FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: N SMITH & SONS LTD T/A FORD SMITHS OF DROGHEDA (REPRESENTED BY N SMITH & SONS LTD T/A FORD SMITHS OF DROGHEDA) - AND - MR DONATAS RAGELIS (REPRESENTED BY MICHAEL KELLEHER SOLICITORS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00037296 CA-00048661 DETERMINATION: The Factual Matrix The Complainant was employed by the Respondent as a recovery truck driver between 15 May 2017 and the date of his summary dismissal for gross misconduct on 24 November 2021. The Respondent operates a Ford main dealership and also runs a vehicle body repair shop on site. The Complainant had a practice of removing cardboard boxes and other packaging materials from the Respondent’s site for use both with the Respondent’s recovery truck (which it appears leaked hydraulic fuel, from time to time) and for transporting vehicle parts to and from a warehouse in Duleek, Co. Louth where he stored his own personal vehicles. On 14 October 2021, the Complainant removed a large cardboard box that was located on the ground beside a bin, adjacent to a metal container unit used as the Respondent’s overflow parts store. The Complainant’s submission is that the seal on the cardboard box had been opened and it appeared to be full of waste plastic packaging. He placed it on the platform of the flat-backed recovery truck with the help of a colleague and left the Respondent’s premises with it. It is also his submission that he transported it to the premises he has use of in Duleek and placed it in area where he generally stored discarded cardboard boxes until they were needed. On 26 October 2021, a Skoda vehicle that had been repaired in the Respondent’s vehicle repair shop was being reassembled. A new bumper part had been ordered to complete the job. The technician overseeing the job was unable to find the relevant bumper part in the stores although the part had been recorded as having been received by the Respondent. Enquiries were made of the local Skoda main dealer and it was confirmed that it had been delivered to the Respondent on 14 October 2021. Mr Paul Clarke, the Respondent’s repair centre manager, reviewed CCTV footage and observed a recording of the Complainant and his fellow recovery truck operator (Mr Gelazius) removing a large box on the recovery truck on 14 October 2021, the day that the Skoda bumper had been delivered to the Respondent’s premises. Mr Clarke telephoned Mr Gelazius and informed him of what he had seen on the CCTV recording. He requested him to arrange to have the box returned. Mr Gelazius, it appears, then made contact with the Complainant who – having checked the box – confirmed that it contained the missing bumper. Mr Gelazius collected the bumper from the warehouse in Duleek and returned it to the Respondent that day (26 October 2021). It is common case that the Complainant was suspended without pay with effect from 29 October 2021, on Mr Nicky Smith’s instructions. On that date, he was requested by Mr Paul Clarke to hand over the keys of the recovery vehicle and advised that he was not permitted to attend for work. On 1 November 2021, Mr Clarke emailed the Complainant to advise him that he was required to attend an investigation meeting. It is appropriate to reproduce that email in full here as the Complainant incorrectly submits that he was not informed of the reason for the meeting. Mr Clarke’s email states:
Having been informed of what had transpired at the investigation meeting, the Respondent’s Managing Director, Mr Nicky Smith, decided to progress to a disciplinary hearing which took place on 19 November 2021. The Complainant attended the meeting unaccompanied. Ms McGrory was again in attendance in a note-taking capacity. Mr Smith asked the Complainant a number of questions which the Complainant answered. At the end of the meeting, the Complainant was asked if he had anything to add, to which he replied: “Because of mistake, a lot of trouble”. By email dated 24 November, Mr Smith informed the Complainant of the outcome of the disciplinary process and advised him of his right to appeal the decision to dismiss him within seven days. On 30 November 2021, the Complainant sent the following email to Mr Smith:
Mr Nicky Smith’s Evidence The witness gave a brief overview of the Respondent’s business and in particular of the vehicle repair service it provides. He told the Court about the issue that arose with the missing Skoda bumper on 26 October 2021 and how Mr Clarke had observed the CCTV recording of the Complainant leaving the Respondent’s premises on 14 October 2021 with a large cardboard box on the platform of the recovery truck. The witness confirmed that he then instructed Mr Clarke to conduct an investigation meeting with the Complainant, following the completion of which he invited the Complainant - via telephone - to a disciplinary meeting. The witness told the Court that he took a number of days to consider all aspects of the Complainant’s case – the CCTV footage, the record of the investigation meeting, the Complainant’s answers given to questions at the disciplinary meeting and the allegation of theft against the Complainant. Having done so, he said, he determined that the Complainant’s explanation for removing the bumper (i.e. that he had had an honest belief that the box in which it was contained was empty and had been discarded) did not hold water and that his conduct amounted to gross misconduct. The witness also informed the Court that he had notified An Garda Siochana of the matter and criminal proceedings against the Complainant ensued. Under cross-examination, the witness said that he had authorised the Complainant’s suspension without pay. He also confirmed that he instructed Mr Clarke to carry out the investigation stage. The witness told the Court he was not aware that the Complainant had been removing cardboard from the Respondent’s yard with permission over a number of years. In reply to a question from the Complainant’s Solicitor, the witness said that he had informed the Complainant in the course of his telephone call with him, inviting him to the disciplinary meeting, that dismissal was a possible outcome. It was pointed out by the Court that the witness’s email of 24 November 2021, confirming the outcome of the disciplinary process, had not advised the Complainant who he should address his appeal to. The witness said it should have been addressed to him but that if the Complainant had appealed, he would have sought the assistance of SIMI. The Complainant’s Evidence The Complainant told the Court that he had regularly taken cardboard and other packing materials from the Respondent’s premises over the course of his employment and that Mr Paul Clarke had been aware of the practice at all times. He also said that Mr Clarke had occasionally handed him boxes to take away. The Complainant then went on to outline his version of the events of 14 October 2021 and how he came to remove the large cardboard box which it ultimately transpired contained the missing bumper part. He described the location of the box beside a wheelie bin. His recollection was that the box had been opened and contained waste plastic packaging and he, therefore, assumed that it had been left beside the bin as it was too large for the bin. He said that he asked his colleague to help him place the box on the platform of the recovery truck as the box was quite long. The Complainant then told the Court that when he had been informed by telephone call from his colleague on 26 October 2021 about the missing bumper, and reminded of the large box that they both had removed on 14 October 2021, he went and searched in the box and located the bumper there. According to the witness, he attended the Respondent’s premises on 29 October 2021 and met Mr Paul Clarke and attempted to explain to him that he had taken the bumper by mistake. He said Mr Clarke asked him to return the keys of the vehicle there and then and his work and pay ceased from that date. He said that he received a written invitation that same day from Mr Clarke to attend an investigation meeting but no reason was given to him for the meeting or for his suspension. The witness went on then to give his account of the investigation meeting. He said that he prepared a ‘professional’ written statement in advance and presented this at the meeting because this is how things are done in his country of origin. He acknowledged he did not engage with Mr Clarke’s questions and did not sign Ms McGrory’s record of the meeting. His explanation for not doing so was that Ms McGrory, in his view, had made a number of errors in her note and he had difficulty in reading her handwriting. He also said that there was ‘a lack of trust there’. The evidence then moved to the disciplinary meeting with Mr Smith. The Complainant told the Court that this consisted of a number of questions asked by Mr Smith to which he gave comprehensive replies but to which, in his opinion, Mr Smith did not listen. The witness gave very cursory detail in his direct examination in relation to his efforts to mitigate his loss. He told the Court that he had made at least sixteen job applications between the date of his dismissal and the date he secured alternative employment on 15 August 2022. The Complainant was asked under cross-examination if he had been running a business from the warehouse in Duleek to where he had brought the cardboard box containing the bumper. The Complainant denied ever doing so. He did say that he owns two Mercedes recovery trucks and two trailers that he stores in Duleek and that he had acquired pre-Covid with a view to going into business as a sub-contractor but this never happened for two reasons: firstly Covid had intervened and, secondly, his reputation had been badly damaged because of his dismissal. Much of Mr Pickett’s cross-examination of the Complainant was taken up with a very forensic series of questions about the events that took place on the afternoon of 14 October 2021 and how the Complainant came to remove the large cardboard box from the Respondent’s premises on that date. The Complainant was also closely questioned under cross-examination about his efforts to mitigate his loss. He told the Court in reply that he was not in a position to relocate from Co Louth to Dublin, for example, and needed, therefore, to find work locally although this proved very difficult because his good name had been damaged in the area and in the trade following his dismissal by the Respondent. He confirmed he had made written applications for about seventeen jobs and had made five or six phone calls in the eight-month period he was unemployed. Discussion and Decision There are a number of serious deficiencies in the manner in which the Respondent conducted the disciplinary process that culminated in the Complainant’s summary dismissal. For example, the Complainant should not have been suspended without pay during the investigation stage; this is tantamount to applying a sanction to the Complainant before he had even been offered an opportunity to state his case. It would have been preferrable had the investigation been conducted by somebody other than Mr Paul Clarke in circumstances where he was the person who first brought the issue that required investigation and the Complainant’s alleged involvement therein to the Managing Director’s attention. The disciplinary stage should not have been managed by the very person who had ordered the Complainant’s suspension without pay. Also, Mr Smith’s email of 24 November 2021 is far from ideal: it is a bare recital of his decision to dismiss the Complainant and gives no reasons for that decision and no details in relation to whom the Complainant might address an appeal. It is apparent also from his answers to the Court’s questions, that Mr Smith had no appreciation of the importance of maintaining a complete separation between the disciplinary and appeal stages of the process. Finally, the Respondent’s written procedures – as recited in the Complainant’s written employment contract – fall very short of the standard set by SI 146 of 2000. For these reasons, the Court is bound to find that the dismissal process fell far short of best practice and that the Complainants’ dismissal was, therefore, unfair within the meaning of the Act. Having carefully considered the totality of the evidence before it, the Court finds nevertheless, that the Complainant contributed 100% to his own dismissal. His evidence to the Court in respect of the circumstances in which removed the large cardboard box from the Respondent’s premises was lacking in credibility and coherence. The Court is in no doubt that the Respondent had good and ample substantive grounds justifying its decision to dismiss him for knowingly removing its property without permission. Finally, the evidence before the Court in relation to the Complainant’s efforts to mitigate his loss demonstrates, in the Court’s view, that the Complainant did not make adequate efforts in this regard. Taken at its height, the Complainant’s evidence demonstrates that he applied for seventeen jobs and spoke by telephone with six contacts in an eight-month period. This level of effort falls very far short of the obligation placed by the Act on a person seeking redress thereunder. For all the foregoing reasons, the Court finds that no compensation is payable to the Complainant herein. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
