FULL RECOMMENDATION
PARTIES : J.W. CARNEGIE & CO. LIMITED DIVISION :
SUBJECT: 1.An appeal of Adjudication Officer's Decision No. -ADJ-00027043, CA-00034617 This is an appeal by Mr Paul Slattery (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00027043, dated 13 January 2021) under the Unfair Dismissals Act 1977 (‘the Act’). The Notice of Appeal was received by the Court on 1 February 2021. The Court heard the appeal in Dublin on 1 September 2021. At the hearing, Ms Jill Carnegie gave evidence on behalf of the Respondent. The Complainant declined to give evidence on his own behalf. Factual Background The Complainant was employed by J.W. Carnegie and Company Limited (‘the Respondent’) as a truck driver from June 1995 until his dismissal on 6 January 2020 on grounds of gross misconduct. His gross annual salary as of the date of dismissal was €60,840.00. The Complainant says that grease was being placed on the windscreen of his truck over a period of time when it was parked in the Respondent’s premises. He suspected that a particular work colleague was responsible for this as it did not occur when that individual was absent on annual leave. The Complainant raised the matter with the Respondent’s Transport Manager, Mr Robbie Keogh. On 1 November 2019, Mr Keogh reviewed CCTV footage of the area in which the Complainant’s truck had been parked the previous night but there was no evidence of anybody having been near the Complainant’s truck. On reviewing CCTV footage on 2 November, Mr Keogh witnessed the Complainant going to and searching a fellow employee’s car. On 8 November, the Complainant allegedly assaulted the owner of that car and the person he suspected was responsible for the grease on the windscreen of his truck. That employee attended at Accident and Emergency later that day to have his injuries attended to. Mr Keogh had taken photographs of the injuries. On 12 November 2019, the Complainant was notified that an investigation meeting would take place in accordance with the Respondent’s disciplinary procedures. Two allegations were raised against the Complainant: (a) that he had interfered with a colleague’s property; and (b) that he had assaulted a colleague. He was advised that the matter was being dealt with as potential gross misconduct. He was provided with a copy of the Respondent’s Disciplinary Policy, CCTV footage showing him searching the colleague’s car and with a statement from the employee (including photographs) whom he had allegedly assaulted. On 22 November 2019, the Complainant was suspended on full pay pending the outcome of the disciplinary investigation. The investigation meeting took place on 2 December 2019. It was conducted by Mr Keogh. The outcome was that the matter should proceed to the disciplinary stage. This took place on 12 December 2019 and was conducted by Ms Jill Carnegie, the Respondent’s Accounts and Office Manager. A disciplinary outcome meeting took place on 6 January 2020 at which the Complainant was informed that the Respondent’s decision was that his conduct merited summary dismissal for gross misconduct. The Complainant, through his trade union representative, appealed this decision on 6 January 2020 to Mr Dermot Carnegie. Mr Carnegie heard the appeal on 24 January 2020. He issued the outcome of the appeal on 30 January 2020 upholding the Complainant’s summary dismissal on grounds of gross misconduct. The Complainant’s representative told the Court that the Complainant was unable to secure alternative employment until July 2020 and is, therefore, claiming a gross loss of €29,250.00. Ms Jill Carnegie’s evidence The witness outlined her role with the Respondent company. She then described how the disciplinary meeting proceeded on 12 December 2019. She emphasised that the Complainant did not engage in relation to the allegation of assault and did not deny he was responsible for it. She told the Court that she had taken full account of the Complainant’s long service with the Respondent before arriving at her decision, which wasn’t made lightly by her. The witness confirmed that she had considered lesser sanctions but that the Respondent could not accept or condone violent behaviour and, therefore, determined that summary dismissal was the appropriate sanction in the circumstances. Submissions It was submitted on behalf the Respondent that it is a small, family-owned business and the decision to the dismiss the Complainant after thirty-one years of service was a difficult one to take. While the Respondent did consider lesser sanctions, the seriousness of the allegations against the Complainant - which had been upheld following a fair and thorough investigation process, disciplinary hearing and appeal – justified the sanction of summary dismissal, nevertheless. The Complainant’s trade union representative, Mr Vivian Cullen, submits that the disciplinary procedures followed by the Respondent in this case fall short of the requirements of SI 146 of 2000. Mr Cullen takes particular issue with the involvement of Mr Keogh in the investigation stage as Mr Keogh was the person to whom the employee who suffered the assault first went to after the incident and because Mr Keogh had discovered the CCTV footage showing the Complainant searching his co-employee’s car on 2 November 2019. Discussion and Decision A remarkable feature of this case throughout has been the Complainant’s reluctance to engage in his own defence. Notwithstanding this, the Court is satisfied that the Complainant was made fully aware of the allegations against him at the outset of the process; he was given a copy of the Disciplinary Policy setting out the procedures that were to be followed; he was presented with the CCTV footage that showed him searching his colleague’s car, a medical report and photographs of the injuries sustained by the victim of the assault; he had ample opportunity at the disciplinary stage to put up a defence but decided against doing so and he was afforded the right to appeal against the disciplinary sanction imposed on him. Retrospectively, the Complainant’s representative seeks to impugn the disciplinary process by reference to Mr Keogh’s involvement in it at the investigation stage. The Respondent is a small family-run business with a limited management team from which to draw personnel to conduct a multi-stage disciplinary process such as is provided for in the Respondent’s Disciplinary Policy. The Court is fully satisfied, nevertheless, having heard Ms Carnegie’s uncontradicted evidence in relation to her conduct of the disciplinary stage, that the decision to dismiss the Complainant was made by her alone and that Mr Keogh had no involvement at that stage of the process. At no stage has the Complainant denied that he committed the assault. Neither has he questioned the veracity of the CCTV footage that records him searching his colleague’s car. The Court finds that the appeal fails and it, therefore, upholds the decision of the Adjudication Officer. The Court so determines.
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