EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD664/2015
APPEAL OF:
Darius Raudonis
– appellant
against the recommendation of the Rights Commissioner in the case of
Sam Dennigan & Co
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr G. McAuliffe
Mr N. Dowling
heard this claim at Dublin on 26th September 2016
Representation
Appllant: Ms Elizaveta Donnery of Donnery & Co. Solicitors, 57 Clontarf Road, Contarf, Dublin 3
Respondent: Mr Jaime McAuliffe, Solicitor, 57 Merion Square, Dublin 2
This case came before the Tribunal as an appeal by an employee of the recommendation of the Rights Commissioner reference number r-151574-ud-14/RG under the Unfair Dismissals Acts, 1977 to 2007.
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced in the case of this Hearing. The appellant brings this matter before the Tribunal by way of appeal of the recommendation of the Rights Commissioner dated 29th of May 2015, reference r-151574-ud-14/RG, wherein the appellant’s assertion that he had been unfairly dismissed was found not to have been well founded.
The appellant had worked with the respondent goods distribution company since 2007. When initially engaged the appellant was a picker and by 2014 he was working regular night shifts and was responsible for distributing chilled goods in and around the warehouse in preparation for the pickers the next day.
By chance, on the 12th of July 2014 a carton of fresh meat products was noticed to be a number of units shy of the expected number. Management of the respondent gave evidence to the effect that there had been a few issues surrounding the distribution of goods to supermarket clients who were complaining that the full complement of goods was sometimes not given.
It was against this background that a decision was made by the warehouse manager to have a look at the CCTV to see if there could be any explanation for the missing units or whether the box had come with a number of units missing. The relevant CCTV footage was of the night shift of 11th to 12th of July 2014. The Tribunal notes that the CCTV footage was not shown to it so it’s clarity and content could only be described by the manager and the Tribunal must therefore have regard to the fact that this evidence is subjective to the manager’s eye.
In any event the warehouse manager noted that the appellant was doing his job in the ordinary way save insofar as he was noted to remove two units from a box and was further noted to put the box, from which the units had been removed, under other boxes in an attempt (as interpreted by the manager) to avoid discovery of the box for as long as possible.
The Tribunal understands that the CCTV in operation in the warehouse is well known to operate and must assume that employees know of the CCTV’s being there to capture all activities.
Again, although the footage was not shown to the Tribunal, the Tribunal is minded to accept that the appellant can be seen giving the retrieved units to a colleague who has been identified for the purpose of these proceedings. The appellant does not deny these actions and in fact gives an explanation to the effect that he believed that the box from which he removed two small units was over-packed and he asked his colleague to place the two extra units on the goods shelf wherein goods over which a query, such as the passing of an expiry date, is being raised are placed for further analysis.
As the CCTV does not capture conversation all that can be seen is the handing of two packets from one employee to another and the employer has interpreted this action as an attempt to steal product from the employer by both the employees involved.
The appellant was suspended on full pay pending an investigation and a meeting was set up for the 16th of July 2014 as part of the investigative process. At the said meeting the appellant explains that he believed the box was over-packed and that he acted to place the two extra units in the returns area or shelf. The appellant additionally states that he re-stacked the boxes in the way he did (and which had been seen as suspicious by his employer) so as to make sure that the stronger boxes were at the bottom with the weaker and perhaps more breakable ones on top.
The appellant was moved to disciplinary meeting level the very next day, 17th July 2014. It is not clear what further investigation was conducted overnight and the Tribunal notes an email relevant to the investigation and the QC procedures dated the 18th of July which presumably was not available at the disciplinary meeting and in any event may not have been applicable to the night shift operation. It is noted that none of the appellant’s colleagues were asked about what they believed would be the correct procedure in the event of ever seeing an overfull box.
On the 22nd of July the appellant is called to a disciplinary outcome meeting. The thrust of the meeting is quite simply a reliance on an interpretation of the behaviour captured on the CCTV as rendering the appellant guilty of having removed stock from the premises.
The Tribunal would have to find the jump from what was observed on the CCTV to the conclusion is completely without foundation evidence or justification.
In looking at the process up to this point the Tribunal has to have regard to the general demeanour of the appellant as he presented himself before the Tribunal. The Tribunal was struck by the appellant’s limited comprehension of the English language and has to take this into consideration, even where a translator has been purportedly provided by the employer, when assessing the fairness of the process.
The appellant did avail of an appeal hearing and it is noted that he faced both the Operations Manager and the HR Manager in this hearing and that nothing further was added to the process.
On balance the Tribunal finds the dismissal was unfair insofar as unsound and incomplete procedures were applied. In particular the Tribunal finds that the conclusions repeatedly drawn were unsubstantiated and did not achieve even the minimum ‘balance of probability’ standard required.
In assessing loss the Tribunal is mindful of the fact that the appellant has not been able to demonstrate any real effort to find alternative employment coupled with the fact that the appellant’s own failure to follow proper procedure on discovering a difficulty with a product was what led himself and his employer to the impasse in the first place.
The Tribunal awards the appellant the sum of €10,000.00 compensation under the Unfair Dismissals Acts 1977 to 2007 and the recommendation of the Rights Commissioner is upset.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)