EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF:
| CASE NO. |
Jan Makula, – Claimant
| UD703/2012 RP555/2012 MN524/2012 WT241/2012 |
against
|
|
RG Onboard Services (Ireland) Limited, - Respondent
|
|
under |
|
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 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: Mr P. Hurley
Members: Mr B. O’Carroll
Mr F. Dorgan
heard these claims at Castleconnell on 17 December 2013
and 3 March 2014
Representation:
Claimant: Mr Kieran O’Donovan, Dorothy Tynan & Co. Solicitors,
78 O’Connell Street, Limerick
Respondent: Ms Sinead Mullins, IBEC, Gardner House,
Bank Place, Charlotte Quay, Limerick
Summary of Evidence
Dismissal being in dispute it fell to the claimant to prove the fact of dismissal.
The claimant was employed from October 2007 as a catering assistant/trolley operator as part of the catering service the respondent provides for Iarnrod Eireann. The claimant worked on the service between Colbert Station, Limerick and Heuston Station, Dublin.
On 27 July 2011 the claimant was issued with a letter from the logistics manager (LM) confirming a verbal warning, of six months’ duration, which resulted from the claimant’s failure to lodge monies received in the course of his duties in the approved manner. For each train journey the claimant was required to submit an envelope containing the takings along with the relevant paperwork documenting the sales and stock usage. The lodgement envelopes were to be placed in a safe at the respondent’s office at Heuston Station.
Accordingly, lodgements resulting from the down journey from Heuston to Limerick cannot be made at the completion of the journey, rather on the next occasion that an employee is rostered to travel to Heuston. The claimant’s position was that on return to Colbert Station, unless he was going to Dublin twice in the one day it was necessary for him to take the completed lodgement home. The respondent’s position was that an overnight safe was provided in their facilities at Colbert Station.
On 3 November 2011 the human resources manager (HR) wrote to the claimant confirming the issue of a written warning, of twelve months’ duration, to the claimant following a meeting on 19 October 2011 arising from the claimant’s failure to follow correct procedures for reporting absences and for failure to attend work for a rostered shift. The claimant was advised that a repetition of such action could lead to his dismissal. He was further advised of his right to appeal against the warning. He chose not to exercise this option.
On 4 November 2011 the respondent’s cash handling agents advised them that there were seven lodgements, submitted by the claimant, collected from Heuston Station, which, while the paperwork was properly filled out, contained no money. The operations manager (OM) telephoned the claimant and informed him of the situation. OM suspended the claimant from duty and invited him to attend an investigation meeting at Heuston Station on Monday 7 November 2011.
On 7 November OM was accompanied by HR, the claimant was unaccompanied. There is a dispute between the parties as to whether the claimant was afforded the opportunity to seek representation at this meeting. In the event the meeting proceeded with the claimant being unaccompanied. During this meeting the claimant advised OM that he had a gambling problem and had taken the money from the lodgements to pay his rent.
It was the claimant’s position that OM threatened him with involving the police if he did not resign his position with the respondent. The respondent maintains that the police were mentioned in the context that they did not have to be called to investigate, as the claimant admitted the theft. OM described the claimant’s actions as gross misconduct. It was common case that the claimant accepted that the missing money had to be repaid, that he did not have the full amount to repay it and it could therefore be deducted from his outstanding wages. The respondent disputes that this was common practice among the staff. OM told the claimant that his conduct was a very serious issue as he had admitted fraud and theft. OM referred to the bond of trust being broken.
At the conclusion of the meeting HR drew up a handwritten letter of resignation which the claimant then signed. There was no further contact between the claimant and respondent.
Determination
After careful consideration, the Tribunal determine that no evidence was adduced to support a claim for Unfair Dismissal. The Tribunal, in arriving at this unanimous decision takes account of both the evidence and submissions made by both parties.
The claims under the Unfair Dismissals Acts, 1977 to 2007, Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the Organisation Of Working Time Act, 1997 all fail.
The claim under the Redundancy Payments Acts, 1967 to 2007 is not applicable and is therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)