Complainant

Respondent

Parties

Joseph  Foster

Stl Logistics Ltd  trading as Stl Logistics

Representatives

Vivian Cullen of SIPTU

Judy McNamara of IBEC

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-00062657-001

08/04/2024

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

CA-00062657-002

08/04/2024

The Complainant has submitted complaints under the Unfair Dismissals Act 1977 and Minimum Notice and Terms of Employment Act 1973 arguing that their dismissal from employment on the 10th of November 2023 was unfair.

The Respondent submits that the dismissal was justified on the grounds of gross misconduct.

The Respondent was represented by Ms Judy McNamara of IBEC and called the following witnesses who gave evidence under oath:

Mr John McNally, Site Manager and Disciplinary Officer

Mr Jimmy Lee, General Manager and Appeals Officer.

The Respondent’s position was that the Complainant had been dismissed following their misappropriation of client stock. These matters came to the attention of the Respondent following an investigation by their client who had received an allegation made by a publican against the Complainant. This investigation involved review of delivery records, CCTV footage, and witness statements.

The Complainant was responsible for delivering 14 kegs to a pub, one of which was recorded as a leaker, reducing the expected delivery to 13 kegs. The recipient, a publican, claimed to have received only 10 kegs, leaving three unaccounted for. A barman working for them reported having been offered kegs for cash by the Complainant.

The Complainant was invited to a disciplinary meeting. He was unaccompanied and declined representation. The disciplinary outcome resulted in a summary dismissal on the grounds of gross misconduct.

The Complainant appealed the decision. Mr Jimmy Lee was appointed as the Appeals Officer and met with the Complainant. The appeal was ultimately dismissed, and the original sanction upheld.

The Complainant was represented by Mr Cullen of SIPTU who made written an oral submissions on his behalf.

The Complainant gave evidence under affirmation. He denied any wrongdoing and stated that one of the alleged missing kegs was actually accounted for, a returned to the yard as it accidentally was left on the truck. He strongly disputes the Respondent’s reliance on cctv which he believes was doctored. He points out that the publican in question received free kegs as a result of their complaint that they had kegs missing and that this was an incentive to make the complaint.

He stated that he had never received training on stock discrepancy procedures. He further maintained that he had no prior knowledge of the anonymous complaint referenced in the disciplinary process and that he was denied the opportunity to challenge key witness statements.

Under cross-examination, the Complainant was questioned about his prior awareness of the allegations, his engagement in the investigation process, and whether he had challenged any evidence at the time. He stated that he had not read most of the correspondence from the Respondent and had assumed the process was predetermined.

CA-00062657-001 - Unfair Dismissals Act

Issue regarding hearsay

The Complainant’s representative objected to the inclusion of the investigation documents in the hearing, arguing that they constituted hearsay evidence as the individuals who compiled them were not present to give direct evidence. I am cognisant of the principle established by the EAT in Looney & Co. Ltd. v Looney UD 843/1984, which clarifies that the role of this tribunal is not to establish the Complainant’s guilt or innocence, but rather to assess whether the Respondent’s decision to dismiss was reasonable in all the circumstances. The focus of this hearing is the fairness of that decision-making process.

The key decision-makers in this case, Mr McNally, who conducted the disciplinary process, and Mr Lee, who decided the appeal, reviewed and relied upon the investigation documents in arriving at their respective conclusions. The investigation documents, therefore, form part of the factual matrix that informed the dismissal decision, and it would be artificial to exclude them from consideration in this hearing.

Whether it was reasonable or fair for the Respondent to rely on those documents is a separate question from whether they can be referred to by the Respondent’s witnesses when giving evidence of their decisions to the WRC. 

Dismissal

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 b provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take the place of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

As outlined in the seminal Labour Court case Pottle Pig Farm and Pasanov a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses, rendering the dismissal unfair.

I am not satisfied that the Respondent has met their obligation properly investigate the matter or to provide the Complainant a fair opportunity to advance their defence.  

The evidence of Mr McNally and the Complainant suggests that a key additional allegation was not fully disclosed to the Complainant. During the course of the disciplinary hearing it was revealed that another person had come forward highlighting that they were offered kegs for cash but the person was not identified nor was a written account provided. Mr McNally accepted that this formed part of the decision to dismiss.

CCTV footage of the delivery was relied on heavily by the Respondent. The footage was a phone recording of a monitor replay of the Complainant loading in the kegs at the pub which raised the allegation. This footage contained noticeable gaps and lacked a timestamp.

The footage was played in the WRC with Mr McNally and then the Complainant reviewing it under oath and affirmation respectively. As Mr McNally pointed out the footage shows the Complainant loading in the kegs from the Respondent’s delivery truck to the pub’s basement hatch. He counted out 10 kegs being loaded in. The period of time the Complainant is loading in is relatively short and the footage shows him working quickly on a narrow strip of path between the truck and the hatch.

In evidence, the Complainant pointed out the points where the footage skips while he is loading in, this can be seen by reference to cars and pedestrians who are moving through the vicinity. The bed of the truck is not fully visible as such the number of the kegs on the bed of the truck can’t be ascertained. On reviewing the footage, I am not satisfied that it was reasonable to rely on that footage as evidence that only 10 kegs were delivered.

Importantly, in the context of this investigation, the Complainant did raise these matters with Mr Lee in detail in the appeal. In evidence Mr Lee simply stated that he was not an IT expert which in my view is not a requirement when determining if he had any doubts about the footage having viewed it. I am of the view he failed to seriously engage with or consider the Complainant’s concerns about the footage.

More generally, the appeals process appeared flawed. Mr Lee, both in evidence and in his appeal outcome letter, appeared to understand and acknowledge the Complainant’s various issues with the investigation, including the anonymous complaint and the CCTV footage, but he failed to actually consider them as part of his decision. He merely recounted them before finding that the decision to dismiss was appropriate.

For these reasons, I find that the Complainant was unfairly dismissed.

Redress

The Complainant commenced employment with the Respondent on 1 April 2018 as a delivery driver, earning an annual salary of approximately €26,000. The employment was terminated on 10 November 2023, and the Complainant subsequently secured alternative employment on 8 February 2024, earning a slightly higher wage involving a shift allowance.

The Complainant was unemployed for a period of approximately 13 weeks, incurring a financial loss of approximately €7500.

In her cross-examination of the Complainant, Ms McNamara questioned the failure of the Complainant to raise certain issues in the disciplinary hearing and avail of Union representation. The Complainant’s reply was that he couldn’t be bothered reading the full letters of the Respondent because he was innocent.

As Ms McNamara pointed out this was not an appropriate way for the Complainant to engage with his employer over what was an extremely serious matter for both parties, the alleged theft of client stock from the client’s customers.

 In the circumstances and in reference to Section 7.2.b of the act I reduce the award to €4500.

CA-00062657-002 – Minimum Notice

As the Complainant was unfairly dismissed he is entitled to a notice payment in line with Section 4 of the relevant act. As he has more than five years service this was four weeks pay or €2324

CA-00062657-001

I find the complaint well founded and direct the Respondent to pay the Complainant €4500

CA-00062657-002

I find the complaint well founded and direct the Respondent to pay the Complainant €2324