Complainant

Respondent

Anonymised Parties

An Employee

A Manufacturing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00006433-001

12/08/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005657-001

05/07/2016

The Complainant commenced employment with the Respondent on 30 June 1997. He was employed as a Production Supervisor. The Respondent terminated the Complainant's employment, on the grounds of gross misconduct, effective from 12 January 2016.

The background to the Complainant's dismissal was set out as follows:

In December 2015, the Respondent's Finance Department received information from a contracted taxi company in relation to an outstanding bill. The Finance Department notified the Human Resources Department (HR) of the apparent excessive use of one of the company's taxi accounts. Following receipt of further information from the taxi company, HR established that the high volume of taxi journeys had been charged to the company account by the Complainant.

On 6 January 2016 the Respondent's Production Manager and a Senior HR Business Partner met with the Complainant. The allegation of unauthorised use of the taxi account was put to the Complainant, who immediately admitted his usage. The Complainant stated that he was unaware of the number of journeys involved and also stated that he was not aware that cost centre, to which they were applied, did not exist.

A further meeting, to investigate the allegation, was held with the Complainant on 8 January 2016. This meeting was conducted by the Production Manager, while the HR Business Partner acted as note taker for the meeting. The Complainant had been informed in advance of his opportunity to bring a colleague to the meeting; however, he attended the meeting on his own.

At this meeting, the Complainant was provided with a full breakdown of the taxi journeys which he had charged to the company account. This involved 317 trips, amounting to a total cost of€3,681.80, which had taken place over a seven-month period from May to November 2015. The Complainant did not dispute the taxi usage and confirmed that he was sole user of the taxi on all occasions.

In response to the allegations put to him, the Complainant explained that he had lost his driving licence but was due to get it back the following week.

The Complainant disputed the Respondent's allegation that he used a cost centre which did not exist. The Complainant stated that he thought he was using a cost centre related to a previous production unit he had worked in. However, the Finance Department had confirmed that the cost centre was no longer active.

Following the meeting investigation on a January 8, a decision was made to terminate the Complainant's employment due to gross misconduct relating to breach of trust arising from the fraudulent use of the company's taxi account. This decision was communicated to the Complainant on 12 January 2016.

On 12 January 2016 the Complainant contacted the Production Manager by text. The Complainant stated that the issue was related to his alcohol problem and he apologised for not raising this at the meeting of 8 January. The Complainant was informed that as he had not raised this issue during the meetings on 6 and 8 January it could no longer be taken into consideration. However, the Complainant was informed that the appeal process was available to him.

The Complainant appealed the Respondent's decision to terminate his employment. The appeal hearing took place on 1 February 2016 and was conducted by the Operations Manager and the HR Manager. The Complainant was given the opportunity have a colleague present during this meeting. He declined the offer and attended the meeting on his own.

During the appeal hearing the Complainant acknowledged that he had used the taxi company for his own use and that this was totally wrong. In addition, the Complainant stated he was embarrassed, ashamed and disgusted by his actions. He informed the meeting that he had a drink problem and it had taken losing his job to acknowledge this fact.

On 19 February 2016 the Respondent confirmed its decision to reject the Complainant's appeal and to uphold the decision to dismiss him on the grounds of gross misconduct.

In his submission, the Complainant stated that he was called to an investigation meeting on 8 January 2016 under the company policy, referred to as Collective Action policy. The Complainant stated that the meeting was not a Collective Action meeting but was in fact a full-blown disciplinary hearing.

The Complainant stated in his submission that he was not aware that the meeting was a full disciplinary hearing. On the contrary, he stated that he believed he was to attend an investigation meeting which would ultimately lead to an evaluation of the difficulties that he found himself in and that the appropriate corrective action would be taken to resolve the situation. The Complainant stated that he fully co-operated with the investigation and made a full and frank admission in relation to the difficulties being investigated. The Complainant stated that, at the conclusion of the meeting, he was summary dismissed from his employment.

The Complainant stated that the said investigation was further flawed by reason of the fact that it was being conducted by the Production Manager who was his immediate supervisor/manager at the time. The Complainant contends that the Production Manager would not have made any decision in relation to the investigation without the input of the Operations Manager, who was the person who ultimately dealt with his appeal. The Complainant contended that the Operations Manager should have had no knowledge, input or interest in the investigation hearing whilst it was being conducted.

The Complainant stated that he accepts that the Respondent had to impose some sanction in relation to the irregularities for which he was responsible with regard to the unauthorised and excessive use of the company's taxi account. However, he stated that the sanction imposed was wholly disproportionate to the issue he was guilty of. He further stated that he gave a full and detailed explanation of how and why these difficulties have arisen. He also offered to repay €3,681.80, the total cost of the taxi journeys, to the company, but this offer was not accepted.

In further submission, the Complainant stated that his Performance Development Coaching evaluations for the previous four years showed that he consistently achieved outstanding results and ratings. He also stated that the Respondent failed to take into consideration his nineteen years of service with the company.

In summary, the Complainant stated that the Respondent failed to take the appropriate or any corrective action as they are obliged to do under their own policies and the action to summarily dismiss him was completely disproportionate to the difficulties he found himself in. In addition, the Complainant stated that the Respondent gave no regard to his service or his performance prior to the incident for which he was dismissed.

In addition, under a second complaint, submitted after the initial complaint of unfair dismissal, the Complainant contended that his dismissal constituted a breach of the Terms and Conditions of Employment which he entered into when he commenced employment with the Respondent. The Complainant specifically referred to the clause in his Terms and Conditions of Employment which provided for three months notice of termination of employment. The Complainant alleges that no such notice period was provided to him.

