ADJ-00004723

Complainant

Respondent

Anonymised Parties

An Account Manager

A Logistics Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00006623-001

24/08/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00006623-002

24/08/2016

The Complainant was employed with the Respondent from 4^th   September 2001 until the employment was terminated with notice on 15^th   August 2016. The Complainant was paid €6095.00 gross per month and he worked   40 hours a week. The Complainant was provided with a written statement of his   Terms and Conditions of Employment but not the Grievance and Disciplinary   Procedures of the Company when he joined with a named Company in September 2001   and on transfer to the Respondent later in 2001.

The Complainant referred a complaint to the Workplace   Relations Commission on 24^th August 2016 alleging he had been   unfairly dismissed by the Respondent and a second complaint on the same date   under the Industrial Relations Act, 1969 in relation to Bullying/Harassment.

Unfair   Dismissals Act, 1977 – 2015.

The Respondent as per the Act made their submission   first and the Complainant made his submission afterwards.

The Complainant stated he was provided with a Company   Car. He stated he drove this from his   home in a named location in Co Kildare to Lucan. He then drove a family member’s   car from Lucan to Blanchardstown to work. The Complainant stated that in   accordance with his Contract of Employment he was entitled to claim expenses   on the Company Car. The Complainant stated that he claimed expenses on both   the Company car and on the family member’s car he drove each day. He stated   that he made up the receipts for these expenses himself. The Complainant   stated that yes he had claimed for a new tyre on the family member’s car as   he had got a puncture while driving that car at work. The Complainant stated at the Hearing that   he was bringing large Water Bottles from one Company location to another and   he confirmed that he had taken two of these bottles for his own house but   stated he had later returned both, the second one when he was dismissed and   removing his personal belongings.

The Complainant stated he had been subject to an   investigation meeting on 6^th July 2016 with two named employees.   The Complainant stated that he had been offered a right of representation but   had refused. The Respondent informed him in advance that the investigation   would look at his expenses and the removal of water bottles from the Company.   A second investigation meeting took place on 7^th July 2016 and the   Complainant was provided with the Minutes of each of the meetings.

The Complainant was invited to attend a Disciplinary   Hearing on 11^th July 2016 and he confirmed that he declined   representation. He was informed of the outcome by letter dated 15^th   July 2016 in which it was confirmed that he was to be dismissed for gross   misconduct. The Complainant stated he was afforded a right of appeal. The   Complainant stated that he had appealed and identified past issues he had   with his Line Manager. The Appeal Hearing took place on 9^th August   2016 and the Complainant confirmed that he wished his grievance against his   Manager to be considered separately from his appeal in relation to his   dismissal. The Complainant did receive   a letter from the Respondent in relation to a delay in issuing a decision in   relation to his appeal because of the annual leave of the Employee conducting   the appeal. The Complainant was informed of the outcome on 5^th   September 2016 and the decision was to uphold the decision to dismiss.

The Complainant stated that there was no car policy or   procedure in place and the Company did not have expense policy in place that   he the Complainant was aware of. He stated that he was unaware he could not   claim expenses on the family member’s car in relation to petrol and replacing   a tyre. He also stated that no lease plan document had been provided to him.

The Complainant stated he had not worked since his   dismissal and had been in receipt of Jobseekers Benefit from the Department   of Social Protection. The Complainant was requested to provide a statement   from the Department to confirm the dates, not the amount, he was in receipt   of this Benefit but he did not do so.

Industrial   Relations Act, 1969

The Complainant stated that he had lodged complaint of   Bullying and Harassment against his Manager on 22^nd July 2016   after he had been suspended pending investigation. This complaint was   investigated on 17^th November 2016. He stated he was issued with   the minutes of this meeting and he confirmed that he did make amendments to   the minutes. He stated that the outcome issued to him on 29^th   December 2016 was there was insufficient evidence to support his grievance.   He stated that he was afforded a right of representation at the Hearing.

The Complainant stated that this grievance complaint   should have been taken into account by the Respondent in relation to his   appeal of his dismissal. The Complainant confirmed at the Hearing that he had   been provided with the Grievance procedures in 2011 when he had made a   previous complaint

Unfair Dismissals At, 1977 – 2015.

The Complainant’s Manager became aware on 20^th   June and again on 29^th June 2016 of two reports concerning the   Complainant allegedly removing large dispenser bottles from company premises   without company approval. Parallel to this the Manager raised concerns in   relation to expense receipts submitted through company expenses by the   Complainant for the fitting of a tyre to a Company Car provided to the   Complainant. As this would normally be done directly with the lease car   company – lease plan – it was decided to investigate the issue. Upon review   of the tyre expense claim the Company also noticed that the Complainant’s   fuel expenses seemed to be excessively high and a decision was made to audit   all similar Lease plan cars to see if this was standard fuel spend. This showed that the fuel spend on the   Complainant’s car was excessively high compared with mileage/kilometres on   another identical car in the fleet of cars. The Complainant had travelled 28000   kilometres yet had claimed 5211 litres of fuel but when compared with a   comparable car with 50,000 kilometres had only bought 25413 litres of fuel.   The fuel spend of the Complainant would show that he had travelled 116,577   kilometres.

The Complainant was invited to an investigation meeting   and was suspended on 4^th July 2016. He was informed of the   incidents to be investigated as his fuel expenses and the removal of water   bottles. He was afforded a right of representation. At the Hearing on 6^th   July 2016 the Complainant stated he was using two cars to travel to work   which included a family member’s car and that this car was also diesel car.   He was asked to explain seven receipts which were for unleaded petrol rather   than diesel. He stated he just “gets them from the till and puts them in his   pocket” and he could not explain the petrol receipts he submitted. He was   asked what garage he got his receipts from and named a garage.

He was then questioned on the new tyre fitted on 14^th   April 2016 which he had claimed. He could not remember but agreed to revert

He was   questioned on the removal of large water bottles from the premises on 17^th   June and 28^th June 2016 and he stated he was merely borrowing them   but confirmed he had not sought permission to do so. He signed off on the   notes of this meeting. Post the meeting the Complainant confirmed that the   tyre fitted was for a family member’s car.

There was a second investigation meeting held on 7^th   July 2016. Again the Complainant was afforded representation but he declined.   The Complainant stated at this Hearing that the garage where he received receipts   was a different named garage to that he had already named and he confirmed   the new tyre was fitted on a family members car but that he had submitted a   receipt for this for his car and stated that he needed to use the family car   for personal reasons. The Complainant had previously stated that the puncture   occurred at the weekend but was now stating it happened on his way to work.   He stated he was holding his hands up and sought a second chance with the Company   and he apologised. Subsequent to this meeting the Respondent informed the   Complainant that the Garage he had named where he had got the receipts   submitted stated they did not issue handwritten receipts and that they had   never seen the receipts he had submitted.

The Complainant was invited to attend a Disciplinary   Hearing on 11^th July 2016 and he was afforded a right of   representation which he declined. At this meeting the Complainant admitted   that the family member’s car was in fact a petrol car and not a diesel car as   he had previously stated. He confessed he had written the receipts himself   which he submitted in relation to his expenses and he had been doing this for   the past year. He admitted he was wrong and should have informed his Manager.   He apologised and requested the Company to consider his 16 years of service.   The Complainant signed off on the minutes of this meeting. The Complainant   was informed by letter dated 12^th July 2016 that the value of the   handwritten receipts was €4082 since March 2015 and could not be matched to   any real fuel purchase. The Complainant sent an email the following day 13^th   July 2016 in which he stated that if he had used just one car this would have   accounted for the fuel receipts. The Complainant was informed of the outcome   by letter dated 15^th July 2016 and confirmed that he was to be   dismissed for gross misconduct. He was afforded a right of appeal to an   external Manager,  being the Director   Human Resources, Northern Europe.

The Complainant appealed the decision to dismiss by   email dated 28^th July 2016 in which he alludes to problems with   his Line Manager in relation to past issues. The Appeal Hearing took place on   9^th August 2016 and at this meeting he confirmed that he wished   his grievance complaints dealt with separately from his appeal on his   dismissal. This was agreed. The HR Director informed the Complainant post the   Hearing that she was on annual leave for two weeks and issued the decision in   relation to the appeal on 5^th September 2016 and the decision was   to uphold the dismissal.

IBEC on behalf of the Respondent identified and   referenced a number of Decisions of the Employment Appeal Tribunal.

The Respondent also stated that reinstatement was not   an option as requested by the Complainant due to the breakdown in trust and   confidence.

Industrial   Relations Act, 1969

The Complainant submitted a Grievance to the Respondent   on 22^nd July 2016, alleging Bullying and Harassment against his   named Line Manager. The Complainant had submitted his complaint under the   Industrial Relations Act, 1969 to the WRC on 24^th August 2016,   this was prior to the formal Grievance investigation process commenced and   after he had been dismissed by the Respondent on 15^th July 2016 –   with one months’ notice.

A Member of the Management Board Northern Europe was   appointed to investigate the Grievance and he was invited to attend an   investigation meeting on 18^th October 2016. He was afforded a   right to be accompanied. The Complainant did not attend this meeting or a   rescheduled meeting on 24^th October 2016. The Complainant did   attend a reconvened meeting on 17^th November 2016. The Complainant   declined representation. At this meeting the Complainant raised a large   number of issues backdated to 2009. The Complainant had never submitted any   complaint during his 16 years against his Manager. The Complainant had lodged   a previous complaint against another employee and had utilised the Grievance   Procedure that time in 2011.

The Investigation Officer appointed also met the named   Manager of the Complainant. The Investigator issued his findings on 29^th   December 2016 and did not uphold the grievance complaint due to insufficient   evidence. The Complainant was informed of the outcome by letter.

Unfair   Dismissals Act, 1977 – 2015.

On the basis of the evidence from both Parties and   submissions I find as follows:  The Complainant was a Manager with the Respondent for some 16 years and the evidence from both   Parties was that the Complainant, in his position, signed off on expenses for   other employees.

I do not accept the evidence from the Complainant that he was unaware he could not submit receipts for petrol and a tyre for a family members car and to submit these receipts as legitimate receipts for his own Company Car.

I find that the Complainant was afforded fair procedures and natural justice and that the Investigation, disciplinary and appeals process was conducted in line with Company Disciplinary Procedures. I also find that this process was in line with S.I. 146/2000.

Industrial Relations Act, 1969.

The evidence from both Parties at the Hearing was that   the Complainant submitted his complaint of Bullying and Harassment against   his named Manager on 22^nd July 2016, some 7 days after he had been dismissed by the Respondent for gross misconduct. I also note that the   Complainant referred his dispute to the WRC prior to the investigation   commencing into his Grievance. I note that the Complainant was aware of the   Grievance Procedures of the Company as he had utilised them in 2011. I also   note that the Complainant did not lodge any complaint during his 16 years of   employment alleging Bullying/Harassment against his named Manager until after   he had been dismissed.

I note that the Respondent did conduct an investigation and did appoint an external Investigator from the Company in Northern Europe   to conduct the investigation. I note the outcome that there was insufficient   evidence to substantiate the Grievance.

The Labour Court has held that in relation to disputes   referred to the WRC under the Industrial Relations Act, 1969 an employee must   have utilised and exhausted the internal process prior to lodging a complaint   or referring a dispute to the WRC. This did not happen in this dispute.

Unfair   Dismissals Act, 1977 – 2015 CA-00006623-0091

On the basis of the evidence and my findings above and   in accordance with Section 8 (1) (c) of the Unfair Dismissals Act,1997 – 2015   I declare this complaint is not well founded.

Industrial   Relations Act, 1969 – CA-00006623-002

In accordance with Section 13 of the Act I declare this   complaint is not well founded.

Unfair Dismissal – Gross Misconduct – Expenses

IR – Bullying/Harassment -