Complainant

Respondent

Anonymised Parties

A Bread Salesperson

A Bakery

Representatives

Marcin Szulc Rostra Solicitors

John Barry Management Support    Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00009148-001

18/01/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00009148-002

18/01/2017

The complainant was, at the   time of his dismissal, employed as a delivery person for the bakery having   previously worked as a packer. He commenced his employment with the   respondent in December 2006 and his employment ended on July 22^nd   2016.

He was paid €707.00 gross per week.

The central incident in the   case concerns a delivery made to a supermarket on July 11^th 2016.

The complainant placed more   product on the shelves than appeared on the delivery docket. This was brought   to his attention by a Manager at the receiving supermarket and it is alleged   that the complainant told him he could ignore it, and to carry on, or words   to that effect.

The result of this was that he   was undercharging the customer for what had been delivered.

The supermarket manager   contacted the respondent and reported that the driver was undercharging for   the delivery. He said that he had asked the driver to correct the delivery   note.

The disparity between the   official order and what was placed on the shelves was described by the   reporting customer as a ‘substantial additional’ amount. The complainant had,   even then the option to retrieve the excess product or amend the delivery   note.

The respondent appointed an   investigator and the complainant was confronted with the allegation and he   denied it. The respondent then telephoned the supermarket manager in the   complainant’s presence and, at that point the complainant admitted the facts   of the incident.

The employment contract for   drivers states;

‘If any driver is found to be giving any   of our products to somebody, either without charging them or charging them at   a lesser price than our agreed cost price, or is swapping our products to   benefit himself or others, he will face instant dismissal’.

The respondent operates a zero-tolerance   policy in relation to excess or inaccuracy and this had been communicated to   the complainant previously. He was aware that even small discrepancies should   be notified to the company.

On July 20^th 2016   the complainant was invited to a Disciplinary Hearing which took place the   following day.

He attended and stated that he   knew what he had done was wrong. He also accepted that similar incidents had   happened on other occasions.

After due consideration, he was   called to another meeting and told that his actions were in serious breach of   his contract and that his employment was being terminated.

The factors in the respondent‘s   decision were that the complainant was fully on notice of the company policy   and the implications of a departure from it.

The complainant also had   options to remedy the error but failed to do so.

He initially denied the   incident and only when presented with the supermarket manager’s confirmation   did he accept it.

Finally, the complainant   accepted that this had happened on previous occasions.

The complainant says that he is   not responsible for the loading of the delivery vans and this is done by the   packers.

He says the divergence between   the order docket and the actual delivery was small, two loaves out of three   hundred. He disputes the quantity involved.

He says he did not get a   written copy of the report of the investigator, (the respondent says its   contents were communicated to him).

He also disputes the failure to   investigate the alleged ‘substantial’ nature of the disparity. He says it was   insignificant.

He had worked a demanding shift   leaving the respondent premises at 1.30 am to drive to Dublin.

He notes that his contract of   employment places him on notice but submitted that ‘mandatory’ sanctions were   generally disapproved.

I am aware that the respondent   states that the quantity of product involved is irrelevant and that the   required trust in its delivery salesperson is the central consideration.

Nonetheless, there was conflict   in the evidence on this point; the complainant saying it was only three   loaves out of three hundred, the supermarket manager (who did not give   evidence) describing it as substantial. He confirmed this in an email to the   respondent on July 12^th which I accept as credible evidence. The   complainant was aware of this.

The allegation was that there   were specific bread products being delivered which were not on the delivery   docket. The complainant’s version lacks credibility if only from the point of   view that it would have taken a very alert manager indeed to spot a one per   cent discrepancy in the order.

That said, the next question is   why the complainant demonstrated such apparent indifference to availing of   the opportunity to remedy the error, and he had a number of options for doing   so.

Ultimately, he accepted that   what he done was wrong and also that it had happened on previous occasions.

I have reviewed the conduct of   the disciplinary process and find that it was conducted to an acceptable   standard. The complainant was given written notice of the hearing and put on   notice of the complaint and the possible sanction, including termination of   his employment.

He was not, however, put on   notice that the charge he was facing was one of ‘gross misconduct’, which was   what it had become by the time a decision to dismiss him had been made. This   was communicated in the context of the non-payment of notice which I address   below.

Having regard to all of the   above I conclude that the dismissal was fair.

In relation to the complaint   under the Minimum Notice and Terms of Employment Act, 1973 that Act provides,   at section 8, that;

Nothing in this Act shall affect the right of any employer or employee   to terminate a contract of employment without notice because of misconduct by   the other party.

The High Court in Carvill v Irish Industrial   Bank Ltd [1986] IR 325 has said that the grounds relied on to justify a   dismissal without notice must be actions or omissions by the employee which   are inconsistent with the performance of the express or implied terms of the   contract.

In its discussion of what constitutes implied   terms the court noted;

‘Another implied term of the contract of service between an employer   and an employee is that the employee will act honestly towards his employer   and that the employee will not take or misuse the employer’s property or   divert to himself profits or property which belong to the employer’

(In ‘Employment Law.   Murphy Regan eds 2017 p 746)

While there is no suggestion that the complainant   in this case ‘diverted’ the goods to himself, in my opinion the principle   applies once there is loss to the respondent.

On the facts if this case I consider the   misconduct in this case sufficient to justify the non-payment of notice.

For the reasons set out I do not uphold complaint   CA-00009148-001 under Section 8 of the Unfair Dismissals Act, 1977 and   neither do I uphold CA-00009148-002 under Section 11 of the Minimum Notice   & Terms of Employment Act, 1973 and they are both dismissed.

Unfair Dismissal, Payment of notice