EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jonathan Hanlon UD1378/2014
against
Smurfit Kappa Ireland Limited
t/a Smurfit Kappa Dublinunder
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L
.Members: Mr W. Power
Mr F. Keoghan
heard this claim at Dublin on 4th December 2015, 2nd February 2016 and 3rd February 2016
Representation:
Claimant: Mr Vernon Hegarty, SIPTU, 8th Floor, Liberty Hall, Dublin 1
Respondent: Ms Lorna Lynch B L instructed by
Mr K Johnston, MacCarthy Johnston, Solicitors, 37 Fitzwilliam Place, Dublin 2
The respondent which is part of a multinational group operates a paper based manufacturing plant. The claimant was employed there as a general operative from 25 May 2007 until his dismissal on 30 May 2014.The claimant had been allowed time off to attend for jury service from 3 February 2014 for a number of days. The arrangement in respect of such leave was that if the claimant was not required for jury service or finished early on any given day he was to return to work. However, although the claimant was not required to sit on a jury for any of those days he failed to attend work on some of them.
An investigation into his unauthorised absence was held and this issue was then referred onwards for possible disciplinary action. That resulted in the dismissal of the claimant. This decision was subsequently up held on appeal.
Respondent’s case:
The health and safety manager for the respondent carried out an investigation into the claimant’s unauthorised absence. This witness reviewed a time management system on a weekly basis. It was brought to his attention that it was unusual that someone would be required to serve as a juror on each day he was required to be available. Therefore this manager sought clarification from the court service as to whether the claimant actually served as a juror as opposed to being available on each of those days in early February 2014. The court service informed the witness that the claimant attended for service from Monday to Thursday but was not selected as a juror on any of those days. They also advised that the claimant was discharged on Thursday and was not required to attend at all on Friday.
This information did not correspond with the information recorded on the time system record. The claimant had been recorded as attending work for part of his shift on Monday and Tuesday and having phoned in to say he was delayed in court and could not attend on Wednesday. There was no record of him attending work or contacting the respondent on Thursday or Friday. As part of his investigation this witness met and took statements from the claimant’s supervisor and the person who entered the information onto the system. Both of these individual told the witness that the claimant clearly told them both at the same time that he had served as a juror and that was why he did not attend work. It was this manager’s evidence that the claimant changed his story a number of times in the course of the investigation. Having completed his investigation he referred the matter onwards for consideration under the disciplinary process and had no further involvement in the matter.
A shift supervisor who worked on the day shift (07.30 to 16.00) week commencing 3 February 2014 had been told that the claimant who was rostered for that shift was due to report for jury service that week. Since potential jury duty took precedence over work that meant the claimant would be more absent than present that week. On Monday and Tuesday of that week the claimant phoned him stating that since his services were not required those days he would report for duty later those days. He acted on his word and later arrived for work. The scenario was somewhat different on Wednesday in that the claimant phoned to say there had been a delay in court proceedings that day and that he would be late in returning to work. This supervisor told him not to bother coming in that day thus excusing him from work.
There was no communication between the claimant and this witness on either Thursday or Friday of that week. On Monday 10 February this supervisor was on a shift from 16.00 to 23.59. Just prior to finishing that night he met with and had a “short relaxed conversation” with the claimant about his absences on those two days. In apologising for his lack of contact the claimant offered an explanation for his non-attendance at work. Based on that explanation this witness allowed payment to be processed for the claimant for those days. According to the witness this brief exchange was spoken in the presence and earshot of another supervisor.
As part of an investigation into the claimant’s account of those days this supervisor made a written statement on 20 March 2014.
The incoming shift supervisor confirmed to the Tribunal that he overheard the verbal interaction between the claimant and the previous witness on the night on 10 February. Since the claimant’s version was accepted this witness inputted an approved reason for his absence. He also submitted a similarly worded statement as the previous witness again dated 20 March as part of an ongoing investigation. This supervisor insisted that he neither misheard nor misunderstood the claimant’s words and denied acting in any collusive way with his colleague.
An agreement labelled the terms and conditions of employment was in place between the respondent and its hourly paid staff which included among others the claimant. That agreement included references to jury service and disciplinary procedure.
On foot of receiving an investigation report the general manager wrote to the claimant who was under suspension at the time inviting him to a disciplinary hearing. That lengthy letter concluded by asking the recipient to note that a possible sanction against him could include dismissal. That hearing took place on 27 May and three days later he relayed his decision via a detailed letter to the claimant. The general manager told the Tribunal that he looked for mitigating circumstances in this case. That included a previous incident when the claimant notified the respondent of an overpayment to him and subsequent arrangements were made to repay that money.
However, having considered those factors and the totality of the case and deciding what in any sanction to impose this manager opted for dismissal. He justified this on the grounds that claimant had been untruthful and evasive initially and throughout the investigative process about his absences on 6/7 February. This misconduct was so serious that in the opinion of the decision maker the claimant’s behaviour in this case led the respondent to conclude that irreparable damage had occurred in its trust and confidence in the claimant as an employee.
This witness accepted that the jury summons to the claimant was somewhat unclear and had the potential to cause confusion. He added that had the claimant said something different to his supervisor on 10 February then that is “a different story”.
A human resource manager held the claimant’s appeal on 23 June 2014 and wrote to him on 16 July where she formally confirmed the upholding of the respondent’s decision. She dismissed imposing a lesser sanction and in echoing the general manager stated that the claimant had fundamentally breached the necessary trust it had in the claimant as an employee. She based that judgement on the claimant’s inability and unwillingness to be forthcoming and truthful about those disputed absences. His offence lay not in those absences but rather in his continued and misleading version of the reasons for that two day absence for which he got paid for.
Claimant’s Case
The claimant commenced employment with respondent in May2007 and worked as a general operative in its despatch department. He received a letter from the criminal courts of justice summonsing him to attend those courts on Monday 03 February 2014 and thereafter from day to day at times directed by the Court. The claimant said he took this to mean that he had to attend all that week up to Friday 7 February. However, he neither sought nor was given further information or clarification on that summons. The claimant informed the respondent of this summons prior to attending on 3 February. He was rostered to work the day shift that week and advised of the jury duty section in his terms and conditions of employment. Part of that clause read as follows Payment will be made for the actual time required by the Court. If an employee on reporting for jury duty is not required on a particular day or part of a day, he then must return to work immediately.
The claimant described as rubbish the contention by a supervisor that he mislead him about his absences on 6/7 February. In apologising for not contacting him on those days the claimant offered an explanation for that oversight. This conversation between them on 10 February was conducted in the supervisor’s office and neither another supervisor nor others were permanently present there despite constant callers at that office. It was possible he was clumsy and inaccurate in his explanation and that the supervisor could have misunderstood his comments. The claimant was unable to give a reason to the Tribunal for neglecting to contact the respondent for those two days and accepted it was his mistake for not doing so.
Almost up to the time of his suspension on 24 March the claimant was unaware he was under investigation relating to those absences. Throughout that process and the subsequent disciplinary and appeal process he maintained he neither lied nor was evasive to the respondent about those disputed absences. It certainly was not his intention to defraud or financially gain from those absences and offered to repay all unearned money. The claimant cited his previous experience and behaviour regarding an overpayment from the respondent. He added that apart about another unrelated and contested matter he had an unblemished employment record with the company.
Determination
It is not the Tribunal’s function in this case to determine who said what to whom but rather to determine whether the respondent’s decision to dismiss the claimant was not unfair and that the respondent acted reasonably in the circumstances and in accordance with the legislation. The Tribunal’s unanimous decision is that the sanction imposed on the claimant was misplaced, harsh and disproportionate. According to its agreement with the workforce unauthorised absences can be dealt with in several ways. The Tribunal, in recognising this was not the main reason for the respondent’s decision, nevertheless, notes that it chose its most severe sanction.
It was not necessarily reasonable for the respondent to accept the version promoted by some of its supervisors over that of the muddled version of the claimant. It follows therefore that its decision to dismiss was unreasonable. Unlike the respondent the Tribunal gives the claimant due credit and mitigation to his openness and honesty regarding an earlier scenario involving an over payment.
The Tribunal is mindful that the empanelling of potential jurors for trials in the Circuit Criminal Courts can be a daunting experience especially for members of the public who are undergoing this process for the first time and that orders from the court as to whether members should remain in the precincts of the courts for further possible empanelling or where a jury is absent while legal argument is taking place are required to remain outside the court, where they may be ask to return after legal argument has concluded, can be confusing. This is all the more confusing where a high profile trial is taking place as appears to have occurred in this case.
The respondent was as consistent in its belief that the claimant was untruthful in his account as much as the claimant was consistent in his contention that he did not knowingly and deliberately mislead the company in gaining from his unexplained absences. The claimant’s behaviour in effectively absenting himself without permission contributed to the respondent belief he acted contrary to agreed procedures. That belief was reinforced due to his attempts at explaining those absences. Had the claimant been clearer in his explanations and the respondent less certain of its position then a more amicable conclusion might have been reached.
Having heard and considered the adduced evidence and supporting documentation the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €17,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)