UD1687/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Gerard Mounsey                                                                                          UD1687/2013

-        Claimant                                                  

against

Lyons of Limerick Limited

-        Respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. E. Kearney B.L.

Members:     Mr. J. Hennessy

                     Mr. D. McEvoy

heard this claim at Thurles on 22^nd January 2015

                                           and 28^th April 2015 and 29^th April 2015

                                           and 7^th October 2015 and 8^th October 2015 

                                           and 10^th October 2016

Representation:

Claimant:         Dr Michael Forde SC instructed by:          

                       John Spencer, John M Spencer, Solicitor, Cudville, Nenagh, Co. Tipperary

Respondent:    Mr. Donal O’Rourke BL instructed by:

                        Sweeney McGann Solicitors, 67 O’Connell Street, Limerick

Background:

The respondent company operates a number of different car dealerships at two premises; one in Limerick, the other in Tipperary. The claimant was employed from the time of October 1998 and over time he became the head salesman in the Tipperary branch. He was dismissed from the company in October 2013.      

Respondent’s Case:

It was the company’s case that the claimant was investigated by the Criminal Assets Bureau for financial improprieties in relation to dealings as a car trader. A court case followed and up to the point of the court case the claimant maintained that a fictitious person (T.R.) existed as a car dealer. In reality the claimant was T.R. and he was selling vehicles from the company to T.R. Car Sales and subsequently selling them at a profit. The claimant was convicted and following his conviction the company wrote a letter to the claimant outlining serious concerns it had and putting a number of allegations to the claimant. The claimant responded accepting some of the allegations and refuting others. An investigation was conducted by a third party and the claimant was ultimately dismissed from the company for gross misconduct.

The Tribunal heard evidence from the Managing Director that he attended the premises in Tipperary once a week for meetings and that the two premises operate on the same computer network. The claimant had progressed from a mechanical position to a sales position during the employment. He was considered an excellent and highly trustworthy employee and in time he became head salesman at the Tipperary branch which he operated.

The claimant was provided with a contract of employment which included the terms and condition of his employment as well as the company’s disciplinary procedure. An employee handbook was also provided to the claimant. The handbook contained a section regarding other employment in a similar activity. At the commencement of employment the Managing Director outlines to employees that involvement in activities considered to be in competition with the company, could jeopardise the employment of the other 40 employees. The relevant section of the employee handbook was opened to the Tribunal in relation to this issue.

The commission structure and sales targets vary each year and are dependent on a number of factors and are shared between sales staff. A vehicle must be paid for, the relevant sales documentation completed and the company must be accountable to the authorities as to where vehicles are sold. During the recession when car sales decreased, the respondent company paid its sales people over what they earned in commission based on repayment when business improved, which has only occurred in recent years. A repayment agreement is in place with staff.

In or around 2009 a number of issues arose which the Managing Director outlined to the Tribunal. One example involved a cheque for €1,400 in the name of the claimant. This cheque was queried with the claimant and he gave an explanation for it but he was told that it was not to happen again.

The Managing Director recalled an incident in 2010 when another employee (CR) attended his office about a transaction involving two trade-in vehicles. The claimant sold the vehicles on to T.R. but told CR that when this happens not all the money paid for them goes to the company and he gave some money to CR to keep.

In 2010 the Criminal Assets Bureau attended at the respondent’s premises regarding dealings which they believed the claimant was involved in. The Managing Director stated that this occurrence called the company into disrepute. However, the Criminal Assets Bureau was satisfied from its investigation that the company was not involved in the transactions.

An issue came to light regarding a supposed car dealer (T.R.). Following the claimant’s arrest by the Criminal Assets Bureau on the company’s premises it took a further year for the investigation to be concluded. The Revenue Commissioners brought a prosecution against the claimant in July 2013 on foot of which the claimant was convicted.

As part of those proceedings the claimant alleged that the Managing Director was aware of a car trader named T.R. T.R. was in fact fictitious and the difference in money from the sales between “T.R.” and the respondent company was retained by the claimant. During the court proceedings against the claimant, the Managing Director was cross-examined by the claimant’s legal team that this arrangement was known to the company and had suited the company for VAT purposes, but this was not the case. The Managing Director also recalled that during those proceedings the claimant had stated that the “T.R.” arrangement was in place prior to the commencement of his employment but in fact the oldest sales order for “T.R.” was in the claimant’s handwriting.

