EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Damian Szatkowski UD95/2014
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Tesco Ireland Limited
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. O. Madden BL
Members: Ms. A. Gaule
Mr. J. Flannery
heard this appeal at Dublin on 5th October 2015 and 30th November 2015
Representation:
Appellant: Amanda Kane, Mandate Trade Union, O’Lehane House, 9 Cavendish Row,
Dublin 1
Respondent: Paul Rochford, IBEC, Confederation House, 84-86 Lower Baggot Street,
Dublin 2
Background:
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-135963-ud-13/RG.
An independent translator was provided by the Tribunal for the hearing.
The appellant was employed as a Customer Assistant in the respondent’s retail outlet located in Newbridge from the 13th June 2007 until his employment was terminated on the 19th November 2012.
On the 14th September 2012 a Security Officer observed a car entering the respondent’s car park, an occupant (whom the Security Officer knew previously) got out of the car, entered the store, approached the appellant and handed him a small package. The Security Officer believed this package to contain a controlled substance. The Duty Manager was informed and the CCTV footage was observed by the Security Guard and two managers. A decision was made to inform An Garda Síochána. Having viewed the CCTV footage the Gardaí decided to search the appellant and seized a quantity of cannabis. The appellant was instructed to leave the premises and he was informed that an investigation into the matter would take place by management. The appellant was suspended with pay pending an investigation.
Investigation and disciplinary meetings were held on the 18th September and the 25th October 2012 respectively. The appellant had union representation present. On the 25th October 2012 a decision was made to dismiss the appellant, he was given a right to appeal. Having attended the appeal hearing, the decision to dismiss was upheld.
The respondent contends the appellant was dismissed for a serious breach of the company’s policy on drugs / substance abuse.
The appellant contends the Gardaí found tobacco in his possession and the case was not pursued. The respondent did not carry out a full and fair investigation and he was not given a copy of the company’s drug / substance abuse policy. It was the appellant’s case that the company had no reason to dismiss him as he was not guilty of possessing any alleged drugs.
Respondent’s Case:
CCTV footage was viewed by the Tribunal in regard to this matter.
The Deputy Store Manager from Newbridge who was appointed as Investigation Officer and the Store Manager who held the disciplinary meetings gave evidence on the first day of the hearing. Both witnesses stated they had held full and fair investigations and meetings and the decision to dismiss was fair.
The manager of another of the respondent’s stores gave evidence that he was appointed to conduct the appeal hearing having had previous experience of conducting appeals.
The appeal was held on the 8th January 2013. The notes of this meeting were opened to the Tribunal. In his role as Appeals Officer he viewed the CCTV footage and had access to the entire file on the matter including statements. He did not meet with any of the witnesses as the file contained notes of the cross-examination of those witnesses by the claimant’s representative.
At the appeal hearing the claimant admitted that he was handed a substance by the individual but he said it was tobacco. The Security Guard in his statement had said that the Gardaí told him it was an illegal substance. The Appeals Officer listened to the grounds of appeal put forward by the claimant and took everything into account afterwards in order to be both fair and impartial. However, nothing was put before him at the appeal that convinced him to alter the decision to dismiss the claimant.
The Appeals Officer did not contact the Gardaí as he knew they would not divulge information about the claimant to him. He did however offer the claimant the opportunity to contact the Gardaí after the appeal hearing to confirm that there was no illegal substance found on the claimant’s person. The witness heard nothing further. He sought an update from the claimant’s representative on this matter before issuing the letter with the outcome of the appeal. The claimant’s representative told him that individuals other than the claimant were seeking this confirmation from theGardaí. The claimant was informed of the outcome of the appeal by letter dated 6th May 2013 but this letter also provided the claimant with an opportunity to provide the information from the Gardaí within two months of the appeal in which case the witness would meet once again with the claimant. The Appeals Officer added that if this confirmation was forthcoming he would not have hesitated to reinstate an employee. It was also his opinion that if the claimant was being falsely accused he would have immediately contacted the Gardaí to get verification on the matter.
During cross-examination it was put to the witness that a number of matters were raised during the appeal that were not answered including the fact that there were little or no questions asked of the claimant by the company during the investigation and disciplinary procedure. The witness confirmed that he had not responded to that question in his letter but added that he was confident that he had all of the information that was needed to conduct the appeal. He acknowledged that he did not ask the claimant a lot of questions during the appeal hearing but he did question him as to what he had in his possession on the 14th September 2012.
It was also put to the witness that the trade union had written to him in February 2013 stating that the Gardaí had confirmed there was no file on the claimant. The witness said this correspondence was not helpful to him and he was not satisfied with the information provided.
The national Employee Relations Manager for the respondent company gave evidence regarding the claimant’s contract of employment and the respondent’s alcohol and drug policy contained within the employee handbook which had issued to the claimant.
The Employee Relations Manager also performed the role of note-taker at the cross-examination meetings of the witnesses by the claimant’s representative. It was her evidence that after viewing the CCTV footage she was alone in the office with the claimant’s representative who said to her “come on .. it’s only a lump of hash.” This matter was not raised at the Rights Commissioner hearing as the Employee Relations Manager was not present at that hearing. She did not raise the matter internally.
Claimant’s case:
The claimant’s representative refuted the Employee Relations Manager’s evidence stating that she had made no such remarks on or off the record. It was her evidence that she departed the security office with the claimant and a shop steward. The shop steward in question gave evidence confirming they had left the security office together.
It was the claimant’s evidence that on the night in question a friend came in to the store and they simply shook hands but that no substance of any kind passed between them. When An Garda Síochána arrived at the store they searched the claimant’s person in the off license section of the store. The Gardaí retrieved a packet of tobacco from the claimant’s pocket. It was the claimant’s evidence that he had this loose tobacco on his person when attending for work that day.
At the investigation meeting the claimant felt that questions were not put to him and he felt ignored at that meeting. When asked he confirmed that he had tobacco on his person on the night in question. He recalled very few questions being asked of him in the meeting and the company appeared disinterested in what he had to say.
It was the claimant’s evidence that he has since attended at the Garda station and was told that no illegal substance was found on his person and that he was not under suspicion. He did not ask for written confirmation that the substance found on him was tobacco, as he did not know he should have sought this in writing as he did not read or understand the letter informing him of the outcome of the appeal.
The claimant also refuted that he had received the company’s drug and alcohol policy and complained that he was not proficient enough in the English language to have read it in any event.
During cross-examination it was put to the claimant that three witness statements were taken from individuals present in the store to the effect that the Gardaí had informed them that an illegal substance was found on the claimant’s person and that the claimant had admitted to it being cannabis. The claimant refuted this as untrue. He stated that the individuals had written their statements together.
It was put to the claimant that during the process he had admitted to being handed tobacco but that his evidence to the Tribunal was that he was not handed anything by the individual who came into the store. The claimant said that during the process his answers did not exactly meet the questions asked due to his lack of understanding of the English language. During the process he was referring to the tobacco which was taken from his pocket by the Gardaí. The claimant regretted not having a translator present during the investigation and disciplinary process. It could clearly be seen on the CCTV footage that he and his friends shook hands and that no object was handed passed between them.
The claimant gave evidence of financial loss, his efforts to mitigate that loss and he was cross-examined this issue.
Determination:
On balance, the Tribunal do not think the company fully informed themselves of what the package might have contained.
The Tribunal are of the view that there were flaws in the company’s procedures that rendered the dismissal of the claimant unfair.
However, the Tribunal are also satisfied that the claimant contributed significantly to his dismissal insofar as there were numerous inconsistencies in his evidence throughout the investigation and disciplinary process and in light of the fact that the Appeals Officer offered a protracted length of time to satisfy the respondent that the substance was not illegal. The claimant’s efforts to clarify this were unsatisfactory.
Finally, the Tribunal are not satisfied that sufficient evidence was adduced in relation to financial loss since the termination of the claimant’s employment.
The Tribunal upsets the Rights Commissioner Decision (reference: r-135963-ud-13/RG) in finding that an unfair dismissal occurred. The Tribunal awards the claimant compensation of €6,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)