Complainant

Respondent

Anonymised Parties

A Metal Fabricator

A Truck Repair Company

Representatives

Andrew McCann, Fingal Citizens Information Service

Kara Turner, Eversheds Sutherland Solicitors

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-00031493-001

10/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031493-002

10/10/2019

The respondent is a heavy goods maintenance and repair business with operations at four locations in Dublin. The complainant is a metal fabricator and he commenced working with the company on February 16th 2015. He was dismissed on July 26th 2019 following an investigation into the theft of company property. On behalf of the complainant, Mr McCann argued that his dismissal was unfair. He submitted that there was no substantive proof of theft, that a proper procedure was not followed during the investigation into the complainant’s conduct and that the appeal process was delayed and flawed. Mr McCann also submitted that the respondent’s decision to dismiss the complainant for gross misconduct deprived him of his entitlement to notice.    

Chronology of Events Leading to the Complainant’s Dismissal

On Monday, June 24th 2019, the respondent’s managing director, “MD,” was informed that the complainant had been seen leaving the premises carrying items belonging to the company. She reviewed the CCTV footage of the facility and in the recording from Friday, June 21st, she observed the complainant packing items into two backpacks and leaving the premises with the backpacks and carrying other items.   As he was leaving work on June 24th, MD approached the complainant and showed him the footage of the previous Friday. She instructed the complainant to attend a meeting the following morning to discuss the CCTV footage with a non-executive director of the company, “NE.” NE is a former managing director and is MD’s father.

At the meeting with NE the next day, the complainant said that he brought his own tools with him to work, with his lunch and his water bottle, and he brought them home in the evenings. NE asked the complainant about cutting disks and other “consumables” such as spray paint and brake oil. He also said that a customer had seen him with a piece of steel. The complainant said that there may have been a cutting disk on a grinder that he had borrowed. Later that day, NE informed the complainant that he was being suspended to allow an investigation to take place into theft or unauthorised possession of company property.

Following his meetings with the complainant, NE looked at the CCTV footage of June 21st and 24th and he decided that the complainant had a case to answer concerning the alleged theft or unauthorised possession of company property.   The general manager, “GEN,” of another depot was appointed to conduct a disciplinary investigation.

A disciplinary meeting was held on July 2nd 2019. NE accompanied GEN, who chaired the meeting and the complainant was accompanied by a work colleague. At the meeting, the complainant said that he owned everything that he put in his backpack except a “big angle grinder.” He said that he had borrowed this and that he had approval to do so from a colleague. GEN showed the complainant footage of June 21st where he is seen putting tools into a bag, and further footage of Monday, June 24th, where he is seen putting a can of spray paint into his bag. The complainant said that this proved nothing and that, for all the managers knew, he could have left these items in the changing room. The meeting ended with the managers saying that they may have to look at whatever additional CCTV footage is available.

The complainant got married on Friday, July 5th and he was on holidays until July 18th. The disciplinary meeting was reconvened on July 25th.   GEN said that the purpose of the reconvened meeting was “to go over the events of June 21st and 24th 2019 when (the complainant) was seen to have removed his own and company tools from the premises and to act in an inconsistent manner in relation to consumable items which he claims he removed from (his work) section and left in the locker room.”

In response to a question about where he left the items he had put into his backpack, the complainant said that he left them in “the top left hand corner of the locker room.”   GEN said that the items were not there before the meeting of July 2nd, but had been placed there afterwards.

GEN asked why a person would leave items like cutting disks in a locker room, but the complainant said that there was nothing strange about this, although he agreed that generally, people left their clothes and personal items in the locker room.

The complainant said that on the morning of June 21st, he had a list of things that he wanted to bring home and this list was in a black notebook. He did not contact his line manager about his plans to bring the items home.

GEN asked the complainant about items that he was seen wrapping in red rags, but he said that he couldn’t remember what these items were, and that he just took a few rags.   He said that the tools that he put in the bag on Friday, June 21st included a square, an angle grinder, a tape, a drill, battery packs and other items. He also took a length of steel. Apart from the piece of steel, he said that he brought all the items back on Monday, June 24th. The complainant named a colleague who, he said, gave him permission to take the steel.   He said that he told another colleague he was taking the tools home. He said that he thought that these two colleagues were more senior to him, because they were there longer.

On July 27th, the complainant was dismissed for gross misconduct associated with the theft or unauthorised possession of company property. The complainant appealed against the decision to dismiss him and a meeting to hear his appeal was held on August 19th. An external consultant chaired the appeal meeting and it was reconvened on September 1st. On September 15th, the complainant was informed that his appeal was unsuccessful.

Evidence of Theft or Unauthorised Possession of Company Property

The respondent submitted that the following evidence indicates that it was reasonable for them to reach the conclusion that the complainant took items from the company’s premises without permission and for his own use:

1. CCTV footage on June 21st showing the complainant consulting a personal notebook before placing company-owned tools and consumable items into two backpacks and removing them from the work area.   Later footage shows him leaving the premises with a piece of steel, two backpacks and other equipment in his hand. CCTV footage on June 24th shows the complainant putting consumable items into a backpack. He did not look for approval to remove any of these items.

2. After the complainant left work on Monday, June 24th, MD carried out a full check of the premises including the locker room, but she found nothing. The piece of steel was not returned.

3. At the disciplinary meetings, the complainant acknowledged taking a battery-operated drill and charger, a battery operated angle-grinder and a charger and battery, off the company’s premises.   He said that he placed the consumable goods (the grinding disks and aerosol spray paint) in the locker room.   At the investigation meeting with NE on June 25th and at the disciplinary meeting on July 2nd, he did not inform NE or GEN that he left the goods in the locker room.

It is the respondent’s case that the complainant was in breach of the workplace standards which are published in the company handbook which expressly provide that the use of company property for any purpose other than normal duties is not permitted and also, that company property is not to be removed from the premises without approval. The company’s disciplinary procedure specifically provides that the theft or unauthorised possession of company property amounts to gross misconduct and may result in dismissal.

Evidence of the Respondent’s Managing Director, “MD”

MD said that, before she looked at the CCTV footage on Monday, June 24th 2019, she was told that the complainant left the premises with a piece of steel the previous Friday. She said that she spoke to the complainant before he left work and showed him the CCTV footage and she informed him that NE would speak with him the next day.

When she was asked by Ms Turner what she saw on the CCTV footage for June 21st, MD said that she observed the complainant with a piece of steel in his hand and carrying a backpack. She said that she didn’t do “a major look” back over the day before she spoke to the complainant on the evening of June 24th. She said that NE had a good working relationship with the complainant and she asked him to speak to him the next day and to ask him to explain what was going in the video.

MD said that she then went back over the footage for Friday, June 21st. She said that she saw the complainant clocking in.   She said that she saw him going to the parts department and he looked as if he was going to put parts in his bag, but he was interrupted. She said that when she spoke to the complainant as he was leaving work on Monday, June 24th, she had reason to believe that he had company property in his backpack.

Following his meeting with the complainant on June 25th, NE told MD that there was “something awry.”   Later that day, NE met the complainant again and informed him that he was suspended. MD was out of the country from June 28th until July 8th and she said she had no further involvement in the investigation that led to the complainant’s dismissal.

Cross-examining of the Managing Director

Mr McCann asked MD why the complainant was not permitted to have a representative with him at his meeting with NE on June 25th. MD replied that her father knew the complainant.

Asked about the items that were found in the locker room, MD said that they were not in the locker room on June 24th, but she was informed that they were there on July 3rd. She said that she saw them there on July 8th on top of a pile of shoes.

Evidence of the General Manager, “GEN”

GEN was the decision-maker in respect of the complainant’s dismissal. In response to questions from Ms Turner, he said that he joined the company in 2006 as a technician, and he was then promoted to operations manager. He became a general manager in December 2018. He said that before the disciplinary meeting on July 2nd, he had never met the complainant. He was provided with the CCTV footage of June 21st and 24th and a note from NE regarding his meetings with the complainant on June 25th. He said that he had a copy of the company handbook and he had access to the company’s HR advice service for assistance.

Ms Turner asked GEN why NE was at the meeting on July 2nd and GEN said that he asked him to attend.

On the CCTV footage, GEN said that he saw the complainant putting a battery operated drill, a battery operated grinder, a plug-in charger and batteries into a bag. He also saw him putting consumable items into a bag, grinding disks, a can of spray paint or brake cleaner or spray oil, and something wrapped in rags. He said that he could see the complainant putting all of these items except the large grinder into a backpack. He said that he observed him taking a piece of steel and leaving it up half way up the workshop. He then collected the piece of steel with the large grinder.

GEN said that at the meeting on July 2nd, he showed the footage to the complainant and asked him if he had authority to take the items. The complainant named a person who is not a supervisor or his superior who, he said, gave him permission. He named another person, a welder, who he said, told him he could have the piece of steel.

At the end of the meeting, GEN said that the complainant said that the videos proved nothing and that, for all they knew, he had put the items in the changing room on his way out. GEN said that he was “a bit thrown” by this comment.

GEN said that he wasn’t satisfied that the complainant had been honest and he felt that he should have another meeting with him. However, both he and the complainant were going on holidays in mid-July, so the meeting didn’t take place until July 25th. In the meantime, GEN said that he looked at the CCTV footage again. He said that in the CCTV footage of June 21st, the complainant can be seen taking out a black notebook and ticking off items as he packed them into this bag. GEN said that he reviewed the company handbook, he looked at what the company had done in similar circumstances in the past and he got some advice from the HR company. He was also informed that some of the items that the complainant was seen putting into his backpack were found in the locker room on July 3rd or 4th.

The complainant attended the meeting on July 25th on his own, although GEN told him that he would make any employee available to accompany him. GEN said that at this point, they knew that some items had been returned. At the meeting, he asked the complainant about the red rags and what was wrapped in them. The complainant said that he just took the rags.

GEN said that at the end of this meeting, he reached a conclusion that the complainant’s actions amounted to gross misconduct and he decided to dismiss him.

Cross-examining of the General Manager

Responding to questions from Mr McCann, GEN described the area covered by the CCTV camera. He described the stock control procedure for sundry items and he said that all items are recorded against the name of the individual who requests them. The cordless grinder that the complainant put into this bag was owned by the company, as was the piece of steel, the drill, the chargers and battery packs and the consumable items. GEN said that he could see the complainant taking grinding disks from a locker and that it looked like there was something wrapped in a red rag. He said that the complainant was looking at what appeared to be a list in a black notebook, and he had a pen in his hand and was ticking off items on the list.

GEN agreed that the complainant was not given a copy of the CCTV footage until after the decision to dismiss him, although it was shown to him at the disciplinary meeting on July 2nd. The reason he was not provided with his own copy before the disciplinary meeting is because it had to be processed (pixelated) to hide the faces of other employees.

Evidence of the External Consultant who Heard the Complainant’s Appeal

The consultant said that his instructions were to carry out a full re-hearing of the allegations that the complainant had taken company property without approval and to conduct an appeal of the respondent’s decision to dismiss him.   In preparation, he said that he was provided with a copy of the notes of the meeting that NE had with the complainant on June 25th, a copy of the report completed by GEN following the disciplinary meetings on July 2nd and 25th and a copy of the complainant’s letter setting out the grounds of his appeal.   He was also given a copy of the company handbook. Before the appeal hearing on August 19th, the consultant said that he had a meeting with a technician from the company that provides the CCTV cameras to go through the footage of June 21st and 24th.

In advance of the appeal meeting, the complainant set out his concerns, which the consultant summarised:

§    The complainant had no representative at the investigation meeting;

§    NE should not have been at the disciplinary meetings;

§    He was dismissed due to theft, but he claimed that he had permission to take the items;

§    He said that the company was prejudiced against him because he had brought a claim against them due to an injury at work;

§    He said that information about the process was leaked by a person in the company to her husband and this caused him to lose face in his community.

