Complainant

Respondent

Anonymised Parties

Sales Representative

Healthcare Company

Representatives

Patrick MacLynn D.M. O'Connor and Co.

Fiona Egan Peninsula Group Limited

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-00021227-001

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021227-002

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021227-003

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021227-004

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-006

23/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-007

23/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-009

23/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-011

23/08/2018

The Complainant commenced employment with another company on 3rd May 2016. On 11th December 2017 his employment transferred to the Respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The complainant’s employment with the Respondent ended on 15th June 2018

This complaint was received by the Workplace Relations Commission on 22nd August 2018.

Preliminary Point.

Respondent.

The Claimant lodged claims under the Unfair Dismissal Acts 1977 on 10th August 2018.   The Claimant subsequently lodged a claim under the Transfer of Undertakings legislation on 22nd August 2018.

It is respectfully submitted that the claims arise out of the same set of circumstances and to proceed under both acts would amount to a duplication of proceedings.

In any event the claim being made under the Transfer of Undertakings legislation is not valid as it has not been made within 6 months of the date of dismissal.

Complainant’s response.

The claims were submitted to the WRC on 22nd August 2018 the date of the contravention to which the claims relate is the Transfer Date. The Claims were therefore submitted to the WRC outside of the prescribed six month time limit for submitting claims as stipulated by Section 41(6) of the Workplace Relations Act 2015 (the 2015 Act).

Section 41(6) of the 2015 Act provides

“an adjudication offer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

Section 41(8) of the 2015 Act empowers an Adjudication Officer to extend the initial six month period by no more than a further six months, “if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The test for “reasonable cause” was set down in the case of Cementation Skanska v Carroll DWT38/2003. The Labour Court stated that:

“… it is the Court’s view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford the excuse for the delay. The explanation must be reasonable that is to say that it must make sense, be agreeable to reason and not be irrational or absurd .. there must be a causal link between the circumstances cited and the delay and the claimant must satisfy the Court as a matter of probability that had those circumstances not been present he would have initiated the claim”.

Subsequently the Labour Court held in Salesforce.com v Leech as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.

Thirdly, the Court must be satisfied as a matter of probability, that the complaint would have presented the complaint in time were it not for the intervention of the factors relied upon as consulting reasonable cause. It is the actual delay that must be explained and justified …

Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

Decision in relation to Preliminary Point.

Section 10 (6) of the Regulations reads as follows:

(6) A rights Commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstance prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first- mentioned period, as the rights commissioner considers reasonable.

In this instant case the transfer took place on 11th December 2017, the cognisable period therefore is from that date, 11th December 2017 until 10th June 2018. This complaint was received by the Workplace Relations Commission on 22nd August 2018, some 61 days after the expiry of the 6 month period.

At the hearing it was stated by the representative of the Complainant that over the first 2 months post transfer that the Complainant was told he would be granted a meeting with the Transferee MD to discuss matters, such a meeting did not take place.

In May the issues regarding the TUPE agreement came to a head over expenses. This presents the question of what, if any, efforts were being made by the Complainant to address any alleged anomalies that may have existed in the period mid-February to May, a period of almost three months.

The Complainant was dismissed on 15th June 2018 and the outcome of his appeal against his dismissal was made known to him on 6th July 2018.

What was he doing between 15th June and 22nd August 2018?

There is nothing exceptional in this case, there is no reasonable explanation as to why the complaint was submitted so late to the Workplace Relations Commission.

The complaint was not submitted to the WRC within the required time frame, I have decided there is no reasonable justification to extend the period of six months, the following complaints were not submitted within the time limit.

CA – 00021227 – 002; CA- 00021227 – 003; CA- 00021227 – 004; CA- 00021329 – 006; CA – 00021329 – 007; CA – 00021329 – 009; CA – 00021329 – 011.

The above complaints are not within my jurisdiction under the Regulations and therefore fail.

Complaint referenced CA – 00021227 – 001 referred under section 8 of the Unfair Dismissals Act 1977 will be the subject of the hearing in front of the Adjudication Officer.

Introduction

The Complainant commenced working with a company on or about 9th May 2016 in the role of Healthcare Account Manager. The healthcare division of this company that the Complainant worked in was outsourced to the Respondent on the 11th of December 2017. It was a transfer of undertakings. The Complainant was the only employee to transfer.

Note from Adjudication Officer – all complaints under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations have been addressed in the preliminary point.

Factual Background

From the 9th of May 2016 to the 11th of December 2017 the Complainant worked for another company (the transferor) as a Healthcare Account Manager. During this time, he enjoyed an excellent relationship with his employer. The Complainant was informed that the outsourcing would occur by means of a transfer of undertaking. He was the only employee who was being transferred. The Complainant never received a hand book, any investigative, disciplinary procedures etc from either the transferor or the Respondent.

The Complainant had brief teleconferences regarding the transfer on the 27th, 29th, 30th of November and 1st of December 2017 regarding the transfer. It was reiterated in all these conversations that his terms and conditions would remain the same after the transfer.

The Complainant received an email from the Transferors HR about the TUPE on the 4th of December 2017. There were a number of substantial changes to his terms and conditions.

As the Complainant only had a vague idea how the transfer would work and he had concerns about changes to his terms and conditions, on the 6th of December he met with his new line manager who was to be his new line manager in the Respondent company to discuss issues regarding the TUPE including that he had not yet received the TUPE agreement despite numerous attempts to obtain same, fuel cards, lunch, allowance etc.

The Complainant did not receive the TUPE agreement until his last day with the transferor on the 8th of December. He began work with Respondent on the 11th of December.

Over the next two months the Complainant presumed the issues he had regarding the TUPE agreement would be resolved, that he would be given a meeting to discuss same. However, this did not occur. The Complainant emailed the Respondent MD to organise a meeting regarding the TUPE agreement on the 28th of February 2018. The MD indicated they would meet the following week. This did not occur. The Complainant raised the issue of the lunch expenses with his line manager on the 23rd of March 2018. He never received an adequate response to this, bar being advised to be clever about expensing lunches.

In May the issues regarding the TUPE agreement came to a head over expenses.   As a result, the Complainant attended an investigation meeting. Throughout this process the Complainant raised his issues and believed that the issues would be resolved and the working relationship with the Respondent would improve.

Unfortunately, on the 15th of June 2018 it became apparent this was not going to occur as the Complainant was dismissed. He appealed his dismissal, and this was dismissed on the 6th of July 2018.

The Complainant then lodged the complaint with the Workplace Relations Commission on the 22nd of August 2018.

Background to dismissal.

A member of the Respondent’s accounts contacted the Complainant on the 9th of May enquiring about 3 receipts from February’s expenses which did not have monetary values on them. There were further communications between accounts and the Complainant on the 11th of May. He confirmed he used a DCI card which he was reimbursed for. The Complainant stated he would attempt to retrieve receipts from the service stations. He went on that if the stations would not provide them then he would ask a family member who is self-employed to provide fuel receipts for the same monetary value showing VAT if this would be of assistance. On that day the Complainant contacted all of the service stations.

On that day the Complainant contacted the toll company as his toll had stopped working. He was informed it was no longer in use. He telephoned his former company and spoke to a member of staff about the toll tag. He was told to send it back to the transferor which he did on the 22nd of June 2018. This delay occurred as the Respondent MD advised him not to do this.

The Accounts person emailed the Complainant seeking an update on the 16th of May he responded on the 17th. He explained he had 2 of the 3 receipts got and was chasing the remaining one.

On the 17th of May the Complainant had a sales meeting with his line manager and colleagues. During the meeting the Complainant had lunch with two of his colleagues and asked them about obtaining a new toll tag. There was no mention of any issues before, during or after that meeting.

Subsequently the MD telephoned the Complainant and informed him he was suspended with pay due to a report from his former company concerning fraudulent activity on a fuel card. The Complainant explained that he had a toll tag and fuel card from his former company. He set out that his line manager was aware since early in the year that he had the toll tag and instructed him to hold on to it. The Complainant confirmed his intention to reimburse his former company the fuel costs. He told the MD he had spoken to his former company about the toll tag as it was now out of service. The Complainant stated he would send the fuel card. The MD stated that this was not a disciplinary action.

The Complainant contacted his former company and explained the situation to her and confirmed he had a toll tag and fuel card from them. He requested the balance as he wished to discharge that immediately.

The Complainant was very upset by the allegations and attempted to contact his MD four times. She did not answer him. He also tried to ring his line manager twice but no answer. The Complainant then text his line manager could he ring him. There was no response to this text.

Ms S contacted the Complainant and instructed him to shred the card and she would issue an invoice. She advised the Complainant not to worry.

The MD eventually returned the Complainant’s call. He expressed his upset and shock at the allegation. He explained he would never do anything to jeopardise his livelihood especially at this time as his wife was pregnant with their second child. The Complainant informed his MD that he had spoken with his former employer and that they would invoice him for the fuel card and the tag. He explained his former employer was aware of the toll card as he had spoken to them on the 16th of May. The Complainant said he had been told him to shred the fuel card. The MD told him not to. The MD concluded by emphasising that he wished to clear his name. The Complainant returned both the toll tag and fuel card by registered post to his former employer on the 22nd of June.

The MD emailed the Complainant confirming his suspension and that he should provide his appointments for the 18th of May and the 21st of May which he did.

The MD contacted the Complainant on the 21st of May to inform him that the suspension would last until the end of the week and to email her all his appointments. He did this. On the 23rd of May the MD emailed the Complainant to put his out of the office on and to divert the telephone until the end of the week. During this period the Complainant heard little from his employer which added to his stress at this point.

On the 28th of May the Complainant emailed the MD that he was back to work, had turned off his out of office and acknowledged her email and would reply by the 29th of May. The MD replied that the suspension was until further notice. She also provided a brief summary of the allegations against the Complainant. This was the first time it was set out in writing.

On the 28th of May 2018 the Complainant was informed by the MD that an investigation was occurring and to reply by close of business on the 29th of May 2018 with any comments and supporting documentation.

On the 29th of May 2018 the Complainant sought an extension of time to consider the documentation provided. The MD extended this on the 30th of May 2018.

On the 1st of June the Complainant raised a number of issues with the investigative process inter alia that he does not know what the process involves, the various stages of the investigation (in particular whether he will be invited to a meeting to meet the allegations being made against him), the precise allegations being made against him, the possible outcomes of that investigation etc.

As a result of the Complainant raising these issues the Respondent withdrew the investigative meeting by email on the 1st of June.

For the first time the Complainant received a disciplinary policy from either his employer or his former employer on the 5th of June 2018. Notably it was the disciplinary policy for his former employer not his current employer. This was also the first time the allegations were set out in detail in writing to the Complainant. This letter proposed a disciplinary meeting for the 8th of June. The Respondent required the Complainant to respond to this by 12 midday the following day. The Complainant responded to this letter the following day. He asked inter alia that the disciplinary meeting be an investigatory meeting as he had only today seen the procedure for the first time.

On the 30th of May the Complainant emailed his former employer to establish how much monies were owed to them, so he could discharge that immediately. On the 6th June the former employer informed the Complainant of the outstanding balance. The Complainant did this the following day.   The Complainant has sought reimbursement from the Respondent on the 11th of June. He was reimbursed on the 7th of August 2018 in the sum of €2,521.58.

At the disciplinary meeting on the 8th of June 2018 the Complainant was not given the opportunity to question any of the witnesses. A company director and a representative of an independent HR company chaired the meeting. The Complainant was accompanied by his sister in law.

On the 11th of June the company director emailed the Complainant seeking more information regarding aspects of the allegations against him. The Complainant responded asking what the director wanted him to comment on. On the 12th of June the director set out specific issues he wanted the Complainant to respond to. The Complainant responded to these on the 13th of June.

On the 15th of June the Complainant was dismissed.

The Complainant appealed the decision to dismiss him on the 20th June. The grounds of appeal were

1.       “The dismissal is intractably linked with the TUPE process;

2.       No process in place prior to this procedure beginning;

3.       Use of a procedure that I never had sight of before and had not agreed to;

4.       Unfair and unnecessary suspension;

5.       Time line for suspension kept changing which is fundamentally unfair and stressful to me;

6.       Substantial delay between suspending me and commencing the investigation;

7.       Lack of investigation meeting;

8.       Unfair time limits to respond to information in comparison to the time taken by the company;

9.       Lack of impartiality from the investigatory personnel;

10.   Lack of impartiality from the disciplinary personnel;

11.   No opportunity to cross examine your accusers;

12.   Matter was predetermined;

13.   Sanction was disproportionate;

14.   Did not consider other sanctions;

15.   Lacked basic fairness; “

Another company director and another independent HR consultant heard the appeal on the 28th of June. This was dismissed on the 6th of July.

Legal Submissions

Section 6 of the Unfair Dismissals Acts 1977-2015 states

“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”

Thus, the burden rests on the employer to show fair procedures, reasonable reason for dismissing the Complainant and that the sanction was a proportionate one.

This obligation includes showing;

1. There was a justifiable reason to dismiss;
2. The Defendant acted “reasonably”;
3. The Defendant afforded the Plaintiff fair procedures;
4. The sanction was proportional, including that other lesser sanctions were considered.

In assessing the fairness of the dismissal, the reason or reasons for dismissal should be examined. In Abernethy v Mott Hay & Andersons [1974] ICR 323 Cairns LJ stated

“a reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee.”

The investigation had the sole aim of removing the Complainant as he was seeking his more favourable terms and conditions be implemented. It is noteworthy that the Complainant’s salary and benefits are of a higher standard than that offered by the Respondent. The Complainant never received any documentation on the process, or the allegations made against him until the investigation stage was closed. When he raised these issues the Respondent closed the investigation and refused the Complainant an opportunity to have an investigative meeting.

In relation to the Complainant’s suspension, he was suspended from duty without prior consultation and without any discussion as to the merit of such a suspension, or why same was required. Clearly in circumstances where the allegations against him related to expenses it is difficult to comprehend on what basis a suspension was required as a protective measure or otherwise.   Clearly the Complainant posed no threat to the Respondent and even if he had the Respondent could easily asked him to stop using the relevant items or placed him on desk duty.

This is similar to the situation in Bank of Ireland v Reilly (2015) HC Noonan J. Vulgar emails were being forwarded through the Plaintiff’s email system. It was clearly wide spread, like here. The evidence was that at least 5 others doing it. Mr Reilly was suspended and ultimately, he was the only one to be dismissed. Another staff member was in fact promoted. Bank of Ireland never raised or addressed this issue by any means till the date of suspension – same as here. The Court stated

“… even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question”

In relation to the dismissal the Court observed

“Having regard to all of the foregoing, I am satisfied that the conduct of the bank in relation to Mr. Reilly's dismissal and the events leading up to it could not by any objective standard be described as reasonable. The evidence has driven me to the conclusion that at a very early juncture, probably on the 17th of February 2009, a decision was made within the hierarchy of the bank to make an example of Mr. Reilly in order to deter others from similar behaviour in the future. That decision may or may not have been made by GIR, but as a minimum was strongly influenced by it. Whilst lip service was paid to observance of procedures, it is clear that there was only ever going to be one outcome. The bank's response in this case was entirely disproportionate and could not in my view be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue.” (paragraph 60)

It is respectfully submitted that the Respondent did not comply with the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 SI 146/2000

1.       That employee grievances are fairly examined and processed.

The Complainant raised grievances as far back as the 6th of December 2017, these were never addressed. When he raised issues with the Investigation procedure the company closed the investigative stage. It never addressed the Complainant’s grievances.

2.       That details of any allegations or complaints are put to the employee concerned.

The Complainant did not receive details of the allegations against him until the 5th of June 2018. This was after he had been suspended for almost 3 weeks and after the investigative process was closed. This is a fundamental breach of basic rights.

3.       The employee concerned was given the opportunity to respond fully to any such allegations or complaints.

As the Complainant only received the allegations on the 5th of June 2018 he was not given an opportunity to fully respond to them. The investigative stage had closed. The disciplinary meeting was set for just 3 days later, the 8th of June. He was not provided with an opportunity to cross examine the witnesses.

4.       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

The Complainant was entitled to be accompanied by a person, but he was not given the right to be represented during the procedure. In particular, his wife was allowed attend the appeal but was not allowed to make any representations on his behalf.

5.       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The Respondent did not give the Complainant a fair and impartial determination. It did not look at all the relevant circumstances, in particular the transfer of undertaking and the lack of support and guidance given to the Complainant during the process. The Complainant only received a disciplinary procedure on the 5th of June 2018 after the investigative stage was closed. He never agreed to this.

The Respondent have failed to show the sanction was not disproportionate. In Fitzpatrick v Superquinn Limited UD 452/1984 the EAT endorsed the view that a disproportionate sanction (whether provided for in the employer’s rules or not) in respect of employee misconduct will be considered an unfair dismissal within the meaning of the Unfair Dismissals Acts 1977-2007:

“While it is a company’s right to make rules and regulations regarding the misdemeanours of its employees, the Tribunal is of the view that the punishment must fit the crime. The penalties to be imposed by employers for breach of regulations should relate to the severity of the breaches themselves. Otherwise it is likely that company regulations would be enforced in an arbitrary or selective and therefore inequitable manner. Normally employers pursue this course as a matter of common sense.”

Quite simply the Complainant was dismissed for using a toll tag and fuel card which he was not benefiting from.

I would draw attention to the decision of Geraldine Pender v Woodies DIY Ltd UD 460/2014 where the Chief cashier admitted to putting through fictitious transactions. It was accepted, that like here it was not for her personal benefit. Also, of particular relevance in that case is that there the employer offered at the appeal stage to move Ms Pender to another, lesser position, never considered by any of the personnel here.

In the case of Cahill v. Galen Limited UD 1359/2010 the Applicant was employed as a sales representative for the Defendant Company. The Defendant placed GPS trackers on each of its sales representatives’ cars. The Applicant’s listing of meetings and expense claims did not tally with the information provided by the GPS. The Applicant was invited to attend a formal disciplinary hearing on the allegation that he had submitted fraudulent mileage and expenses claims. The Applicant did not provide any explanation for the discrepancies on the advice of his solicitor. The Applicant was then informed that a determination had been made that summary dismissal was the appropriate penalty. The Employment Appeals Tribunal found that:  

“The Tribunal is not satisfied that the alleged misconduct warranted summary dismissal and no evidence of alternative sanctions was heard. The fact that the Defendant did not consider any of the lesser sanctions in circumstances where there was no evidence of any previous disciplinary matters involving the Plaintiff raised further concern.

The Defendant failed to verify and validate the data from the tracking equipment and their own handbook does not make provision for the company to use tracking surveillance equipment.

The Defendant failed to advise the employee of the installation of the tracking equipment.

The allegation of fraud was not substantiated by the Defendant.”

That is similar to here where until the Complainant started the disciplinary stage was he told in detail of the allegation against him. It is noteworthy that there was no discussion of alternative sanctions at any stage of the disciplinary or appeal process nor any reasoning set out. The Complainant was not informed of any potential penalties except dismissal. It is submitted that this demonstrates that the sanction in this case had already been predetermined before the investigation had even commenced. Alternative sanctions which the Defendants could have considered include;

• Formal warning;
• Written warning;
• Demotion;
• Probation;
• Training;
• Monitor work.

Redress

The only appropriate redress where there is such a fundamental breach of the employer employee relationship is compensation as reinstatement is not appropriate.

Conclusion

In light of the foregoing, the Claimant hereby seeks that the Adjudicator find that he was inter alia dismissed unfairly, on the grounds of the transfer.

It is the Respondent’s case that the Claimant was dismissed for gross misconduct on 15th June 2018 on the basis that he had fraudulently claimed expenses from the Respondent from 12th December 2017 to 15th May 2018 for expenses that he did not incur. This was done via the unauthorised use of a fuel card and toll tag that belonged to his former employer (the transferor).

On or about 3rd May 2018 the Operations Director sent an email to the Accounts Department detailing a query she had in relation to the Claimant’s receipts for his February 2018 expenses. The query related to the fact that when checking the receipts against the reconciliation she noted that three of the fuel receipts did not have monetary value on them and merely stated the amount of fuel purchased. She asked if she could proceed with the amount claimed without the necessary information on the vouching documentation or whether she should request a copy of the receipt from the Claimant showing the vatable amount. The Operations Manager requested sight of the scanned copy of the receipts and once received from the Accounts Department she noticed that a fuel card was being used and asked the Accounts Department to revert to the Claimant to clarify the situation and request receipts for the value that was being claimed.

On 4th May the Operations Manager requested the Managing Director to check with the other Company to enquire if the digits on the fuel card that was being used by the Claimant related to the digits on any fuel card the other Company had.

On 9th May the Managing Director confirmed that the other Company had stated that the Claimant’s former fuel card was not active. The Accounts Department communicated with the claimant via email requesting copy receipts to be supplied from him which showed the monetary value for the fuel purchased with the VAT amount also. The Claimant initially replied on the same date stating that he didn’t have receipts which showed the monetary value or vat amount, but he would attempt to ask the service stations for a copy. Then the Accounts Department requested via email on the same date clarification from the Claimant if he was using a fuel card and if so a request was made for the Claimant to provide a statement which would be required as back up in case of inspection. The Claimant failed, refused or neglected to reply. The Accounts Department notified the Operations Director of the situation about a lack of clarity on the matter.

