EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1285/2014
MN640/2014
CLAIMS OF:
Patrick O'Malley
-claimant
Against
An Post
-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: Dr. A.M. Courell B.L.
Members: Mr. D. Morrison
Mr. M. McGarry
heard this claim at Castlebar on 26th May 2016, 8th September 2016 and 9th September 2016
Representation:
Claimant: Ms Bláithín Gallagher B.L. instructed by, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr Seamus Clarke B.L. instructed by, Ms Freda Mahon, An Post, Solicitors Office, General Post Office, O'Connell Street, Dublin 1
Background
The claimant worked for the respondent from the 1st of January 1980. As he was employed by An Post prior to 1984 he is considered to be a civil servant. The claimant was dismissed without notice for Gross Misconduct on the 4th of July 2014.
Respondent’s Case
There were a significant number of counter shortages in 2012 which prompted an audit in the post office the claimant worked. The audit highlighted some ‘accounting irregularities.’ As a result, the claimant was suspended on the 7th of February 2013. LJ is an employee relations executive who job shares with TOS. It is TOS and LJ’s role to investigate any incidents referred to her to see if there is a disciplinary case to answer. LJ was given the letter confirming the claimant’s suspension and the notes of the interview of the claimant conducted by a member of the investigation branch. A statement was also taken from the customer who made the complaint. LJ wrote to the claimant on the 5th of March 2013 outlining the issues arising from the audit and the further customer complaint. LJ decided that given the seriousness of the accusations and the fact that the respondent found his explanations to be unacceptable they would pursue the matter through the Company’s agreed disciplinary procedures. The four issues were;
- Frequent large reported shortages
- Your failure to process 2 bill payments totalling €210.32 on 18 October 2012 despite receiving a cheque payment for same
- Your failure to report the resulting overage of €210.32 on 24 October 2012, and
- The admitted falsification of your accounts on 6 February 2013.
The disciplinary hearing took place on the 23rd of April 2013. The claimant, his union representative, LJ and TOS attended the meeting. The claimant was represented by the most senior union official in the respondent. At this meeting the claimant offered to make up the balance of the shortages. He also outlined his heavy workload and that he was having some personal problems which could have led him to make these mistakes. The claimant could not recall the exact circumstances of the bills/cheque but there was uncertainty about the amount the cheque was written out for as it had been crossed out by the customer and re-entered. There was no financial gain for the claimant out of this transaction. LJ prepared the report of the disciplinary hearing and circulated to all of the attendees. A welfare report for the claimant was also requested and provided by the respondent’s Welfare service on the 4th of June 2013 to TOS. A file was compiled to include all the documentation and was forwarded to the disciplinary officer to make a decision; LJ and TOS had no part in the decision making process.
The Head of Employee Relations (MG) gave evidence in respect of his decision to dismiss the claimant. MG told the Tribunal that he received the file from the investigation team and read this before making the decision to dismiss the claimant. He had received the file along with a recommendation of dismissal but the decision as to the appropriate sanction lay with MG and he had on previous occasions gone against recommendations for dismissal. However in this case MG felt that the claimant had committed fraud insofar as he had declared an even balance on 6th February 2013 knowing that there was a shortage of €45.98. MG felt that there was no alternative to dismissal and that his decision to dismiss was reasonable.
The Director of HR (PK) gave evidence in respect of his hearing of the claimant’s appeal against his dismissal.
PK held an oral hearing with the claimant who was represented by his Trade Union Official. The basis of the appeal was that the sanction of dismissal was too harsh considering the claimant’s long service and the nature of the incidents. However PK found that there could be no mitigation in respect of what the claimant had done. PK was satisfied that the claimant had deliberately only paid one out of the three bills paid for by the customer on 18th October 2012 and had personally benefited from this. PK was also satisfied that the claimant had deliberately falsified records by recording an even balance 0n 6th February 2013 when in fact there was a shortage of €45.98.