The respondent said that he decided to meet the complainant again after the first appeal meeting, because he wanted to address his perception of bias and the leaking of information. He met him for the second time on September 1st. At that meeting, he said that he gave the complainant an explanation concerning his perception that the company was prejudiced against him because he took a personal injury claim. He said that he procured a letter from the husband of the employee who, the complainant had alleged had breached his right to confidentiality.   This person denied that he heard about the complainant’s suspension from his wife.

The consultant said that he told the complainant that the management had spoken to the two work colleagues, who, he said gave him permission to take the equipment and the piece of steel. These two employees denied that they gave him permission to take the items.

The consultant said that he looked at the video footage for June 21st and he observed the complainant coming into the workshop where he has assembled the items and then moving them in a furtive manner when other people come in. He is seen with a notebook ticking items off.

The complainant said that on June 24th, he left the consumable items in the locker room.   However, when he met MD before he went home on that day, he never mentioned that he had left stuff in the locker room. He met NE twice on June 25th, and he still didn’t mention items in the locker room. The consultant said that, when he was suspended and, if the items had been in the locker room, the complainant could have phoned either MD or NE, or someone else in the company, and told them where the items were. The consultant said that he believes that he did not do so because the items were not there. The earliest that anyone saw the items in the locker room was on July 3rd or 4th.

The consultant said that the complainant explained that, on June 29th, he phoned an employee who works on Saturdays and Sundays and asked him to take a photograph of the items in the locker room. The complainant produced this photo at the appeal meeting. When the consultant asked the complainant why he didn’t show these items to NE on June 25th, he said that he was stressed because of his forthcoming wedding.

The consultant said that he decided that it was reasonable for NE to attend the disciplinary meetings because GEN was not familiar with the site where the complainant worked.   NE made no contribution at the meeting and GEN was the final decision-maker.

Regarding the failure of the company to provide the complainant with documents that he requested before the disciplinary hearing, the consultant said that this was “sub-optimal” but that, in his view, had been resolved at the appeal meeting.   He said that all the available evidence was shared with the complainant.

A copy of the consultant’s report on the appeal hearing was submitted with the respondent’s book of papers.

Evidence of the Complainant

In response to questions from Mr McCann, the complainant said that he is aware that CCTV is in use in the facility where he worked.

Asked about his relationship with his line manager, the complainant described it as “fractured.”   He said that she has a different role, and that he and his colleague did all the planning and ordering of equipment. He explained, “we did our own thing.” He said that he would talk to his manager about time off, being paid, equipment breaking down and stock issues.

Mr McCann asked the complainant if it was customary to borrow tools from the company. The complainant said that a lot of people borrow stuff. He said that there is a check at security every day.

On Friday, June 21st, the complainant said that he asked his colleague if he was working on Saturday and he replied that he wasn’t. He said he told him that he was taking some stuff. He said that he had a list in a black notebook. He didn’t produce the notebook at the disciplinary meetings.

The complainant explained to Mr McCann that he had two backpacks. In one bag, which was black and grey, he had his lunch and a bottle of water. In the second bag, which was black, he had the company’s tools and his own tools. The company’s tools included a drill, charger and battery. He had his own grinder and battery, a chalk line and a tape. He had a section of box steel, about a metre long. He said that he asked another colleague about the steel, who said, “work away, take it.” He said that he took this person at his word and assumed that there was no issue with the steel.

The complainant said that he returned to work at 6.45am on Monday, June 24th, and he brought the equipment back. He said that there was a lot of rubbish in the locker room. In the afternoon, he said that MD confronted him and showed him the footage and told him that NE would speak to him the next day. The following day, when NE met him, the complainant said that he was put on the spot and he was suspended that afternoon.

Asked about the disciplinary meeting on July 2nd, the complainant said that the question of authorisation came up. He didn’t get the appropriate authorisation and in future, he said that he would get approval. At the second meeting, on July 25th, the complainant said that he brought up the issue of the breach of his right to confidentiality. He said that NE brushed this aside.

On July 31st, the complainant submitted a letter of appeal to MD. The first appeal meeting took place on August 19th and there was a delay of two weeks before a second meeting was held.  

Cross-examining of the Complainant

In cross-examining, Ms Turner asked the complainant to describe his manager’s role and he said that “she had no involvement in the technical aspect of the job or an awareness of tools.” He said that he and his colleague worked as a team.

The complainant said that on June 24th, as he was leaving work, MD showed him footage of him putting a bottle of water into his bag. He said that he was taken aback when he met NE the next day and he showed him different footage, where he is seen putting sanding disks into his bag on top of a grinder and a drill. The complainant said that everyone brings stuff home to do their own work. Ms Turner reminded him that, at the disciplinary hearing, he brought no witness to corroborate this assertion and also, he never produced his notebook with the list of items that he brought home. The complainant said that he used the black book to keep a record of the work that he and his colleague did, because “money makes the world go around.”

Ms Turner asked the complainant if the welder was the appropriate person to give him permission to take the piece of steel. The complainant replied that he was the right person. At the second disciplinary meeting, the complainant said that in future, he would get approval from his manager. Ms Turner suggested that this shows that the matter was not closed, and that there was no pre-judgement at the meeting.

Ms Turner asked the complainant why he didn’t tell NE on June 25th that he had left the consumables in the locker room. He replied that the conversation had escalated and he just handed over his bag and walked out. A week later, on July 2nd, he agreed that he didn’t tell GEN where he had left them. He said that his stag party was that week and he didn’t think about it.

The complainant said that on Saturday, June 29th, he contacted the person who works at weekends and asked him to take a photo of the items he said he left in the locker room. Ms Turner asked him why he didn’t contact NE, who had suspended him. The complainant didn’t answer this question but said that NE should have given him the opportunity to have a witness present when he met him.

The Case that the Dismissal of the Complainant was Unfair

Mr McCann summarised his argument concerning his case that there are substantive and procedural problems associated with the respondent’s decision to dismiss the complainant:

§    When he removed the company’s property on June 21st and 24th, the complainant thought that he had approval to do so. He didn’t think it was a matter that he had to discuss with his line manager.

§    The complainant accepted that he borrowed tools, but he did so with permission.

§    The company failed to offer the complainant the opportunity to be represented at the meeting with NE on July 25th.

§    Before he was dismissed, the complainant was not given a copy of the minutes of the investigation meeting.

§    Before he was dismissed, he was not provided with the CCTV footage relied upon by the respondent in reaching the decision to dismiss him.

§    The complainant was not given any notes of statements taken during the course of the investigation.

§    It is a coincidence that the complainant initiated a claim against the company concerning an injury he suffered on April 1st 2019. He returned to work on June 18th 2019 and he was suspended one week later.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

Section 6(4)(b) of the Act provides that;

“…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 …the conduct of the employee.”

It is the respondent’s case that the complainant was dismissed for removing items belonging to the company from their premises on June 21st and 24th 2019.

Closed Circuit Television

At the hearing of this complaint, there was no dispute regarding the use of CCTV footage in the context of a disciplinary investigation. However, I wish to note that, in the employee handbook, a copy of which was submitted in the respondent’s book of documents, a section headed “Closed Circuit Television” provides as follows:

“Closed circuit television (CCTV) cameras are used on our premises for security purposes. The CCTV system is operated on our premises for the safety and security of the people we support, our staff, buildings, information located or stored on the premises, and assets. Notwithstanding this express purpose we reserve the right to use any evidence obtained through CCTV in any disciplinary issue.

“Cameras are located at strategic points throughout the premises covering entrance and exit points. They are not positioned over communal areas and will not focus on toilets, shower facilities, changing rooms, staff kitchen areas or private offices. All cameras are clearly visible.”

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

The respondent’s submission refers to the case at the Employment Appeals Tribunal (EAT) of Hennessy v Read and Write Shop Limited, UD 192/1978, where the Tribunal applied a test of reasonableness to:

“(1) The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

(2) The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

To meet this test, it is necessary for the employee to be made aware of the allegations against him and any complaints that formed the basis of his dismissal. The employee must be given an opportunity to respond to the allegations and to explain the circumstances before the respondent decides that dismissal is the appropriate course of action.

The respondent also referred to the case at the High Court of the Governor and Company of the Bank of Ireland V James Reilly [2015] 26ELR 229 which deals with the issue of proportionality. Here, Mr Justice Noonan noted:

“in assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

As was established almost forty years ago in the case at the Employment Appeals Tribunal (EAT) of Bunyan v UDT (Ireland) Limited, [1982] IRLM 404, the fairness of otherwise of an employer’s decision to impose the most serious sanction of dismissal must be judged by an objective test:

“…the fairness of unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on the evidence before it, the employee should be dismissed.   The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

My role therefore, as the adjudicator and the successor to the EAT, is to determine if it was reasonable for the respondent to conclude that, on June 21st and 24th 2019, the complainant removed property that belonged to the company without getting approval in advance. I must also consider if, when they reached their conclusion, was the decision to dismiss the complainant proportionate to the seriousness of his conduct? The complainant’s evidence is that he borrowed some equipment comprising a grinder and a drill and associated batteries and chargers, and that he got approval from a colleague to do so.   With regard to the length of steel, he said that he got permission to take it from another employee, a welder.   Finally, in relation to the consumable items, the cutting disks and the aerosol containing paint or brake oil, the complainant said that he did not take these items, but he left them in the locker room on June 24th.

I must now determine if, having considered this former employee’s explanations about his actions on June 21st and 24th 2019, was it reasonable for his employer to dismiss him?

At the disciplinary hearing on July 2nd 2019, the complainant said that he came to work on Friday, June 21st with the intention of bringing home some of his own tools and borrowing some equipment to do a job over the weekend.   He brought two backpacks with him to carry the equipment. He said that he asked his colleague if he was working over the weekend, and when he ascertained that he wasn’t, he told him he was taking the equipment. He did not tell or ask his line manager. The company handbook includes a simple and clear instruction that employees are not permitted to remove company property without approval. It is my view that an employee conducting himself in a reasonably honest manner would look for permission from his manager before removing equipment for personal use.

At the hearing, when he was asked about the length of steel, the complainant described it as “scrap” and said that a welder gave him permission to take it. Regardless of the value of an item, an employer is entitled to trust that an employee will not take anything from a place of work without permission. A discovery that an employee has taken something without such permission, no matter how insignificant, opens the door to doubt about an employee’s honesty.   If the piece of steel was scrap, as the complainant alleged, and if it had no value to the employer (which was disputed), then it is likely that his line manager would have had no problem letting him take it. The fact that he did not ask for permission and simply took the piece of steel is worrying and, for this reason alone, it was not unreasonable for the respondent to initiate a disciplinary investigation.

The third issue of concern is the complainant’s assertion that he did not take the cutting disks and the can of spray paint or brake oil, but that he left them in the locker room on June 24th. This explanation amounts simply doesn’t make sense and I am satisfied that it is untruthful. As an employee with a good working relationship with NE, I can see no reason why, if the items were in the locker room, the complainant did not simply produce them from there on June 25th. The items were seen by other employees in the locker room only on July 3rd or 4th.  

At the disciplinary meeting, the complainant said that he could not recall what items he put into one of his bags, while at the same time, he said that he had made a list in a notebook of the things he needed. Also, at the disciplinary meeting, he said that he could not recall what he wrapped in red rags, but at the appeal meeting, he recalled that it was a chalk line.

From the evidence submitted at the hearing of this matter, it is apparent to me that the complainant borrowed the angle grinder and the drill without permission and that he took the piece of steel, again without permission. It is my view that, having ordered the grinding disks from the parts department on June 21st, he took them home and probably used them over the weekend of June 22nd and 23rd. On June 24th, he ordered a can of spray paint from the parts department and he had that in his backpack when he was confronted by MD before he went home.  

It is my view that the complainant’s actions in removing the items from his workplace and his response during the investigation and the disciplinary hearing was behaviour that undermined his employer’s confidence in him. Having reached the conclusion that there were serious doubts about the complainant’s honesty, it is my view that the decision to dismiss him was not unreasonable and was proportionate to the seriousness of the offence.

Was the Process Fair?

On behalf of the complainant, Mr McCann submitted that, aside from his views regarding the unreasonableness of the respondent’s decision, certain procedural failings also make this dismissal unfair. I will address these now.

1. The complainant was not offered the opportunity to be represented when he met NE at the two investigation meetings on June 25th 2019.

On the issue of representation, I note that the company’s disciplinary procedure provides that an employee has the right to be accompanied by a fellow employee or a trade union representative “at all stages of the formal disciplinary process.”   The respondent’s case is that the investigation meeting was not part of the formal process. It is my view however, that, while the two meetings with NE and the complainant on June 25th were informal, the matter in discussion was serious and a more robust approach would have ensured that the complainant was given the option of having someone with him.

2. Mr McCann submitted that procedural failings arise from the complainant not being informed of the charges against him in advance of the disciplinary hearing and the fact that NE did not produce a report on the outcome of his initial investigation. He also said that the management failed to tell the complainant who informed them that he left the company on June 21st carrying a length of steel.

On June 28th 2019, NE sent the complainant a letter inviting him to attend a disciplinary meeting on July 2nd. In the letter, he said that its purpose was to give the complainant an opportunity to explain “Alleged theft / unauthorised possession of property irrespective of value whether belonging to us, another employee or a third-party person.” It is my view that, having been given an opportunity to look at the CCTV footage on June 24th and 25th, this statement clearly outlines the charges that the complainant was expected to address at the disciplinary meeting on July 2nd.

The outcome from the initial investigation meetings on June 25th was that NE decided to proceed to a disciplinary hearing because the complainant did not adequately explain what was going on in the video footage. My understanding is that NE did not produce a report to document this outcome.  

At the second meeting with NE on June 25th, the complainant was informed that he “was observed by one of our customers walking out of the garage with a piece of metal under his arm.” He was not given the customer’s name. I am satisfied that the complainant was not concerned to question this customer at any stage, and it is likely that he may have known who the customer was. The complainant admitted that he left the premises with a piece of steel. The issue in dispute was the evidence on the CCTV footage and not the customer’s “tip off.”

3. Before he was dismissed, the complainant was not given a copy of the CCTCV footage relied upon by the respondent in their decision to dismiss him.

At his initial meeting with MD on June 24th, the complainant was shown a copy of the CCTV footage from the previous Friday, June 21st, where he is seen leaving the premises with a backpack and carrying items in his hands.   At the meeting with NE on June 25th, he was shown the footage where he is packing two backpacks and ticking off items in a notebook. At the disciplinary meeting on July 2nd, he was shown the same footage from June 21st and a video from June 24th where he is seen putting a can of spray paint into his backpack. In his letter of appeal, the complainant said that “CCTV was made available to me at my disciplinary meeting however this footage was not made available to me prior to this meeting to review and therefore I felt under duress to answer ‘on the spot’ questions.”

When he attended the disciplinary meeting on July 2nd, the complainant had been shown the video clips on two separate occasions, and he was shown the footage again at that meeting.   His argument that he had to answer ”on the spot questions” is difficult to accept because by July 2nd, this was the third occasion on which he was asked the same questions. Like the issue of representation at the investigation meetings, it would have been preferable if the video clips had been given to the complainant in advance of the disciplinary meetings. I understand that to comply with data protection regulations, the footage had to be pixelated and this took some time.   Having reviewed the notes of the appeal meetings in August and September, by which time the complainant had received a copy of the CCTV footage, I find that his responses would not have been any different if he had had possession of a copy of the footage in advance of the disciplinary meetings.

4. NE was present at the two disciplinary meetings.

NE attended the formal disciplinary hearings on July 2nd and 25th, although it is clear from the evidence that GEN was the ultimate decision-maker. Having considered the notes of the meetings that NE had with the complainant on June 25th, and the evidence of MD, it is apparent NE had a good relationship with the complainant and was reluctant to dismiss him. I find that no conflict and no unfairness arose from NE’s presence at these two meetings.

5. Following his dismissal, the complainant was not provided with the notes of the disciplinary meetings or the report of the conclusions of the disciplinary investigation carried out by GEN.

The complainant was dismissed on July 27th. From the documents submitted at the hearing, I understand that on August 12th, he received a copy of the notes of the disciplinary meetings of July 2nd and 25th and a copy of GEN’s report on the outcome of the investigation. It would have been more procedurally correct if these had been provided to the complainant before he was dismissed.

6. The outcome from the second and final appeal hearing on September 1st was not communicated to the complainant until September 15th.  

Two weeks after the second appeal meeting on September 1st, the consultant who heard the appeal produced a comprehensive report. This document goes to some length to address the issues raised by the complainant, including his concerns about bias and breaches of his right to confidentiality.   It is my view that it was not unreasonable for the consultant to take time to produce his report and, while I understand that the complainant may have been anxious to hear the outcome from his appeal, I find that no disadvantage arose for him because of the delay.

It is well established that the standard required in disciplinary investigations is fairness, an absence of bias and a focus on the behaviour being investigated and not on any unrelated matter. As set out in the High Court by Mr Justice Lavery in O’Mahony v Arklow UDC [ 1965] IR 710, the court should not, and I, as the adjudicator should not,

“…parse and construe the rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.”

It is my view that the respondent could have taken a more careful approach to the right of the complainant to be represented at the investigation meetings on June 25th, and to his right to be provided with documents and video footage.   Measured against the standards in the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000), it is apparent that the complainant was informed of the charges against him and he had an opportunity to respond and to provide an explanation for his actions. While he was not offered the opportunity to be represented at the investigation meeting, this was remedied at two follow-up meetings. Following the respondent’s decision to terminate his employment, he was given the opportunity to appeal. Having established that these procedural failings existed, I am satisfied that, on the whole, the requirement for fairness and the principles of justice have not been compromised.

Conclusion

At the hearing, in response to a question from me about the challenge for an employer to find a skilled sheet metalworker, MD said that the complainant is exceptionally talented. She said that by dismissing him, the company put a significant contract in jeopardy. It was apparent to me that, before June 2019, the respondent had a high regard for the complainant. In the letter of dismissal issued on July 26th 2019, the decision-maker stated,

“This decision has not been taken lightly but has been taken on the grounds of unauthorised possession of equipment owned by the company and a serious breakdown of trust between the employer and the employee.”

I have considered the case law submitted by the complainant in support of his contention that the decision to dismiss him was unfair. Each case where misconduct is at issue turns on its own facts and I have reached my conclusion here based on the evidence presented to me at the hearing. I note the findings in the case of Samuel J Frizelle v New Ross Credit Union Limited, [1997] IEHC 137, a precedent submitted by Mr McCann in support of the complainant’s case. Here, Mr Justice Flood held that, in reaching a decision to dismiss, “the decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.” It is apparent that the explanation offered by the complainant regarding his conduct on June 21st and 24th 2019 was not sufficient to persuade his employer that he did not remove their property without permission.

I am satisfied that the employer in this case has taken all the facts into consideration, including what Mr Justice Flood referred to as the “gravity of the complaint and the effect of dismissal” on the complainant, and it is my view that, in the same circumstances, any reasonable employer would have done the same thing. In conclusion therefore, I find that the dismissal of the complainant was not unfair.

I have concluded that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that no unfairness arose from the procedural failings that were identified. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

The complainant claims that he was entitled to statutory notice of the termination of his employment, in accordance with the Minimum Notice and Terms of Employment Act 1973.

It is the respondent’s case that, because the complainant was dismissed as a result of a finding of gross misconduct, he was not entitled to notice.

Section 8 of the Minimum Notice and Terms of Employment Act 1973 -2015 provides as follows:

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

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran, MN/16/1. Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court to be not unfair. In this context, the Chairman, Mr Foley upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have concluded here that the dismissal of the complainant was not unfair and I also find that, arising from the incident on June 21st and 24th, it was reasonable for his employer to conclude that he should not continue in employment and work out his notice.

I have decided that this claim under the Minimum Notice and Terms of Employment Act 1973 – 2015 is not upheld and that no payment is due to the complainant in respect of pay in lieu of notice.

Unfair dismissal, gross misconduct, stealing, minimum notice