UD833/2015

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                              CASE NO.

DHL Express (Ireland) Limited                                                                                   UD833/2015

                        -    Appellant

against the recommendation of the Rights Commissioner in the case of:

Keith Roche

                       - Respondent  

• under

• UNFAIR DISMISSALS ACTS 1977 TO 2007

• I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K. T. O'Mahony BL

Members:        Mr. J. Hennessy   

                        Ms. H.Murphy

heard this appeal in Ennis on 27th September 2016

                             and Limerick on 28th September 2017

Representation:

Appellant:       Mr. Conor O’Gorman for Mr. David Farrell, IBEC, Confederation House,  

•                   84/86 Lower Baggot Street, Dublin 2

Respondent:    Mr. Pat O’Donoghue, S.I.P.T.U., Liberty Hall, Dublin 1

This case came before the Tribunal as an employer’s appeal against Rights Commissioner Recommendation/Decision r-154616-ud-15/MH.

The determination of the Tribunal was as follows:-   

The appellant herein is referred to as the employer and the respondent as the employee.           

Summary of Evidence  

The employer is a large international express courier company engaged, on a worldwide basis, in the collection, transport and delivery of goods including high-end sensitive goods. The employee was transferred into the employer company in 2005 having previously worked in cash-in-transit for Securicor and later for Omega, its sister company, as a courier. The employee was based in the employer’s Shannon depot. Because of the increase in the number of deliveries to private customers, the employer had introduced a policy that a delivery could be made to a neighbour with the consignee’s consent/authorisation. The claimant was a shop steward at the material time.   

The employer’s Area Operations Manager (AOM) (at the material time) told the Tribunal that customers pay a premium to the employer to ensure the integrity of the service. Members of staff are vetted for five years and thereafter were trusted. The claimant’s position was that, on his transfer into the employer, he had not received any induction training and in particular he had not received training on the delivery of packages; he had received a few training sessions on air cargo and dangerous goods.     

In or around June 2014 AOM received a phone-call from a reputable customer querying the delivery of a package to the company by a competitor courier company (FW). Having discussed the issue with HR, AOM carried out a private surveillance. From a town centre he observed four or five courier vehicles arrive in the town at lunch time, the drivers engaged in talk and banter among themselves but he did not see any exchange of parcels. However, his suspicions were raised. Following discussions with the HR Director (HRD) a private investigator (PI) was engaged. PI carried out surveillance on 15 July 2014 & 7 August 2014. No relevant observations were made on the first surveillance but on the second PI observed the employee receive four parcels from a competitor’s driver (FW). The employer received the PI’s report on Friday 11 August 2014. 

On Monday, 14 August 2014 AOM requested the employee to meet him and advised him to bring someone with him but did not tell him the purpose of the meeting. At the meeting the allegation was put to the employee and he immediately admitted to receiving packages from FW for delivery and giving packages to FW for delivery but the latter only occurred when he had already unsuccessfully attempted a delivery and had the consignee’s consent to have it delivered by the competitor’s courier; he believed that this was akin to the company’s policy on delivery to a neighbour with the consignee’s consent. AOM did not tell the employee about the PI’s involvement because he had made an admission. The employee was advised that his conduct could constitute gross misconduct. About 20 minutes into the investigation meeting it was adjourned because the employee wanted his trade union official to represent him. AOM suspended the employee on full pay pending a further investigation. In his evidence to the Tribunal, on the second day of the hearing, the employee explained that he makes collections from Beckman Coulter everyday and a worker there, having established that he meets FW had asked him if he would drop any packages FW had for Beckman Coulter to it. He agreed as he makes collections from Beckman Coulter every day.  

In the interim between the two investigation meetings the employee, through a data protection request, first became aware of the involvement of PI; at AOM’s request the competitor company, having spoken to its driver, confirmed to AOM that there was an occasional transfer of goods for delivery between the two drivers; and, the competitor company had further confirmed to AOM that the large number of mobile phone calls (199 calls between the beginning of January 2014 and end of July 2014) were made by the employee were to the mobile phone of a driver for another competitor company (ACC). It later transpired that 353 calls had been made in the year August 2013 to August 2014 to that mobile phone.   

The employee’s trade union official (TU) represented him at the follow-on investigation meeting on 16 September 2014. AOM acknowledged to TU that the CCTV footage had been obtained without the employee’s knowledge but none the less TU was prepared to go ahead with the meeting. The employee’s position was that the only deliveries he made were to Beckman Coulter, which he visited daily to make collections. He had only made these deliveries on about four occasions, about once every three months during the previous year. AOM refused to disclose the identity of the caller to the employee and had no documentary evidence of the complaint. The employee explained that the large number of mobile calls he made were in the nature of social chats with an ACC driver, who had been a schoolmate of his and to whom he was giving some directions. As regards the employer’s allegation that there were inconsistencies between the employee’s delivery sheets and the GPS record for Mountshannon on 7 August 2014 the claimant’s position was that he had attempted to deliver one package a number of times.                                              

The employer’s position was that the practice of couriers for the competitor companies transferring packages between themselves for delivery was entirely different to the accepted practice of leaving a package in a shop or with a neighbour if a consignee was not at home. Customers pay premium rates to the employer for delivering its packages. The practice caused a serious threat to the security of the packages. Delivering packages for a competitor company had been done while the employee was paid by the employer. Customers were compromised. AOM’s position was that the employee had delivered only two packages, not four, to Co. X on 7 September 2014, as he had alleged. AOM did not find the employee’s explanation for the excessive number of mobile phone calls to ACC plausible and concluded that the employee had a similar arrangement with the ACC driver. The employee had not considered the practice a security risk. AOM concluded that the matter should proceed to a disciplinary hearing on grounds that the employee had failed to protect and safeguard company property (5.4.3 of the policy) and for grossly unacceptable behaviour when representing the employer, which rendered the continuation of his employment untenable (5.4.12). A copy of the investigation report was furnished to the employee in early October 2014.               

AOM conducted the disciplinary meeting on 17 October 2014. HRD was also present in an advisory capacity and to provide some impartiality. TU did not object to the presence of either AOM or HDR. There were no agreed minutes of the meeting. Much the same ground was covered at this meeting. AOM concluded that the transferring of packages between the drivers was unacceptable and caused a serious threat to the security of the packages and could compromise the employer’s reputation. At both the investigation and disciplinary hearing AOM concluded that the reason given by the employee for making the excessive number of mobile phone calls to ACC was implausible and in both processes it was concluded that the employee had an arrangement with the ACC driver similar to the one he had with the FW driver. The employer denied that the employee’s dismissal was connected with an industrial relations problem that had arisen in the company around the end of June 2014 or that there had been any connection between the employee’s dismissal and that of another shop steward who had been dismissed two weeks earlier. AOM felt he had no alternative but to dismiss the employee. He had lost trust in him. The employee did not apologise or show remorse. The employer considered re-deployment but he had not received any reassurances from the employee that the employer could have confidence in him.  

The Operations Director (AO) of the employer company conducted the appeal hearing on 21 November 2014. The employee and TU attended. TU and the employee sought leniency on a number of grounds: the employee’s fifteen year unblemished disciplinary record in the business, the employee’s immediate admission to the practice; he had engaged in the practice for the benefit of the consignee; he had only given the packages to another courier with the consignee’s authorisation and when the consignee asked him to do him/her a favour; in transferring the packages he was not motivated by malice, there was no intention to defraud the company; the employer did not have a policy covering the transfer of packages; there had not been any complaints from consignees; he had gone above and beyond his duty in delivering packages; he had a mortgage and a family and his wife was sick; and, he continued to phone the ACC driver twice or three times daily since his suspension. TU also raised procedural matters such as the failure to inform the employee of the surveillance and that the employer was relying on hearsay evidence rather than producing any direct evidence to support his position. At the hearing the employee told AO that he now realised that he should not have engaged in transferring packages and would never do so again. 

