EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Michael Corrigan UD1730/2013
- claimant MN792/2013
Against
Connolly Finance & Leasing Limited
T/A Paddy Connolly 4x4
- respondent
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 C. Egan B L
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Castlebar on 14 May 2015 and 15 July 2015
Representation:
Claimant: Mr Gary Mulchrone, Gilvarry & Associates, Solicitors, Unit 9,
N5 Business Retail Park, Moneen Road, Castlebar, Co Mayo
Respondent: John J Gordon & Co, Solicitors, John St Ballina, Co Mayo
Respondent’s Case:
The respondent owns garages in the west of Ireland and in Wicklow. The garage located in the west of Ireland carried out the servicing and roadworthiness testing of light commercial vehicles and it was here that the claimant worked as a vehicle test centre manager. Bookings were recorded in a diary located at the reception desk. Vouchers are not accepted in lieu of payment for the testing of vehicles. The claimant dealt with the RSA during his tenure. SL, a former employee who worked at the front of house gave evidence.
SL’s role entailed booking in vehicles for servicing. The respondent employed four testers. One full time and two part time employees worked in the administration area.
The claimant worked Tuesday to Saturday and worked alone in the evenings between 5.30pm and 9pm on Thursday and Friday.
When the claimant tested a vehicle he completed all the paperwork with the result either Pass/Fail. A handwritten certificate was completed with a carbon copy held in booklet form in the business. In the evenings the claimant would issue the invoices and payment was placed in a drawer until the following morning for the attention of the office manager.
In July 2013 one of the testers noticed that extra vehicles were in for servicing but had not been booked in the diary. The witness, when alerted thought this was unusual and reported the matter to the owner PC, who in turn asked the witness to carry out enquiries as he (the witness) was most familiar with the invoicing system. Reports were generated for all testers in the period 1 January 2013 to 30 September 2013. It took the witness approximately six weeks to carry out his enquiries. He found that thirty six vehicles had been tested and certificates issued without invoices being generated. Each test cost €70, which resulted in a loss to the garage of a sum in the region of €2,520.00.
A meeting was convened on the 27 September 2013. PC advised the claimant that it was a disciplinary meeting and the witness, PC and JP and the claimant were present. The claimant had no prior notification of this disciplinary meeting. When challenged about the discrepancies the claimant initially said that he was “doing favours for some friends” and he offered to repay the money. When presented with a number of test reports he said he could not remember. After twenty minutes or so, the claimant was asked to leave the meeting and “think about things”. When he returned to the meeting, he came across as embarrassed and could not offer any explanation. PC dismissed him that day for serious misconduct. The claimant was asked to return his keys and phone.
The claimant has not been replaced in his role. Shortly after that, the witness was made redundant and one tester left the employment in October 2014. One tester and one mechanic remain working in the garage with two other employees still working in the business.
Office manager (JP) was involved in the investigation which led to the claimant’s dismissal. Her investigation involved attempting to match invoices and payments with test certificates. She consulted the respondent’s solicitor as instructed by PC. Her investigation identified discrepancies occurring on the late shift. Her conclusion was that there was money missing for certificates issued and she had proof that the claimant was the only employee involved. JP attended the meeting held with the claimant on the 27 September 2013. She recalled the claimant being offered the option of having someone attend with him due to the serious nature of the matter. At the meeting when the discrepancies were put to the claimant JP stated that he said “do you want me to hold my hands up and give back the money”. She stated that he made no effort to offer any explanation and that he quickly looked at the documentation presented to him at the meeting and said “I don’t know what to say”. PC pressed the claimant for an explanation and the claimant suggested that the money be deducted from his wages. PC informed the claimant that the Gardaí were notified and that he had no option other than to ask him to leave the premises. JP did not agree that the duration of the meeting was an hour stating that the meeting continued throughout the morning of the 27 September. The witness denied that the invoices were in any way confused with the Wicklow branch of the respondent’s business.
PC, director of the respondent company was based mainly at the Wicklow site dealing with sales as he was not a mechanic. JP and SL were in charge at the Ballina site. JP telephoned him about discrepancies found with the numbers of test certificates, invoices and payments. He advised JP to recheck the documentation and with SL to carry out a full investigation. The investigation took six to eight weeks and PC was updated regularly during that time. Based on that investigation, he concluded that the claimant was testing vehicles and issuing certificates without invoicing customers and withholding payments. He stated that vouchers were not accepted for DOE testing. PC hoped the claimant would be in a position to explain the discrepancies at the meeting on the 27 September. On arrival in Ballina he asked the claimant to a meeting along with JP and SL. He informed the claimant that the meeting was a disciplinary meeting. He stated that the claimant refused the offer of having someone attend with him. PC put the allegations to the claimant and sought an explanation. The claimant in response said “do you want me to hold my hands up and pay money back”. The claimant also made a reference to “doing favours for friends”. PC left the meeting for a time and on his return again asked for an explanation. The claimant said he could not remember. PC submitted that the meeting went on for hours making no progress. The claimant offered nothing by way of explanation. PC was shocked at the revelations as he described the workplace as a very close knit unit where the employees were close friends and all socialised together. Finally, the witness concluded that the trust was broken and he had no alternative but to dismiss the claimant. He requested that the claimant return a telephone and keys which he returned prior to leaving that day.
PC gave evidence of preparing the dismissal letter while taking a break during the morning of the 27 September and denied having a prepared letter before the meeting commenced. The dismissal letter was handed to the claimant at the meeting. PC denied telling the claimant to return to work while he considered the matter. The witness submitted that he offered the claimant a break of up to thirty minutes during the morning of the meeting. PC also denied walking the claimant off the premises.
Claimant’s Case
The claimant worked for the respondent since April 2011 as a qualified mechanic and vehicle tester. He described having an “up and down relationship” with the respondent director. From time to time there were threats of being let go due to the reduced workload. In May 2012 his work was reduced to three days per week for three months but later returned to four days working twelve hour days. In his role as test centre manager he stated that other employees did not like taking direction from him, causing some friction initially. In late 2013 PC was rarely at the Ballina site. On one occasion an RSA inspection identified a problem with testing equipment and the respondent was given twenty one days to address the problem.
The claimant had no knowledge of being under investigation until on the 27 September when PC came to him asking him to meet before he went on holidays. The meeting commenced around 11am with JP and SL also present. PC informed him that it was a disciplinary meeting. SL handed him a folder and PC said there are tests which have not been paid for.
The claimant’s evidence was that he was not offered any representation. Had he been offered he stated that he would have contacted his brother who worked nearby. He examined the documentation presented to him but as he tested fifty vehicles per week he could not recall individual tests and customers. At the meeting he said if he had made a mistake he would pay for it or go back to customers. He offered to pay as he did not want to lose his job. He felt under more and more pressure as he was asked to explain over and over. PC, SL and JP questioned him and he was threatened that the Gardaí would be investigating. The claimant believes the meeting lasted one and a half hours as he left at 12.30pm. He was asked to leave the room at one point so they could talk about what to do next. He returned to work and fifteen minutes later was invited back to the meeting room. He returned keys and a SIM card as he was the owner of the telephone. PC followed him to the area where he collected his personal belongings and handed him his letter of dismissal.
The claimant was contacted by Gardaí in May 2015. However, he was never arrested or charged with any offence. The claimant denied taking any money and submitted that no fair investigation involving the checking of CCTV footage was carried out by the respondent. The claimant had accepted vouchers distributed by the respondent as payment for testing vehicles. He denied saying that he had done favours for friends at the disciplinary meeting. The claimant accepted that he probably did forget to process some invoices and submitted that some customers had accounts and did not pay for individual tests.
Majority Decision
The Tribunal carefully considered the evidence adduced by both parties over the course of two hearings. The Tribunal, by majority decision with Ms Catherine Egan B.L. dissenting, finds that the dismissal was procedurally unfair.
Dissenting Opinion
The claimant was an employee in a position of trust in the respondent company. He was dismissed summarily for serious misconduct. Usually an act of misconduct itself justifies summary dismissal and the only question is whether the misconduct has been established to the reasonable satisfaction of the employer. The question is how a reasonable employer in that line of business, having regard to all the circumstances would have behaved. In that regard the definitive case of Hennessy v Read & Write Shop Limited reference UD192/1978, a case of dismissal for “conduct” which applies “the test of reasonableness” to:
- The nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant, and
- The employer’s conclusion following such enquiry that the claimant should be dismissed.
In the present case the respondent carried out a very detailed investigation, over a six to eight week period of time, which established the factual situation. At the disciplinary meeting on the 27 September 2013 the claimant was presented with thirty six vehicle reports proving that he had issued certificates for which no invoices had been generated, thus depriving the respondent of test fees for DOE tests carried out by him. The claimant offered no explanation for this discrepancy. When pressed further, he suggested that the money be deducted from his wages. In his direct evidence he offered “to pay back” as he “did not want to lose his job”.
In the Circuit Court case of Heston v Dunnes Stores Limited (1990) ELR12, which upheld an Employment Appeals decision, where it was shown that if an employee cannot offer a reasonable explanation, there must be a justifiable dismissal. Clarke J. stated “the issue was not whether or not she stole the ham, but whether it was reasonable or not to dismiss her having regard to her conduct”.
Furthermore, an employee does not have a legal right to remain silent in disciplinary proceedings, unlike a person charged with a criminal offence. As an employee he is obliged to cooperate as set out in the High Court case of Farrell v The Minister for Defence HC (10 July, 1984, unreported). In this case Murphy J. found that “to refuse any explanation either at the time when the incident occurred or subsequently… would in my view justify the employer or any third party in drawing the inference that the plaintiff had been involved in an attempted larceny of his property and accordingly was not trustworthy”.
In the present case the conclusion reached by the respondent from the facts elicited by its investigation, that the claimant had acted dishonestly was one which a reasonable employer considering the evidence could have reached.
The respondent’s decision to dismiss the claimant on the basis of his reasonably held belief in the claimant’s culpability was a decision which a reasonable employer in the circumstances could have reached.
In addressing the matter of disciplinary procedures, and their adequacy or otherwise, I note that findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice. However, procedural defects will not make a dismissal automatically unfair. The legitimacy of the process adopted by an employer may be subordinate to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee. The correctness of this proposition was tested in Meath County Council v Creighton UD11/1977and was endorsed by the Circuit Court in Elstone v CIE (13 March 1987, unreported) cc.
“The mere fact of some failing in due or agreed procedures is not a fixed and decisive matter for the court or on appeal is clear from the provision of Section 6(1) of the 1977 Act, that regard must be had “to all the circumstances” and not to one circumstance to the exclusion of all others”.
In the present case the claimant was afforded ample opportunity to respond to the allegations made against him but he offered no explanation for the discrepancies.
By reasons of the foregoing, the respondent had reasonable grounds based upon a thorough investigation to conclude that the claimant had defrauded the respondent company. The dismissal was therefore fair.
Determination
In this case the respondent carried out a lengthy investigation over a six to eight week period.
The Tribunal however notes in particular the following points:
- the claimant was not afforded the opportunity to have any input into the investigation
2. he was not informed in advance and in writing of the disciplinary meeting and was not afforded an opportunity to have someone accompany him to the meeting
3. the managing director made the decision to dismiss the claimant and prepared the dismissal letter during a break at the disciplinary meeting
4. the claimant was not afforded the opportunity to appeal the dismissal
One of these procedural deficits on its own may not be enough to make the dismissal
procedurally unfair but all combined the Tribunal finds that while the claimant was substantially the cause of his own dismissal, because of the flawed procedures the Tribunal finds that the dismissal was unfair and awards the claimant the sum of €500.00 under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)