EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Tony Leahy, UD600/2015
MN288/2015
against
P.R. Reilly Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Ms M. Sweeney
Ms H. Kelleher
heard this case in Cork on 5th September 2016 and 17th November 2016
9th March 2017 and 10th March, 2017.
Representation:
Claimant(s):
Mr. Stephen O'Donoghue BL
instructed by Peter Quigley, Peter Quigley& Company, Solicitors,17 South Terrace, Cork
Respondent(s):
Mr Patrick O'Riordan BL instructed by
Mr. Marc Fitzgibbon, Lavelle, Solicitors,
St. James’s House, Adelaide Road, Dublin 2
Background:
Giving sworn testimony, HL said that she was employed by the respondent since 1999 and was a depot manager for at Little Island in Cork. The claimant was head of the sales team. A customer called her about a credit card payment around February 2014.
The claimant’s representative said that he objected unless the customer attended.
The respondent’s representative said that the claimant had made an admission.
HL said that the claimant had come to her office. Five hundred euro credit went back to the customer. The claimant had problems with accounts. He emptied his boot and brought items back the next day. HL did not get an explanation for all involving the claimant. The claimant said that he did not know. He wanted to speak to EOM (sales director) alone and that his wife had had a nervous breakdown. Customers were credited one hundred per cent. The situation was not normal. There was more than twenty thousand euro owing.
The claimant did not dispute the respondent’s position. The respondent was to deduct €650.00 from the claimant’s expenses (rather than salary because the claimant had a big mortgage).
The claimant said that he would go through the respondent’s list and drop items back. The claimant brought in a payment and said that he would have the balance in the next few days. There was the matter of some car radios. HL was just fact-finding. The claimant withdrew stock but it did not go to the customer. There were issues about signatures and proof of delivery.
When EOM met with the claimant HL was told that she was not needed. They met for about fifteen minutes and seemed amicable.
Under cross-examination, HL replied to the allegation that the claimant would say there was chaos at the LI depot by saying that the claimant was always in a hurry and was even known as “Speedy”. Signatures would not always be got from the claimant or others. A customer might ring a rep directly.
It was put to HL that procedures might not be adhered to. She replied that it was the employee’s own negligence. The claimant did not always comply with procedure but, in HL’s opinion, was quite capable of setting up a claim. She disagreed with the contention that the respondent was so undermanned. The claimant worked for HL’s depot and Pouladuff. The claimant got a lot of leeway. She understood him to be the head representative and that he had trained in one rep and another employee.
It was put to HL that the claimant was alleging bullying and threats (by EOM). It was alleged that the claimant had been threatened when washing his own car. HL denied that she herself had been bullied by EOM. Denying that there was pressure from EOM, HL said that she had been friendly with the claimant and that goods could have gone with a courier.
HL said that she had been reluctant to leave a diary lying around. It was kept in her office.
HL told the Tribunal that the claimant was creating an invoice to cover the ones he had misappropriated. The claimant just walked out and they never got the claimant’s laptop back.
It was put to HL that the claimant had only got certain information the day before the hearing. HL said that this was nothing to do with her but that she could pull out other documentation for the next hearing day.
The claimant had taken responsibility for what he had done.
HL said that she had nothing to do with the claimant’s resignation and that he had availed of a smokescreen.
The case was adjourned to November 2016.
Resumed hearing 17th November 2016:
In continuing with the case the Respondent called COK a witness from an automotive company (named as BP auto). The witness explained that he is the owner of BP autos and had dealt with the Respondent company for four or five years and dealt with the Claimant directly. He noticed an impropriety in one of his statements from the Claimant / Respondent. He noticed that a lot of invoices had been made out to him for items that he had not received. He phoned the Claimant on numerous occasions but eventually contacted the woman who did the accounts for the Respondent. She and he went through the invoices and there were ten or twelve fictitious invoices for products that he did not receive. He was given credit notes for the invoiced goods that he had not received. He also paid all of the other outstanding invoices.
The witness was cross examined.
The Tribunal heard evidence from EOM who is the sales director for the Respondent. He looks after day to day matters and overall management. He reports to NR. The Claimant reported to him. The Claimant was hired by ML and the Claimant was eventually promoted and took on responsibility and was in charge of all sales in Cork.
In February 2014 HL who was the woman in charge of accounts phoned him. She briefly outlined a conversation that he had with the Claimant. He later met with the Claimant and HL in his office. The Claimant admitted that he had carried out irregularities. The Claimant kept saying to him that “I am gone”. He told the Claimant that they would have to sort out the customers that they would not be out of pocket. They agreed with the Claimant that he would enter into a repayment plan; the Claimant agreed to repay €650.00 per month and they opened a separate repayment account to his staff account. The witness explained these accounts in detail and the staff and customer accounts. The witness also explained in detail the sales representative procedures as to the accounts and the customer accounts.
Another incident occurred in February 2015. He got a phone call from HL who said that she needed to speak to him. He went to talk to her and she told him that the claimant had “been at it again”. He was astounded and said that he would have to phone NR the MD. He phoned NR and NR told him that they would have to meet the claimant. He then asked HL to phone the claimant so that he could meet him.
He met the claimant and asked him about six items that HL had listed for him. He went through the items at length and the claimant “admitted that he had done it”. The claimant handed him his diesel card and he took it and threw it on the desk. He told the claimant that they would have to speak to HL. He said to HL and the claimant that they would speak again on Monday (09th February 2015). He said to the claimant that they would meet again on Monday and they would sort out this mess. The claimant seemed agreeable to this. The witness explained that he never said anything to the claimant about not working in the motor trade again; that it had in fact been said to him by the claimant in February 2014. Also the claimant had given him a letter of resignation in February 2014 and at the time he had told the claimant that they had not reached that point.
The claimant did not turn up on Monday 09th February 2014 so he rang the HR person for advice and she said that they should write to the claimant. He did go to the claimant’s house to check his address and the claimant was outside his house. The claimant told him that he had no comment. He never threatened the claimant in any way.
He discussed the matter with NR and they decided to take a disciplinary route. He carried out an investigation and made his findings. It was difficult as the claimant did not engage with them. They had invited the claimant to a meeting and he did not turn up.
The witness was cross examined.
The Tribunal heard evidence from MR who is a director of the Respondent. She looks after sales and admin and liaised with the claimant regarding the sales system and expenses. It was put to the witness that the claimant maintains that he was dismissed on Friday 06th February 2015. She explained that the claimant was not dismissed on that date, he was dismissed until 05th March 2015 and that this was after a full investigation. The claimant had been due to return into work on Monday 9th February and he did not turn up for work. The claimant had told EOM on Friday 06th that he would be in work but he did not turn up for work.
The Tribunal heard evidence from the claimant.
He explained that he commenced in the Respondent in 2002 as a sales representative. He called to panel beaters and motorbike shops. In 2003 an employee left and he was given the position of calling to Cork and Kerry motor factors. He also did some work in Waterford and Limerick. In 2006 he was offered a job by another employer. He gave in his notice to EOM and EOM met him soon after and offered him a €10,000 pay rise, which he accepted; his role or title did not change. Sometime later in 2006 he no longer worked in Waterford or Limerick developing the business. Then some changes occurred. The economy went bad and there were changes to the product range he sold. It was decided that he sell directly to garages and hardware shops and also to bearing companies. For example he sold WD 40 to bearing companies.
He asked the Respondent for assistance and they brought in another rep for Cork. He trained the rep and it took approximately one month to train a rep. At some point in time the Respondent decided to open a depot in Cork.
The claimant was asked about certain forms that he had to fill in and he explained that in the 13 years that he was in the Respondent he had only filled in a handful. The Respondent then employed more staff and he had to train them and he was under constant pressure.
The claimant explained the system of work that occurred each day:
He said that in the depot there were two people working behind the counter. Regarding goods pallets there could be two or up to six or seven. At around 9:00 am customers would arrive into the shop and also reps.
The claimant explained to the Tribunal the admin side of his work. He explained that each customer account had a rep number automatically allocated to them. Also the default rep number was the first rep and that his rep number would appear on accounts that were invoiced subsequently unless it was changed manually. Regarding bonuses the bonuses were paid on overall sales. Regarding credit notes he himself did not have the authority to set up credit notes and in 13 years he had not done so. The claimant gave extensive evidence regarding the invoicing and monetary process.
When put to the claimant that he owed monies to the Respondent he replied that he was surprised because there was not disciplinary hearing or disciplinary record. Regarding his account no statement was ever sent to him. He did sign an account form but he had not inputted into it. Regarding expenses, his expenses that he got for 2014 were the same as he had received for 2013.
The claimant explained that on or about 04th or 05th February 2014, he was asked to meet with EOM. He met EOM and EOM accused him of “fiddling” his expenses, that his mileage did not tally and that he (EOM) was not happy with his sales. Things got heated and EOM asked him to hand over his fuel card and laptop and phone.
He handed over the items and left the premises. He sat in his car for a while and thought about his situation, i.e. he had a mortgage arranged to move house, and four children. He contacted SP to say he had been fired and he contacted his solicitor
At a later time he was at home outside his home and EOM called. EOM asked him why he was not at work and he told EOM that he had been fired. EOM threatened him. There was a further exchange and he told EOM that he had nothing to say and EOM left.
The claimant gave evidence as to his loss.
The Tribunal heard evidence from other interposed witnesses from the Respondent.
Determination:
The Tribunal accepts that the claimant was given a second chance by the Respondent in February 2014. Forward on to Friday 06th February 2015 the Tribunal determines that the Respondent did not dismiss the claimant. The Tribunal concludes that on or about Friday 06th February 2016 the Respondent treated the claimant in the same manner as they had done the previous year. The claimant was not dismissed on the Friday 06th 2015 or at all. The claimant walked out of his employment and chose not to participate in an investigation, exhaust all avenues open to him or indeed participate in any process at all.
The Tribunal determines that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
The claim under the Minimum Notice and Terms of Employments Acts 1973 to 2005, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)