Following the conclusion of the court proceedings in July 2013 correspondence issued to the claimant detailing a number of concerns on the part of the respondent company. The correspondence asked the claimant to respond to a number of allegations after which an investigation would be conducted. Some inter-party correspondence ensued. The allegations were opened to the Tribunal.

Allegation 1:

It was alleged that the claimant operated a separate sales system in the course of his employment, in particular using a pseudonym of T.R. Car Sales. It was alleged that no such entity existed and that the claimant was in fact selling cars to himself for the purpose of selling them afterwards to third parties. It was also alleged that T.R. Car Sales at times sold cars to the company when in fact T.R. Car Sales did not exist and it was the claimant personally selling cars to the company. It was alleged by the claimant’s representative before the Circuit Criminal Court in July 2013 that the company was complicit with the claimant in the operation of the fictitious sales arrangement with T.R Car Sales. This brought the company into disrepute. It was alleged by the claimant that the company changed their methodology of sale subsequent to the Garda investigation into the claimant’s activities. It is the company's position that when queries were raised with the claimant about the level of business the company appeared to be conducting with this entity/person that the claimant offered to bring the Managing Director to meet T.R. in circumstances where the claimant knew T.R. did not exist

The Managing Director outlined an example of this allegation in his evidence. The claimant had telephoned him and informed him that a customer was willing to pay €20,000 for a vehicle and the Managing Director authorised him to accept that figure for the vehicle. The allegation was that the claimant had in fact received €25,000 for that vehicle and he retained the other €5,000. During the court proceedings the claimant stated that he had done nothing wrong as the Managing Director had agreed a figure of €20,000.

It was the Managing Director’s evidence that the claimant’s response was that he “accepts he operated TR as ..” but that he did not make up the name and that it was also used by the Limerick branch of the respondent company. The Managing Director stated this response was “complete rubbish” as there was no reason why the respondent company would need to invent a car trader to buy vehicles and during his 40 years in the industry he had never operated such schemes. The only reason vehicles were sold to T.R. was because of the price differential.  

Allegation 2:

It was alleged that the claimant received finance commission cheques which should have been received by the company.   

Allegation 3:

It was alleged that the claimant was selling cars in a private capacity and as a result the company is at a financial loss in respect of these sales. These sales allegedly took place both during working hours and outside working hours and also at times at the company’s premises.

That the claimant under the guise of T.R. sold problem cars to the respondent company for overvalued prices. Company cheques were written payable to T.R. The Managing Director did not know how the claimant had managed to cash such cheques. Two purchase order forms for two Ford Focuses were opened to the Tribunal as an example of the claimant under the guise of T.R. selling cars at inflated prices to the company.

The Managing Director noted that “T.R.” disappeared in 2010 when Revenue became involved and that another modus operandi was created to obtain money from the respondent company.

Over the years the claimant had always denied carrying out private car sales but now he had admitted to conducting private sales and believed that nothing prohibited him from carrying out such sales. The claimant lived 25 miles north of the Tipperary branch and the Managing Director was unaware what the claimant did outside of work. However, both the contract of employment and the employee handbook were furnished to the claimant and the documents detailed the best interests of the employer in this regard. The Managing Director also referred to the minutes of a meeting held in September 2010 where the claimant was asked to cease selling cars in a private capacity and using the company’s address when doing so.

Allegation 4:

There were a number of cars sold to people with disabilities. For two such sales the paperwork stated that the customer owed money but the customers stated they had paid the claimant in full. Supporting documentation was opened to the Tribunal. Further evidence on this issue is to follow from the company’s Financial Controller.

Allegation 5:

It was alleged that cars were sold by the claimant to other individuals who did not exist. An example of such a transaction was opened in the documents.

Allegation 6:

It was alleged that the claimant had caused the company to incur substantial losses in 2008 and 2009, through a number of sales and that the sum of approximately €70,266 was due and owing from the claimant.

