EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1647/14
CLAIM OF:
Sue Gallagher
- claimant
against
An Post
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr E. Handley
Mr P. Trehy
heard this claim at Dublin on 8th December 2015, 15th February 2016, 12th April 2016 and 22 September 2016.
Representation:
Claimant: Mr Gerard Burns, Burns Nowlan, Solicitors, 31 Main Street, Newbridge, Co. Kildare
Respondent: Mr. Seamus Clarke B.L., instructed by Ms Freda Mahon, An Post, Solicitors Office, General Post Office, O'Connell Street, Dublin 1
The determination of the Tribunal was as follows:-
Respondent’s Case:
The Claimant commenced employment on 7th April, 1999 as a Clerical Officer with the Respondent Company which provides postal services throughout the country. The Claimant’s employment was terminated on 15th August, 2014 on the grounds that the Claimant had mistreated 21 items of mail and as a consequence the Respondent had lost trust and confidence in her as an employee and that such actions constituted gross misconduct.
AM, a Clerical Officer in the Customer Correspondence Bureau (hereinafter referred to as “CCB”) gave evidence of what she had overheard during the course of a conversation between GD, Manager of the CCB and the Claimant on 8th March, 2013. According to the witness, GD enquired of the Claimant why some items of post were assigned by her for shredding. GD referred to an email which had been forwarded to the five members of the CCB earlier on that day, as a result of certain items of post being bagged, punched or forwarded to the wrong sections. The witness stated that the Claimant enquired as to whether or not she was the only employee being spoken to or to whom the email had been directed and GD confirmed that all members of the CCB had received the email and that she was speaking to all members of staff in relation to the issue. The witness said that the Claimant complained that she was being singled out and did not intend to take the blame for the problems which had arisen. The Claimant then made a telephone call to her father and the witness overheard GD’s name being mentioned. AM gave evidence that there had been a horrible atmosphere in the office for some time and that the Claimant made sniping comments and remarks during the course of telephone conversations such as “they’re going to get what’s coming to them”, “they’re here now”, “they are rats” and “they are sewer rats”. AM found this commentary and the resulting atmosphere extremely upsetting. In reply to cross-examination, AM said that she believed the remarks were directed at her although her name was never actually mentioned. AM confirmed that she used a green plastic box for shredding documents which she dealt with and that the Claimant had her own separate box as she dealt with post being sent to different areas of the premises and that the Claimant dealt with miscellaneous post, non-workflow post, repayments, items for central office and cheques from the public. AM said that, to her knowledge, no other member of the CCB used the Claimant’s shredding box.
CW, a Clerical Officer in the CCB gave evidence that she primarily deals with business reply envelopes and that the Claimant dealt with miscellaneous post and shredded the contents of her green shredding box twice a day. She said that on 8th March, 2013, she saw GD approach the Claimant holding some documents in her hand and heard her enquire why the Claimant was shredding these documents. The witness overheard the Claimant saying that “she was told to do it” and when CD enquired as to who told the Claimant to do so, the Claimant replied “it didn’t matter”.
GD, Manager of the Savings Services Processing Unit, gave evidence that the Claimant had worked in the manual postal section of the Respondent Company but in November, 2012, this manual area was amalgamated into a new automated service. A helpdesk is located in the new area and members of staff are required to move with the duty as required. Staff work at a work station and each staff member is provided with a green pouch for confidential waste. No desks are assigned to individual staff members. However, at the Claimant’s specific request, the Respondent Company made special arrangements so that the Claimant would have her own assigned desk and used a green box to shred documents twice a day. GD said that she was asked in and around November, 2012 by SR, the Manager of Central Operations to meet with the Claimant in order to discuss details of the Claimant’s pending relocation to Central Operations located at basement level. All aspects of the Claimant’s relocation were discussed as the Claimant was anxious and nervous in relation to the move. As the Claimant was going on annual leave on 21st November, 2012, an agreement was reached that the Claimant would remain in the post area until 21st November, 2012, but would pack away and label any personal items before she went on annual leave and that GD would make arrangements to have them moved to the basement area while she was on leave. In the intervening period, the Claimant was again reminded to label anything she wished to be moved and on 21st November, 2012 , SR enquired from the Claimant if she needed any further assistance. The Claimant commenced a period of annual leave on 22nd November, 2012 but failed to pack away any personal items from her old work station and its surrounds. GD spoke to a friend of the Claimant and asked her to contact the Claimant with a view to packing away the Claimant’s personal items which the friend duly did. However, around 5.00 p.m. on 21st November, 2012, GD received a telephone call from the Claimant stating that she was very annoyed that her personal items had been moved. GD said she could hear the Claimant’s father shouting in the background and the Claimant was abusive and irate and very annoyed. GD said that she tried to reason with the Claimant and that the call lasted for 40 minutes. Through the Claimant’s Union Representative, a grievance was lodged by the Claimant against GD for using abusive language in the course of the telephone conversation. Following an investigation, the grievance was not upheld. However, due to the Claimant’s unacceptable behaviour, the Claimant was issued with a verbal warning on 16th January, 2013.
GD said that in late January, 2013, the CEO of the Respondent Company complained that post had been incorrectly addressed to him and that postal items were going astray. GD was asked to address these issues. GD said that at the beginning of March, 2013, the Company received numerous complaints from customers in relation to documents that had been sent to the Post Office but were now missing. As a consequence, GD asked customers to mark envelopes for her attention but, in one particular case where a customer had sent documents on two occasions to GD, these were never received by GD.
GD gave evidence that on 7th March, 2013, she became suspicious when she observed the Claimant shredding documents from her waste bin. As a result of these suspicions, GD examined the envelopes and documents that the Claimant had put aside for shredding. GD said that she examined the documents and was concerned in relation to six items set aside for shredding and discussed the matter with her co-manager, BO’R on the following day. GD said BO’R confirmed that these items were not due for shredding but should have been associated with the relevant customer case/query.
GD said that she spoke to the Claimant on 8th March, 2013 in relation to the possibility of documents being incorrectly shredded. The Claimant agreed that she placed the documents in the shredding bin but that she had been told to do so and said that the person who had told her to do so had now left the post office. The Claimant refused GD permission to remove her shredding bin and asked to see her Union Representative. GD said that later that day, it was discovered that 15 items had been placed in the shredding box, none of which should have been assigned for shredding. GD took the box that contained the documents for shredding to the office of SR, Manager of Central Operations. Together, they examined the six documents and the items were taken to the Investigation Branch of the Respondent Company for investigation.
SR, Manager of Central Operations gave evidence that he was aware that agreement had been reached with the Claimant to pack up her desk prior to going on annual leave on 22nd November, 2012. He said that on 21st November, 2012, he asked the Claimant if she required any assistance but the Claimant confirmed that she was able to manage.
On 8th March, 2013, SR asked the Claimant to meet with him in his office in relation to some serious issues which had come to light. He said that he informed the Claimant that she was entitled to have her Union Representative present. Initially, the Claimant declined to go to SR’s office but subsequently agreed. CD from the HR Department and DM, the Claimant’s Union Representative also attended the meeting. SR said that he explained to the Claimant that documents had been found in her shredding box which should not have been assigned for shredding. He said that the Claimant did not want to discuss the issue but wanted to ring her father and go home. SR said that he informed the Claimant that she was being suspended with full pay pending an investigation into the Claimant’s potential involvement in matters of a serious nature. The Claimant was issued with a suspension notice and suspended on full pay.
In response to cross-examination, SR said that the nature of the investigation meant that he had to secure the area in which the Claimant worked and that he made arrangements to lock the Claimant’s pedestal and had it brought to his office as he didn’t want anything touched. He said that he intended to check the CCB area.
