EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Leo Leydon, - claimant MN2411/11
Erin Recyclers Limited - respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Sligo on 4th February 2014 and 7th April 2014.
Claimant: Mr Shane McDermott, Mullaneys, Solicitors, Thomas Street, Sligo
Respondent: Ms Lauren Tennyson BL, instructed by Dermot G. McDermott & Co, Solicitors,
1 Union Street, Sligo
At the outset of the hearing the claim under the Organisation of Working Time Act, 1997 was withdrawn.
The determination of the Tribunal was as follows:-
The respondent is a family run business engaged in metal recycling. SOH is Managing Director and she has responsibility for HR matters and health and safety within the workplace. The company exports to Northern Ireland and Europe.
The claimant commenced employment in October 2007 as a truck driver on a fixed term contract. He was furnished with and signed a contract of employment in late April 2010. At that time the company had 30 employees of which 10-14 employees were truck drivers. It is the responsibility of each driver to carry out a daily checklist of his vehicle. Company vehicles are used strictly for company business. Upon completion of an employee’s shift, vehicles are parked at the company’s premises. A mandatory one day driver CPC course was completed by all drivers including the claimant.
The claimant was issued with numerous verbal warnings by his manager PL. PL made SOH aware of these warnings. After each verbal warning SOH typed up the warning and furnished a copy to the claimant. The claimant at all times was made aware that these were verbal warnings. The warnings referred to numerous incidents. The windscreen of the claimant’s vehicle had to be replaced 17 times (3 times in the month of January 2010), there was ongoing damage to his truck, the claimant had been in possession of beer kegs, there was a complaint about his speeding down the dock area, his non recording of his taco graphs on his vehicle, the claimant moving round bales with the use of the company vehicle over a weekend, the claimant not wearing the PPE clothing provided by the company, the claimant reporting to work at 9.30 am., the start time was 8 am, and the claimant had requested and received money from a member of the public for collection of a vehicle despite no fee being requested by the company. At all times the claimant gave assurances that the issues would not happen again. All these issues had been brought to SOH’s attention.
It came to the respondent’s attention that the catalytic converter was removed from a number of vehicles. It became apparent that the claimant was removing the convertors before the vehicle reached the company’s premises.
On 3rd September 2011 the respondent met the claimant in relation to the removal of the catalytic converters. The claimant admitted and accepted that he had removed the converters. This was deemed to be theft of company property and gross misconduct. The claimant had been warned on numerous occasions of non work related use of the company vehicle in the movement of round bales and this had not ceased. There was ongoing damage to the vehicle. The claimant had been given every conceivable chance to improve his ways. The company had lost trust and confidence in the claimant and his behaviour had not changed. The claimant’s conduct had brought the company into disrepute. The company was left with no option but to terminate the claimant’s employment and this took effect on 8th September 2012. The claimant was not furnished with a right of appeal to his dismissal.
DF is Director of Operations. He regularly spoke to the claimant about using his vehicle for his own gain. This was not permissible in the company. The claimant’s response was always that ‘it won’t happen again’. The claimant’s vehicle was constantly in need of repair while other drivers were more careful with the upkeep of their company vehicles.
The claimant commenced employment in 2007. He received a contract of employment in 2010 but never read it. He had an agreement with the company that he could begin work at 9.30 am each day and he worked 10/12 hour days. He was paid per day. He always wore his personal protective clothing. He often worked round the clock. His role entailed collecting scrap metal. His company vehicle was the oldest and smallest in the fleet. He was quite familiar with the area he worked in and was well known. He only received one verbal warning during his tenure and this occurred in October 2009. The warning related to the misuse of company property and the removal of round bales whilst driving the company vehicle. While the claimant had been ‘given out to’ on occasion over several incidents, he was told to do his best and just to be careful as times were hard.
On a few occasions the windscreen of the vehicle would crack and because of overgrown hedges the left hand side indicator often got broken.
On 3rd September 2011 the claimant was asked to attend a meeting. He was questioned on the removal of catalytic convertors from vehicles. The claimant admitted that he had done so for some customers at their request but never sold them on. He was accused of lying at that meeting and at the conclusion of the meeting he understood that he was dismissed. SOH had said she would prepare a reference for him and he waited twenty minutes. Instead of a reference he was handed a letter dated 5th September 2011 terminating his employment with immediate effect for gross misconduct.
The claimant has not secured alternative employment since the termination of his employment.
The Tribunal has carefully considered the evidence and submissions made during the course of this two day hearing.
The Tribunal did not believe that there was any dishonest conduct by the claimant, but felt that his actions in removing catalytic convertors from vehicles was clearly not in his employers best interests and he should have been aware of this. Similarly he should have desisted from using his vehicle for personal use.
The Tribunal was not convinced by the respondents’ presentation of evidence relating to verbal warnings, and finds that the vast bulk of them were not given as formal verbal warnings.
However the Tribunal did accept that the claimant had been spoken to about these matters and should have been aware of the respondents concerns, and that he failed to take heed of them.
The Tribunal noted with concern the procedures, or rather the lack thereof carried out by the respondent prior to the claimant’s dismissal and that the claimant was not offered a right of appeal to his dismissal.
The Tribunal is satisfied that while the claimant contributed substantially to his dismissal the decision to dismiss was unfair in the circumstances. Taking the claimant’s contribution to his dismissal into account together with evidence of loss and mitigation, the Tribunal considers compensation to be the appropriate remedy and awards the claimant the sum of €2,500.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also awards the claimant €1,000.00 being the equivalent of two weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal