EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Employer - appellant
against the recommendation of the Rights Commissioner in the case of:
Employee - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr T. O'Grady
Mr F. Keoghan
heard this appeal at Dublin on 6th November 2013
Appellant(s) : In person (Director of Company)
Respondent(s) : Mr John Murphy, SIPTU, Utilities & Construction Branch,
Liberty Hall, Dublin 1
This case came before the Tribunal by way of an appeal by the employer (appellant) against the recommendation of the Rights Commissioner ref: (r-117600-ud-11/RG) under the Unfair Dismissals Acts 1977 to 2007.
Summary of Case
The respondent was employed as a haulage driver by the appellant company for almost 9 years. His normal route generally took him to the U.K. but he also travelled to Holland and Belgium on occasions. On the morning of 28 October 2011 he was scheduled to travel to Northampton in the U.K. on a Stena Line ferry. When he reported for work to collect his paperwork to travel by ferry he changed this ferry booking to Irish Ferries rather than Stena Line. He told the Tribunal that he did so as he had friends travelling on the Irish Ferries and wanted to accompany them on the trip. He told the Tribunal that he was given permission to change ferries by a person of authority in the warehouse on the morning in question. He changed the paperwork in the accompaniment of this person. He had sought a member of management but there was no member of management in the warehouse as it was approx. 5a.m. He did not know the name of the person who gave permission to change the booking but knew him to be a person of authority. He proceeded to travel to the U.K. by Irish Ferries completing his delivery.
While he was in the U.K. he received a phone call from the Managing Director of the appellant company seeking an explanation for his actions. He arrived back in Ireland on the following day and on 2 November 2011 received a phone call from the Managing Director requesting him to attend a meeting later that day. He was not told in advance the nature of the meeting. He attended the meeting and gave an explanation for his actions on the morning of 28 October 2011. He was told that CCTV footage showed him making the change to the booking paperwork on the morning in question but he was never shown this CCTV footage. He was not offered the opportunity to have a representative present with him at that meeting. He apologised for his actions and offered to pay for the ferry trip. He did not want to get any other employee into trouble. He was dismissed at the meeting and was not afforded the opportunity of appealing the decision.
The Managing Director of the appellant company read into evidence a statement of affairs of the dismissal of the respondent. The haulage company uses Irish Ferries and Stena Lines to transport goods on a 50/50 basis. This is done for security reasons as all trailers are considered high value loads. When the respondent employee changed his booking on the morning of 28 October 2011 this resulted in three trucks going with Irish Ferries and only one with Stena Lines.
The Managing Director carried out an investigation into the incident and examined CCTV footage as part of that investigation. He was satisfied that the respondent had changed the paperwork booking himself on to the Irish Ferries service. The CCTV footage also showed a member of management in the warehouse at the same time as the respondent. The respondent did not contact this member of management seeking authorization to change the booking. He also could not confirm to the witness during the investigation the identity of the person in authority whom he had said had given permission to change the booking. He was asked why he had not told the witness of the change to the booking but could not provide an answer.
The Managing Director was left with no option but to dismiss the respondent. No satisfactory response or explanation had been given by the respondent. There was no point in a follow up meeting as there was nothing more to be gained. He accepted that all procedures were not adhered to and the respondent was never provided with a company handbook or grievance procedures but denied that the respondent was unaware that the meeting of 2 November 2011 was a disciplinary meeting.
The Tribunal has carefully considered the evidence adduced. The hearing relates to an appeal by the appellant only against a recommendation of a Rights Commissioner in its entirety (a) declaring that the respondent was unfairly dismissed and (b) ordering the payment of compensation in the sum of €10,000.00 by the appellant to the respondent in respect of the dismissal.
Having examined the processes initiated and implemented by the appellant in dismissing the respondent the Tribunal is satisfied that there was present in it a procedural deficit sufficient to invalidate it. It is therefore found and determined that the respondent was unfairly dismissed by the appellant.
The Tribunal has considered the conduct of the respondent in the course of the circumstances which arose and which directly resulted in his dismissal and is satisfied that as a result of this conduct that he contributed to his dismissal.
After consideration of the evidence presented by the respondent in respect of mitigation of loss the Tribunal is satisfied that a coherent and sustained effort to mitigate his loss was made by the respondent.
The Tribunal dismisses the appeal and upholds the recommendation of the Rights Commissioner but varies the amount of the award. In that regard the Tribunal awards compensation in the sum of €20,000.00 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal