UD1320/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Liam Sherry                                                                                                   UD1320/2014

                                                -Claimant

against

Atlas Tyre & Autoservice Ltd T/A Autoservice

                                                -Respondent

Atlas Tyre & Autoservice Limited T/A Atlas Autoservice 

                                                -Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms F. Crawford B.L.

Members:       Mr. J. Horan

Mr. J. Dorney

heard this claim at Dublin on 28th October 2015

                                          and 6th January 2016

Representation:

Claimant: Mr. Neil Cosgrave, Cosgrave, Solicitors,

Market House, 15 Market Square, Navan, Co Meath

Respondent: ESA, Novum Building,

                     Clonshaugh Ind. Est., Dublin 17

Background:

Dismissal is in dispute in this case; the Tribunal heard evidence from the Claimant.

Claimant’s case:

The Tribunal heard evidence from the Claimant. The Claimant commenced work in the Respondent since 2006. He was promoted to manager in 2011. In his years of service he did not have any disciplinary matters against him.

The Respondent sells and fits tyres. Customers pay by credit card or cash. Regarding monies that were taken in the money was lodged into the bank on the following day or on Monday.

The Claimant explained that normally they were paid on Fridays. However sometimes the money did not go through into their accounts. If the wages did not go through the company would send an e-mail to say that they could take money out of lodgements or out of petty cash.

On one Friday his wages did not go through and he contacted the office to see what he could do. He needed money for petrol and also to pay for house gas.   He took €70.00 from the cash box. On Monday he phoned his assistant to instruct him to tell L or J that the lodgement would be short €70.00.   When he arrived back on Tuesday he repaid the money back by laser card.

He was then invited to an investigation meeting. He was “devastated” by this he felt that he was accused of theft; he felt that his credibility was gone.

During all the aforementioned and at the same time he had made a complaint against a superior (TM).   He was asked to drop his complaint by Ms C who was conducting the investigation meeting. He therefore had no confidence in the process/ company.

At the meeting in order to defend himself he asked for JS to be present, however he was told that she could not be there. At the end of the disciplinary process he was given a final written warning for gross misconduct. He appealed the final written warning. The appeal was unsuccessful.

Other staff also did what he had done and it seemed to him that he was the only one sanctioned.

Eventually he handed in a letter of resignation dated 03^rd April 2014, because he felt victimised and had no confidence in the company.

Hearing resumed on 06^th January 2016:

Respondent’s case:

The Tribunal heard evidence from AR who is a consultant with the Respondent’s advisors on HR matters. This witness heard the Claimant’s appeal of his final written warning.   JS who was the assistant financial manager also attended the meeting. The witness explained that she upheld the final written warning for the following reasons: that the Claimant committed the removal of €70.00 and he had in fact received his wages. This to her was gross misconduct. The Claimant was also in a position of responsibility as a manager. He was responsible for other employees. Then there is the matter of trust and confidence.   Also the Claimant was aware of the procedures.   The Claimant had received his wages and therefore there was no reason to remove the €70.00. The Claimant was not dismissed he was issued with a final written warning.

The Tribunal heard evidence from JS. She explained that she was in the Respondent company for a year. She was employed by another company and was placed in the Respondent company. She was an assistant financial manager and processed wages amongst other matters.  

She received a phone call from the Claimant who said his wages had not been lodged into his bank account. She told him that she had not heard of complaints from other employees. She told him that she would phone the bank and call him back. The bank told her that there was a problem between their bank and the Claimant’s bank. She phoned the Claimant back and asked him to wait until 5.00 pm and let her know what the situation was. She told him if there was a problem that they would “sort something out”.   The witness was asked to expand on “sort something out” she explained that she would have had to check the situation with the financial controller and another person, it was not in her remit to authorise removal of monies. She waited for the Claimant to revert to her and would then check with the relevant people. She was at the appeal meeting. At the appeal hearing the Claimant did say that she gave him authorisation to take cash. She said to him that if the money was not in his account by 5.00 pm to phone her.   She got an e-mail at 5.23 pm to say that he had received his wages.

In cross-examination she was asked if she gave the Claimant authorisation to take the money and she replied “No”. when asked if she was certain of this she replied “one hundred percent” and that she did not have the authority to authorise to do so.

The Tribunal heard evidence from ME who is the Chief Executive Officer. He commenced in the role in October 2013. He explained that he received an e-mail from LO’R, the accounts assistant that there was a concern about a lodgement. He discussed the matter with the financial controller and with their HR consultants. He commenced an investigation process.

He gave evidence as to the investigation and disciplinary process. The Claimant was issued with a final written warning which he appealed. His appeal was unsuccessful.   The Claimant went on sick leave due to stress.  

He had a meeting with the Claimant. He wanted to place the Claimant in a position that was less stressful. They met on 3^rd April 2014. He updated the Claimant on the situation in that another manager was on sick leave and to place him into a covering role for another manager. However the Claimant then gave him his letter of resignation and asked him to read it which he did. The Claimant asked him for his reaction and he told the Claimant that he was disappointed. The Claimant told him that he had been badly treated over the last few weeks.   He understood that the Claimant did not agree with the disciplinary process.   He told the Claimant that he was very sorry that he wanted to resign. He was disappointed, he had not long started in the business and the Claimant and others had experience.   The witness explained that there was no procedure for removing money from the company. The Claimant was never dismissed.

Determination:

The Tribunal unanimously determines that the Claimant failed to convince the Tribunal that he was constructively dismissed. At a meeting between the Claimant and the Respondent on or about 04^th April 2015 the Claimant did not give adequate consideration to the Respondent’s proposal for a less stressful alternative position. Rather, he produced a pre-prepared letter of resignation. He further failed to reply to an e-mail sent to him by the chief executive officer after he resigned. Furthermore, the Tribunal accepts the Respondent’s strong assertion that they were keen for the Claimant to continue in their employment.

The Claim under the Unfair Dismissals Acts, 1977 to 2007, is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)