EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD964/2015
CLAIM OF:
James Tully
against
Trimfold Envelopes Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr. J. O'Neill
Mr M. O'Reilly
heard this claim at Dublin on 21st July 2016
Representation:
_______________
Claimant: Mr Oliver McDonagh, Siptu, Liberty Hall, Dublin 1
Respondent: McInnes Dunne, Solicitors, Lower Ground Floor, 78 Merrion Square South, Dublin 2
Respondent’s case:
The respondent’s Managing Director EH gave evidence of being told by his wages clerk that she had noticed a high percentage of overtime occurring in the claimant’s brother’s wages. A spot check was done and it became apparent that the claimants brother had been clocked in but was not on the premises.
The following day the claimant rang EH and they agreed to meet at 6pm that evening. The claimant admitted to clocking his brother in early or out late, he apologised, and asked that they not be sacked. He said his brother had financial difficulties but they would make it up to EH and get him to trust them again. EH told him it was a serious offence, the claimant was in a supervisory capacity and he felt very let down by him. He considered the situation overnight and suspended the claimant the following day. He was suspended on full pay and pending an investigation.
EH engaged the services of an external investigator and it became apparent that the claimant was also benefiting from the arrangement. As a supervisor he had full control of his hours of attendance, he could come and go when needed and the respondent needed complete trust in him.
The claimant was advised to seek representation and a preliminary meeting with the investigator was arranged for 19th May 2015. He attended without representation and was advised of his right to have someone present, he declined. The investigator advised him to speak to someone experienced in employment issues. He again told the investigator that he was helping out his brother who was in financial difficulty, was putting his hands up and that was it.
EH said that during follow up checks new information came to light and he wrote to the claimant on 20th May 2015 advising him that the investigation was being widened to include his and other employees clock cards. He was told that a further meeting would take place and that he again was entitled to have representation and that a copy of the investigatory report would be furnished in advance of any action being taken.
An analysis of systems (over a 30 day period) took place and this included, arrival times, departure times, CCTV and door-swipes. This showed a pattern of false clocking for both the claimant and his brother. EH sent the claimant the report on 25th May 2015 advising him that he was giving him until 1st June to consider the details, seek advice and reply (in writing ) if he so wished. The claimant replied on 28th May saying that he regretted his actions and apologised unreservedly. The matter then progressed to a disciplinary hearing on 5th June.
At the disciplinary hearing the claimant was given a copy of the respondent’s company policy and procedures. EH admitted that these procedures were new as the company was being overhauled and had only recently been but in place. The claimant said he was happy to proceed without representation, he was asked if he had any issues with the report, he said no, he understood he had done wrong, he understood it was gross misconduct but it was his first misdemeanour in 31years of employment. EH spoke with the claimant on 8th June advising him that he was dismissed because the respondent could not set a precedent for employees going forward. EH said it was one of the most difficult things he ever had to do but he had no option. The claimant was given leave to appeal the decision.
Claimant’s case:
The claimant told the Tribunal that he was a charge-hand/supervisor who had responsibility for staff. He worked with the respondent from when he was 14years of age. He said he came clean immediately and was trying to help out his brother who was in financial difficulties and he had a few difficulties of his own. He was nearly 100% sure he would not be sacked and could have built up trust again with the respondent.
Determination:
The Tribunal carefully considered the evidence adduced, both verbal and written. It was agreed by the parties that:
- The claimant was employed by the respondent for a lengthy period of time without any issues arising.
- His duties were that of a charge-hand and incorporated duties of a supervisory nature.
- The claimant was directly responsible for conduct which resulted in the misappropriation of monies from the respondent.
- Written disciplinary procedures dealing with the disciplinary process, which the respondent was required to evoke, were not furnished to the claimant until after the completion of the investigation and immediately prior to the disciplinary meeting. Additionally whilst the investigation officer was not the deciding officer he attended and took part in the disciplinary meeting.
The Tribunal is satisfied that:
(a) There was present in the disciplinary process a procedural deficit.
(b) This deficit was of insufficient consequence to invalidate the process.
(c) The claimant, from the commencement of the process, was aware that a consequence of his breaches of discipline could result in his dismissal.
(d) The respondent acted fairly and reasonably in their consideration of the penalty to be imposed upon the claimant.
(e) The penalty of dismissal imposed was, in all the circumstances, a proportionate response by the respondent to the breaches of discipline committed by the claimant.
It is therefore found and determined by the Tribunal that the claimant was not unfairly dismissed and his claim under the Unfair Dismissals Acts 1977 to 2007 therefore fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)