Allegation 7:

This allegation related to a two-part trade order book which the claimant was to maintain on the part of the company. The white docket for the sale is removed and the yellow docket is retained in the booklet. When the company examined the books the yellow dockets were also removed. It was the Managing Director’s evidence that the claimant admitted removing them and said that he would return them to prove they matched the white docket but they were never received from him. Therefore it could not be proven that what the trader paid was in fact what the company had received.

Allegation 8:

It was alleged that the claimant acted in a fraudulent and deceitful manner during the course of his employment causing financial loss to the company and bringing the company into disrepute. It was the Managing Director’s evidence that the claimant’s response to this allegations was that he discharged sums to customers when the company refused to. The Managing Director stated in evidence that he had never heard of a salesman subsidising a deal and that there was no evidence adduced by the claimant to support that contention.

The claimant accepted some of the allegations and refuted others.

The Tribunal was also directed to other queries raised with the claimant about a number of car transactions and the replies furnished by the claimant.

The Managing Director stated that he did not know how cheques from the company to T.R. were cashed but somehow they were.

For the purpose of carrying out an investigation into the allegations the company required responses to a list of questions from the claimant. The claimant accepted the appointment of an independent investigator (Mr. H). Mr. H was acceptable as investigator to both parties. The company agreed to pay for his services on the basis that his findings would be binding. Mr. H formulated a report dated the 22^nd October 2013 which found that the senior management of the company did not know or approve of the use on invoices of the fictitious name by the claimant. The investigator found that it was a serious matter that amounted to gross misconduct. Mr. H further found that the claimant engaged in a parallel business in trading cars and by engaging in trading on his own account the claimant was not acting in the interest of his employer and that engaging in business in competition with the employer amounted to gross misconduct and that the company would be justified in deciding to dismiss the claimant.

Following the receipt of this report the company wrote to the claimant stating that it had no option but to dismiss him from his employment. The Managing Director also met with the claimant informing him of the decision and to discuss the sum of monies owing to the company. The claimant requested a loan of a car to make the journey home after the meeting. He was provided with a loan of a car which he retained for 2.5 months. When it was collected by the company it was damaged. The claimant stated the damage was caused by a third party but did not provide any details to allow the company to make a claim for the repairs.

The Managing Director stated that the company has more stringent controls in place now. He was very hurt by the claimant’s actions given the trust and relationship they had.

During cross-examination the Managing Director stated he had not been aware of the background of T.R. Car Sales and the claimant until the Criminal Assets Bureau investigation and the hearing in 2013. When the extent of fraudulent activities was laid bare during the court case, the claimant was suspended from his duties.

When put to him the Managing Director stated that he had not dismissed the claimant in 2009/2010 as he had not enough information in order to do so. When put to him that the claimant had not been able to secure employment since his dismissal and therefore was at a high loss of earnings, the Managing Director replied that he could not understand this as working for the respondent had only generated 10% of the monies the claimant earned through his various businesses.

 A former colleague and employee (CR) of the respondent gave evidence. He commenced employment with the respondent in their Limerick branch in November 2006 until his departure to travel in May 2011. However, he returned to work for the respondent in late 2014.

In 2009 he was asked to work in the Tipperary branch for a couple of months. The claimant was the most senior employee and the witness reported to him. The garage had quite a number of used cars on site for sale, some of which required a lot of work on them to make them more appealing to customers. When asked he said that he was aware of T.R. Car Sales and had no knowledge that the person named was fictitious.

On one occasion a couple arrived on the premises to trade in their two cars and purchase two newer models. CR told the Tribunal that sales were not his forte at the time and the claimant valued the two cars to be traded in. A deal was struck and the couple completed their purchase.

A few days later the claimant told CR that he could sell the two trade-ins to T.R. and asked CR to complete the paperwork. CR said he was thrilled as this would mean he had four sales in just one month. The claimant handed the money for the trade-ins to CR. He counted it and found there was a surplus of €100. When he informed the claimant, he was told that all the money did not have to go to the respondent and he was to keep it. CR kept the money.

However, the matter bothered him and some weeks later he approached the Managing Director and told him what had happened and offered to return the €100. The Managing Director told him to leave it where it was and thanked him for telling him. In 2010 the Criminal Assets Bureau investigation commenced. In 2011 CR left the respondent’s employment to travel. In September 2013 he sent an email to the Managing Director outlining what had occurred in 2009 for the purposes of the Criminal Assets Bureau investigation.

During cross-examination he said the claimant had valued the trade-ins in question and completed the sale, he had only completed the paperwork. 

7^th & 8^th October 2015

Giving sworn testimony, DW (the respondent’s retired financial controller) said that his attendance at the branch where the claimant worked would vary but that he did make visits. The claimant had been a mechanic before going into a sales role around 1998. The claimant was quite senior from 2002 on. The respondent placed much reliance on the claimant. There were five or six people working in Nenagh. The claimant had relative autonomy.

Asked about private car sales by an employee, DW replied that the respondent’s attitude was that it could not be permitted.

In late 2010 the claimant was told to stop selling cars privately. The respondent knew of this and could not allow such competition. The respondent paid more than it should and the claimant benefited. Regarding T.R., DW only knew of this as a car sales operator. The respondent assumed that all was above board. T.R. was buying and selling with the respondent.

In August 2010 C.A.B. (the Criminal Assets Bureau) came in and investigated the claimant. The claimant was convicted. A lot of documentation was taken away. The respondent got “a clean bill of health”. Just the claimant was prosecuted.

The Tribunal was referred to paperwork indicating that the claimant had been active and profiting and that there had been financial discrepancies in the claimant’s figures. The respondent made a loss. Money went to a private account of the claimant. Benefit was not accruing to the respondent. Other people were being protected but not the respondent.

Asked about the allegation that there had been a slush fund, DW said that he knew nothing about this and that, as financial controller, he could not have someone operate a slush fund. He was distressed that this was going on. The claimant denied culpability in respect of T.R.

Asked how the respondent would benefit from the operation of a non-existent entity, DW replied that the respondent would have no comeback in respect of T.R. The claimant had received the respondent’s handbook which forbade personal trading. The respondent learned that the claimant had a financing contact in Cork and that the claimant had received cheques. The respondent could not let him compete with it.

CAB investigated.  DW gave evidence in court.  The respondent heard the allegation that T.R. was supposed to be for the respondent's benefit.  The claimant was suspended with pay.  JH was appointed to investigate.  JH did so over two hearing days.  All information was put in.

JH made a finding. Money had gone into the claimant’s personal account. There was an allegation that the claimant had sold cars to someone who did not exist.

Yellow copies were missing from trade order forms. There was also a white copy but the yellow copy was to stay in the book. Pages were torn out and removed. They had to have been ripped out. This was not done normally. It had not been done before. DW was disappointed. He described this as an understatement. There had been incidents with salesmen who had made shortfalls good. It was distressing for DW that he had not “copped” it.

Under cross-examination DW was asked for a note on a September 2009 meeting about a third party cheque. DW replied that he no longer worked for the respondent and that he could not recollect if he took a note. He said that he would have taken a note about things to follow up after the meeting. Asked about follow-up, he could not say as this had been six years before. C.A.B. came in and the claimant was asked to explain. The claimant did so on 15 September 2010. There was a meeting on 16 September 2010.

It was put to DW that it had been known what the claimant was doing. DW replied: “Not like we know now. That took months.” Trading with T.R. was stopped. The C.A.B. case was to be let take its course.

It was put to DW that a conscientious employer would have sought advice. He replied that information was got from him in October 2010 and that the respondent had to wait.

Asked when the respondent had first become aware of T.R. deals, DW replied that only in 2010 had the respondent known that T.R. did not exist. It was put to DW that a police witness for the claimant would say that the respondent knew sooner. DW did not accept this.

It was put to DW that, when the respondent had stock it could not move, it would sell to “Arthur Daly” so that the respondent would get rid of stock and get cash. DW replied that he disagreed.

It was put to DW that the claimant would say that the respondent denied knowledge before C.A.B. went in but that the respondent had known. DW disagreed.

DW did accept that KL had been sure T.R. was the claimant and that many sales had been to a man here referred to as EM. It was put to DW that EM had wanted sales to him recorded as sales to T.R. DW accepted that EM had been involved in T.R. transactions. DW said that CR (former employee of the respondent) had said that he had never met T.R. DW said that the respondent had not known of the claimant’s “flipping”.

All staff got a trade discount. The claimant had a spare parts account with the respondent. In DW’s view the claimant was sourcing cars, competing and ending up with profits as well as dealing with finance companies and others during company time. Main dealers and finance companies could only be dealt with in business hours.

Speaking of specific profitable transactions conducted by the claimant, DW opined that they had been done during normal working hours.

It was put to DW that T.R. was just a name for “other traders” and that the respondent had been fully aware. DW did not agree and said that the respondent would have taken action by suspending and investigating. He accepted that the claimant was told to stop the T.R. transactions. The investigation was ongoing with C.A.B. The claimant had indicated that he had made no personal gain. The respondent found out about the claimant’s personal gain.

Asked if the claimant had been dismissed because he had been gaining, DW replied that the claimant had been dismissed for gaining and for having been T.R. Asked if the claimant would not have been dismissed if not gaining, DW said that he could not comment, that there would have had to have been a management meeting and that the respondent had not known what had been happening. It was put to DW that the claimant would say that the yellow pages were pulled out for customers. At this point the question was asked if the claimant was relying on a different position from that taken at the investigation. DW said that there had been fictitious sales to non-existing parties. The Tribunal was told that the bouncing of a cheque had been brought up a number of times.

It was put to DW that it had been unfair to dismiss the claimant about a transaction three-and-a-half years earlier. DW said he could not comment when asked if the claimant had been “in cahoots with” EM.

There was an exchange about money due to the claimant or the respondent. It was put to DW that the claimant had never agreed to give money back. It was said that T.R. had made gain. DW said that the claimant had been told that he could not be dealing personally whether as T.R. or not. The Tribunal was referred to the minute of a 16 September 2010 meeting. There was an issue with personal trading.

The respondent’s representative said that he wanted to be clear about what the claimant would say that it was gross misconduct for an employee to trade on his own account. The respondent’s representative asked if the claimant was saying that he had never been told. The respondent’s representative said there were now three versions of what the claimant’s case was.

DW stated that employees of the respondent could not be in competition with the respondent. The claimant’s representative said that the respondent was selling new and good cars but that the claimant had been selling low-price cars and not competing with the respondent and that the result of an appeal on a criminal case was awaited. DW referred the Tribunal to the nominal account details and said that a finance company could not accept an invoice if from a non-registered trader and that the respondent had incurred loss. It had been unable to trace a particular customer here referred to as FC. The claimant had been challenged. Asked if the claimant had been reprimanded, DW did accept that “the odd dud” got bought but said that hire purchase history should be checked.

The claimant was questioned and claimed that he had checked but there was no evidence. The C.A.B. investigation was going on. DW said that problems were coming at the same time. The respondent could not get more information from the claimant about FC. DW did not dispute the contention that the respondent had decided not to do anything till C.A.B. was finished. DW said that the claimant had not been questioned by him.

T.R. did not produce invoices.

Giving sworn testimony as a witness for the claimant, ER (some eight years a Garda) said that he had previously worked for the respondent mainly in Nenagh. Asked about T.R., ER said that his role had centred on service and parts and that he would not really have known but that he had heard T.R. mentioned. At Xmas there would be bottles of spirits for customers. ER would give a couple of bottles. One would be for T.R. who was mentioned as a good customer.

Asked about levity, ER said that he could not recall but that there might have been a laugh about T.R. being a good customer who was never seen.

Asked if there had been a slush fund at the garage, ER said that there had been a small blue box at the back of the store. Money was kept for the claimant. Asked the purpose of this, ER replied that it had been “for a rainy day” for the claimant and that MX, who did the books, had known about this.

Under cross-examination, ER said that KL might not have known someone was a good customer.

In sworn testimony the claimant did not disagree when it was put to him that his employment had begun in 1988 and that until September 2010 he had been a model employee who had not been disciplined or reprimanded. He was next asked if at the time of the JH investigation it had been agreed that he was T.R. At this point the respondent’s representative objected.

