EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Rafal Dziedzicki UD167/2013
against the recommendation of the Rights Commissioner in the case of:
Keelings Logistics Solutions
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr C. Lucey
Mr F. Keoghan
heard this appeal at Dublin on 19th March 2014 and 1st September 2014
Appellant: Mr. Kieran Falvey B.L., instructed by Mr Eamonn O'Hanrahan, O'Hanrahan & Co.,
Solicitors, Lexington House, 71 Ballybough Road, Fairview, Dublin 3
On 19th March 2014
Mr Eamonn O'Hanrahan, O'Hanrahan & Co.,
Solicitors, Lexington House, 71 Ballybough Road, Fairview, Dublin 3
On 1st September 2014.
Respondent: Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower Baggot Street,
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing the decision of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007, ref: r-124550-ud-12.
The respondent company operates a distribution service in which the appellant was employed as a warehouse operative. On 6th March 2012 an incident occurred, which ultimately led to the dismissal of the appellant from his employment.
At approximately 4.30 pm on that day PB, a warehouse operative parked his pallet and left his arm mounted terminal (AMT) sitting on a crate on the pallet. The pallet was not causing an obstruction. He had to use the bathroom facilities. When he returned to his pallet his AMT was missing. He searched everywhere for it but was unable to locate it. He spoke to EJ and asked for a replacement. He reported the missing AMT to his manager PC.
DMcC was subsequently approached by PB, who explained that he could not find his AMT. He explained that he had left his AMT on a pallet while he went to use the bathroom facilities. On his return the AMT was missing. When they could not locate the AMT, PB went to the shift manager on duty and reported it missing.
Later that evening, DMcC was approached by the appellant who asked if the AMT was found. DMcC said no and asked the appellant if he knew where it was. The appellant replied that he put it in Aisle 67.
The appellant brought DMcC to Aisle 67 and started to check for the AMT. However, the majority of the order being loaded from Aisle 67 was already loaded and dispatched to a store. DMcC then went up to the transport company. The transport company contacted the driver who was delivering the order to the store. He informed them that he had not found the AMT while unloading the stock at the store.
The store was then contacted by phone and email to enquire if the AMT had been located in their delivery but there was no answer.
On 9th March 2012 DMcC provided a statement to the shift manager and HR. On 21st March 2012 he provided a follow up statement to the investigating manager, JD, to clarify a number of discrepancies between his original statement and the appellant’s. DMcC was not involved in the disciplinary process.
The investigating officer, JD, told the Tribunal that the incident was reported to Human Resources and then it was allocated to him to proceed with the investigation stage. JD met with the appellant in the company of his shop steward. The appellant told JD that he did not hide the AMT and DMcC had misunderstood him.
JD gathered statements from all employees involved in the incident. In his statement, PB, explained that he was informed by a colleague that the appellant hid the AMT as a joke. This colleague confirmed to JD that she was approached by the appellant who informed her that he hid the AMT as a joke.
On 30th April 2012 JD met with the appellant and the appellant’s representative. The appellant again stated that he did not take the AMT nor did he hide it. He denied the accuracy of the statements made by his colleagues. The appellant continuously responded to JD’s queries by saying he did not take the AMT and he did not hide the AMT.
When JD concluded his investigation into the incident he recommended that the matter should be forwarded for disciplinary action.
EJ told the Tribunal that she was working at the scan window office on the day of the incident. PB approached the window to enquire if his AMT had been handed in because it had disappeared. After a couple of hours the appellant came to the window and called EJ. They spoke to each other in Polish and the appellant asked EJ if they were looking for the missing AMT. He told EJ that he “saw the AMT on a tray and might have pushed it as a little joke, sometimes people do it to him”.
EJ told PB what the appellant had said but PB told her not to worry about it because the AMT had been found in another store.
JD conducted the disciplinary hearing. The appellant had been furnished with copies of statements taken from employees. He had been provided with the report of the investigatory meeting and statements taken from employees. The appellant was accompanied by his shop steward. The appellant had broken but reasonable English. He knew how serious the meeting was. Both DMcC and EJ had said in their statements that the appellant had told them that he had hidden the AMT. At this meeting the appellant denied that he had told DMcC that he had hidden the device but said that he had only seen the device on a pallet. Some employees had previously asked him if he had seen the missing device as it was missing.
He said that DMcC misunderstood him as well as EJ and that he did not take the device.
During the course of the meeting the appellant became stressed and did not want to answer further questions.
Based on the evidence and statements before JD he concluded that the appellant had hidden the AMT, it was an irresponsible action and constituted gross misconduct and he took the decision to dismiss the appellant.
Site Operations Manager (BM) conducted the appellant’s appeal. In advance of the appeal hearing he was furnished with the investigatory and disciplinary reports and statements taken from employees. The appellant together with his shop steward and an interpreter attended the appeal hearing. There was an issue with the conflict in the statements provided by the appellant. BM asked the appellant if he had taken the AMT. The appellant replied that he had not. The appellant again reiterated that he had been misunderstood by DMcC and that in fact he had only seen the AMT on a pallet. He denied that he had approached DMcC and told him that he had hidden the AMT. In BM’s opinion the appellant had caused the AMT to go missing. The appellant had told DMcC that he had moved the AMT as a prank and this was supported by a discussion the appellant had with EJ in which he said that he put in the AMT in a crate for a joke.
BM upheld the appellant’s appeal to his dismissal.
The appellant commenced employment on 22 June 2010 as a warehouse operative. He recalled an incident that occurred on 6 March 2012 regarding a missing AMT. He had seen the AMT on a pallet and spoke to DMcC in relation to the device. He then accompanied DMcC to the pallet where he had seen the AMT. While he had told DMcC that he had hidden the AMT he corrected that and said he had only seen the AMT. He spoke to EJ and told her that he had seen the AMT and that maybe somebody had a played a joke. He never told her that he had hidden the device. He had been in a similar situation some time previously where his AMT had gone missing and he went to the hatch and was given a replacement. He knew employees played jokes on each other.
He contended that PB’s pallet had caused an obstruction. He had to push the pallet out of his way. A crate might have moved. He believed there could have been a misunderstanding with regard to what he had told DMcC and that EB could have a hearing problem.
At no stage had he ever taken the AMT. The appellant works mostly with Polish nationals and he has very little interaction with management.
During the course of the investigatory and disciplinary meeting he had difficulty expressing himself. At the disciplinary hearing he became stressed and was unable to answer all the questions. He realised he should have had an interpreter present at those meetings. He only had an interpreter present at his appeal hearing. He continued to work throughout this time.
The appellant had never been disciplined before. He was dismissed on 11 June 2012. He appealed his dismissal. His appeal was upheld by BM.
The appellant secured alternative employment in company F some three months after the termination of his employment. His employment in that company was terminated at the end of July 2014 due to the closure of the company.
The appellant maintained his innocence regarding the disappearance of the AMT throughout the course of the disciplinary hearing and right through to the hearing today before the Tribunal. He further argued that he was misunderstood by a number of company witnesses however all their evidence appears to this Tribunal to be consistent throughout.
On balance the Tribunal prefers the evidence of the respondent and therefore upholds the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal