EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD925/2014
CLAIM OF:
Michael Coleman
-Claimant
Against
Linley Investments T/A Coolmore - Castlehyde & Associated Stud Farms Limited
–Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O' Mahony BL
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this claim in Thurles on 5 May 2016 and 7 September 2016
Representation:
Claimant: Ms. Barbara Ryan BL instructed by Mr. Philip English, English Leahy, Solicitors, 8 St Michael Street, Tipperary Town, Co. Tipperary
Respondent: Mr. Thomas Cummins, HR Consultant, 195a Library Road, Shankill, Dublin 18
The determination of the Tribunal is as follows:-
Summary of Evidence
The claimant commenced working for the respondent as a stable hand in March 2012. Six months later he moved to maintenance and building projects and continued to work in the stables at weekends. His hours of work were 8.00am to 5.00pm on weekdays, 7.00am to 10.00am and 3.00pm to 5.00pm on Saturdays and alternate Sundays.
In late January 2014 the claimant was involved in the refurbishing of a granny flat in Thorneybridge for a new letting. This flat adjoined the rented home of JN, who was not the respondent’s employee. On either 30 or 31 January 2014 JN, as usual, left the post for his landlord on a chair in the shed and his rent money under a coal bucket. On the afternoon of Friday, 31 January JN discovered that the money was not where he had left it and later that evening he confirmed with the landlord that he had not taken it. The next day, JN confirmed with the plumber and electrician that they had not been in the shed on the Friday. He then phoned the claimant who when asked if he had taken the money replied that he had not. JN’s assertion that the claimant phoned him back within some minutes asking to let him know if he found the money was denied by the claimant. It is common case that the claimant phoned JN some minutes later to say that he had the money but had panicked and had not known what to do. There is a dispute as to remainder of that conversation as well as to their further conversation when the claimant returned the money to JN that morning.
The claimant’s evidence was that he moved some furniture stored in shed to make room for an old fridge. On Friday, 31 January 2014 the claimant returned to Thorneybridge to take an oil delivery. As he was leaving at around 2.00/2.30 pm he met JN and, although the two were not acquainted, they conversed for around ten minutes. Later that afternoon the claimant returned there again at around 4.15pm as he had been asked to take measurements for curtains. As he was locking the door to leave at around 5.45pm he saw a bundle of money, stuck in the corner by the oil tank, which in by the shed. He counted it in his car. It was €220. His immediate reaction was to tell his supervisor. He phoned him twice. The first call was at 16.48 and he only left it ring for two seconds. He had to collect a passenger, (Mr C) at 5.00pm. He then phoned his supervisor again at 17.31 and, although he left it ring for 45 seconds, it was not answered. He decided to go to his GAA training that evening and to tell his supervisor about it at tea break the following morning, Saturday.
The next morning the claimant arrived early for his 7.00 a.m. start. The stud farm was very busy that morning and it was raining heavily. As he got to the canteen after 10.00am on Saturday morning for his tea break his mobile rang and he went outside to take the call. JN was on the phone. He told the claimant money was missing and asked had he taken it. The claimant did not admit to finding the money because he did not know JN and felt it could be someone else’s money. A plumber and an electrician had also been doing some work there on the Friday and possibly a father and son had been working in the vicinity as well. The claimant wanted to speak to his supervisor first. When he went back into the canteen, he told his supervisor about finding the money and JN’s phone call and he told him to take it back to JN. He then phoned JN and told him he found the money and was on the way over with it. There was a dispute as to the number of phone calls the claimant made to JN that morning, the content of some of those calls and the conversation when the two met that morning. JN reported the incident to management on Monday. The mobile phone records were given to the Tribunal.
The respondent’s head of security (HQ) met JN on 4 February 2014. JN provided HQ with a written statement of his version of the incident. On 5 February 2014 HQ called the claimant to the office, where he read JN’s statement to him. The claimant told HQ his version of the incident and following this he was summarily dismissed by HQ. The claimant left immediately. The entire meeting lasted about six minutes.
On 18 February 2014 the claimant’s solicitor wrote to the respondent complaining about the lack of procedures and the unfairness of the dismissal and asking the respondent to revisit the matter. DR (a senior executive and director of the respondent) whose remit includes responsibility for HR management in Ireland, was concerned that the investigation and dismissal had been too hasty and on receipt of the solicitor’s letter, decided that that he would treat the letter as an appeal, which would include a full investigation. The claimant’s solicitor was allowed to attend the appeal meeting held on 8 & 24 April 2014 as an observer to give support and advice. DR upheld the dismissal. In his letter of 12 May 2014 to the claimant DR stated:
“While ultimately you did disclose that you found the money the circumstances of the find and the delay in telling anyone does not stand up to objective credibility analysis. The essence of the employment relationship is trust and regrettably you have lost that trust.”
Determination:
The summary dismissal of the claimant on 5 February 2014 was seriously flawed. The claimant was not given prior notice of the purpose of the meeting. The claimant’s case was not adequately or at all explored by HQ. The claimant was not afforded a fair or adequate opportunity to defend himself. DR recognised that the dismissal meeting of 5 February was flawed.
An appeal does not remedy a procedurally unfair dismissal. It does not put a stamp of respectability on a decision to dismiss which was flawed in the first place O’Hora v Dakota Packaging Ltd UD372/1991. Under the respondent’s procedures the claimant was entitled to an appeal. Thus, he was entitled to two opportunities to have the issue(s) that arose adjudged fairly. That did not occur in this case. Accordingly, the dismissal is procedurally unfair.
The Tribunal finds that DR adopted a closed mind in reaching his decision on the appeal, relying inter alia on the delay and that the claimant did not, on finding the money on Friday, search out the others who were or had been around Thorneybridge to ask if the money was theirs while ignoring the claimant’s explanations even though there was corroborating evidence to support the reasons he gave for the course of action he adopted. The claimant voluntarily admitted to finding the money and returned it to its lawful owner, within a short time of discovering whose it was. The Tribunal is not satisfied on the balance of probability that a reasonable employer would have dismissed the claimant in the circumstances. Accordingly, the dismissal is also substantively unfair.
For the above reasons the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds. In the circumstances of this case compensation is the appropriate remedy and the Tribunal awards the claimant the sum of €18,000.00 under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)