EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Edward Flynn -appellant
UD370/2015
against the recommendation of the Rights Commissioner in the case of:
Burnside Hydracyl (Ballymoon) 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. J. Flannery
heard this appeal at Carlow on 26th November 2015
Representation:
Appellant: Ms. Kathleen Funchion, SIPTU, Liberty Hall, Dublin 1
Respondent: The Managing Director of the company
Background:
This claim came before the Tribunal by way of an employee (the appellant) appealing against the Rights Commissioner Recommendation reference: r-137842-ud-13/JT.
Evidence was heard from the appellant, the Managing Director, a director (JB) and the Human Resources (HR) Manager.
It was common case that a meeting was held on the 10th January 2013. The presence of a shop steward was offered to the appellant. It was the appellant’s evidence that he disputed the presence of the particular shop steward offered by management and he requested one of the other two shop stewards instead but this request was not granted. It was disputed by the witnesses for the company that the appellant made this request.
The appellant was informed at the meeting that he had falsified clock cards. It was his evidence that he was told that it was a criminal matter and that the only way for it to “go away” was if he resigned.
It was company’s case that it had come to light that the appellant had asked the Managing Director to sign off on his clock card for a full week’s work, week ending 4th January 2013. However, it transpired that the appellant left work early on Wednesday, 2nd January 2013 and did not work the Thursday and Friday. The appellant disputed in evidence that he had asked the Managing Director to sign the clock card for the Thursday and Friday but he fully acknowledged he did get Wednesday, 2nd January 2013 signed off as a full day. The Managing Director could not recollect in evidence if he had shown the clock card for week ending 4th January 2013 to the appellant or told him that the Thursday and Friday of that week were an issue.
There was a conflict of evidence between the parties as to whether JB or the HR Manager was present at this meeting. The appellant was certain it was JB but JB and the HR manager gave evidence disputing that fact.
The Managing Director stated in evidence that the appellant was told that a disciplinary investigation would follow into the alleged falsification of attendance records and the appellant was suspended for the remainder of the day but asked to attend at the premises again the following day.
It was the appellant’s evidence that he was not asked to return to work on 11th January 2013 as he was already dismissed from the previous day. However, he did attend on the 11th January 2013 of his own volition and in order to plead for a return to his position. He was directed to speak to JB who told him he could apply again in six months for a position. No actual meeting took place.
It was the evidence of the Managing Director that he conducted a meeting with the appellant on 11th January 2013. A break was taken during the meeting. It was the evidence of JB that during the break the appellant approached him and offered his resignation. A letter from the company dated 10th January 2013 was opened to the Tribunal. It stated that the appellant’s resignation was accepted and effective from 11th January 2013.
The determination of the Tribunal was as follows:-
There was a complete conflict in evidence between the parties in relation to a number of fundamental issues relating to this case. In the event it became clear that the central issue pertained to the completion of a time card by the appellant for the week ending the 4th January 2013. There was a considerable conflict of evidence around this card and the completion of same.
It was conceded by the appellant that he had not filled out the card correctly for Wednesday, 2nd January 2013 insofar as he had recorded that he worked until 5pm on that evening when in fact, he finished early at 3pm. He completely denied that it was he who had completed the card for the following Thursday and Friday as he acknowledged that he was not working either of these days. He was adamant that the issue of the Thursday and Friday was not a matter raised at the meeting of the 10th January 2013.
The Tribunal feels that this is an important issue. As the appellant appears to have believed that the only charge being faced by him at the meeting of the 10th January 2013 was that he had falsified the entry for the Wednesday then he was never given the opportunity to meet the full case against him.
The Tribunal has been obliged to consider the totality of what it heard and what was submitted by way of documentation. It is satisfied that the respondent had the benefit of expert advice before embarking on the investigatory / disciplinary process. Notwithstanding this fact the Tribunal finds the process undertaken was a shambles. There were a number of breaches of the appellant’s entitlement.
The Tribunal is satisfied that the appellant was not informed clearly of the purpose of the meeting of the 10th January 2013 nor was he given any adequate opportunity to make representations at that meeting. The Tribunal is further of the opinion that the decision to dismiss was reached without given him any opportunity to be heard or, indeed, to offer up mitigating circumstances. Indeed, the Tribunal accepts that the appellant sought to be heard on mitigation on the 11th January 2013 but he was not entertained.
While it was the evidence of the respondent that the appellant resigned from his employment on the 11th January 2013 it is quite clear that a letter acknowledging the receipt of his resignation is dated the previous day and that from the outset of the process, the stark options presented to the appellant, were resign or be dismissed. The Tribunal is satisfied that the appellant was denied fair procedure. The Tribunal is not convinced that the Claimant actually resigned in this instance
The Tribunal places far more weight on these procedural breaches in circumstances where professional advice had been sought and given to the respondent, and where professional support was clearly available if further clarification was required. The respondent however, appears to have chosen not to adhere to that advice nor to avail of further assistance.
The Tribunal is satisfied that the procedural breaches are such that the appellant had no opportunity to present his case, nor, indeed, to plead for mitigation on sanction. The Tribunal is not satisfied that the appellant understood the extent of what he had been accused of. Indeed, it appears to have been accepted by the respondent in evidence that the disputed time card was not even put before the appellant at the meeting of the 10th January 2013 to invite comment.
On the balance of the evidence and given the procedural breaches the Tribunal is of the opinion that an unfair dismissal occurred on this occasion and awards the appellant the sum of €5,000 under the Acts, thus upsetting the Rights Commissioner Recommendation (reference: r-137842-ud-13/JT).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)