The Respondent stated that the facts of the dismissal were not in dispute. The Respondent provided a detailed account of the unauthorised taxi journeys which the Complainant had charged to a company taxi account over a seven-month period from May to November 2015. These details showed that a total of 317 journeys, costing a total of €3,681.80, were undertaken during that period.

The Respondent stated that the Complainant had been provided with a fair procedure wherein he was provided, in advance, with the full details of the charges been laid against him, was advised of his right to be represented at all meetings during the disciplinary process and was provided with the option to appeal the decision, which he availed of.

The Respondent stated that the Complainant's unauthorised use of the taxi account effectively meant he had taken the money from his employer. The Respondent further stated that the Complainant's plea in relation to his alcohol problems was no defence for his action. However, the Respondent advised that, as a gesture of goodwill and without prejudice, they extended the Complainant's access to their EAP Program for a period of 6 months following his dismissal.

In conclusion, the Respondent stated that the Complainant's dismissal was fair and reasonable in the circumstances.

With regard to the Complainant's claim for three months notice, the Respondent stated that this claim was statute barred. In addition, the Respondent stated that at the dismissal was for gross misconduct, no notice was due.

At the start of the hearing some discussion took place in relation to the Complainant's complaints, in particular the fact that they were submitted at different times. The Respondent claimed that they had not received the second statement submitted by the Complainant dated 28 June 2016. After a short recess during which the Respondent was provided with time to consider the statement question, the hearing proceeded.

Consequently, both complaints as submitted by the Complainant were included in my considerations and findings are set out hereunder:

Unfair Dismissal (CA-00005657-001)

Having carefully considered all the evidence adduced, I am satisfied that the facts of this dismissal are not in dispute.

In this regard, I am satisfied that, by his own admission, the Complainant charged, without approval or authorisation, 317 taxi journeys, all of which were for his personal use, to an account that his employer had with a local taxi company. These journeys took place over a seven-month period between May and November 2015. When questioned directly, at the hearing, as to why he had engaged in such activity, the Complainant did not provide any response.

The detailed analysis of the taxi journeys in question showed that the activity commenced in May 2015 when a total of 25 taxi trips, totalling €289.20 were taken. The details for the subsequent months show the number of trips increasing each month, culminating in November in a total of 67 trips, at a cost of €776.60. This increase in trips, month on month with the attendant increase in cost, is, in my view, clear evidence of a conscious and deliberate escalation by the Complainant of activity which he knew to be wrong, as evidenced by his subsequent admission when confronted with the facts.

In addition, there is no evidence to suggest that, at any point in the seven-month period, the Complainant consider raising the issue with his employer or offering to make reimbursement for the cost of the taxi journeys.

Consequently, taking all the above into consideration, I am satisfied that the Complainant's actions of charging his personal taxi journeys to his employer represent 317 individual acts of gross misconduct whereby he deliberately defrauded his employer on an ongoing and increasing basis.

I note the Complainant's reference to his alcohol problem as perhaps providing mitigation for his actions. Having carefully analysed the detailed information provided at the hearing, I can find no connection between the Complainant's alleged problems with alcohol and his actions in relation to the taxi journeys which were charged to his employer. Consequently, I do not accept the Complainant's plea that his alcohol problem should be considered as mitigation for his actions. In this regard, I also note that the Complainant did not raise the issue of his alcohol during the meetings on 6 or 8 January 2015. It was only after he was advised of the decision to be imposed that he raised this issue. This further undermines the Complainant's contention that his alcohol problem was an influential factor in his individual acts of wrongdoing.

I have also carefully considered the evidence presented by the Complainant in relation to his contention that the disciplinary process, conducted by the Respondent and which led to his dismissal, was flawed. However, this evidence, in this regard, was purely anecdotal in nature and nothing specific or concrete was presented which would indicate that any of the parties involved in the process acted in an inappropriate or prejudicial manner.

In addition, I note the submissions made on the complainant's behalf by his legal representative to the effect that the Respondent was in breach of its own policy by dismissing the complainant rather than taking him through a "corrective process". During the hearing it was clarified by the Respondent that the company's "Corrective Action Policy" is in effect their disciplinary process.

While I can appreciate the title of the policy and certain of its steps might be appropriate for actions of a lesser nature, I am satisfied that those steps would not be appropriate for dealing with actions/behaviour which constitute gross misconduct. In that regard then, I am satisfied that the issue in relation to the Complainant's case is whether or not fair and appropriate processes were applied in the conducting of the process which led to his dismissal. As has already been stated, I am satisfied, from a careful and detailed analysis of the evidence presented, that the Respondent was provided with a fair and appropriate process in this regard.

Finally, the Complainant contended that his length of service and good performance was not taken into account by the Respondent when deciding on an appropriate sanction. I am satisfied that, given the nature and extent of the Complainant's actions, which, in effect, represented 317 individual decisions on his part to engage in actions he knew to be wrong, the sanction of dismissal, cannot be considered as being inappropriate or disproportionate. In such circumstances of gross misconduct I do not believe that length of service and/or prior performance can be considered as valid mitigation.

Terms and Conditions of Employment (CA-00005657-002)

On the grounds of the previous finding that the Complainant's actions represented gross misconduct, for which summary dismissal was an appropriate and proportionate sanction, I am satisfied that the notice clause in his Terms and Conditions of Employment no longer applies.

Unfair Dismissal (CA-00005657-001)

Having carefully considered all of the evidence adduced and in line with the conclusions/decisions are set out above, I am satisfied that the Complainant's dismissal was fair. Consequently, I do not uphold the Complainant's complaint.

Terms and Conditions of Employment (CA-00005657-002)

Based on the finding set out above under the Unfair Dismissal claim, I am satisfied that the Complainant's claim for notice does not apply and his complaint in this regard is not upheld.

Unfair Dismissal

Gross misconduct

Payment of Notice

Alcohol Problems