EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Nuala Burke – claimant UD1227/2014
against
Superior Express Limited – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O’Carroll-Kelly BL
Members: Mr C. McHugh
Ms M. Mulcahy
heard this claim at Dublin on 29th October and 22nd December 2015
Representation
Claimant: Mr David Quinn BL instructed by Mr John Nelson of
Nelson & Co Solicitors, Templeogue Village, Templeogue, Dublin 6W
Respondent: Mr Stephen O’Sullivan BL instructed by Mr Enda Moran of
Enda P. Moran Solicitors, Main Street, Celbridge, Co. Kildare
The determination of the Tribunal is as follows:
The fact of dismissal was not in dispute.
Background
The respondent is a transport and courier service provider. The respondent has two computer systems that are not connected to each other. The transport system is used to record work contracted for and the resulting deliveries made. The accounting system is used to record and monitor the respondent’s financial transactions. A small proportion of the respondent’s business is COD.
The COD procedure was outlined for the Tribunal. When a retailer wants a COD done it emails the respondent. The job is entered on the transport system and the job is dispatched. When the goods are delivered the base controller closes it on the transport system.
Later that day or the next day the driver comes to reception with the money, typically €18.50. The amount is marked paid on the transport system. The money is put into an envelope and the driver’s work number, the date and the amount are written on the outside. Several days’ worth of payments could be put into a single envelope. It was the claimant’s responsibility to take payments from drivers and put them in an envelope. If a job remains marked unpaid on the transport system the amount is deducted from the driver’s pay. When an envelope comes to the credit controller she enters the details on the accounting system and lodges the money.
At that time the transport system was not checked against the accounting system for discrepancies. A number of drivers complained that their pay had been incorrectly deducted for money that they had paid to the claimant. When the credit controller investigated she found a number of instances where jobs were marked paid on the transport system but no corresponding envelopes arrived to her, and as a result jobs were marked paid on the transport system but remained marked unpaid on the accounting system.
Determination
The claimant commenced employment with the respondent company on the 7th February 2000. Up until January/February 2014 there was no issue with her employment. She was described as an excellent trustworthy employee. In late 2013 early 2014 an issue arose in relation to the logging in of jobs on the transport system. Essentially what it amounts to is, money went missing. The Tribunal’s role is not to assess the guilt or innocence of the claimant. The Tribunal’s role is to assess the fairness of the dismissal.
The claimant was singled out as the person responsible for the misappropriation of monies. An investigation of sorts was embarked upon. Statements were taken however these statements could not and were not given to the claimant as they were taken after her dismissal. The MD took notes from interviews which he kept in his diary. They were not given to the claimant. The letter dated 31 March 2014 lacks specific allegations against the claimant. The meeting letter dated 9 April 2014 suggests a predetermined conclusion concerning the missing money “The time frame allowed between meetings should give you the opportunity to provide evidence as to the whereabouts of the missing CODs”.
No forensic IT analysis was done to determine who manipulated/altered the data input/output. The notes of the meeting did not accurately reflect even the MD’s evidence of what was said. The claimant was not given a copy of the meeting notes to agree. Until this Hearing she didn’t have sight of them. She was not given the right of appeal.
It is for the reasons set out above that the Tribunal finds that the claimant was unfairly dismissed. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.
The claimant has a legal obligation to mitigate her loss. The onus on the claimant in this regard is a high one. Evidence was introduced in relation to jobs the claimant applied for. The job applications made were confined to between January 2015 and June 2015. Over a 1 year and 7 month period the Tribunal would expect to see more applications spread out over that time period.
The Tribunal awards the claimant the sum of €20,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)