Complainant

Respondent

Parties

Darek  Targosz

Kyte Powertech Limited

Representatives

Dave Curran SIPTU

Aaron Shearer B.L. instructed by Deborah Leonard of Paul Brady & Co 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-00048564-001

09/02/2022

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

CA-00048564-002

09/02/2022

These complaints are that on 3 September 2021 the Complainant was unfairly dismissed from his employment and was not paid minimum notice. The grounds are that the dismissal was procedurally unfair, the sanction of dismissal was disproportionate and the Respondent afforded greater leniency to other employees in respect of a similar offence and the Respondent failed to take into account the Complainant’s good work record.

The defence of the Respondent is that the Complainant was dismissed for gross misconduct on 3 September 2021, that he admitted the acts of gross misconduct through-out the investigation, disciplinary and appeal processes and that the sanction of dismissal comes within a band of reasonable responses that were available to the Respondent, given the serious wrong-doing which was admitted.  He was not given notice (or paid in lieu) because the dismissal was for gross misconduct.

No application was made by either party for the Adjudication hearing to be heard otherwise than in public. There were no jurisdiction preliminary applications.

The Complainant complaint is that following an incident which occurred on 31 July 2021, the Respondent dismissed him.

He accepted that his actions on that date were wrong but he contends that given his candour in admitting the offence from the first time the allegation was put to him, given that he had a clean disciplinary record, given that there were previous similar incidents involving other employees who were punished more leniently, that his dismissal in all the circumstances fell outside what should be considered as a band of reasonable responses that the Respondent could have taken. The sanction of dismissal was harsh and disproportionate to the offence.

The Complainant gave evidence under Affirmation as follows:

Complainant evidence

He was employed by the Respondent as a general operative since 2006.

At the start of his employment, he did day-shifts. This changed to night shifts but at the time he was dismissed his shift from 6 am until 2 pm.

A week or so before his dismissal he had been on sick leave for a week and a half.

When he returned to work from sick leave, on the 31st of July it was a slow day at work because the company was about to shut (for two weeks at the beginning of August.) There was very little to do at work that day ither than to tidy up.

He arrived to work late that day and was still feeling a little unwell. As there was very little to do and he was very tired he decided to go home. He looked for a supervisor to get permission to leave, but his supervisor was not around so he just decided to go. He asked his friend to clock-out for him using the Complainant’s fob when his friend finished work at 2pm. He left work at around 12.20 pm. He said the reason that he asked his friend to clock out later for him wasn’t for the money. Rather it was to give the impression that he had worked a longer day. The reason he did that was because he had arrived late that morning and had already been out sick for a week and a half. And he thought that looked bad on his work record.

His supervisor Darren rang him when he got home that day and the Complainant admitted that he had left early without permission. There was no discussion about the use of his fob with Darren.

The following day his Team leader came and asked him what happened the day before and he that he left work early and when asked he admitted asking his friend to clock out for him. He apologised.

The Complainant asserted that while he knew that what he did was wrong he did not think that it would be a dismissible offence.  A few years earlier another colleague had clocked others out during their lunchtime break when they went out jogging and then everybody knew about this. He did not know the details of how they were disciplined but he knew that they had not been dismissed, whereas he had been.

His evidence is that prior to the conversation with his Team leader he was not warned by her of the seriousness of the offence or that an admission by him could result in him being dismissed.

His evidence was also that when he received the invitation letter to the investigation meeting the letter not expressly warn him that following the investigation, he might lose his job. He accepted that the letter did refer to an investigation for fraudulent time recording.

He accepted that he had received a final written warning for smoking within the company nine or 10 years previously but he had not been disciplined during the last 12 months of his employment.

In respect of his unfair dismissal the Complainant sought four weeks pay and six weeks pay for minimum notice.

He said that the last day was a slow day at work and it was mainly about covering up the equipment and tidying the stores because production was not normal on that day.

Cross examination of the Complainant

Under cross-examination the Complainant was asked why had he asked another person to clock out for him. The Complainant said he didn’t really think about it, that he’d been late arriving to work that day and he didn’t want his records on timekeeping to look bad because he’d been sick before. He said that nobody was around for him to ask if he could leave.

He accepted however that he must have thought about it, in order to ask another person to clock out for him. He also accepted that his actions gave the impression that he was working when he knew he was not working. He also accepted that his actions, if undetected, would have led to him being paid for being at work even though he wasn’t at work.

It was put to him that another nightshift was coming in after him at 3 o’clock so it wasn’t like there was no work for the employees to do because there was a whole other shift about to start, which he accepted. He accepted that he wasn’t on flexi time. He stated that the shift was a 6am to 2pm shift and not a 7am to 3pm shift. In respect of the previous (joggers at lunchtime) incident that he’d heard about, he accepted that he didn’t know the detail of it and that it was hearsay.

It was put to him that that the sanction that had been given to offenders in the previous incident had been a final written warning and an unpaid suspension for a month. He hadn’t known this. He did not dispute that that the Respondent had zero tolerance policy about time records, however he felt that while a zero tolerance had been directed at him, it had not been applied to others. It was put to him that the breach in question was for two minutes at lunchtime whereas his breach was for an hour and forty minutes, which he accepted.

Stephanie Leonard (HR manager who conducted the Complainant’s appeal) gave the following evidence under Affirmation

Ms. Leonard Evidence

Within both the Complainant’s contract and a collective agreed handbook (which had been agreed, between the Respondent and the Complainant‘s trade union)  fraudulent time recording and or the act of clocking out using another employees fob are expressed as being acts of gross misconduct and or serious misconduct which could result in dismissal.

At all times during the investigation and disciplinary process the Complainant accepted two acts of wrong-doing. First, the act of leaving his shift early without permission and second, asking another colleague to clock out for him (with his fob that he had given to his colleague) at a time later than the time he actually left.

The process that led to the dismissal was straightforward. The day following the Complainant’s absence his Team Leader approached him and asked him if A. had he left early the day before which the complainant admitted he had and B.  had he asked another employee to clock out for him using his fob card, which the Complainant also admitted he had.

Following these admissions, the Complainant was invited to attend an investigation meeting into fraudulent time recording, which the Complainant knew (from his employee handbook and contract) could amount to an act of gross misconduct arising from which he could be dismissed.

This investigation meeting took place on the 27 August 2021 and in the invitation to the investigation meeting the complainant was advised that he could be accompanied by trade union representative, and he was.

During the investigation the Complainant accepted that he left work early and accepted that he gave his fob to another employee so that he could clock out one hour 40 minutes later on his behalf. He accepted that he didn’t ask management if he could leave work early. He did not suggest that he was not aware the fraudulent use of his fob card was not serious or could not be considered to be an act of gross misconduct. During the investigation he told the investigator that he was sorry and said that he had looked for his supervisors before he left but he couldn’t find them

Following the investigation,  an investigation report issued which found firstly that the Complainant left site at 12.20pm (when his shift ended at 2pm)  on the 30th of July 2021 that he did not advise his supervisor that he was leaving and secondly that he asked his colleague to clock-out for him, using his fob, when the colleague was leaving at 2 pm and thirdly that the complainant was apologetic for his actions. Arising from these findings of fact the Investigator concluded that in light of the admissions there was evidence of fraudulent time recording and the matter should go forward to a disciplinary meeting.

Following this the Complainant was invited to a disciplinary meeting which took place on the 1st of September 2021 and the disciplinary meeting was conducted by Mr Peter Boyle. In the written invitation to the disciplinary hearing the Complainant was advised that the purpose of the disciplinary hearing was to consider gross misconduct more specifically fraudulent time recording. In advance of the meeting, he was furnished with the Investigation report and a copy of the company disciplinary procedure and he was advised that he could be accompanied by a trade union representative.

At the disciplinary hearing the minutes record that the findings of the investigation were put to him and the Complainant was asked for an explanation. His explanation was that he had been sick the week before and that that day he had arrived half an hour late. The reason he left was because he was sick and that he couldn’t find a supervisor. The reason he gave for asking his colleague to fob out for him was that he thought he had done too few work hours to justify going home early. It wasn’t about the money.

He also said that it wasn’t a normal day because there was no work really to do. The Complainant is recorded as saying he was sorry for what he did.

By letter dated the 3rd of September 2021 Mr Boyle the decision maker wrote to the Complainant to advise him that in light of his full admissions and because the conduct was deemed to be gross misconduct having carefully considered and deliberated on the circumstances and the responses that he gave during the disciplinary meeting a decision had been made that the Complainant would be dismissed with immediate effect from the 3rd of September 21. The basis of this decision was that trust in the company relationship with the Complainant has been broken and what he admitted constituted an act of gross misconduct within the company disciplinary procedure. The Complainant was offered a right of appeal.

The Complainant appealed the decision to dismiss him on grounds of a natural justice and requested that he be given one more chance.

An appeal took place on the 14th of September 2021 and it was conducted by Stephanie Leonard, HR manager.

At the appeal the Complainant asserted that there had not been fair procedures. The appeal decision maker dealt with the appeal on that basis alone.

In her evidence Ms. Leonard did not accept the basis of the WRC complaint. The conduct was gross misconduct of which the Complainant was on notice. The sanction of dismissal was within a range of penalties available to the Respondent. The treatment of other employees in a previous situation was not material and in any event their breach had been much less serious yet despite this their penalty was severe. On the fair procedural point - that the Team Leader’s questions amounted to an investigation – Ms. Leonard disputed this and pointed to the content of the Investigation invite letter and the Disciplinary Invite letter. The disciplinary process had been adhered to and the dismissal was fair.

Cross examination of Ms. Leonard

The Complainants fair procedures point was that an investigation had been carried out by the Complainant‘s Team Leader. The Complainant trade union representative asserted that the questions that were put to the Complainant by the Team Leader constituted an investigation and that prior to this investigation the Complainant should’ve been advised of the right to be accompanied by trade union representative and should’ve been advised that his answers could result in him being dismissed.

The appeal was dismissed by Ms Leonard on the basis that there was no evidence of improper procedure and the disciplinary process has been followed in full. With respect to the lack of fair procedures Miss Leonard found that the questions which had been asked by the Team Leader were not an investigation. They were merely questions that a supervisor was entitled, indeed was obliged, to ask the Complainant. These questions did not constitute into an investigation but the answers that were given by the Complainant gave rise to the need for an investigation.

The content of Mr. Boyles minutes of the disciplinary meeting were put to Ms Leonard in cross examination. She was referred to Mr. Boyles question of whether the Complainant’s colleague had requested payment for this favour, which the Complainant had denied. This question was posed to Ms. Leonard in cross examination, who said that it was the admission that he had asked his colleague that was significant – not the reason why the colleague might have done it.

Ms. Leonard drew attention to the fact that within the appeal minutes there is no mention of the assertions made in this complaint namely (1) that the sanction was disproportionate to the wrong-doing or (2) that others had been sanctioned more leniently for a similar offence or (3) that mitigation factors were not taken into account.

However dealing with these three assertions in turn, Miss Leonard gave evidence that (1) the sanction was within a band of reasonable responses given the seriousness of the wrongdoing. The time records relied on the candour of the workers. The Respondent employs 455 employees and their pay is calculated on the hours that they work, which was self-declared by use of the fob, fraud around this is a very serious offence. Also, the fob system allowed the Respondent to record who was on site at any one time, which was necessary for health and safety. (2) In terms of others being sanctioned more leniently the witness could not speak accurately to this as it occurred prior to her time. However she did know from the company HR records that the previous offence was for a two minute breach (to allow colleagues to jog around the premises at lunchtime)  and, despite being a much lesser offence, that offender was given a final written warning and was suspended without pay for one month, so in no way could the Complainant consider that his offence – which involved a breach of one hour forty minutes– would not be treated seriously  - particularly given that he was on notice that it was gross misconduct in his contract and handbook. (3) In reference to the argument that the Complainant’s long service or his previous disciplinary offences were date passed when the incident occurred which should have reduced the penalty, while Ms. Leonard stated these arguments were not raised during the appeal, as far as she was concerned these would not have altered the finding that was made. An act of gross misconduct was admitted by the Complainant on multiple occasions, his good time keeping, long service or not offence lapsed disciplinary record was not relevant to such a serious act of gross misconduct. The Respondent’s decision to dismiss was clearly within a range of reasonable responses to these admissions

As the admissions of the Complainant are not  disputed by him and as the minutes of the disciplinary meeting were relied on by the Complainant in his the cross examination of the Respondent witness Ms. Leonard, I am satisfied that this evidence was entered a correct account of what took place during the disciplinary meeting and what the decision to dismiss was based on. I am satisfied that I can consider the content of these minutes for the purpose of my inquiry.

The Complainant raises three bases for his complaint:

(1)    That the sanction of dismissal was too draconian considering the offence

(2)    That his long service and good disciplinary record should have been taken into account.

(3)    That others were treated more leniently for a similar previous incident, which led the Complainant into believing that it wasn’t gross misconduct

During the Adjudication the Complainant also relied on a fair procedures point (which was not contained in the Complainant submissions) namely that the Team Leader’s questions constituted an investigation on the day following the incident and he should have been warned of the consequences of making admissions and should have been allowed to be accompanied by a trade union representative if this was being asked of him.

I have considered the written and oral evidence of the parties and find as follows:

(1)    The incident on 31 July 2021 was serious. Regardless of what the Complainant says his motivation was, his actions were akin to theft, because if left undetected the Complainant would have been paid for work that he did not do. I am satisfied that this was an act of gross misconduct not only because it is serious but because the contract and handbook both expressly state that this offence is one of gross misconduct. I am satisfied that the sanction is within a band of reasonable options that the Respondent was entitled to take in light of the seriousness of the offence. The fact that he was candid when he was first detected does ameliorate matters somewhat but not to the extent that the misconduct became something other than misconduct. Subsequent honesty about telling a lie does not remedy the fact that the lie was told in the first instance.

(2)    Likewise, his long service and inactive disciplinary history - while satisfactory – does not alter the fact that his conduct was an act of gross misconduct. The act of gross misconduct stands on its own and is not displaced by his otherwise satisfactory work record. I am satisfied that the minutes of the disciplinary meeting show that all matters were taken into account.

(3)    I am satisfied that the Complainant was fully aware that fraud - around the use of his fob card (which gave the impression that he was working when he was not) – was capable of being treated an act of gross misconduct for which the Complainant knew he could face a sanction of dismissal. I am satisfied that this was clearly stated in the contract and the agreed hand-book and I do not accept that because an employee in a previous incident, the full details of which were not known by the Complainant could be relied upon by him to contend that an apparent leniency in a previous case allowed the Complainant to believe that he might not be dismissed. The terms of the contract are clear and the handbook is clear. Even if there was a previous incident in which a different manager did not dismiss another employee, in which the circumstances of the breach were not known to the Complainant, this does not give rise to an entitlement that the term of the contract is not enforceable against the Complainant. Two wrongs do not necessarily need to be treated identically for a dismissal sanction in respect of one wrong, to be right. The wrongs may have been different, the circumstances may have been different, the penalty may have been severe in any event.  The Complainant’s admits that he does not know the full circumstances of this previous episode. The Complainant’s obligation to abide by the terms of his contract are his to discharge. These obligations are not varied by another employee in another case, particularly when the circumstances of the other case are not known to him other than through hearsay conversation.  

(4)    Lastly, I do not accept the procedural point that the Team Leader’s question amounted to an investigation. As the Complainant admitted in cross examination, his Team Leader, as his supervisor or line manager, merely asked him what happened the day before in response to which he gave a full admission. This was an inquiry which the supervisor was obliged to make. This was not an investigation from which findings of fact were reached.

I am satisfied that the Respondent’s finding of fact - that the Complainant committed an act of gross misconduct – was reasonable and arose from a fair operation of the Respondent’s disciplinary process. Through-out this process the Complainant admission of wrong-doing did not vary and nor did it vary within this Adjudication. Arising from this admitted serious misconduct regardless of his candour through out, I find that it was reasonable for the Respondent to sanction the Complainant’s actions, which constituted a breach of trust, by way of dismissal. I find that this was within a band of reasonable responses to the findings that were made. The Complainant honestly expressed his regret for his actions during the Adjudication. I accept this his regret is genuine and I have no doubt that the Complainant’s candour and humility will stand to him in his future working life.

For the above reasons I find that the Complainant was fairly dismissed for acts of gross misconduct and as a result he is not entitled to statutory notice or payment in lieu thereof.

CA-00048564-001 (Unfair Dismissal)

I find that the Complainant was not unfairly dismissed

CA-00048564-002 (Minimum Notice)

I find that this complaint is not well founded

Unfair Dismissal – fraudulent time-keeping