Manager. He therefore decided that he could take a break and still perform his role. He apologised to the Shift Manager for the failure to understand that the instruction related to him.

Issue 3 – failing to perform his duties in the weeks leading up to Halloween.

The Operations Manager gave evidence that the appellant failed to keep on top of partially picked orders which resulted in the loss of orders. The appellant complained at the disciplinary meeting that there was too much work and pressure on him. The Operations Manager outlined how he assisted the appellant with coaching and instructions.

It was the appellant’s evidence that he was unable to fulfil all of the problem orders that he received. He attributed this to the new operating system on the computers which was only fully operational in September and which he had only received basic training for. He also outlined that the company’s orders increased significantly during October. He also assisted other members of staff.

The appellant outlined that he had raised the issue with the Operations Manager that the Warehouse Manager or the Operations Manager should be present on the evening shift as it was a more pressurised shift. The Operations Manager refuted the appellant’s evidence stating that he overlapped on both shifts as did the Warehouse Manager and he is present until the courier departs in the evening.

Following the disciplinary meeting the Operations Manager found the allegations to be well founded and he reached the decision to dismiss the appellant from the employment due to a loss of trust and confidence in the appellant. The appellant did not appeal the decision.

It was the appellant’s position that there was n a change in his working relationship with the CEO and he believed the CEO had issues with him and wanted him dismissed. He described the Operations Manager as fair but felt that the explanations he offered were not fully considered by him during the disciplinary process.

He gave evidence of loss and his efforts to mitigate the financial loss.

Determination:

The disciplinary process in respect of the appellant was commenced on three grounds as follows: -

• That the appellant did not      perform to the level expected of his role to the detriment of the business

• That the appellant disregarded      instructions issued by the Warehouse Manager

• That he had failed to discharge      his obligation to fully lock up at the end of the evening shift of the 28^th      October 2013 when he was working.

Clearly, the disciplinary process in January 2013 that led to the appellant being put on a final written warning had, from the employer’s perspective, left the bond of trust in a very fragile state. Any reasonable employer would have felt likewise.

The Tribunal has considered at length whether, following proper investigation, the conclusions and decision arrived at by the employer were reasonable. Having considered the evidence heard before the Tribunal and the written documentation submitted, the Tribunal has reached the following conclusions:

• That in the main, the appellant      was hardworking but struggled with aspects of the new computerised system      in the same way as others in the workplace did. It would be unreasonable to fault him      for this.

The employer was entitled, however, to have concerns around the appellant’s reluctance to implement work practice changes and what appears to have been his perception that he “knew best”. This was not conducive to a harmonious working relationship. The appellant was not adopting to his change from a managerial role and seemed to overestimate his own status in the business.

• The Tribunal is satisfied that      the appellant chose to disregard the request made of all employees to      defer their breaks on the 29^th October 2013 given the      unprecedented challenges faced on that day by the employer. The Tribunal is satisfied that this was      a deliberate decision on the part of the appellant.

• The Tribunal is satisfied that      it was the appellant’s obligation to lock up on the 28^th      October 2013. Even if he had asked      for the assistance of a fellow employee, it remained his obligation to ensure      that locks were in place. His      employer was clearly concerned that the appellant failed to accept any      responsibility in the matter. There      were also issues of credibility with representations made by the appellant      during the disciplinary process and the Tribunal also had issues of      creditability around some of the evidence given to it by the appellant

Having considered all matters and the totality of the evidence, the Tribunal finds the dismissal of the appellant to have been fair. The bond of trust here was already fragile and any reasonable employer would have considered the appellant’s actions on the 28^th October and 29^th October 2013 and his performance during the disciplinary process itself, shattered what was left of that trust thereby leaving his position within the company untenable.

The Tribunal reject’s the claim by the appellant that he was unfairly dismissed and upholds the Rights Commissioner Recommendation (reference: r-141029-ud-13/DI).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

    (CHAIRMAN)