EMPLOYMENT APPEALS TRIBUNAL
CASE NO: UD1657/2014
CLAIM OF:
Martin Conroy - Claimant
against
Baxter Healthcare SA - Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
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 25th April 2016 and 6th September 2016 and 7th September 2016 and 28th February 2017 and 1st March 2017 and 12th June 2017, 13th June 2017 and 14th June 2017
Representation:
Claimant: Mr. Damien Tansey, Damien Tansey Solicitors, Castle Chambers, 5-8 Castle Street, Sligo
Respondent: Mr. C. McGreal BL instructed by: Mr. Jim Waters, Waters & Associates, Solicitors, Unit 1a, Hyde Court, Shaw Street, Dublin 2
The determination of the Tribunal was as follows:-
Respondent’s Case:
An application by the respondent to have the hearing conducted “in camera” was refused by the Tribunal.
The claimant was dismissed by the respondent on the 29th of May, 2014 for gross misconduct. From the outset the claimant accepted that he did what the respondent alleged he did, ie. he washed his feet in a stainless steel container used for serving food in the canteen. The claimant also indicated that he had no issue with the procedures adopted by the respondent in relation to the investigation. The issue for the claimant was the severity of the sanction imposed and he contended that dismissal was too harsh in the circumstances.
The person (FQ) who heard the appeal by the claimant against the decision to dismiss him gave evidence to the Tribunal. FQ examined all the documentation and only when she was satisfied that the claimant did what he was alleged to have done did she consider the appropriate sanction.
In considering the appropriate sanction FQ also considered the claimant’s actions and lack of co-operation together with his lack of remorse and failure to apologise during the whole disciplinary process. The claimant originally said that the stainless steel container he washed his feet in belonged to the canteen but he later changed this to say it was a container that used to belong to the canteen but had been given to him when it was taken out of use. The claimant had also made allegations about other employees using canteen equipment for purposes other than what they were intended for. However he refused to name these other employees in order to substantiate these claims.
In all the circumstances FQ felt that the company could have no trust or faith in the claimant and that the appropriate remedy was dismissal.
Under cross-examination FQ said she was aware the claimant had had a previous claim for unfair dismissal against the respondent and this matter had been settled. The claimant had been returned to work in 2008. FQ stated that she had not looked into the details of that case as the issue relating to this matter was the claimant washing his feet in a steel container from the staff canteen.
When asked, FQ said her remit was not to re-investigate or re-examine the facts of the case it was to hear the claimant’s grounds for appealing MC’s (the Employee and Industrial Relations Manager) decision to dismiss him. FQ told the Tribunal that her decision to uphold the decision to dismiss the claimant was based on the facts and the evidence before her.
BMG, the Manager of Recruitment Comp & Benefits, gave evidence. She explained MC had asked her to investigate the matter of the claimant using a metal container from the respondent’s canteen to wash his feet. The incident occurred on the 11th of December 2013. On the 13th of December 2013 she met the claimant to establish the facts.
The claimant attended the meeting with the union Shop Steward (BOK). BMG told the Tribunal that at first the claimant was reluctant to admit what he had done but eventually he admitted to it. However, he did not seem in any way remorseful or give any indication he was aware how serious the matter was. BMG said she asked the claimant how did he know the container was clean after he used it and he replied that he had cleaned it with anti-bacterial wash. At this meeting the claimant said that other staff were using canteen utensils for other things on the factory floor. BMG asked for examples and who these people were but the claimant would not offer up any names. BMG told the claimant he would be suspended with pay pending further investigation. A letter explaining this was sent to the claimant the same day.
BMG then interviewed 25 employees in relation to the matter and the issues raised by the claimant regarding other staff using canteen utensils on the factory floor. A final investigation report was issued to the claimant. The claimant’s union representative wrote to BMG concerning the report. BMG replied again requesting the names of the staff the claimant had been talking about.
BMG told the Tribunal that the matter was then transferred to MC, the Employee and Industrial Relations Manager.
Under cross-examination BMG said she was aware the claimant had had a previous claim for unfair dismissal against the respondent but she had not been involved in that matter.
When put to her BMG agreed the claimant had admitted to what he had done but he in no way seemed apologetic for it.
BMG stated that she felt she had carried out a full and thorough investigation into the matter and the issues raised by the claimant in her meeting with him.
MC, the Employee and Industrial Relations Manager, gave evidence.
MC told the Tribunal that he had initial dealings with the claimant in 2013 when the claimant wrote to him in September highlighting eight issues he wished to raise. These issues related to his previous dismissal claim. MC explained this matter had been finalised and the claimant had returned to work in 2008.
