EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD885/2015
MN428/2015
CLAIMS OF:
David Muddiman
-Claimant
against
Applus Car Testing Services Limited
-Respondent
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: Ms N. O'Carroll-Kelly BL
Members: Mr. J. O'Neil
Mr A. Butler
heard this claim at Dublin on 5th October 2016
Representation:
Claimant: Ms Sarah O’Mahony BL instructed by Mr. Sean Ormonde, Sean Ormonde & Co., Employment Matters/Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr. Paul Twoomey BL instructed by Mr. David Andrews solicitor, Ms Kate McMahon, Kate McMahon & Associates, Solicitors, 223 The Capel Building, Mary's Abbey, Dublin 7
Background:
The Claim under the Minimum Notice and Terms Of Employment Acts, 1973 To 2005 was withdrawn at the outset.
This case is before the Tribunal under the Unfair Dismissals Acts. The respondent is a car testing centre and the claimant was a vehicle inspector at the respondent.
Respondent’s case:
The Tribunal heard evidence from CC the test centre manager for the respondent. The claimant commenced working for the respondent on 07th January 2013.
The witness explained that car garages can use a booking form/ short notice form. The system is for garages to use if a customer does not turn up or if there is a cancellation and they can fill the slot. The witness explained that he checks these forms twice a year. He noticed that the claimant’s name appeared on the form five different times. The witness explained that “It” was not his own car and he breached the code of ethics. He also explained that he had no problem with the claimant utilising the system however the customer should present the car, the claimant should not present the car. The car should be owned by the garage. The person who presents the car produces their driving license; it does not have to be the owner of the car.
Regarding the code of ethics the witness explained that the code of ethics is contained in their employee manual, it is on their intranet, it is in the HR policy, it is in the employee handbook. They also have refresher courses, in-house training. The employees read and sign the code of ethics. Documents were opened to the Tribunal and evidence adduced regarding the code of ethics, disciplinary procedures.
He also explained that if he saw something was wrong he would report to HR. He would send a letter to the employee to inform of an investigation. He spoke to the claimant and explained that there was a services issue and he would send him a letter and he would conduct an investigation.
The witness was asked what elements of NCT integrity was in play and he explained that they try to explain to staff what the general public will see for example the public might think that the car might pass no matter what, it looks suspicious and it looks wrong. The witness elaborated when asked that the claimant did not test the car himself.
The witness explained the policy on family members cars and if the family member does or does not live in the same house. The rationale being “where do you stop for example cousins etc., the rules are there”. The witness investigated the matter and explained “basically why his name was in the form and why five different vehicles”.
He communicated with Ms EB the HR manageress; he sent it by e-mail to her in his report. He indicated to the claimant that a disciplinary hearing would ensue and why he had decided.
The witness gave evidence as to five vehicles. He explained that the claimant had brought three cars in to be tested that he did not own. This was against the code of ethics. He explained that employees can apply and obtain a free test. The claimant did not apply for any free test.
The Tribunal heard evidence from Ms EB the HR manageress. She explained that CC the test centre manager forwarded the papers to her and requested that she make a decision regarding a disciplinary course. She explained that all employees get a handbook and code of ethics forms and that forms part of their contract of employment. The claimant signed acknowledgement form regarding the matters. She gave further evidence as to the aforementioned matters.
When put to her that the claimant could/might say he misunderstood the rule she said it would be difficult for them to accept as all employees received induction training, “also the HR department….. also on line refresher training on code of ethics”. They also tell employees that if they are unsure to contact their supervisor or manager or HR. There is also an anonymous integrity line that the employees can use if they wish.
The witness explained that the process is fundamental to the respondent because the contract is awarded to the respondent by the Road Safety Authority and the RSA have to have confidence in the respondent. The respondent is answerable to the RSA and are audited by the AA; the AA audits are random. Therefore the staff are fully aware of the code of ethics.
It was put to the witness that the claimant said that it is something that happened in the test centre (cars were brought in by employees) and the witness answered amongst other things, that it is his duty to make the respondent aware of such events and that it is the first that she heard of the practice in the test centre. She added that the claimant presented the vehicles for testing and in the booklet it states that employees are not permitted to drive the vehicles that are not their own and present them for testing. She felt that the matter should therefore be moved forward to a disciplinary matter.
