EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD798/2014
APPEAL OF:
Thomas Geoghegan
– appellant
against the recommendation of the Rights Commissioner in the case of:
Freshcut Food Services Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden BL
Members: Mr G. McAuliffe
Mr D. Thomas
heard this appeal at Dublin on 5th January and 22nd February 2016
Representation
Appellant: Mr Stephen Moran BL instructed by Edward Geoghegan of Brian Grogan & Co Solicitors, Main Street, Lucan, Co. Dublin
Respondent: Mr Aidan Phelan of Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
This appeal came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner recommendation reference: r-137638-ud-13/JT.
The determination of the Tribunal was as follows:
The appellant was dismissed by the respondent on foot of his admission of theft. In light of his personal circumstances the appellant’s representative argued that the sanction of dismissal was severe. The appellant was not seeking to be reinstated as he has secured new employment.
The respondent’s representative said that the appellant’s personal circumstances were taken into account as was the time span of the wrongdoing and the potential damage to the business.
Respondent’s Case
The managing director gave evidence. The respondent’s business is supplying fruit and veg to businesses.
Sometime after 9.00am on the morning of Tuesday 4 December 2012 the MD received a phone call from the purchasing manager of a chain of 4 hotels that were the respondent’s second largest customer. At first the MD thought the phone call was to discuss renewing their contract with the hotel group. However the purchasing manager informed him that one of the respondent’s drivers was caught stealing from a hotel in Trim. This was a serious matter for the hotel and the purchasing manager requested that that driver not deliver there again.
The MD spoke to the transport manager, who identified the driver concerned as the appellant. Then the MD told the transport manager to ask the appellant to come in to talk to him when his shift was over.
When the MD met the appellant later that day he asked him what had happened that morning. The appellant immediately admitted that he had taken a small piece of cooked beef from the fridge. He accepted that what he had done was wrong. The appellant said that he had been taking meat from the hotel about once a week for a long time. The managing director suspended the appellant on full pay pending an investigation.
The MD met with the catering manager and the chef from the hotel on 6 December and this was followed up by him receiving a copy of their incident report dated 11 December. It was impossible to establish the value of the items taken by the appellant. He said he had taken small quantities but the hotel said catering quantities for food were missing. As a gesture of goodwill the respondent paid the hotel €1,000.00.
He then looked investigated the possibility that the appellant had been stealing from other hotels. He had suspicions and invited the appellant to a meeting to discuss them. The appellant denied stealing from other hotels on his delivery route. In light of the appellant’s denial the MD did not investigate this matter further.
The MD was adamant that the appellant was not accused of theft in response to his personal injury claim against the respondent. He knew nothing of the appellant’s marital difficulties at that time but felt they were irrelevant.
A director of the respondent company gave evidence. She wrote to the appellant on 12 December 2012 inviting him to attend a disciplinary meeting. He was informed that he could be accompanied and that his job was in jeopardy. At the disciplinary meeting the appellant accepted that he had taken items and on more than one occasion. After the meeting she considered the matter carefully and decided to dismiss the appellant. She considered demotion and assigning him to working in the warehouse. However, she took the view that the appellant took things on an ongoing basis when there was an opportunity and she had to consider that when opportunities arose again the result would be the same. In her view the appellant was remorseful only because he had been caught. Also the respondent needed emphasise to the other employees that theft was not tolerated.
The appellant’s appeal of the decision to dismiss was heard by an independent adjudicator. The appeal meeting lasted about 15 minutes. The independent adjudicator said in evidence that the appeal was not a retrial but a review of the process. The independent adjudicator did not allow the appellant to be accompanied by his solicitor and neither did he ask to appellant about his wife. The independent adjudicator felt that there were no mitigating circumstances that would allow an employee to thieve while at work. The appeal was unsuccessful.
Appellant’s Case
The appellant gave evidence. He liked his job and always gave 100% to it. He believed that the respondent wanted to get rid of him after he made a personal injury claim.
His wife and three daughters meant the world to the appellant. He was heartbroken when he learned in March 2012 that his wife was having an affair. In June she went into hospital and was very unwell for a period. The appellant took the illness as a sign they could pull together and he hoped they would start over. Unfortunately she had no interest and they are now divorced.
He was in shock when the hotel manager asked him if he had something in his pocket belonging to the hotel. He pleaded with her not to call the Gardaí and to let him go back to work. He took small quantities of meat for his kids. The respondent lost nothing but he lost his job, his home and his wife. He apologised for the theft.
The appellant was upset after the appeal meeting. The independent adjudicator said he would look at both sides but he told the appellant he could not bring his solicitor. The appellant did not want to bring someone from the job and therefore had no one to speak for him. The independent adjudicator did not consider the appellant’s personal injury claim. The appellant felt that he should have been given sick leave to sort his head out.
The appellant established loss.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case. The respondent in this case was faced with a serious situation in that a trusted and long serving employee was caught in the act of stealing from an important customer. The appellant at all stages of the process used to dismiss, him admitted that he had taken food from the customer and that he had been engaged in this activity for a long time.
The appellant’s representative argued that the sanction of dismissal was excessive and also suggested that the respondent had an ulterior motive for wanting to get rid of the appellant. In arriving at a decision the Tribunal must not substitute their views for those of the respondent but must consider whether the action taken by the respondent falls inside the boundaries of what it would be reasonable for an employer to do in the present circumstances. The director who made the decision to dismiss gave compelling evidence. Her views were measured and rational. The Tribunal accepted her view that further problems could arise if the appellant were in a situation where he had the opportunity to repeat his actions and also her concern at not giving other employees in positions of trust the message that the respondent tolerated theft.
The Tribunal finds that the investigation and disciplinary processes were carried out fairly and competently. However the appeal process was badly flawed. The independent adjudicator came to the appeal with a strong prejudice against theft and an imperfect understanding of his role. Furthermore, it is noted that he refused the appellant his preferred representative during the appeal.
Overall the Tribunal finds that the process adopted by the respondent was thorough and fair notwithstanding the shortcomings of the appeal process. The Tribunal finds that in all the circumstances dismissal was not an unjust sanction.
The appeal against the Rights Commissioners recommendation fails and the recommendation under the Unfair Dismissals Acts 1977 to 2007 is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)