MC replied to the claimant’s letter to establish the terms of reference for the investigation into the claimant’s issues. These terms of reference were never agreed with the claimant. MC told the Tribunal that at every meeting he had with the claimant, he, the claimant, would add issues to the list but would not give detail of the issues.
On the 7th of October 2013 the claimant wrote to MC stating he no longer wished to progress the matter “at a local level”.
MC told the Tribunal that he became involved in this matter when he wrote to the claimant to invite him to a disciplinary meeting regarding the incident on the 11th of December 2013. The claimant was advised to bring a Union Representative with him as “the outcome of this meeting could result in disciplinary action up to and including dismissal.”
The claimant attended the meeting on the 3rd of February 2014 with his Union Representative, The Plant Manager (AW) was also in attendance. The claimant explained that he had used the container to soak his feet as they had abrasions on them relating to his diabetes. The claimant raised the issue of other staff using canteen utensils for other uses on the factory floor. However, when asked he would not name anyone. The claimant then changed his original version and stated the steel container had been his own. MC told the Tribunal that the Union Representative’s reaction was such that she must not have heard this before. MC asked to see it. The claimant replied he had taken it home but would bring it that week. MC told the Tribunal that the claimant did not bring in the container until May 2014. The claimant would not remove it from his car and only allow MC take a picture of it.
Following this meeting, correspondence crossed between MC and the claimant’s Union Representative. The next meeting took place on the 15th of May 2014. The claimant attended with his Union Representative. At this point MC had still not seen the container the claimant had said he had used and brought home.
At this meeting the claimant stated that MC had threatened the claimant and BOK since the last meeting. MC refuted this. MC told the Tribunal that no issue regarding threatening behaviour by him had been raised before by either BOK or the claimant.
MC told the Tribunal that at no stage did the claimant apologise for his behaviour or his actions.
On the 29th of May 2014 MC wrote to the claimant to inform him his employment would be terminated as “the bond of trust and confidence that form the foundation of our relationship with you has been irretrievably broken and we are left with no option other than to terminate your contract of employment effective as of today May 29th 2014.”
Under cross-examination MC gave a detailed history of his employment background with the respondent. He stated that he was aware the claimant had originally commenced employment with the respondent in 1977 and been promoted over the years due to hard work and attending further education.
When put to him MC said he was aware a written warning had been placed on the claimant’s file in 2002 but assumed it had since expired.
When put to him MC said that if an employee was late to start his shift but made up the time at the end of their shift they would receive a “tardy” as they were late but would not be docked any wages as they had made up their shift time.
When put to him MC said he was aware the claimant was overpaid on one occasion which was a mistake on the respondent’s part.
Claimant’s Case:
BOK, the claimant union Shop Steward, gave evidence. He told the Tribunal that the claimant had had a previous disciplinary issue in 2002. This resulted in a written warning being put on his file. However, there was no time limit for this warning to remain on the claimant’s file which was highly unusual as the period of time was normally 12 months.
BOK told the Tribunal that he was aware of the claimant’s previous claim for unfair dismissal. When the claimant returned to work in 2008 he was treated differently. The claimant’s Supervisor reprimanded him for 19 alleged “tardies” he had accumulated over a period of 6 months. However, these “tardies” were not recorded on his payslip nor had they any effect in the claimant’s wages.
Under cross-examination BOK said he had only heard about the “feet” incident after it had occurred. He told the Tribunal that he could not believe it.
When put to him BOK agreed he had attended the Garda station with the claimant.
BOK told the Tribunal that MC had called him to the boardroom to discuss “pots and pans”. BOK told the Tribunal that MC threatened him on this occasion stating he would deal with him after he dealt with the claimant.
When asked if he had told the claimant to apologise for his actions and the claimant had refused BOK replied that he did not think he had asked the claimant to do that but he had felt himself that the claimant was sorry for what he had done.
BOK stated that being late to commence your shift were recorded as “tardies” and were a blemish on your work record. He explained that if you were five minutes to clock in for your shift it was recorded as a “tardy” and it was deducted from your wages and recorded on your payslip. He further explained that if you worked on after your shift end for the five minutes it was still recorded as a “tardy” but you were paid the extra five minutes as overtime.
The claimant gave evidence. He commenced working in the respondent company in 1977. As time passed he was promoted and moved to the Swinford base of the company in 1989 and was employed as an electrical craftsman. He studied for various courses during his employment and was successful in his studies to degree/diploma level. Between 2004 and 2008 the claimant had a break in service and resumed in 2008.