The Tribunal heard evidence from JmcH the regional manager. His role is to oversee the testing processes. There are ten test centres approximately and the test centre in this case is part of his remit. He was the deciding officer in the matter. He sent the claimant a letter (which was opened to the Tribunal) that he was going to hold a disciplinary meeting after the prior investigation.
The claimant told him that he was not aware that he could not bring in vehicles for testing and that he was going through a bad time. The claimant told him that he now realised that it was wrong. The claimant did not say “a lot else”.
The witness explained that at the previous investigation the claimant had said that he owned the vehicles; however he would have had to supply evidence at the investigation that he owned the vehicles. He checked to see that the claimant had received the code of integrity. He checked with the other employees and all were aware that it was not allowed to bring cars for testing). He found it hard to believe that the claimant was unaware. He explained that they had to protect the people testing the cars and the company. The addendum (to code/rules) was introduced because people had been bringing in cars for their neighbours. The rule is there to protect the employees. If the rule is followed there is no issue. The rule is in the code of ethics.
It was put to the witness that the respondent jumped to dismissal and he explained that the claimant had no defence. He had to / had satisfied himself that the claimant had been doing it for a number of months.
The letter of dismissal was opened to the Tribunal. The witness explained that he advised the claimant that he could appeal his dismissal. He did not know if the claimant appealed his dismissal.
Claimant’s case:
The Tribunal heard evidence from the claimant. He commenced working for the respondent in January 2013 as a vehicle inspector. The claimant told the Tribunal that he thought he could bring family and friends cars. When asked why he thought this he replied that it was because he saw other people bringing in their relatives car or their wife’s car. In clarifying that assertion to the Tribunal the claimant explained that in the training the respondent told him that they could bring their relatives cars. Further clarifying he agreed he said wife’s or relatives cars and “they (the respondent), never said anything about houses, (whether the car owner resided in their house or not). The Claimant stated that he understood that they could bring family and friends cars he was told by the Respondent that he could bring friends cars; he told the Tribunal that he honestly thought that he could bring family and friends cars, he did not recall a verbal instruction to that effect. His understanding was that you could.
Regarding the meeting the Claimant had explained that he brought in his brothers car at one time, and his father was not well. He also could not find his car keys so he took his brothers car. Regarding two other cars they were both Lexus’. One had slid on ice and the second one the engine had “blown”. So he could take the engine out of the crashed car and transfer it to the other car. He had bought and sold them. Another car belonged to a friend of his who had given him a loan of the car.
He thought that the Respondent thought that he “was doing dodgy NCT tests”. At some stage they told him that the cars had to be from the same household and that was the first that he heard about the same household. He was handed the code of ethics at the first meeting.
The Claimant told the Tribunal that the list of five cars outlined to in a letter to him of 28th April 2014 he did say to the Respondent at one meeting that some of the cars had failed and “who tested the cars” (words to the effect he did not test the cars).
The Claimant explained that he thought that he would receive a written warning and “could not believe that they were making such a big deal”, “they kept going on about neighbours”. The Claimant explained that his world fell apart, his wife was expecting. He would not have done anything to jeopardise the job; it was a good job. He did intend to appeal the dismissal but he did not pursue the appeal.
The Claimant gave evidence as to his loss.
Determination:
The claim under the Minimum Notice and Terms of Employment Acts, 1973 To 2005 was withdrawn at the outset.
The Tribunal having heard the evidence adduced unanimously determine that the claimant was fairly dismissed. The procedures used were fair. The Tribunal finds that the claimant breached the conduct that was required of him. The claimant had to have been aware that he was not allowed to present the vehicles for testing.
The respondent had to conduct their business as they were required to do in that they had to answer to the RSA and are audited by the AA. The respondent had to ensure that there was no actual perception of unfairness of car testing for the benefit of testers and to protect testers to ensure no perception by the public of impropriety by the testers or the respondent. The assertion of the claimant that other testers might have transgressed in these matters has not been substantiated by the claimant. The respondent dismissed the claimant in an open and fair way. The claim under the Unfair Dismissals acts 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)