Having considered the matter AO found that the decisions at the previous stages of the process were reasonable and that the procedures adopted had been fair. AO did not afford the employee another chance as he had breached the employer’s trust. The employer company is a worldwide brand, standing on its reputation and trusted with delivering millions of packages. It was not acceptable that an employee unilaterally decided how to conduct the operation. AO did not accept the employee’s assertion that his dismissal was a witch-hunt because of his involvement in the IR issue that had arisen in late June 2014. AO felt there was no alternative but to dismiss the employee as the integrity of the service had been breached and the trust reposed in him lost and concluded that there was no alternative to dismissal. The decision on his appeal was communicated to the employee by letter of 3 December 2014. 

TU complained that the forgery of signatures and productivity payments issues formed part of AO’s decision to uphold the dismissal even though these issues had not been raised with the employee during the appeal hearing. 

The employee explained to the Tribunal that on occasion when he had unsuccessfully attempted earlier in the day to make a delivery and had left the area, a consignee would call him and ask, as a favour if the package could be delivered and with the consent of the consignee he would give the package to another courier for delivery. In such cases he used the hand-held scanner to indicate “as per consignee” or “as per consignor” when the instruction came from headquarters. He did not forge the signature. He had not realised at the time that he had been doing anything wrong and believed he was doing it for the benefit of the consignees. He had never passed a package to FW without first getting the consignee’s authorisation. No loss had been sustained as a result of the practice. While a courier who has reached his target receives a productivity payment for any further deliveries, the employee’s position was that he only engaged in transferring the packages on the consignee’s request and not for his own benefit. On 7 August 2014, the day of the second surveillance by PI, the employer’s Sales Department had given the employee extra deliveries, thereby ensuring that he had to deliver to all corners of his designated area.  

The industrial relations issue was about an unofficial work stoppage and his involvement in it. He had been requested to attend a meeting on the issue but the meeting never went ahead. Another shop steward had been dismissed two weeks before his dismissal. 

Determination:  

The employee had been forthright and honest throughout the investigation and disciplinary process. His admission, to the transferring of goods, was immediate at the investigation meeting on 14 August 2014, and this was before he was aware of the involvement of PI. 

The Tribunal accepts that the employee believed that the transferring of the packages that occurred had not posed a risk to the security of the service. 

The Tribunal notes that the employee came to be employed by the employer as a result of a transfer of an undertaking. It accepts that he had not received induction training from the employer and in particular that he had not received any training in the delivery process. This omission is fatal to the employer’s case. The Tribunal makes this finding being cognisant of the facts that customers pay a premium to the employer company for the safe delivery of its packages and that transferring them to a competitor’s driver for delivery could pose a security risk and cause damage to the reputation of the company. 

The Tribunal notes that despite the seriousness with which the employer regarded the transferring of goods between drivers for competitor companies, it had not taken any steps to ascertain whether the practice was more widespread in the company. 

The Tribunal cannot accept AOM’s position that the employee did not feel any remorse and that he could not trust him in the future. His letter of dismissal of 28 October 2014 sent to the employee states: 

     “Your representative advised that you wished to make an apology for what you had done. You had admitted to and now saw the error of your ways.”  

Similarly, the Appeals Officer (AO) gave no consideration to the employee’s statement that he had realised the error of his ways and would not engage further in the practice. 

The Tribunal concludes that the employer had a closed mind and did not give any or any adequate consideration to the case raised by or on behalf of the employee. 

Having regard to these findings and the entirety of the evidence as well as the employee’s fifteen-year unblemished record the Tribunal finds that the dismissal was unfair. Furthermore, the procedures adopted fell below the standard of fairness required of an employer. There can be a real risk to fairness when the same person conducts the investigation and the disciplinary hearing and where there is over-reliance on hearsay information in the process.    

Accordingly, the appeal fails. The Tribunal awards the employee the sum of €25,000 (twenty five thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.  

Sealed with the Seal of the 

Employment Appeals Tribunal

This   ________________________ 

(Sgd.) ________________________

     (CHAIRMAN)