EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Flood - claimant UD661/2015
Against
Limerick Pharma Logistics - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr T. Gill
Mr D. McEvoy
heard this claim at Limerick on 12th September 2016 and 6th December 2016
Representation:
Claimant: Ms Carole Flood, Bunavie, Pallasgreen, Limerick
Respondent: Ms Sarah Walsh BL, instructed by Mr Anthony Murphy, Browne & Murphy, Solicitors, 64 O'Connell Street, Limerick
The determination of the Tribunal was as follows:-
Dismissal as a fact was not in dispute.
Respondent’s Case:
The claimant had initially worked for a pharmaceutical company (U) in the role of van driver but was made redundant in 2011. He together with other ex-employees of company U set up the respondent company in late 2011. The respondent is a business engaged in the delivery of medical and pharmaceutical products to pharmacies in the mid-west region. The respondent has one client, namely company U and distributes medical and pharmaceutical products to pharmacies for that Client. The respondent operated out of company U’s premises. The claimant became a Director, shareholder and employee of the company.
H.McG Chairman and Co-Director gave evidence. He had worked with and known the claimant for eleven years. The respondent entered into a service agreement with company U. At an early Board meeting on 16th January 2012 a decision was taken to use company U’s employee handbook. The respondent became the service provider and agreed to meet the demands of company U in respect of its requirements for delivery services. In providing delivery services the respondent at all times agreed to adhere to the high standards set down by company U and work within the norms for the pharmaceutical industry. At a Board Meeting the claimant signed off on this Agreement.
On 24th April 2014 at approximately 6.00pm RT (Operations Manager) of company U contacted the witness concerning a difficulty that had arisen following a delivery to Pharmacy B. This difficulty led directly to the ultimate dismissal of the claimant. An unpleasant smell emanated from a tote that had been delivered. Pharmacy B is company U’s second biggest customer. That contract was worth a lot of money to company U. RT had contacted the claimant who in turn told him that he had finished working for the day. RT together with the Pharmacist in Pharmacy B opened the tote which contained human faeces.
RT asked the witness to contact the claimant. During that telephone conversation the claimant admitted that he had delivered that tote to Pharmacy B and was apologetic and upset at what had occurred.
RT subsequently asked that the claimant be suspended immediately and that an investigation be conducted into the incident. His suspension was without pay. The claimant provided a statement on 27th April 2014. The witness also provided a statement.
JH, HR Specialist conducted the investigation on 20th May 2014. She took statements from RT (via telephone) and HMcG. She met the claimant together with his representative CF. TOS and MH Directors of the respondent company also attended that meeting. All parties signed a confidentiality agreement. JH asked the claimant to give his account of his activities on 24th April 2014. The claimant loaded up the van that morning in company U’s depot and left at about 7.10 a.m. He made his first stop in Kildorrery. He was en route to his next customer when he got taken short for a toilet. There were no facilities in the area so he used the empty blue tote he had picked up from his first stop to relieve himself of a bowel movement and left the blue tote in the van. It was his intention to deal with it when he got home.
He arrived home at 11 am had something to eat, got caught up in other activities and forgot to deal with the blue tote.
At approximately 1 pm he returned to work, took the empty totes out of the van and left them in the premises. He loaded the van again with deliveries for his next run. He repeated the same procedure again and loaded the van for his last run in the city centre. He was conscious of the offending tote being in the van as he was loading it for the city centre run. He recalled putting Pharmacy B’s order on top of the offending blue tote.
The claimant said it was a genuine mistake that he had delivered the offending blue tote to Pharmacy B and was very upset and apologetic about the whole situation.
When RT telephoned him and said something needed to be collected from Pharmacy B it did not register with him at that stage that it might be the offending tote that needed collecting. The claimant had called RT later and apologised saying he could not believe that he had made an awful mistake. The claimant had suffered from colitis but that was under control and he had been weaned off his medication. Towards the end of that meeting the claimant indicated that he and his wife were going through a separation and that caused a source of stress which could have been a mitigating factor.
There was no doubt in JH’s mind that this was a serious situation where an employee had breached company policy as well as custom and practice resulting in serious implications for the claimant, the respondent and company U and that the incident impacted on company U’s relationship with a significant customer of theirs.
Company U had clearly expressed that the claimant no longer undertake any business on their behalf or to enter their premises as was company U’s prerogative under the Service Level Agreement.
In deciding the appropriate disciplinary action the company might take, the witness recommended that management needed to consider how integral it was to the claimant’s role that he could work on the U account, especially that company U was the respondent’s only customer and clearly that company U had clearly expressed that the claimant was no longer to undertake any business on their behalf or enter their premises as was their prerogative under the Service Agreement.
JH typed up the minutes of the meeting and sent them on to the claimant. He came back with minor changes. She passed the matter to HR.
The claimant was invited to a disciplinary meeting on 4th June 2014. The claimant attended the meeting with his wife who was his representative and JH was also present. A proposal was put to the claimant that he could resign or he would be let go from the company. The respondent was trying to do the decent thing. Re-assigning the claimant elsewhere was not an option.
Following the disciplinary meeting the claimant forwarded medical certificates to company U’s address which cited the claimant as suffering from stress/depression. On 8th September 2014 the respondent company asked the claimant to attend an independent medical practitioner and an appointment was made for him on 16th September 2014. The claimant was unwell and not fit enough to attend the medical practitioner.
A decision was taken to terminate the claimant’s employment on 27th November 2014. The claimant was offered a right of appeal by letter dated 7th December 2014.
The claimant had been familiar with grievance procedures operated by the respondent during his tenure.
By letter dated 16th January 2015 the claimant outlined that it was not possible for him to lodge an appeal for several reasons.
Claimant’s Case:
The claimant gave evidence. He did not dispute the fact that he had delivered an offending tote to Pharmacy B on 24th April 2014. He admitted that he had made a mistake and apologised for his actions. He had been driving for company U and delivering pharmaceutical products to pharmacies for eleven years before he became a Director and employee of the respondent company.
The following day, 25th April 2014, he went into work. He was loading the van and HMcG approached him and told him he was in the wrong job. He was suspended pending an investigation into the matter.
JH conducted the investigation and he participated fully and provided a statement of what had occurred on 24th April 2014. JH emailed the investigation report which included the findings, conclusions and recommendations and he made some amendments and returned it to her. It was fair to say that he was kept up to date as the process progressed.
He attended a disciplinary meeting on 4th June 2014. During the course of that meeting HMcG explained that the respondent now needed to decide upon disciplinary action for the serious misconduct. The claimant was told that the company no longer had any work for him. The respondent gave him the option of resigning or his employment would be terminated. He was to revert back with his decision regarding resignation by 10th June 2014.
He then furnished medical certificates to the respondent. He had not made the decision to resign and he had no idea why he did not revert to the respondent in relation to resignation.
The claimant believed that he had been badly treated by the respondent and that procedures had not been followed correctly. He felt he had not been properly treated and had not been issued with any warnings.
He received two letters from the respondent the first one dated 27th November 2014 which informed of the termination of his employment with immediate effect. The second letter dated 7th December 2014 apologised for not offering him a right of appeal to the termination of his employment. He was asked to submit an appeal in writing within 14 working days. He did not appeal the decision to dismiss him.
Due to health issues the claimant was unavailable for work following the termination of his employment and therefore sustained no loss.
Determination:
The Tribunal carefully considered the evidence and submissions made during the course of this two day hearing.
Following a workplace incident concerning the claimant’s actions on 24th April 2014 the respondent’s only client (company U) requested the respondent to conduct an investigation and to take all necessary actions. JH was appointed by the respondent as an independent investigator to report on the matter. The claimant engaged fully with the process. The respondent subsequently invited the claimant to a disciplinary hearing and again he engaged with the process.
The Tribunal is satisfied that any vagueness in the company’s procedures were remedied in the course of both the investigatory and disciplinary hearings. However, the conduct of the claimant was such that the eventual decision by the respondent to dismiss him was an appropriate sanction, especially in the context of the claimant’s experience and familiarity with the standards expected by the respondent and the respondent’s single client.
In all the circumstances, the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)