Given these circumstances PK concluded that the claimant had committed fraud and that the appropriate sanction was dismissal.
Claimant’s case:
The claimant commenced employment with the respondent on 1st January 1980 and was dismissed for gross misconduct on 4th July 2014.
The fact that the two incidents which led to his dismissal occurred were not disputed. However the claimant contested that neither amounted to fraud and that there was no personal gain for the claimant as a result of either incidents. Therefore the claimant held that the sanction of dismissal was too harsh given his long service and other mitigating circumstances.
The claimant told the Tribunal that he experienced personal/domestic difficulties in 2012 including the death of his Father in December 2012 and that these difficulties may have led to a lack of concentration and consequently shortages on his till during that year.
However in relation to the two specific incidents that were the subject of his dismissal the claimant held the following views.
The claimant did not remember having received the cheque on 18th October 2012 and told the Tribunal that he could receive up to 50 cheques per day. Given that he did not pay two of the three bills covered by the cheque the claimant acknowledged that there should therefore have been an overage of €210.32 when he carried out his balance on 24th October 2012. However there was no such overage on that date and he recorded an even balance. The claimant believed that this may have occurred because he had overpaid someone else, perhaps a Social Welfare recipient.
With regard to his declaration of an even balance on 6th February 2013 when in fact there was a shortage of €45.98 the claimant told the Tribunal that he had intended to put this amount in from his own pocket the next day and that there was no need to tell anyone about it at that time. However when there was an unexpected audit carried out the next day the claimant declared that he had not in fact balanced and he offered to put the shortage in to make up for this. The claimant felt that he should have been allowed to do this and that he never intended to defraud the respondent.
Determination:
The claimant was dismissed from his employment by letter dated 20th August 2013 on the basis that his employer no longer had trust and confidence in him. The decision to dismiss was based on two specific incidents of the 18th October 2012 when a customer presented a cheque for €402.82 to the claimant but only €192.50 of this amount was processed and an incident of 7th February 2013 where the claimant reported an even balance in circumstances where he was €45.98 short.
The claimant has challenged the procedural fairness of the process, the characterisation of the conduct as gross misconduct and the proportionality of the sanction.
With regard to the issue of procedural fairness the claimant queried the demarcation between the investigation process and disciplinary process. The Tribunal notes that no procedural issues were raised by the claimant’s trade union representative during the disciplinary process and that the respondent followed the agreed procedures at all times. The fact that the persons entrusted with the task of carrying out the investigation made some findings during the course of the investigation did not in any way compromise the decision maker’s capacity to reach his decision to dismiss the claimant, nor did the fact that the claimant did not meet the decision maker in person. He had attended an oral hearing on 23rd April 2013 and again on appeal.
In considering the substantive issue as to whether or not the conduct in question was gross misconduct it is not the role of the Tribunal to supplant the role of the employer but to consider whether or not the employer acted reasonably in deciding to dismiss the claimant.
The claimant relied on a decision of the EAT in the claim of Geraldine Pender v Woodies DIY Ltd, Ref: UD460/2014, where the Tribunal deemed a dismissal harsh in a case where the claimant, as chief cashier admitted to putting through fictitious transactions. The difference in that case was that the operations director who dealt with the internal appeal considered the sanction of dismissal a bit high. No one on the part of the respondent queried the appropriateness of the sanction in this case.
The Tribunal also considered the cases of Mooney v An Post and Gerry Boyle v An Post which were referred to by the respondent.
In the present case the claimant did not offer a satisfactory explanation for either of the two specific incidents identified by the employer. The issues were such that they went to the heart of the relationship of trust and confidence between the claimant and the respondent. The Tribunal finds that it was reasonable to conclude that the claimant’s conduct amounted to gross misconduct. This being the case the appropriate sanction was dismissal.
Accordingly the claim under the Unfair Dismissals Acts, 1967 to 2007 fails.
No evidence was adduced in respect of the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and therefore that claim is dismissed for want of prosecution.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)