On 11th May 2018 the Claimant confirmed to the Accounts Department via phone call that he had used a different fuel card and stated that it was a family member’s card (stated that he reimburses the family member for the use of) but it was now cancelled as he was due to receive one from the Respondent. It wasn’t clear from the phone conversation as the phone was breaking up whether the Claimant was to ask the service station for copy receipts or whether he was to ask the different card company for a breakdown of transactions. The Accounts Department stated that if he was self-employed the different fuel card company would have a report of the transactions or alternatively the service stations should have a record of the fuel and amounts purchased which could be obtained in order to clarify the outstanding matter.

On 14th May 2018 the Claimant rang the Respondent and spoke to the Accounts Department. It was queried who the Claimant had requested copy receipts from and the Claimant confirmed he had contacted three of the service stations, two of which were to get back to him and the other station were unable to provide a receipt. It was suggested by the Accounts Department in order to move the matter along if the Claimant could request a statement of the fuel card from the family member to whom it belonged and same could be kept on file in case of inspections (it was stipulated that the family member’s details with other information that would not be needed could be blacked out for security reasons). The claimant did not comment on this suggestion.

On 16th May 2018 the Accounts Department emailed the Claimant with regard to her concern over the family member’s card. It was questioned whether the family member would have claimed VAT on receipts and this was relevant in that it meant the Respondent would also not have been entitled to claim VAT back on the Claimant’s receipts.

On 17th May 2018 the Claimant rang the Accounts Department confirming that the family member wasn’t VAT registered and would not have claimed back the VAT. He said he was continuing to chase up the outstanding receipts and would send same via email, two copy receipts were sent via email later that same day.

On 17th May 2018 the other Company (the transferor) emailed the Respondent company to say that they had made a mistake and that the Claimant did indeed still have the fuel card and was in fact utilising it without authority to do so.

On 18th May the other Company (the transferor) sent a fuel card statement in relation to fuel usage to the Respondent detailing the usage on this card from 12th December to 15th May 2018.

On 21st May 2018 the other Company wrote to the Respondent stating the procedure in relation to the return of company assets including fuel cards and toll tags upon leaving the company and confirmed that a toll tag was further being used by the Claimant which was also not authorised.

On 17th May 2018 the Operations Manager notified the Claimant via telephone at 4.16pm and spoke to him again at 5.38 pm that he was being suspended with full pay pending a disciplinary investigation. This was followed up with a suspension letter that was emailed to the Claimant at 5.58 pm on the same date.

On 18th May the investigation process began into whether claims for diesel that had been incurred by the other company (the transferor) via the DCI fuel card were being claimed by the Claimant to the Respondent and that a toll tag was being used without requisite authority.

DUE PROCESS AND FAIR PROCEDURES

The Claimant was afforded a full and fair disciplinary procedure in line with the Respondent’s disciplinary appeals process. This process comprised in particular

a)       A full investigation during which the Claimant was suspended on full pay as per the Company’s disciplinary policy in place.

b)      All of the investigation materials along with the relevant company policies were provided to the Claimant well in advance of the disciplinary hearing.

c)       The disciplinary hearing was independent.

d)      The Claimant was informed of his right to be accompanied to the disciplinary meeting and was accompanied.

e)      He was advised of the possible outcomes to the disciplinary meeting and a finding of gross misconduct.

f)        The Claimant was provided with full and detailed reasons for the outcome of the disciplinary letter dated 15th June 2018.

g)       The Claimant was advised of his right of appeal and advised of how to exercise that right.

h)      The Claimant was provided with a full fair and independent appeal hearing chaired by an external third party, was accompanied to said meeting by his wife, each of his grounds of appeal were dealt with.

i)        The Claimant was provided with full and detailed reasons for the outcome of the appeal (letter dated 6th July 2018).

LEGAL SUBMISSIONS

The Claimant has brought a claim pursuant to s.8 Unfair Dismissals Act 1977.

Per s.6(4) 1977 Act

[…] the dismissal of an employee shall be deemed, for the purposes of this Act, not to be unfair dismissal if it results wholly or mainly from one or more of the following […]

b) the conduct of the employee [..].

The conduct of the Claimant which gave rise to the Claimant’s dismissal was

a)       The fraudulent claiming of mileage expenses from the Respondent in December 2017, January February and March 2018.

b)      The unauthorised use of the other company fuel card and toll tag in December 2017, January February and March 2018.

The dismissal of the Claimant was procedurally fair and was a disciplinary sanction coming within the margin of proportional responses to the conduct of the Claimant.

It is denied that their process, including the investigation into the Claimant’s wrong doing the disciplinary process and the appeals process were procedurally unfair.   In the event that some procedural unfairness is identified it is denied that per s.6(1)(a) of the 1977 Act, “having regard to all the circumstances” the dismissal was unfair.

In Elstone v CIE (High Court 13 March 1987 unreported) it was held:

That the mere fact of some failing in due or agreed procedures it is not a final and decisive matter for the court on appeal is clear from the provision of s.6(1) that regard must be had “to all the circumstances” and not to one circumstance to the exclusion of all others.

In Loftus and Healy v An Bord Telecom (High Court 13 February 1987, unreported) it was held “regard must be had to all the circumstances” and that “[t]he primary consideration is to determine the ground for the dismissal”.

It follows that a flaw in a disciplinary process does render a dismissal unfair in and of itself.

In addition, should there be any procedural flaw, which is denied, it must be established that the flaw imperilled a fair result.

In Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy J outlined that a central consideration to fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.

This decision followed on from that of Barron J in Loftus and Healy v An Bord Telecom cited above, where it was determined that the real question was “not whether the plaintiffs were deprived of hearings to which they were entitled but whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish the assault as the whole or the main reason for and justifying their dismissal”.

In RAS Medical Ltd t/a Park West v the Royal College of Surgeons in Ireland [2017] IECA 228 it was held:

Fair procedures do not dictate the outcome of a process …. There are of course no absolutes in law or in life and there are occasions when the rules of fair procedures have to give way because of pressing exigencies to less considered or reflective processes.

With respect of the question of proportionality, it was held in Kelly v CIE (Circuit Court 11 February 1985):

If, in all the circumstances, there are substantial grounds to justify the dismissal then the decision of management to that effect is not to be subjected to interference from the Tribunal nor from this Court on appeal. The policy of the [1977] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances then it must stand.

In McGee v Beaumont Hospital, the EAT held:

“The task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”

In the within claim, each of the allegations of wrongdoing were supported by substantial evidence.   The wrongdoing of the Claimant imperilled the Respondent’s business and reputation. The Claimant failed to justify his actions or put forward any significant evidence in mitigation. The dismissal of the Claimant was a reasonable response in light of the evidence before the Respondent both at disciplinary and appeal.

CONCLUSION

It is respectfully submitted that the Claimant has failed to demonstrate his claim of Unfair Dismissal and therefore on that basis the claim should fail. Alternatively, it is submitted that the Claimant’s very gross misconduct contributed to his dismissal and in which case a nil award is appropriate.

I have looked very closely at the Investigation and have to ask did a proper investigation actually take place. When reading the Complainant’s submission, I would draw attention to:

On the 28th of May 2018 the Complainant was informed by the MD that an investigation was occurring and to reply by close of business on the 29th of May 2018 with any comments and supporting documentation.

On the 29th of May 2018 the Complainant sought an extension of time to consider the documentation provided. The MD extended this on the 30th of May 2018.

On the 1st of June the Complainant raised a number of issues with the investigative process inter alia that he does not know what the process involves, the various stages of the investigation (in particular whether he will be invited to a meeting to meet the allegations being made against him), the precise allegations being made against him, the possible outcomes of that investigation etc.

As a result of the Complainant raising these issues the Respondent withdrew the investigative meeting by email on the 1st of June.

On my reading of the above referenced email dated 1st June from the Respondent MD to the Complainant I see that it states:

“I have not received any correspondence from you regarding the documents I sent you on Monday. Therefore, I am now closing off this investigation. I will provide documentation to another member of management who will respond how they see fit”.

Yours sincerely,

This appears to be a reaction to the Complainant seeking clarification on how the investigation would progress and detail of what exactly are the allegations being made against him.

Following this the Complainant received a letter from another company director dated 5th June 2018. This letter invited the Complainant to attend a Disciplinary Hearing on Friday 8th June 2018.

The same employee handbook contains a section on Disciplinary Policy (page 52).

Investigation

No action will be taken before a proper investigation has been undertaken by the Company into the matter complained of. A member of the management team will promptly and thoroughly investigate any matter that is reasonably suspected or believed to contravene any of the Company’s policies or rules. You will be informed as soon as possible as to the fact of an investigation and when it has been concluded

Suspension during Investigation

There may be instances where suspension with pay is necessary while investigations are carried out, the Company has the right to suspend you with pay where there are reasonable grounds for concern that there is a potential risk to the business or other associates or evidence may be tampered with, destroyed or witnesses pressurised before disciplinary hearing. If it is not practicable to complete an investigation within three months then the Company reserves the right to continue your suspension but without pay until the investigation is completed. During such period all your rights under your contract of employment will be suspended and in the event that no disciplinary action is taken against you any pay and all other benefits which have been suspended will be reinstated.

Depending on the circumstances of the case you may be invited to attend an investigatory interview. If such an interview is held prior to a disciplinary hearing, you will be informed in advance that the interview is an investigatory or a fact finding meeting. There is no statutory right for you to be accompanied. However, if you feel you require support during this process your request will be considered.

Right to be Accompanied

Associates have the right to be accompanied at a formal disciplinary hearing by a fellow worker or trade union official of their choice.   Your chosen companion has the right to address the hearing to put your case, sum up the case and respond on your behalf to any view expressed at the hearing. The companion may also confer with you during the hearing. However, there is no requirement for the panel to permit the companion to answer questions on your behalf. Please provide two days’ notice to the panel if your chosen companion is a colleague in order to ensure their manager is aware of the time required to prepare and attend your hearing.

Disciplinary Hearing

If, upon completion of an investigation there are reasonable grounds to believe that you have committed an act of misconduct, you will be invited to attend a disciplinary hearing.

In the event of a disciplinary hearing taking place the Company will

·         Give you a minimum of two working days advance notice of the hearing.

·         Tell you the purpose of the hearing and that it will be held under the Company’s disciplinary procedure.

·         Explain your right to be accompanied at the hearing by a colleague or trade union official.

·         Give you written details of the nature of your alleged misconduct; and

·         Provide you all relevant information (which will include statements taken from any colleagues or other persons that the hearing intends to rely upon) not less than two working days in advance of the hearing.

A disciplinary hearing will normally be conducted by your manager together with a notetaker. Where possible and with resources permitting, the person responsible for the investigation will not be a member of the panel.

You are entitled to be given a full explanation of the case against you, be informed of the content of any statements provided by witnesses and will be able to call your own witnesses. You will be given a reasonable opportunity to; set out your case, answer the allegations, ask questions, present evidence and call relevant witnesses. You will also be given the opportunity to raise points about any information provided by witnesses. Each party will give relevant notice if witnesses are to be called. The panel may adjourn the disciplinary proceedings if it appears necessary to do so at any time.

The Complainant did not receive details of the allegations against him until the 5th of June 2018. This was after he had been suspended for almost 3 weeks and after the investigative process was closed. This is a fundamental breach of basic rights.

As the Complainant only received the allegations on the 5th of June 2018 he was not given an opportunity to fully respond to them. The investigative stage had closed. The disciplinary meeting was set for just 3 days later, the 8th of June. He was not provided with an opportunity to question the witnesses.

The Complainant was entitled to be accompanied by a person, but he was not given the right to be represented during the procedure. In particular, his wife was allowed attend the appeal but was not allowed to make any representations on his behalf.

In Khan v Health Services Executive [2008] IEHC 234 at para 26 Laffoy J considered what was meant by the term ‘fair procedures’:

‘At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge ; that he has proper opportunity to take advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is to free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to’.

In Looney and Co Ltd v Looney UD 843/1984 the Employment Appeals Tribunal stated:

‘It is not for the EAT to seek 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 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 decision are to be judged.’

My decision in this instant case is the I believe the investigation was fundamentally flawed and the Complainant was not afforded a fair investigation or any investigation at all.

I find that the complaint as submitted under section 8 of the Unfair Dismissals Act 1977 is well founded.

At the time of dismissal the Complainant was earning €973.27 per week.

He commenced employment with another company on 20th August 2019. He produced no evidence of efforts to mitigate his loss during the unemployed period.

I order the Respondent to pay compensation of 3 months (13 weeks) pay to the Complainant, I calculate this to be €12,652.51.

This compensation should be paid to the Complainant within 42 days from the date of this decision.

As outlined above

Unfair Dismissal.