FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : INSPECTION SERVICES IRELAND LIMITED (REPRESENTED BY DAVID BOUGHTON B.L. INSTRUCTED BY CLARK HILL SOLICITORS LLP) - AND - MR MIRO KRPETA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00021145, CA-00027874-001 Background The Complainant commenced employment with the Respondent as a cargo surveyor in 2004 and in 2006 was appointed to the position of Operations Manager. He had previously worked for the Respondent for a period of time prior to 2004. He was dismissed from his employment on the 29thof March 2019. Dismissal is not in dispute. Therefore, it is for the Respondent to show that the decision to dismiss was fair. Summary of Respondent’s submission and evidence. Mr Boughton BL on behalf of the Respondent outlined for the Court the nature of the work carried out by the Respondent and the Complainants role at the time of dismissal. He informed the Court that at the time of the dismissal the Complainant was on a verbal warning arising from an incident that had occurred previously. That verbal warning had been appealed but had been upheld by a previous Adjudication Officer decision. Mr Boughton BL submitted that the Complainant had applied for annual leave for the 24thDecember 2018 in and around August 2019 but had been informed that his application for leave had been turned down because Mr Bill Saarsteiner the owner of the company was going to be on leave on that date and they both could not be on leave at the same time. On the morning of the 24thDecember 2019 Mr Saarsteiner received a text message from the Complainant’s spouse stating that he had a vomiting bug and would not be able to attend work that day. Mr Saarsteiner then had to attend the office. In January 2019 Mr Staarsteiner received the company phone bill for the Complainant’s phone dated 10thJanuary 2019. He noticed on the bill that it recorded the phone as ‘roaming in the EU’ on the 24thDecember 2019. On the 21stJanuary 2019, Mr Saarsteiner invited the Complainant to a meeting to explain the discrepancy and took the decision to suspend him on pay pending an investigation. In the course of that meeting the Complainant erased all data from the company phone despite being instructed not to. Following the meeting the Respondent booked the Complainant’s phone and laptop in with a computer company who subsequently confirmed that all data that had been on the phone had been lost and could not be retrieved. They also confirmed that a large number of emails and documents had been wiped from the laptop but had been recovered. The Respondent hired an independent consultant to carry out an investigation into the events of the 24thDecember 2018 and the meeting of the 21stJanuary 2019. The outcome of the investigation was provided to the Respondent on the 8thMarch 2019. Mr Saarsteiner carried out a disciplinary hearing on the 26thMarch 2019 and by letter of 29thMarch 2019 informed the Complainant that he was being summarily dismissed, for gross misconduct. He was also informed of his right to appeal that decision. The Complainant appealed and an independent person was appointed to carry out the appeal. The Complainant was offered the opportunity to have the appeal as a de novo hearing of the issues but declined. The appeal hearing took place on 28thMay 2019 and a decision issued on 7thJune 2019. The appeal upheld the decision to dismiss. Ms Alice Gossip Business Account Manager with 3 mobile phone company, was the first witness for the Respondent. It was her evidence that the phone bill had been checked and that the time stamp and data usage on the bill in respect of the 24thDecember 2018 was correct. The next witness for the Respondent was Mr Saarsteiner who is the General Manager and owner with his spouse of the company. Mr Saarsteiner stated that Mr Krpeta was next to him in the company structure. His role involved the hands on managing of staff and running the company on a day-to-day basis when he was not there. The business is a 24/7 business either himself or Mr Krpeta had to be available when a ship comes in. They would normally get about 10 hours’ notice of a ship arriving but not always. It was his evidence that there was an overwhelming need for trust between himself and Mr Krpeta who was his second in command. Dublin port have minimum requirements in terms of staff, and these must be observed at all times. Mr Saarsteiner confirmed that he was familiar with the company disciplinary process, but he never had to suspend someone before he had however, sacked a worker previously. The Complainant had applied for leave around the Christmas period back in September 2018, but it had not been approved. He had spoken to the Complainant and informed him that he was going to be on annual leave and that they both could not be off at the same time. This was normal practice, and the Complainant would have been aware of it. There had only ever been one occasion where their leave had overlapped by three days but on that occasion, there was someone else available to cover. On the 24thDecember 2018 he received a text message from the Complainant’s wife stating that the Complainant had been sick all through the night and was unable to attend work that day. After Christmas when the company phone bills came in, he noticed that on the bill for the Complainant’s phone it showed he was roaming on the 22ndDecember 2018 in Germany and was showing as roaming in the EU on the 24thDecember 2018 which did not line up with the text message he had received from the Complainant’s wife. He called the Complainant to a meeting on 21stJanuary 2019 and told him to bring his phone and his laptop. He did not tell him in advance what the purpose of the meeting was because he thought the Complainant might interfere with the phone which he believed contained evidence of gross misconduct. Mr Saarsteiner stated that the meeting took place in his office. His daughter was present at the time, and he asked her to take notes. It was his evidence that it was an informal meeting. The purpose of the meeting was to get clarification around the conflict between the phone data and the text message. The meeting took about 2.5 hours. In the course of the meeting the Complainant refused to hand over his phone and actually wiped all the data from the phone. The data that was wiped was not retrievable. This caused problems later in respect of knowing when staff were rostered to attend work as that was done by the Complainant through WhatsApp. Mr Saarsteiner stated that having heard what the Complainant had to say at the meeting he felt that no reason or explanation for the inconsistencies between the text message from his wife and the phone data was put forward by the Complainant and he therefore decided to suspend him on full pay pending an investigation It was his evidence that he decided to suspend the Complainant because he believed that the Complainant was trying to defend the indefensible and at that point he did not trust him. He confirmed the suspension by letter of 22 January 2019. It was his evidence that at that stage he felt that he was too involved in the process, so he decided to retain an independent person to do the investigation. He confirmed that the Complainant had no input to the terms of reference and that he appointed the investigator who interviewed him, his daughter and the Complainant. The investigator was asked to investigate three incidents, 1) the issue of the Complainant’s absence on 24thDecember 2018, 2) the wiping of the company phone and 3) the wiping of the company laptop. The independent investigator issued his report on 8thMarch 2019, he upheld two of the three allegations. In respect of the third allegation the investigator found there was no conclusive evidence that the Complainant had deleted the files either intentionally or in error from the laptop. It was Mr Saarsteiners evidence to the Court that on receipt of the report he decided that he needed to hold a disciplinary meeting to see if the Complainant had anything to say, as at that time he considered that the Complainant was in breach of his contract and guilty of gross misconduct. He formed the view that he himself was in a position to carry out an impartial disciplinary process. A disciplinary meeting was held on the 26thMarch 2019 and by letter of 29thMarch 2019 the Complainant was advised that he was being dismissed. The letter also informed him of his right to appeal the decision to dismiss. It was Mr Saarsteiners evidence that he did a lot of thinking before coming to the decision to dismiss but he came to the conclusion that he still did not trust the Complainant and that the Complainant had lied and deceived him. He stated that all though the investigator had only upheld two of the allegations he did not agree with that and that he considered the three allegations and concluded that they constituted gross misconduct. Under cross examination it was put to Mr Saarsteiner that the Complainant had looked for urgent compassionate leave. Mr Saarsteiner disputed that and stated that the only application was for annual leave and that was made in September 2018 and turned down. He confirmed that he received the phone bill on the 10thJanuary 2019 and that he contacted the mobile phone operator for clarification on the 17thJanuary 2019. He also confirmed that he had not raised it with the Complainant in the intervening period as he wanted to check the facts first. Mr Saarsteiner stated that at that stage he believed there was a prima facia case that he was being lied to. The day before the meeting he asked his daughter to take notes at the meeting but accepts that he did not advise the Complainant about the meeting in advance or that there would be someone there taking notes. When the Complainant requested that someone be allowed attend the meeting with him that request was denied. Mr Saarsteiner stated that on the day in question, he emailed the Complainant and asked him to drop into the office for a minute and to bring his phone and laptop. Mr Saarsteiner confirmed that from the meeting on the 22 January 2019 he did not trust the Complainant but still considered himself to be unbiased and an impartial decision maker in terms of the disciplinary hearing. Mr Saarsteiner confirmed that he did not accept the third part of the independent investigators report in respect of the laptop and so he included that allegation in the disciplinary procedure. The final witness on behalf of the Respondent was Ms Nicola Saarsteiner who outlined her role in the company. She stated that she dealt with accounts payable, drafted GDPR and other policies. She confirmed that she printed hardcopies of the 2018 handbook and put them on people’s desk. Ms Saarsteiner stated that she could not recall if it was the day of the meeting or the day before when she was asked to take minutes, but she was not told why she was to take the minutes. She confirmed that she took the minutes but did not provide advice in the course of the meeting she was also present as a note taker at the disciplinary hearing. Mr Boughton BL submitted that this was a small company and the only person holding a higher position than the Complainant was Mr Saarsteiner. It was accepted that Mr Saarsteiner had received the complaint, made the decision to suspended, conducted the disciplinary hearing and made the decision to dismiss but this does not necessarily mean that fair procedures were not applied. The investigation and appeal were carried out by independent parties and the Complainant was offered a de novo process at the appeal stage but declined same. Mr Boughton BL submitted that the decision to dismiss fell within the band of reasonableness test and opened the cases ofPacelli v Irish Distillers Limited[2004] 15 E.L. R. 25 andNoritake (Irl) Ltd v Kenna(UD/88/1983) in support of that contention. He noted that at no time during the process did the Complainant ever explain the discrepancy between the text from his wife and the phone bill which indicated that his phone was out of the country on the 24thDecember 2018. The Complainant was given a legitimate instruction during the initial meeting not to wipe the phone, but he still proceeded to do it, this constituted gross misconduct. A de novo appeal was offered which could have cured any procedural infirmity that may have existed in the earlier process, but the Complainant declined the offer of same. In terms of redress should that arise the trust between the parties has irretrievably broken down and therefore neither re-instatement nor re-engagement would be appropriate. The Respondent is prepared to accept the mitigation put forward by the Complainant in respect of his loss. However, it is the Respondent’s submission that if the dismissal is found to be procedurally unfair the Complainant made a significant contribution to his own dismissal. Summary of Complainant’s submission and evidence The Complainant was operations manager and reported directly to Mr Saarsteiner. Over the years there had been issues with the volume of work he had to do, but he had stayed with the Respondent and worked through the issues. As well as office duties the Complainant often had to work on the jetty. He worked 24/7 and only had every third weekend off. In January 2018 the Respondent took over another contract which increased the Complainant’s workload. He asked for additional staff but did not get them. There was an incident that resulted in a verbal warning which it is accepted was still live in January 2019. The Complainant in his evidence to the Court stated that he was called to a meeting with Mr Saarsteiner on 21stJanuary 2019 and Ms Nicola Saarsteiner was also in attendance. He was not advised what the meeting was about, he sought to bring a colleague with him but that was not facilitated. At the meeting he was advised that he was being suspended with pay pending an investigation related to his work mobile phone. He was instructed to hand over the phone but he wanted to take the phone home so he could remove personal items such as photos from it before handing it over. Mr Saarsteiner would not allow him to bring the phone home. It was suggested that he download his personal photos on to a flash drive. This took about 40 minutes as he wanted to remove all his photos. While he was downloading the photos the phone kept freezing so he did a factory reset. It was his understanding that everything on the phone was backed up so the Respondent would be able to access whatever information they wanted. He returned his phone, laptop and keys to the Respondent. He was then contacted by the independent investigator and had a meeting with him. He felt the minutes of that meeting provided by the investigator were not accurate and he asked for them to be corrected. While some corrections were made not all the corrections, he had put forward were made. When he received the outcome of the investigation upholding two of the three allegations, he sought to appeal that outcome through his Union but was told there was no appeal of the investigator’s findings. It was his evidence that he was called to a disciplinary meeting with Ms Saarsteiner and Mr Saarsteiner His Union on his behalf requested that an independent person be appointed to conduct the disciplinary hearing as Mr Saarsteiner had suspended him and also was interviewed as part of the investigation process and could not be considered impartial. This request was refused, and the disciplinary hearing went ahead on the 26thMarch 2019. He was represented by his Union at that meeting. By letter of 29thMarch 2019, he was summarily dismissed. He lodged an appeal against that decision and was advised that the appeal would be carried out by an independent person. In June 2019, Mr Padraig Lyons BL was appointed to hear the appeal. He was given the choice of the appeal being a de novo hearing of all the facts or an appeal of the outcome. He indicated that he would only accept a de novo hearing of all the facts if he was paid for the intervening period. However, the Respondent was not prepared to pay him. He stated to the Court that he was also reluctant to have a de novo appeal as he did not trust Mr Saarstenier at that stage. His appeal was upheld on one ground but not on the other two grounds and the decision to dismiss was upheld. Under cross examination the Complainant accepted that annual leave had to be authorised by the manager and that if a worker does not turn up for work, they could face disciplinary action. In respect of the text message from his wife the Complainant stated that he did not recall asking her to send it. Mr Broughton BL asked the Complainant where he was on the 24thDecember 2018 but the Complainant refused to answer the question. He did however confirm that he had his phone with him on the 24thand that it was on airplane mode. He also accepted that the phone bill reflected the phone as roaming in Europe on that date. In the course of clarification sought by the Court the Complainant confirmed he was in Croatia on the 24thDecember 2018. The Complainant’s Union representative submitted a book of documentation setting out the Complainants efforts at mitigating his loss and confirming that he is currently employed albeit at a much lower salary of €29,000. The Complainant was unemployed for 32 months and his annual salary at the time of dismissal was €69,000. The Complainant’s loss is in excess of the two years salary that the Act provides for and is continuing as he is currently on a much lower salary. The Complainant’s Union representative submitted that the procedures followed were unfair. Mr Saarsteiner had the phone bill for ten days before summoning the Complainant to a meeting. The Complainant was not told in advance of the meeting what it was about nor was he allowed bring someone to the meeting, despite the fact Mr Saarsteiner had gone to the trouble of arranging for someone to take minutes of the meeting. Mr Saarsteiner then only partially accepted the findings of the independent investigator and could not be seen as an impartial person in terms of the disciplinary process and coming to the decision to dismiss. There were other alternatives open to Mr Saarsteiner but he had decided before the disciplinary hearing that this was a dismissible offence. The Complainant did turn down the offer of a de nova hearing at the appeal stage as at that point in time he had lost all faith in the Respondent’s ability to act in a fair manner. It is the Complainant’s position that the dismissal is substantively and procedurally unfair. The applicable Law
Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion The Court notes the submission from Mr Boughton BL in respect of the challenges to small companies when dealing with disciplinary issues. However, in this case Mr Saarsteiner by his own evidence had decided before he even met with the Complainant and heard his version of events that he was being lied to. Mr Saarsteiner recognised at the investigation stage that he was too involved in the situation and engaged an external investigator. However despite having been interviewed as part of the investigation and then deciding not to accept the independents investigators report that one of the allegations did not stand up, Mr Saarsteiner concluded that he was the appropriate impartial person to carry out the disciplinary hearing. It was his evidence to the Court that prior to the disciplinary hearing he considered the Complainant to be guilty of gross misconduct and in breach of his contract and that the purpose of the disciplinary hearing was to see if the Complainant had anything to say. The Court finds that these actions by Mr Saarsteiner could not be considered to meet the requirement of fair procedure and the right to an impartial hearing. Mr Saarsteiner also gave evidence that even before he had the first meeting with the Complainant, he felt that based on the text message he had received from the Complainant’s spouse and the phone bill data that he could not trust the Complainant. It is difficult to reconcile that state of mind with the role of impartial decision maker in a disciplinary process. The Court finds that the procedures followed in coming to the decision to dismiss were fundamentally flawed and not capable in this instance of being saved by an independent appeal de novo or otherwise. Particularly in circumstances where Mr Staarsteiner had already rejected the findings of an independent person that did not coincide with his point of view. The Court notes that the Respondent accepted the mitigation put forward by the Complainant in respect of his efforts to secure alternative employment. The Court then considered the Complainant’s contribution if any to the dismissal. In this instance based on the behaviour of the Complainant in refusing to hand over his work phone, wiping his phone and being less than honest with his employer in respect of the events of the 24thDecember 2018, the Court finds that the Complainant contributed substantially to his own dismissal. The height of the Complainants claim for losses is €138,000 being equal to two years’ salary. The Court finds that the Complainants actions were a significant contributing factor and sets that contribution at 77percent. On that basis, the Court awards the Complainant compensation of €32,000 being 23 percent of the maximum award available. The Court having considered the nature of the dispute between the parties finds that neither re-instatement nor re-engagement are appropriate in the circumstances of this case. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €32,000 having found that he contributed significantly to his own dismissal. The appeal is upheld. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