The claimant told the Tribunal that T.R. was a number of cash trade customers. It was a name being used for customers who did not want their names used. The claimant named several of them and referred to transactions involving T.R. going back to the early noughties. He said that he was computer illiterate but that a list was printed off for him in 2010.

Asked the purpose of selling cars to T.R., the claimant said that it was done to get rid of bangers to small traders. The claimant also named certain car makes that he said “give trouble” and “break your heart” in terms of warranty issues.

Asked about EM’s link to T.R., the claimant said that EM was “on disability” and did not want his name on a car order form. Asked why a car was sold to EM, the claimant replied that no-one else was there to buy it.

The claimant said that in 1998 he had moved from working as a mechanic to working in sales and that T.R. “was going on to the best of my knowledge”. Questioned by the Tribunal, he replied that he “could not say if it started from 1998”. He agreed that the respondent became fully aware in 2010 although there had been a meeting in September 2009.

The claimant was taken through different transactions. The respondent’s representative objected that the same material had not been put to the respondent witnesses. The claimant denied ever having agreed with the respondent that he would not engage in trading in his own name or “flipping” cars. Regarding the allegation that he had done this on company time, the claimant said that he worked Saturdays and was entitled to a day off during the week. He denied having used his workplace. He denied having competed with the respondent in the kind of business the respondent did as alleged by DW saying that he “would sell oddball vehicles to the trade”.

Asked when he had ceased to sell cars in his own right, the claimant replied that he had not stopped before being dismissed and that the respondent had known. He had since tried to get other work. He had only got part-time work from one employer (CLX).

The claimant said that he had made profits for the respondent on specified vehicles. When the Tribunal said that this was unsatisfactory because it had not been put to the respondent witnesses the claimant’s representative said that he would move on.

The claimant said that one vehicle that he had dealt with had been “clocked”. He always put in a profit of five hundred euro. Asked about removed yellow pages, he said that he had had issues with commission and that he had no other record. He was not sure how many he took; perhaps seven or eight. He did not claim that this was in compliance with S.I.M.I. norms. He thought his solicitor had furnished the documentation.

The claimant admitted that he had a friend in Cork who could get finance. He did not believe the respondent was entitled to all money accruing. The slush fund was to pay for deals.

The claimant denied that he had told CR to pocket some money. He had not heard of any related confusion. One car he had sold then had work done on it by EC for resale purposes. He had had occasion to keep €250.00 back for the slush fund. He did not have all order forms.

The Tribunal was told that the claimant was now unemployed and seeking work but that he could not get social welfare payment because of property from which he could earn rent.

Under cross-examination the claimant said that he still sold cars for CLX and got a payment for any sale. He had no further evidence of loss.

The claimant acknowledged that the respondent had placed trust in him and that KL and DW had been based in Limerick.

The claimant admitted that he had received the respondent’s handbook. He had signed for receiving a copy but had not read it prior to the Tribunal case. Referred to the buying and selling of goods, the claimant said that KL had said that the claimant could talk to him if he had any issues and that KL was meant to get back to him but did not do so.

The claimant told the Tribunal that the respondent knew that he had spent thousands of euros on trade parts for vehicles. It was put to the claimant that he had been carrying on activity expressly prohibited in the handbook. The claimant reiterated that he was “pretty much computer illiterate”.

It was put to the claimant that he had under-declared to Revenue hundreds of thousands of euro, that he had been convicted and that there were up to twenty accounts. The claimant said that his case was under appeal. He accepted that there was no person called T.R. It was put to him that the respondent could have a problem about dealing with someone who was not registered and would have no protection after doing so.

The claimant said that EM was being given a way of buying cars without giving his name. Asked what the benefit to the respondent was, the claimant said that EM was a very good customer and that the respondent was getting rid of “bangers”. The claimant denied that he had been “skimming” the deals and that money had gone to his own pocket saying that he had sold cars that one could not retail or that had a problem. Most of the time he dealt with “the trade” but he denied having any special relationship with a customer. The claimant accepted that he had torn out yellow pages that he should have kept in the respondent’s book but denied that he had been trying to cover up saying that a customer might want the page or he might need it for himself. Asked why he could not look at it rather than tearing it out, he said that he could not recall why he had removed some documents. Asked what was the purpose of his holding documents that the respondent owned, the claimant replied: “To check my commission.” He accepted that his solicitor did not deal with commission.

The claimant alleged that the respondent was using a slush fund in Limerick as well and that the respondent had misled the JH investigation. It was put to the claimant that his answers made no sense. The claimant replied: “Where’s your proof?”

Questioned by the Tribunal, the claimant said that he was trying to get work that he had tried places and that he was doing “a little freelance work”.

Determination:

The Tribunal have heard oral, written evidence and evidence submitted by both parties over six days. The Tribunal must in cases of this nature look to S. 6 (1) of the 1977 Act:

“6. —(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

That is, it must be satisfied that there were substantial grounds justifying the dismissal of the claimant herein. In determining whether so, the Tribunal consider the following:

The reasons given by the Respondent for dismissing the claimant were twofold:

(a)   That the claimant engaged in a parallel business in trading cars on his own account. Whilst the claimant admitted a certain amount, (i.e. selling to TRCS), he was unaware same was contrary to company policy;

(b)  That after discovering a number of incorrect invoices they, the Respondent , had lost all confidence in the claimant and that they had no knowledge of the transactions which involved putting fictitious names on invoices and transferring same to car dealers without correct records.

 The claimant maintained at all times that the Respondent knew and acquiesced in this practice.

The Respondent and the claimant, through his solicitor, agreed subsequently to him being suspended on full pay on the 19^th July 2013, and to the appointment of JH to deal with seven allegations which the Respondent put before the claimant.

At all times the claimant and his solicitor engaged with JH and agreed to his process, at no point did the claimant or his solicitor make any claim that the conduct of JH, vis a vis his investigation process, was flawed. At all times fair procedures and correct process were applied by the investigator.

JH issued his findings by report dated 23^rd October 2013, that:

(a)   He was satisfied that neither KL nor DW knew or approved of the use of invoices or the fictitious names by the claimant.

(b)  That the claimant engaged in a parallel business of trading cars during the course of his employment. In doing this the claimant did not act in the best interests of his employer and acted in competition with his employer.

JH found that trading on one’s own account constitutes gross misconduct. Further he found that there were serious and substantial reasons to find there was an irreparable loss of trust and confidence emanating from the gross misconduct of the claimant. JH found that the company would be justified in dismissing the claimant.

Thereafter the company took a decision to dismiss the claimant by letter dated 22^nd of October 2013, which was confirmed orally at a meeting on the 25^th October 2013 and further confirmed by letter dated 23^rd November 2013.

 In considering this matter the Tribunal must consider and look at whether the company had substantial grounds to justify their decision.

The Tribunal is satisfied there was sufficient evidence before it to find;

The claimant was in a significant position of trust, running the Nenagh branch of the Respondent garages. It was clear from the oral evidence of both KL and DW that the claimant operated with significant latitude.

The Tribunal has heard evidence from a witness from the CAB that the witness made the company aware of the fictitious entity namely: TRCS, and he, through his investigations was satisfied that the Respondent garages/ company had no knowledge of affairs of, or had dealings with TRCS.

The Tribunal considers this evidence together with that of Garda ER who gave evidence regarding an alleged slush fund which was for the claimant’s use only and by the Respondent garage, the evidence of KL and DW and the claimant himself. 

The Tribunal is satisfied that the Respondent garage was not aware of or complicit in the activities and/or dealings of TRCS and the claimant. Further the Tribunal, from the evidence it heard, is satisfied, that the claimant acted for his own personal gain and acted in competition with his employer.

Further the Tribunal is satisfied from the evidence heard, most particularly the evidence of CR, that such practice was contrary to company policy.

The Tribunal must consider whether the decision taken to dismiss, was fair in all the circumstances. In that regard the Tribunal find the procedure undertaken to be fair and consistent with the evidence available.

 The Tribunal find that there were substantial grounds justifying the dismissal and accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)