EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1100/2014
MN549/2014
CLAIM OF:
Tom Davern
against
MD HR Limited
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: Ms. K.T. O'Mahony BL
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this case in Cork on 19 November 2015 and 2 March 2016
Representation:
_______________
Claimant: Mr Aaron Shearer BL instructed by Coric House, Tallaght, Dublin 24
Respondent: Mr John Connellan, Carley & Connellan, Solicitors, 10 Anglesea Street, Dublin 2
The determination of the Tribunal was as follows:-
The claimant was dismissed for unauthorised absences from work while he remained clocked in for work.
Summary of Evidence
The respondent owns and runs a logistics and distribution company and employed around 20 drivers. The claimant commenced employment with the previous owner of the business in 2000 and his employment transferred to the respondent in the summer of 2004. A letter of appointment containing his terms and conditions of employment was signed by him and his line manager in July 2007. At that time he was employed as a supervisor/general operative and he was later promoted to the position of night shift supervisor. The respondent operates a twenty-four hour, three-shift cycle. The depot is busiest at night. Some twelve employees work on the night shift, from 23.00 to 08.00. The claimant was a trusted and respected employee and won an employee award in 2009. He generally worked Monday nights to Friday nights and on occasion on Sunday night when needed. The claimant’s duties inter alia included route planning, rostering, dealing with the unloading and loading of vehicles, attending to paperwork and monitoring vehicle movements.
On 14 March 2014 when one of the directors who is also the manager (the director) visited the depot he noticed that the claimant was not on site. The director’s position was that when he raised this absence with the claimant the following day, the claimant assured him that his absence had been a once off incident and accepting this assurance the director told the claimant that a line would be drawn under it. The claimant disputed that the issue as to whether his absence on
However, on asking a few questions on the floor and viewing the CCTV footage the director discovered that the claimant had been absent on other occasions while remaining clocked in. Following discussions with the other directors, the director suspended the claimant on pay on 27 March 2014 pending further investigation including reviewing the CCTT footage.
The claimant was called to a meeting with the Director on 7 April 2014 and a note taker was also present. The director had the CCTV footage and clocking records with him and wanted to discuss the findings of the investigation and seek the reasons for the claimant’s absences. At the commencement of the meeting the claimant was asked if he would like to have someone with him but he told them to “work away”. While there had been eleven unauthorised absences in the previous three months, the respondent was relying on four absences, varying in duration from over two to over five hours. The clocking cards confirmed that the claimant had remained clocked in for work during these absences. On seeing a number of the footage clips the claimant admitted the absences and explained that he had gone home to look after his children. The director outlined to him the seriousness of leaving staff unsupervised, in particular given that he was in charge of the night shift. The claimant maintained that he took some work home and only went home when it was quiet. The meeting was adjourned. Following this meeting the director discussed the matter with Managing Director (MD), the Financial Director, and the Operations Director in Dublin and they took the collective decision to dismiss the claimant.
The company had accommodated the claimant’s request for a variation in his hours for family reasons but this flexibility was in relation to his start and finish hours and did not relate to going absent in the middle of the shift, which was the subject matter of the disciplinary process.
A final meeting was held on 9 April 2014 and the respondent’s decision to dismiss him with immediate effect was communicated to the claimant. The letter of dismissal dated 9 April 2014, which was received by the claimant on 15 April 2014, stated:
“The seriousness of these confirmed unauthorised instances and the senior position you hold as Night Time Supervisor, results in the company considering these incidents to be matters of Gross Misconduct under the terms of your employment with the company and therefore you leave us with no other option but to immediately and fully terminate your employment with the company as of the 9th April 2014.”
The letter of dismissal made no mention of the right to appeal.
The claimant told the Tribunal that he was happy and secure in the employment and did his job well. He had an arrangement with his immediate superior and a distribution manager that once he had the first and major part of his shift work completed, he could leave the premises for a break. He felt that this had been accepted by the director during the investigatory/disciplinary process. During the breaks he did some work at home and would be on the phone to the drivers and men in depot. He always tried to come in early and sometimes would come in by day. He put his life’s blood into the company, was always on call and often took work home with him. On his shift, he started the paperwork immediately he went in and generally had it completed by 2.00am. He often brought work home. He had gone home frequently over the four or five years and there was no problem as the work was done. He did not sneak in and out and was aware of the CCTV cameras on the premises. He had heard that the respondent wanted cut backs and he would be let go. From the start of the procedure the claimant felt he was “being stitched up”. He was not aware of that he could appeal his dismissal.
Determination
The company case was that the claimant’s absences were not authorised. From the claimant’s evidence to the Tribunal, it is clear that he had informed the respondent during the disciplinary process that two of his superiors had told him he could leave for break. This was not challenged before the Tribunal by the respondent. The Tribunal accepts on the balance of probability that the claimant understood that there was some leeway for absenting himself from the workplace. The evidence was that the claimant’s work was always done. In the respondent’s policy unauthorised absence is classified as misconduct and not as gross misconduct which justifies summary dismissal. For these reasons the Tribunal finds that in the circumstances dismissal was a disproportionate sanction and unfair. This is not to condone the practice engaged in by the claimant.
The respondent failed to adhere to its procedures in several respects. The Tribunal will only refer to the more serious breaches of procedure. Its investigation was incomplete. At the very least the claimant’s assertion that his absences had been authorised by his superiors required investigation. The issue as to whether the claimant’s work had been completed was not examined during the investigation. The respondent did not inform the claimant at any stage throughout the process that his job was in jeopardy. The claimant’s position was that had he had been informed that his job was in jeopardy he would or might have sought representation for the meetings, in particular the meeting of 7 April 2014. The offer made to the claimant at the commencement of the meeting to have representative with him it is not a defence to this fatal flaw in the procedures.
There is no doubt that the claimant was liberal in taking extended breaks during his shift. In light of this and particularly in light of his position of responsibility in the company the Tribunal is satisfied that the claimant contributed to his dismissal.
The claim under the Unfair Dismissals Acts, 1997 to 2007 succeeds and the Tribunal awards the claimant €14,000.00 as compensation under those Acts.
The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is allowed and the claimant is awarded €3,900.00 as compensation in lieu of notice under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN