FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 PARTIES: N SMITH & SONS LTD DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00036770 (CA-00048076-001) DECISION: Background to the Appeal This is an appeal by Mr Martynas Gelazius (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00036770, dated 11 May 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant had been unfairly dismissed by N Smith & Sons Limited (‘the Respondent’) but found that he had contributed 100% to his dismissal and accordingly awarded him nil compensation. Notice of Appeal was received in the Court on 11 May 2023. The Court heard the appeal in Dublin on 14 November 2023. The Complainant gave sworn evidence. Mr Nicky Smith and Mr Paul Clarke gave sworn evidence on behalf of the Respondent. The Factual Matrix The Complainant was employed by the Respondent as a recovery truck driver for sixteen years prior to his summary dismissal for gross misconduct on 27 October 2021. The Respondent operates a Ford main dealership and also runs a vehicle body repair shop on site. The Complainant submits that his fellow recovery truck driver, Mr Ragelis, 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 assisted Mr Ragelis to remove 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 his colleague had asked him to back the recovery truck near to the area where a large cardboard box he wished to take away was located. He witnessed Mr Ragelis, he submits, struggling to place the box on the platform of the flat-bedded recovery truck while he remained sitting in the cab of the truck. He, therefore, disembarked from the truck and assisted with loading the box and then drove out of the Respondent’s premises with it. He drove into town and handed over the vehicle to Mr Ragelis. 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 Ragelis) 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 the Complainant and informed him of what he had seen on the CCTV recording. He requested him to arrange to have the box returned. The Complainant, it appears, then made contact with Mr Ragelis who – having checked the box, which he had retained – confirmed that it contained the missing bumper. Mr Gelazius collected the bumper from Mr Ragelis’s warehouse in Duleek and returned it to the Respondent that day (26 October 2021). The Complainant was in the Respondent’s yard the following morning loading a car onto the flat-bed recovery truck when he was approached by Mr Nicky Smith, the Managing Director of the Respondent, who advised him that the situation was very serious and that he would see him later that day to discuss the matter formally. Mr Smith advised him he could be accompanied to that meeting. The meeting took place later that day after the Complainant had returned from a job. It was chaired by Mr Smith and Ms Patricia McGory was in attendance as note-taker. The Complainant was not accompanied at the meeting. He was asked to hand over his keys and telephone and advised that he had been dismissed. Mr Smith sent a follow-up email dated 5 November 2021 to the Complainant confirming his dismissal and advising him of his right to appeal within 5 days of the date of the email. The Complainant did not appeal the decision. He submits that the email dated 5 November 2021 went into his spam folder and he didn’t come across it until two weeks later. The Court was also told that both the Complainant and his former colleague had been convicted of theft in the matter in the local District Court and those convictions were currently under appeal to the Circuit Court. Evidence of Mr Paul Clarke The witness told the Court that he has been the manager of the Respondent’s body repair centre for fifteen years. He explained that a new bumper had been ordered for a Skoda car that was in for repair and due to be completed on 26 October 2021. When he went to locate the bumper, it couldn’t be found. He was aware that it had been delivered to the Respondent’s premises on 14 October 2021. He said he viewed CCTV footage from that date and observed the Complainant and his colleague Mr Ragelis removing a large box from the area near the external parts storage container in the yard. He then rang the Complainant – on two occasions. The Complainant denied having any knowledge of the bumper or its whereabouts but agreed to contact Mr Ragelis. When the witness was subsequently informed that Mr Ragelis had located the bumper in its original cardboard box, the witness asked him to retrieve the bumper as soon as possible which he did shortly afterwards. The witness said that he reported the matter to Mr Nicky Smith and advised him of what he had seen on the CCTV recording but had no further involvement in the matter after that. Under cross-examination, the witness accepted that he had been aware that Mr Ragelis had regularly removed cardboard and plastic packaging materials from the Respondent’s yard and that he had never pulled Mr Ragelis up about this practice. He also re-stated that when viewing the CCTV footage from 14 October 2021 he had seen the Complainant assisting Mr Ragelis to place the box containing the bumper on the back of the recovery truck. Evidence of Mr Nicky Smith 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 and Mr Ragelis leaving the Respondent’s premises on 14 October 2021 with a large cardboard box on the platform of the recovery truck. The witness said that he viewed the recording himself later that day. In his opinion, the box placed by the Complainant and his colleague on the recovery truck on 14 October 2021 had been sealed and unopened. The witness spoke about the level of trust he had had in the Complainant and Mr Ragelis. He said they had had keys to the Respondent’s premises and could access the yard and one building 24/7. The witness told the Court that his trust in the Complainant disappeared after viewing the CCTV footage from 14 October 2021. He went on to speak about his meeting with the Complainant on 27 October 2021 in the Respondent’s yard and advising him that he intended to discuss matters formally with him later that day. He said he telephoned the Complainant at about lunch time to fix the meeting time for later in the afternoon. He outlined the discussion that took place at the meeting during which he said he had told the Complainant he could no longer trust him and requested him to return his keys and telephone. The witness’s recollection was that the meeting lasted fifteen to twenty minutes and that the Complainant had blamed Mr Ragelis for what had happened and had denied knowing that there was anything in the box that they had removed from the Respondent’s yard on 14 October 2021. The witness also told the Court that he hadn’t given Mr Ragelis permission to remove cardboard boxes from the Respondent’s yard. He concluded his direct evidence by stating that that he had reported the events of 14 October to An Garda Sἱochἁna because of their serious nature and in order to set an example for the rest of the workforce. In reply to questions from the Court, the witness said that the Complainant’s gross weekly pay at the time of his dismissal had been €550.00 per week and that the Complainant had not sought a reference from the Respondent and that the Respondent did not receive any enquiries about the Complainant from potential future employers. The Complainant’s Evidence The Complainant told the Court that he had worked for the Respondent for sixteen years as a recovery truck driver. He then gave a brief account of his recollection of what had occurred on 14 October 2021 and how he came to assist Mr Ragelis to place a large cardboard box on the back of the recovery truck. He had been aware, he said, that Mr Ragelis had a premises in Duleek from which he ran his own business exporting old cars. He told the Court that he had occasionally collected cars for Mr Ragelis using the Respondent’s recovery truck. He understood that Mr Ragelis used the cardboard he recovered from the Respondent’s yard to prevent oil spillages from the old cars stored in his premises in Duleek. The Complainant’s evidence then moved to his interactions by telephone with Mr Clarke on 26 October 2021 that led to the recovery of the bumper from Mr Ragelis’s premises that day. He then told the Court about his meeting with Mr Smith in the yard the following morning and the subsequent invitation to attend a meeting that afternoon in Mr Smith’s office. He said that Mr Smith dismissed him at the meeting despite his explanation to the effect that all he had done was assist Mr Ragelis to place what he believed was an empty box on the back of the recovery truck. The Complainant gave a brief account of his efforts to mitigate his loss. He told the Court that he had successfully completed two training courses and had obtained licences to drive a bus and an articulated HGV but did not manage to secure alternative employment until 25 September 2023. Under cross-examination, the Complainant accepted that the documentation he had submitted to the Court was not properly dated and appeared to show he had made no job applications for at least three months after the date of his dismissal. He also accepted that a period of only four minutes had elapsed between the time he and Mr Ragelis drove into the Respondent’s yard on 14 October 2021 and the time they left with the large cardboard box on the back of the recovery truck. In reply to questions from the Court, the Complainant said he had been in receipt of illness benefit from the date of his dismissal up until November 2022 when he commenced his driver training courses. 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 was not given formal notice that the meeting he was invited to on 27 October 2021 was a disciplinary meeting nor was he given a written statement setting out the allegations against him in advance of the meeting. He was not issued with a copy of the Respondent’s disciplinary procedures and was not advised in advance of the meeting that a possible outcome of it could be a decision to dismiss him, summarily or otherwise. Less acceptable still is the fact that Mr Smith informed the Complainant in the course of the meeting that he was being summarily dismissed there and then. Also, Mr Smith’s follow up email of 5 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 advises that any appeal should be addressed to him. It is apparent also from Mr Smith’s 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 far short of the standard set by SI 146 of 2000. For these reasons, the Court is bound to find that the dismissal procedures deployed by the Respondent in this case were wholly inadequate and that the Complainant’s 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 he assisted Mr Ragelis to remove 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. It became apparent in the course of the hearing that the Complainant availed himself of illness benefit for over a year after the date of his dismissal. He has no loss, therefore, for that period as he was unavailable for work. He submitted paperwork to the Court that listed some 59 job applications via Indeed’s website for the period from 27 October 2021 and September 2023 when he commenced employment as a recovery truck driver. He told the Court that he had made the majority of those applications during 2023. He had successfully completed advanced driver training courses and had obtained both a bus licence and an HGV articulated lorry licence. Inexplicably, he was unable to obtain a job in either capacity notwithstanding the acute demand amongst employers for such drivers at present. It seems to the Court that the Complainant’s efforts to mitigate his loss and secure alternative employment 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 the Complainant was unfairly dismissed within the meaning of the Act but that no compensation is payable to him in circumstances where he contributed very significantly to his own dismissal, was unavailable to work for over a year and made insubstantial efforts to obtain alternative employment thereafter. The decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Decision should be addressed to Coleen Dunne-Kennedy, Court Secretary. |