The claimant told the Tribunal that he had various difficulties with his manager KH before and after his break in service. He approached other Managers and management in general to try and discuss these and other issues he had working for the respondent. He was told by one Manager (KF) that he would look into it but nothing was done. He did not receive any replies to the numerous letters he sent to management. He approached the then General Manager who agreed to meet with him. However the General Manager contacted his home and told his wife that he could not meet with the claimant.
The claimant then wrote to the CEO and the Human Resources department in Chicago. The Human Resources department advised him they would report to matter to the European Department for them to deal with his issues. The claimant requested that an independent person be assigned to deal with his issues. The respondent appointed MC.
On the 13th of September 2013 he wrote a detailed letter to MC with eight issues he wanted investigated. On the 24th of September 2013 MC gave a detailed response. MC wanted to agree terms of reference for the investigation.
The claimant told the Tribunal that he met with MC on three or four occasions. He told MC during these meetings that he had been constantly told by various Managers of the respondent that there was a letter on his file.
The claimant told the Tribunal that none of the issues he raised were dealt with.
In October 2013 the claimant was made aware of a list of “tardies” he had “allegedly” accumulated. His Manager KF issued him with a consultation letter. The claimant said that none of these “tardies” had been reflected in his wages or on his payslips.
The claimant told the Tribunal that he had been overpaid on three separate occasions. On one occasion he had brought it to the attention of his Manager. Regarding one overpayment a Manager raised the issue with him of not highlighting the overpayment with management. The claimant said he told this Manager that he was not in receipt of his payslips and therefore had been unaware of the overpayment.
The claimant told the Tribunal that during this time he was very stressed and was suffering with diabetes. He doctor had advised him to look after himself and his feet as they could be susceptible to burning and sores due to the illness.
The claimant told the Tribunal that he had taken to bathing his feet while working but only for medical purposes. He agreed he had bathed his feet on the occasion in question and when he had been questioned about it he had admitted to using a steel receptacle to bathe his feet but had cleaned it thoroughly with anti bacterial soap when he was finished before returning it.
When interviewed by management regarding the incident he had told them of other employees using items from the canteen on the factory floor but when asked he would not given management their names. He also told them of his condition and the medical advice he had been given by his doctor to bathe his feet when required. Following this meeting the claimant was suspended with pay pending further investigation.
The claimant told the Tribunal that management proceeded to interview 25-26 fellow employees but he had no hand, act nor part in deciding who would be interviewed. Nor was he allowed to question them himself.
Ultimately the claimant was dismissed for the incident with the steel receptacle on the 29th of May 2014. He availed of the opportunity to appeal this decision. The decision to dismiss him was upheld.
The claimant gave evidence of his efforts to mitigate his loss of earnings since his dismissal from the respondent company.
Under cross-examination the claimant stated that, in hindsight, it had been the wrong to do using the utensil from the canteen to bathe his feet but again stated that he had only used it for medical purposes and had cleaned it thoroughly afterwards.
When put to him that he had never apologised for what he had done, he replied that “I would now”.
When put to him that he had given different versions of what had occurred regarding the steel receptacle he replied that he could not recall.
The claimant told the Tribunal that he had not been in a good place at the time and felt the respondent company had had “no compassion.”
Determination:
The claimant admitted the wrongdoing and he accepted that the respondent carried out a procedurally fair investigation. However, the claimant submitted that the sanction of dismissal was disproportionate. It was the claimant’s case that the decision to dismiss was motivated by mala fides on the part of the respondent towards him and that effectively he was a marked man. The claimant also complained that the respondent had not taken into his account his attendance record and previous good conduct.
The issue of the substantive fairness, or otherwise, of the dismissal is a matter which has to be determined by the Tribunal. The law requires the Tribunal to determine whether, or not, the respondent’s decision to dismiss was reasonable having regard to the conclusion which was reached by the respondent following its investigation. The respondent’s submitted that there were two aspects to the claimant’s misconduct, ie the act of the washing of his feet in a stainless steel container used for food and also his response to the investigation. The claimant had given different accounts of the origin of the stainless steel container and had attempted to deflect responsibility.
The Tribunal finds that the claimant had washed his feet in a stainless steel container which was used for serving food and is of the view that this is unacceptable behaviour in the workplace. The Tribunal also considers that the claimant gave inconsistent evidence regarding the container used and attempted to deflect responsibility. In the circumstances, the Tribunal finds that the respondent’s conclusion that the claimant’s actions amounted to gross misconduct was reasonable and the respondent was justified in imposing the sanction of dismissal. In this case, the Tribunal cannot accept that the mitigating factors referred to by the claimant such as his work record could change the respondent’s decision in relation to sanction. The Tribunal is of the opinion that the respondent dealt with the issue fairly and that it was not motivated by any other agenda.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)