LJ of the HR Department gave evidence that she was responsible for investigating disciplinary matters. An oral disciplinary hearing was arranged for 25th June, 2013 at which the Claimant attended with her Union Representative, following which the Plaintiff was continued on suspension and advised that no decision would be made until all relevant information was available to the Respondent Company. On 31st July, 2013, LJ sent a detailed letter to the Claimant’s Union Representative replying to questions raised by her and by the Claimant, enclosing copies of statements given by co-workers and allowing the Claimant a further 7 days within which to consider the enclosed documents and to provide any further explanations or make further representations in relation to the issues.
LJ said that she considered all of the evidence that had been gathered in the course of the investigation and prepared an internal memorandum for the benefit of SD, the HR Manager dated 18th December, 2013 in which she outlined all of the lengthy correspondence, the sequence of events and her recommendation that the Claimant be dismissed from her position as a Business Support Officer on the grounds of a loss of trust and confidence in her as An Post employee.
SD, HR Manager of the Respondent Company gave evidence that he carefully considered the Report of LJ. He said that he had no involvement in the case until receipt of the disciplinary report of LJ and that he was not aware of the Investigation Branch report and had no reason to see it. He said that he took into consideration the Claimant’s service record but that he considered any breach of the Post & Telegraph legislation to be a very serious issue and that the Respondent had a zero tolerance policy in relation to interference with post. SD said that he read the report of LJ and the indices in full and considered the contents for a number of days before concluding that dismissal was the only option. SD said that he considered each individual case on its merits and, in this case, was not obliged to follow the recommendations of LJ. However, SD said that he concluded from all the evidence gathered that the Claimant had lost the trust and confidence of the Respondent and that he had no reservations in relation to the recommendations of LJ.
JK, head of HR programmes, gave evidence that he dealt with the Claimant’s Appeal. He said that, in normal circumstances, an Appeal would be handled by the head of operations, but, as this individual had been involved previously with the Claimant and her father, it was agreed that it was not appropriate that he would be involved in the Appeal process. JK said that he was not bound by any previous decision, that he acted independently and considered all of the facts. An Appeal Hearing took place on 14th February, 2014 and JK believed that the Claimant was given every chance to provide any new evidence to assist her in the Appeal process. JK said that written Grounds of Appeal had been submitted by the Applicant and that at the oral Appeal Hearing, she was given a full opportunity to explain her further grounds of appeal.
Having carefully reviewed all of the information available to him, JK said that he was satisfied that trust and confidence had been lost in the Claimant and that there was no basis for over-turning the original decision to dismiss the Claimant from employment and, therefore, he did not uphold the Claimant’s Appeal.
CLAIMANT’S CASE
The Claimant said that she commenced employment with the Respondent Company in April, 1999 and had worked in a number of sections before moving to the basement area in November/December, 2012. The Claimant gave evidence that she got on with most employees and worked most closely with AM and CW and that BO’R was her supervisor. She said that the volume of work varied from day to day. She said that she was issued with a verbal warning in relation to her behaviour towards her manager, GD, in and around November, 2012.
The Claimant gave evidence that on 8th March, 2013, she went on a break at approximately 3.30 pm and retuned to her desk at 4.15 pm. The Claimant gave evidence that SR came into the office and asked to have a chat with her but appeared quite aggressive. He asked her to come to his office but she asked him if the matter could wait until the following Monday. The Claimant said that SR would not listen to her and said “we do it here or upstairs”. The Claimant said that she walked outside the office, at which stage, she noticed CD from the HR Department at the lift area. She said that she realised that there was a problem and rang her father who advised her to get Union Representation. The Claimant’s Union Representative, DM, accompanied her to the meeting, to which SR gave her a letter confirming her suspension with pay. The Claimant said that she was escorted from the premises, as a result of which, she felt like a common criminal, although DM came with her to the exit.
The Claimant said that she was invited to attend a meeting on 15th March, 2013 into the mishandling of mail items and documents in the Customer Correspondence Bureau and as a result of the events which had taken place on 8th March, 2013. She gave evidence that the meeting lasted for 10 hours and that she was questioned in relation to the green box that is located beside her desk. She said that GD had taken her green box under her arm to another office and would not allow the Claimant to accompany her. The Claimant said that she believed another member of staff could maliciously have put items in her green bin when she had been out of the room and that, as she suffers from irritable bowel syndrome, she frequently has to visit the ladies toilet.
The Claimant said that during the course of the very lengthy meeting on 15th March, 2013, she explained that she had been instructed to shred certain items of correspondence but refused to divulge the name of the person who had so instructed her. The Claimant said that in the period March to June, 2013, she heard nothing from the Respondent Company and felt as though she were in limbo. The Claimant said that she knew she was innocent and that an allegation had been put to her that she had placed 21 items in the green box with the intention of shredding them but the truth was that she had not done this. The Claimant said that she had always worked to the best of her ability, always told the truth and stood by those statements to this day. She said that she would do nothing to compromise her position in the Company and was in complete and utter shock when her employment was terminated by letter dated 6th January, 2014. She said that although she appealed the decision to dismiss her, her Appeal was unsuccessful.
The Plaintiff gave evidence that she has been unable to secure alternative employment since the termination of her employment with the Respondent Company, apart for a period of approximately 5 or 6 days when she helped out a friend at a semi-state body in the Christmas rush of 2014.
Determination
The Tribunal has carefully considered all the evidence, together with the oral submissions of the parties’ representatives.
On 8th March, 2013, the Claimant was suspended with pay by SR, Manager with the Respondent Company in the presence of her Union Representative. On 15th March, 2013, the Claimant attended a meeting with the Investigation Branch of the Respondent Company, accompanied by a Union Representative as part of an investigation into the discovery of items of post incorrectly assigned for shredding in the Claimant’s shredding box.
A formal letter of suspension dated 13th June, 2013 advised the Claimant of the reasons for her suspension, together with an appendix setting out the items of mail incorrectly assigned for shredding and afforded the Claimant the opportunity of an oral disciplinary hearing in addition to written submissions and advised that it was open to the Claimant to bring a Trade Union Representative or friend to that meeting.
The Claimant availed of an oral disciplinary hearing which took place on 25th June, 2013, at which she was accompanied by a Trade Union Representative and also availed of the opportunity to make prior written submissions. Copies of the witness statements of all other employees interviewed by the Investigation Branch were furnished to the Claimant’s Trade Union by the Respondent Company by letter dated 31st July, 2013, which allowed the Claimant a further seven days to considered the statements and provide any further explanations or to make further representations.
By letters dated 6th January, 2014 and 22nd January, 2014, the Claimant was informed of the Respondent’s decision to dismiss on the grounds of loss of trust and confidence in her as an An Post employee and was advised of her right of Appeal. The Claimant appealed the decision to dismiss on the basis of letters dated 17th January, 2014 and 31st January, 2014 submitted on her behalf by her Trade Union.
At the oral Appeal hearing which took place on 14th February, 2014, the Claimant was represented by a Trade Union Representative. The Appeal was heard by JK, Head of HR Programmes who had not been involved in the investigation/disciplinary procedures. By letter dated 5th August, 2014, the Claimant was informed by the Appeal Officer that following his review of the file and consideration of all of the issues, including all concerns raised by the Claimant that the decision to dismiss on the grounds that the Respondent Company no longer had trust and confidence in the Claimant as an employee was appropriate and that dismissal was effective from 15th August, 2014.
Having heard the evidence, the Tribunal is satisfied that the Claimant was aware, from the conversations which took place between the Claimant, GD and SR on the 8th March, 2013 that the issue in respect of which she was suspended on that date related to the designation of certain items of post incorrectly for shredding and that this was a serious matter requiring further investigation.
The Tribunal is satisfied that the Respondent Company conducted a reasonable, fair and detailed investigation into the circumstances giving rise to the dismissal and that the Claimant was given every opportunity to defend her position with the assistance of Trade Union representation and availed of her entitlement to an Appeal, the grounds for which were fully considered by the Appeal Officer who also considered other appropriate sanctions.
Accordingly, the Tribunal is satisfied that the dismissal was not unfair and, therefore, the claim under the Unfair Dismissals Acts, 1977 – 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)