EMPLOYMENT APPEALS TRIBUNAL
EMPLOYEE – Claimant
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford BL
Members: Mr J. Reid
Mr N. Dowling
heard these claims at Dublin on 8 March
and 4 October 2013
Mr Aaron Shearer BL, instructed by Ms Aoife McGuinness,
McDonough & Breen Solicitors, Distillery House,
Distillery Lane, Dundalk, Co. Louth
Mr Patrick Hanratty SC, instructed by Mr Kevin Langford,
Arthur Cox Solicitors, Earlsfort Centre,
Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:
The claimant was employed by a sister company of the respondent in the UK from 1998 and left on a secondment elsewhere in 2005. The claimant joined the respondent in May 2008 as general manager for the Republic of Ireland; in May 2009 he took up the position as general manager for the respondent’s Northern Ireland operation. The employment was uneventful until the incident that led to the claimant’s dismissal and it was common case that the claimant was a very effective member of staff. The Respondent is a Security Company.
On 17 February 2011 the claimant received a phone call from the manager of a company (the recycler) which recycled certain batteries used on a regular and ongoing basis by the respondent. Two store men (S1 and S2) became involved in the collection of monies from the recycler and apparently sought a cheque from the recycler made out to S1 (in his own name), a driver from the respondent was asked to collect the cheque. The claimant asked the recycler’s manager to go along with the request and supply the driver with the cheque. When the cheque arrived at the respondent’s offices the cheque was given to the claimant’s secretary.
Before the cheque arrived back at the respondent’s offices the claimant contacted the human resource manager/director for the UK and Ireland (HR) and sought HR’s permission to suspend both S1 and S2. This permission was refused, the claimant’s position was that HR told him “to do what you do best Tom”. The respondent’s position was that the claimant was told to establish the facts and that the business process officer (BPO) would be informed and would carry out an investigation later.
The claimant spoke to the driver, S1 and S2 on both 17 February 2011 and then again to S1 and S2 the following day about the cheque from the recycler in the presence of the head of the installation department (HI). It was the respondent’s position that during those talks with S1 and S2 the claimant threatened to involve the PSNI and accused them both of being thieves and liars.
On Monday 21 February 2011 the claimant collected a UK colleague from the airport and when he later arrive at the respondent’s premises became involved in a confrontation with S1 resulting in the claimant telling S1 to “get his fucking finger out of my face”. The claimant was then on leave for the rest of that week.
BPO and a regional HR manager (RM), both from the UK arrived at the respondent’s Belfast premises on 8 March 2011 to conduct the investigation into the events of 17 February. They interviewed S1 that morning and S2 in the afternoon with a union representative present for both interviews. At the end of his interview S1 told BPO that it had been very upsetting to be called a liar and a thief by the claimant. At the end of his interview S2 said the way the whole thing had been handled was atrocious.
As a result of these interviews BPO and RM concluded that S1 and S2 had uncovered a flaw in the respondent’s procedures which had resulted in the respondent not being paid for the recycled batteries and their actions in contacting the recycler had been well-intentioned and were an attempt to recover monies on behalf of the respondent and did not represent misconduct.
On 11 March 2011 both S1 and S2 made statements alleging bullying and intimidation by the claimant against them. On 8 March 2011 BPO and RM made statements in regard to their interaction with the claimant that day. In their statements they referred to the claimant telling them on being picked up at the airport by him how he had interrogated S1 and S2, had threatened them with jail and the police if they did not tell the truth and how it was a pity that waterboarding wasn’t available to him. Later in the respondent’s office the claimant had told them that he had accused S1 and S2 of being liars, thieves and cheats and had reduced S2 to tears. S2 had alleged that the claimant had threatened him with waterboarding and to put a tyre round his neck and fill it with petrol. The claimant was very upset when told that there was no evidence of wrongdoing on the part of S1 and S2. They had begun to explain to the claimant how he had not handled the investigation correctly or followed procedure.
Later that day BPO appraised HR of the situation that he had found. His written report, dated 14 March 2011, of the investigation into the complaint against S1 and S2 recommended that no further action be taken in respect of them but that the claimant should face disciplinary proceedings in relation to the allegation of serious harassment and bullying.
On 9 March 2011 the regional managing director (MD) phoned the claimant and instructed him to come to Dublin and not to go to the Belfast office before doing so. After arriving in Dublin MD told the claimant there had been a complaint against him in that he threatened to waterboard and put a petrol filled tyre around the neck of S1 or S2. The Human Resource manager for Ireland (RI) then told the claimant to work from the Dublin office and that he was to meet BPO on 14 March 2011. At this meeting on 14 March 2011 BPO gave the 8 March statements of S1 and S2 to the claimant.
On 15 March 2011 wrote to the claimant in a letter headed “Invitation to Disciplinary Meeting” in which the claimant was to address allegations of “Bullying and intimidating behaviour towards two of your colleagues, namely S1 and S2”. A copy of BPO’s report of 14 March was enclosed. The claimant was warned that dismissal for gross misconduct was a possible consequence of the allegation against him being upheld. He was advised of his right to bring either a work colleague or a trade union representative with him.
The meeting, originally scheduled for 21 March 2011, took place on 25 March 2011. The claimant brought a twelve page type written report and statement of his version of events. In this the claimant makes it clear that while the statements were read to him on 14 March, he only received copies of the statements on 21 March 2011.
The disciplinary investigation hearing on 25 March 2011 was attended by HR, MD and RI, the claimant was accompanied by the finance manager (FM). At the end of this meeting where the statements were gone through in detail matters were adjourned to a follow up disciplinary meeting on 4 April 2011. RI wrote to the claimant on 1 April 2011 to confirm the follow up meeting and provide the notes of the 25 March meeting to the claimant.
The same people as on 25 March were in attendance at the follow up meeting on 4 April. On 13 April 2011 HR and RI met the claimant and FM and advised the claimant that he was being dismissed without notice for gross misconduct after admitting to using emotional pressure, accusing S1 and S2 of being liars, cheats and thieves and threatened those two with the PSNI. The claimant was advised of his right to appeal this decision.
The claimant submitted his appeal against dismissal to the Managing Director UK & Ireland (MU) on 13 April 2011. HR wrote to the claimant confirming the decision to dismiss arising from the 13 April meeting on 15 April 2011. This letter set out the reasons for dismissal as
Accusing two employees of being liars, cheats and thieves prior to an investigation being undertaken
Threatening an employee with police involvement again prior to an investigation taking place
Using emotional pressure with an employee in order to try to obtain a confession of guilt
Multiple references to questioning tactics and techniques of an unacceptable nature
The appeal hearing was conducted by MU with RI in attendance on 20 April 2011. The claimant was again accompanied by FM. On 26 April 2011 MU wrote to the claimant dismissing his appeal and upholding the decision to dismiss the claimant. The claimant did not avail of the opportunity set out in the respondent’s procedures of a further appeal to a third party.
The Claimant brings a claim under the Unfair Dismissals Acts and the Minimum Notice and terms of Employment Acts.
The Tribunal heard evidence over two days and submissions made by both parties, taking all matters into consideration, the tribunal concludes that the Claimant was unfairly dismissed.
The Tribunal cannot be satisfied that the grounds for the purported dismissal could be identified as gross misconduct as alleged as inter alia, there was no evidence heard from the alleged victims of the claimants actions and the investigation team. The Tribunal in applying a test of reasonableness cannot deem the dismissal as fair.
The Tribunal further is of the view that the dismissal was unfair as there was an inadequate investigative process and there were procedural flaws in both the investigation and in the disciplinary process. The Tribunal is not satisfied that correct procedures were applied and concludes that the disciplinary procedure in itself was flawed. The Tribunal also notes that evidence was given that employees were told that the Claimant was not returning to work at a date which was prior to the Appeal hearing.
In awarding compensation, the Tribunal measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €48,000-00.
The Tribunal further awards €7,825-08, being four weeks’ pay, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The claim under the Organisation of Working Time Act, 1997 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal