UDD1927

RESPONDENT’S ARGUMENTS:
There was a thorough investigation, a disciplinary meeting and an appeal all in accordance with fair procedure and the Labour Relations Commission’s Code of Practice, SI 146/2000. The Complainant was dismissed because of his conduct, as per s. 6(4)(b) of the Unfair Dismissals Act. He consumed and damaged product from the warehouse due to be delivered to a customer.

With over 10 years’ experience, the Complainant would have understood that allowing damaged product to go to a customer would have a significant effect on the relationship with the customer and on overall business.

The trust relationship had broken down irretrievably.

The Complainant’s actions amounted to Gross Misconduct under the Respondent’s disciplinary procedure.

The Respondent has a consistent zero tolerance policy regarding theft.

As per Looney v. Looney UD 843/1984,the test for the Court is that of the reasonableness of the employer in deciding to dismiss. This test was met.

If trust is broken in the employment relationship as it is so fundamental then, as observed by the Employment Appeals Tribunal, (EAT), inAudrey Burtchaell v Premier Recruitment Ltd T/A Premier Group UD 1290/2002‘the Appellant could no longer be retained by the Respondent’. The actual monetary value of the goods is immaterial.

Great efforts were made to establish the facts including the testing of evidence by CCTV.

COMPLAINANTS ARGUMENTS:
The Complainant is innocent of wrongdoing.

Issues raised by the Complainant were not addressed adequately.

The Respondent failed to follow their own disciplinary procedures.

The procedures used were inherently biased and flawed. They were unfair and inadequate.

A re-enactment of the alleged incident was staged without the involvement of the Complainant.

There were not adequate substantive grounds to justify dismissal.

The dismissal was summary and disproportionate.

There was no consideration of lesser penalties and insufficient regard was given to the Complainant’s good employment history.

The appeal procedure was unfair.

In the alternative, even if the Respondent believed that the Complainant had committed the offence, which he denies strenuously, the incident was mischaracterised as gross misconduct.

WITNESS EVIDENCE:
Mr Niall Conroy

Mr. Conroy gave evidence that Ms. Clare McGrath and himself were asked to look into the allegation by a line manager, Mr. Wojcicki, that the Complainant had been seen consuming a soft drink, having taken it from a tray that was about to be despatched.

He outlined that Mr. Wojcicki and the Complainant’s line manager, Ms. Nuala Lawlor, had removed a damaged tray from a trailer at Gate 83 in the warehouse. The plastic seal had been broken and one bottle had been opened and partially consumed.

On viewing the CCTV, he could see the tray being picked and placed on a combi, (metal cage). The operative was looking down so he could have seen if there was any damage. The combi was visible with the undamaged tray on top. The Complainant was visible in loading the combi onto the trailer and again there was no visible damage. The footage showed Mr. Wojcicki walking past the trailer and pausing to look in. He is then seeing walking towards the office and returning a short time later with Ms. Lawlor when they both entered the trailer. No one entered the trailer between Mr. Wojcicki leaving and returning with Ms. Lawlor.

Mr. Conroy gave evidence of interviewing Mr. Wojcicki. He confirmed that, as per his written statement, he had seen the Complainant remove a bottle from the tray and consume the drink, that he had gone to the office and had returned with Ms. Lawlor, entered the trailer and removed the damaged tray. He had asked Mr. Wojcicki why he had not confronted the Complainant immediately and he had replied that he was shocked and decided to report the incident to the Complainant’s line manager.

As Mr. Conroy was not satisfied that Mr. Wojcicki could have seen the Complainant from his vantage point he decided to conduct a re-enactment. Mr. Wojcicki accompanied him to Gate 83, and he asked Mr. Wojcicki to stand where he said that the Complainant had been, while he stood where Mr. Wojcicki had been. He was then able to see Mr. Wojcicki.

Ms. McGrath and himself met the Complainant and his Shop Steward and he was given a summary of the investigation, copies of all documents and he was shown the CCTV footage.

The Complainant stated that it was not clear from the footage that the tray was undamaged prior to being loaded and that there was footage missing. He denied any wrongdoing.

Mr. Conroy obtained full CCTV footage of the tray in the loading bay and watched it with the Complainant. No one interfered with the tray in that time.

Following a subsequent e-mail from the Complainant, Mr. Conroy placed the damaged tray in the same place it had been in the loading bay. The hole in the tray was clearly visible on the CCTV and from a comparison it was clear that the tray had been undamaged prior to loading.

On the balance of probabilities, Mr. Conroy concluded that the Complainant had been responsible for the damage to the tray and the matter was put forward for consideration of a disciplinary offence.

Under cross examination, Mr. Conroy stated that the decision to suspend the Complainant with pay did not imply any assumption as to the ultimate outcome of the disciplinary process.

Mr. Bartosz Wojcicki

Mr. Wojcicki gave evidence that he had been a line manager. On 14 February 2017 he had been on a warehouse walk either for health and safety or hygiene checks. When passing Gate 83, he looked down into the loading bay. He saw the Complainant drinking a bottle of Mountain Dew, which he then screwed the cap on to, he shook the bottle and re-opened it, drank some more and then screwed the cap on again, before putting the bottle back into the damaged tray. The witness then went to the office and returned to the trailer with his colleague, Ms. Lawlor.

He climbed in, located the relevant combi with the damaged tray of Mountain Dew, from which he retrieved the half-consumed bottle.

He spoke to the Complainant who denied any wrong-doing.

The witness then removed the tray.

He explained that when he saw the Complainant he was looking down at him from above. The Complainant was near the back of the trailer. If he had been further forward it would not have been possible for the witness to see the Complainant.

He stated that he viewed the incident for about a half minute.

Under cross examination, the witness stated that he believed the Complainant had a good reputation as a worker, he only really knew him through work as they did not socialise otherwise but he got on well with the Complainant.

He accepted that the re-enactment was based entirely on his version and that this was disputed by the Complainant.

He stated that nobody else had access to the trailer in the time-frame concerned.

He stated that he had not seen the Complainant remove the bottle but he had seen him drink it and put it back in the tray.

In answer to a question, he stated that the Complainant probably could not see him as he could only see the Complainant from below his head.

Ms. Clare McGrath

Ms. McGrath gave evidence that she is a HR Generalist with the Respondent and that she deals with recruitment, training and disciplinary matters. She confirmed that she had asked Mr. Conroy to conduct the investigation. She stated that the decision to suspend the Complainant with pay was taken by Mr. Conroy.

Ms. McGrath stated that the disciplinary process used was fair and in accordance with natural justice. The Complainant had been advised of the charges, he had been provided with all of the evidence, he had been afforded the opportunity to make his case and he had been afforded the right of representation.

The witness stated that she saw the re-enactment as a practical test of the allegation and that the company often used re-enactments for health and safety issues.

Ms. McGrath stated that she had not taken any of the decisions in the case.

Under cross examination, the witness stated that the Complainant would have been made aware of the Respondent’s policies when he joined the company and she could not confirm if they had been given to the Complainant more recently.

She confirmed that a Polish interpreter had not been engaged as this had not been requested and, in any event, the Complainant’s level of English was such that he would have been quite capable of participating in all processes through English.

In response to questioning, the witness indicated that the Respondent had not advised the Complainant that he could be represented by a full-time union official. She took the view that this was a matter for the Complainant.

Mr. Rory Byrne

Mr. Byrne stated that he had carried out the disciplinary procedure. He stated that he was experienced in such matters, having carried out more than 20 disciplinary hearings in his 15 years’ service with the Respondent. He confirmed that he had conducted the process alone, even though the disciplinary process provided for two managers to conduct same. He stated that, in practice, the Respondent’s approach is to assign one manager to such tasks.

He stated that the Complainant was accompanied by his Shop Steward who was quite experienced.

The Complainant challenged whether Mr. Wojcicki could have seen him. The Complainant never asked to cross-examine Mr. Wojcicki.

The CCTV showed the tray go on to the combi undamaged and only the Complainant had access to it before it was removed, having been damaged. The Complainant had objected to the CCTV footage, claiming that there were gaps and wishing to view footage from the time the tray arrived in the warehouse. However, Mr. Conroy had tracked the tray on CCTV from when it arrived, when it was moved and when it was loaded. This was, in the view of the witness, sufficient.

Based on the footage and what the witness regarded as a dishonest account by the Complainant, he formed the view that the Complainant was guilty of gross misconduct and that the appropriate penalty was dismissal.

Under cross examination, the witness responded that, even if the Complainant had not been warned in advance that he faced a charge of gross misconduct, he knew what the disciplinary process was about and the potential consequences, which had been set out to him to be up to and including dismissal.

He responded when questioned that he had not considered other, lesser, penalties as the Respondent had a consistent policy in respect of such matters.

Mr Ray Peelo

Mr. Peelo gave evidence that he was, at the relevant time, the Depot Manager in the warehouse. In that capacity, he had heard the Complainant’s appeal.

The crucial factors, in his view, were the CCTV footage that showed undamaged goods go in to the trailer and the fact that the Complainant was alone in the trailer so that only the Complainant could have been responsible for the damage.

He took account of the Complainant’s good record but the company had a consistent policy of regarding such matters as gross misconduct and as dismissable offences.

Under questioning, he stated that the Complainant had given no indication that he was unhappy with the process, he had never asked for an interpreter and, as far as the witness was concerned, it was a matter for the Complainant to organise the attendance of a full-time union official if that was what he wanted.

He accepted that the Respondent’s disciplinary process provided for two managers to hear the appeal but, in line with the actual practice, he had heard the appeal on his own. His view was that the issue hinged on facts and that a second person would not have added anything of value to the process.

The witness stated that he was satisfied that the investigation was thorough. He stated also that it would not be standard policy to allow the worker to cross-examine somebody who had made an allegation.

He was satisfied that Mr. Wojcicki could see the Complainant.

He indicated that, in his view, all relevant CCTV had been available and that there were no gaps of relevance.

He was clear that the Complainant knew the Respondent’s view of the seriousness of the offence and of the Respondent’s policies.

Mr. Roman Dabrowski, the Complainant

The services of an interpreter were available for much of the Complainant’s witness evidence. The interpreter indicated that she had to leave before the Complainant had completed his evidence. The Complainant and his representative were agreeable to continue proceedings in the absence of an interpreter and the parties were asked to speak more slowly to facilitate the Complainant’s understanding.

The Complainant stated that the first time he was aware of an issue was when Mr. Wojcicki told him that he wanted to check something in the trailer. Ms. Lawlor was with him at the time. Mr. Wojcicki took a damaged tray out of the combi concerned.

The Complainant denied any knowledge of the damage. He did not believe that Mr. Wojcicki could have seen him.

He stated that there were gaps in the CCTV footage and that the tray could have been damaged before he came upon it.

He stated that he was not familiar with the Respondent’s disciplinary policy. He was given it when he joined the company but had not needed to read it since then and had not been given up-dates.

He had brought the Shop Steward but he would have preferred to be represented by a union full-time official who did not work for the company.

The Respondent had never advised him that this was an option.

He stated that it was ‘hard to say’ if the investigation was fair as it was just his word against that of Mr. Wojcicki and he had not had the chance to confront him.

Under cross examination, the Complainant agreed that he knew the Respondent’s policy regarding any tampering with product and that the consequence could be dismissal.

He agreed that he had not requested to be allowed to cross examine Mr. Wojcicki.

He stated that he was not aware before he met Mr. Byrne that he could be charged with gross misconduct.

The Complainant stated that he did not see any damage to the tray in question at the time and that when he was brought to the investigation meeting, he thought that the issue was related solely to damage to the product.

The Complainant stated that he had contacted his union, SIPTU, directly for professional help after the disciplinary hearing. He accepted that he had never asked the Respondent to allow him to bring a full-time union official to the meetings.

The Complainant agreed that he understood the proceedings at all stages.

Losses and Mitigation

The Complainant stated that he had not managed to secure work from March 2017 to 30 July 2018. Evidence was produced to show efforts to obtain employment in that time. Under questioning, the Complainant stated that he had turned down a job that paid about €400 per week in September or October 2017 and that he had been in receipt of Illness Benefit for a period of about one month.

His current pay is €650 per week.

The Law

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee —

(i) being a member of a trade union which made a request referred to insection 2(1) of theIndustrial Relations (Amendment) Act 2001,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,

(b) the religious or political opinions of the employee,

(ba) the employee having made a protected disclosure,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(dd) the exercise or proposed exercise by the employee of the right to parental leave,force majeureleave under and in accordance with theParental Leave Act, 1998, or carer ’ s leave under and in accordance with the Carer ’ s Leave Act, 2001,

(e) the race, colour or sexual orientation of the employee,

(ee) the age of the employee,

(eee) the employee ’ s membership of the travelling community,

(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted bysection 8of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted bysection 9of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(h) the exercise or contemplated exercise by an adoptive parent of the parent ’ s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or F39 meetings,

(i) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act,

(2A)Sections 3and4of this Act do not apply to a case falling within paragraph (f), (g) F42 [ , (h) or (i) ] of subsection (2) of this section and, for the purposes of those paragraphs, ‘employee’ and ‘adopting parent’ include a person who would otherwise be excluded from this Act by paragraph (a), (c), (f) or (g) ofsection 2(1) of this Act.

(2B) Sections 3 and 4 do not apply to a case falling within subsection (2)(dd) and, for the purpose of that paragraph, ‘employee’ includes a person who would otherwise be excluded from this Act by paragraph (a), (c), (f) or (g) of section 2(1).

(2C) Sections 3 and 4 do not apply to a case falling within subsection (2)(dd) and, for the purpose of that paragraph, ‘ employee ’ includes a person who would otherwise be excluded from this Act by paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i) or (j) of section 2(1).

(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(5) (a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces undersection 30(1) (g) of theDefence Act, 1954, shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.

(b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces undersection 30(1) (g) of theDefence Act, 1954, was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court , as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act. ]

Deliberation

Under s.6(4)(b) of the Unfair Dismissals Act, see above, the dismissal of an employee may be rendered fair where it has resulted from the conduct of an employee. In the instant case, the Complainant denies wrongdoing and the burden of proof rests with the employer. That does not mean that the Court is required to conduct its own investigation to establish the truth.

The Court has not the means to do so and that is not its function. However, the Court must be satisfied, as the EAT noted inPacelli v Irish Distillers Ltd, (2004), ELR 25,that an investigation has had regard to all facts, issues and circumstances.

In the instant case, the Complainant denied the allegation made against him and that it was simply his word against that of Mr. Wojcicki. However, that is not the case. There is CCTV evidence that, on the face of it, shows the tray to be undamaged before going into the trailer. It is accepted that the Complainant was alone in the trailer and there is no dispute that when it left the trailer, one of the bottles had been opened and it was half empty. That certainly establishesprima facieevidence that the tray was tampered with by the Complainant.

The witness claimed to have seen the Complainant consume the contents of the bottle. The Complainant claims that this was not possible. The witness, Mr. Wojcicki, gave compelling evidence as to what he saw and there is no obvious reason that he should make up the story. While the CCTV footage is not conclusive on this point, it does show the witness stopping to look into the trailer and then going to fetch Ms. Lawlor, after which it is accepted by both parties that he returned to the trailer and retrieved the damaged tray.

The Complainant states, and this was accepted by the Respondent, that he was never given the entire footage of the whole time that the tray was in the warehouse. However, the Court accepts the evidence given by Mr. Conroy that the footage shows all the relevant information as it shows all the relevant movements of the tray after it entered the warehouse, that the tray was undamaged until it entered the care of the Complainant, that he was alone in the trailer, that it left the trailer having been damaged and the damage is not consistent with an accident.

Therefore, the balance of probability suggests that the Complainant was guilty as charged.

However, the Complainant raised issues regarding the procedures used. He claims that he ought to have been advised of his right to be represented by a full time official of his union. On balance, the Court favours the Respondent’s view that the primary responsibility for determining who should represent him rests with the Complainant and that the Respondent’s failure to advise him does not do damage to his rights in this regard, though it would be useful for the Respondent to draw attention to this right in future cases.

Likewise, it may have been desirable for the services of an interpreter to be offered as a courtesy but it was clear to the Court, and accepted by the Complainant himself, that he could understand the various proceedings.

The Complainant accepted at the Court hearing that he knew the penalty for the offence with which he was charged. However, it would be preferable if the Respondent believed that behaviour constituted ‘gross misconduct’, they would state this clearly in advance to employees facing charges.

The Court is of the view that nothing turns on the fact that the Respondent’s policies provide for two managers to conduct disciplinary hearings and for two managers to hear appeals but, in fact, in both instances only one manager was involved, though again it might be useful for the Respondent to update their policies to conform with their practices.

The statement by Mr. Byrne that he had not considered any lesser penalties might be a source of concern except for the fact that the Respondent has a clear zero tolerance policy in respect of such incidents and the Complainant acknowledged in evidence that he was aware that this was the Respondent’s policy.

In terms of positive use of procedures, the Respondent was clear in communicating what was the alleged offending behaviour to the Complainant, all evidence was shared with him, he was afforded the right to make his case at all stages, he was afforded the right to representation and he was given a right to appeal the decision to dismiss.

Therefore, while it might be said that the procedures were not perfect, there is no basis, in the view of the Court, to determine that they were so flawed as to render the Respondent’s actions to be unfair. As noted on p.281 in ‘Redmond on Dismissal Law’ ( Bloomsbury, 3^rdEdition), by reference to the cases ofMeath County Council v. Creighton UD 11/1977andCarr v. Alexander Russell Ltd (1976) IRLR220, ‘An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee’.

In the instant case, the Court is satisfied that, applying the test of reasonableness, as defined inBritish Leyland UK Ltd. V. Swift, (1981),IRLR91as ‘.if a reasonable employer might have dismissed him, then the dismissal was fair’, the Respondent acted reasonably in this case such that any procedural imperfections were not fatal to the Complainant’s ability to make his case and to defend himself.

The Court finds that the dismissal was fair.

Determination

The Court upholds the decision of the Adjudication Officer.

Signed on behalf of the Labour Court



Tom Geraghty
CH______________________
4 June 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.