ADJ-00006613

Complainant

Respondent

Parties

A Manager

A Vehicle Servicing 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-00008999-001

09/01/2017

The complainant was employed as a Manager in the respondent’s vehicle servicing business.

His actual salary was in dispute; either €42,000 (including bonus) according to the respondent or €47,000 according to the complainant.

A number of complaints were made against him which, following the company’s internal investigations and disciplinary procedures resulted in his dismissal.

He says that the dismissal was unfair.

The respondent made a number of general points first.

It operates a policy of ‘zero tolerance’ in relation to any form of dishonesty or theft of its property.

This is specifically highlighted in its workplace policies. The value of the goods at issue in the internal proceedings were just over three thousand euros but the monetary value is not important set against the trust requirement the respondent expects from its employees.

Second, the nature of its business requires full traceability of its products from the consumer who purchases it back to the point of sale. This is a safety-critical consideration and any deficits in the recording of its sales has potentially very serious implications in the arena of public safety. There are also issues arising related to its company health and safety policies.

Third, the complainant had been employed as a manager and has ‘an enhanced duty’ to conduct himself in a manner that did not undermine its trust and confidence in the complainant.

As to the substance of the complaint there were a series of five allegations against the complainant; all of which related to various irregularities in the supply of the company’s products, notably to family members of the complainant.

The respondent says that it conducted a fair process and that the sanction of dismissal was ‘a fair and proportionate’ decision.

The process began in May 2016 when the respondent became aware of discrepancies and a subsequent audit revealed a number of areas of concern, including falsification of, or errors in invoices and other documents.

An initial meeting was held with the complainant on August 21^st because, as Branch Manager he had ultimate responsibility for such records and had been present at work on all the occasions when the alleged incorrect transactions had been recorded.

He could not explain the defective record keeping (ten in all) but denied totally one which was an allegation of theft.

The respondent decided further investigation was required and the complainant was place on paid suspension later that same day, pending that further investigation into possible gross misconduct.

In due course the complainant was invited to a disciplinary meeting on September 12^th 2016.

He was provided with all relevant documentation in relation to the allegations in advance of the meeting and was accompanied at the hearing by his solicitor.

In the course of the meeting he raised a number of issues and the meeting was adjourned to permit further investigation of those matters.

Following this investigation the company responded to the complainant by letter of September 20^th; addressing the issues raised by the complainant.

The disciplinary hearing was resumed on September 30^th and the complainant was again accompanied by his solicitor.

The allegations and the respondent’s conclusion were put to the complainant in detail (and provided at the hearing).

Of five allegations all but one were upheld and deemed to constitute gross misconduct. The respondent says that it took account of the complainant’s long service and considered lesser sanctions but decided on the sanction of dismissal.

The ‘outcome letter’ detailed the charges and the conclusions of the decision maker in detail.

The complainant was given the right to appeal to the Managing Director and this was arranged for November 9^th, 2016, but actually heard on November 7^th to accommodate the complainant who by this time had found new employment.

Again, the complainant was accompanied by his solicitor.

The respondent notes that, at the appeal stage, no complaint was made about the fairness of the process and the grounds of the appeal were that there was no evidence of gross misconduct.

The appeal failed and the complainant was notified by letter of December 20^th which again detailed the complaints and the decision maker’s reasoning for reaching his conclusion.

The respondent made a number of legal submissions on the role of the Adjudicator in reviewing, ab initio, the guilt or innocence of the complainant which are considered below.

The complainant drew attention to a number of matters of detail in the allegations which the respondent had put before him.

In respect of one of them, in the case of three out of ten invoices which had been in dispute, these were withdrawn and the remaining seven formed the basis on which that allegation was grounded.

He accepted that he had made errors in inputting the invoices but they did not represent deliberate falsification and they were not matters from which he would derive any financial benefit.

He described what he had done as ‘taking a shortcut’.

He was not aware that his actions could create a stock discrepancy and accepted that work done for family members had not been inputted correctly and that he had been wrong not to make a payment immediately on completing work for his sister.

He accepted that he took shortcuts and made mistakes and that it was a serious matter but while there had been a breach of procedure there had been no dishonesty and his actions did not justify dismissal on the grounds of gross misconduct.

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.

The onus under the Act falls on the employer to justify the dismissal.

In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct. This is the first pillar.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and indeed all other parties affected and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of most facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

Finally, there is the matter of sanction which must fall within what is described as a range of reasonable responses by the employer.

It was on this latter point that the respondent relied on the EAT decision in Looney and Co v LooneyUD843/194 and the view of Dr Mary Redmond to the same effect that;

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as requiring some departure from the actions of ‘what a reasonable employer in his positon and circumstances at that time would have done…’

That is the standard I will apply.

In this case the complainant admitted to deficits in his record keeping, and even that they were of a serious nature. He says that he did not act dishonestly and did not stand to benefit financially from his actions.

For its part the respondent made it clear that the value of the transactions was, while not irrelevant, a secondary consideration.

Great emphasis was placed on the expectation of what was described as an ‘enhanced’ position of trust.

It argued that the deficits in the record keeping also gave rise to possible health and safety impacts on its staff and customers.

In that context the respondent had adequate grounds for concern and a sufficient basis to launch the disciplinary process.

As for that process itself I detect no flaw in how it was conducted.

There was a full investigation, detached from the disciplinary process.

The complainant was provided with full detail of the allegations and supporting material and he was (somewhat unusually for an internal workplace process) permitted to have legal representation at all stages.

The disciplinary hearing was adjourned to examine issues he raised, so there was no ‘rush to judgement’.

The outcome letter following the disciplinary process is an impressive seven pages of a reasoned decision in which the allegations and the decision maker’s findings are set out in very great detail. The decision maker at the appeal stage, the respondent‘s Managing Director, went to similar lengths in setting out his grounds for rejecting the appeal.

In doing so he again considered whether a lesser sanction might be appropriate but, primarily on the breach of trust ground, concluded that he could not.

In my view, and having regard to the criteria referred to above and all the circumstances of the case the respondent has discharged the burden of proof and has justified the dismissal which I find to have been fair.

For the reasons set out above I do not uphold complaint CA-00008999-001 and it is dismissed

Unfair dismissal.