EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Marek Cieslik UD1317/2013
Musgrave Retail Partners Ireland Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Ms A. Gaule
Mr M. O'Reilly
heard this claim at Dublin on 6th January 2015 and 16th February 2015
Claimant: O’Hanrahan & Company Solicitors,
Lexington House, 71 Ballybough Road, Fairview, Dublin 3
Respondent: Mr David Farrell, IBEC, 84/86 Lower Baggot Street, Dublin 2
The Tribunal has carefully considered the evidence adduced in the course of the two days of oral hearing. The claimant’s employment was terminated by the respondent on 28th June 2013 by reason of gross misconduct and in particular findings of dishonesty and fraud on the part of the claimant. In consequence of this action on the part of his employer, the claimant initiated this claim by way of a Workplace Relations Complaint Form being delivered to the Employment Appeals Tribunal on the 30th September 2013.
The claimant is a General Operative who worked with the respondent company for over 6 years prior to his dismissal. The respondent company, for the purposes of these proceedings, owns and operates a warehouse in Co. Kildare which takes in up to 135,000 cases of goods every day for storage, selection and ultimately re-distribution. As a General Operative in this workplace the claimant was expected to have and did have forklift driving skills.
The respondent operates a comprehensive identification system whereby every pallet that enters the warehouse is given a specific, non-transferrable code and thus all information relating to that pallet is automatically given once that code is scanned. In practice this means that a General Operative, such as the claimant herein, can scan a pallet and from that scan will be told where in the warehouse that pallet should be placed.
Within this system of in-house administration provision is also made for what has been described to the Tribunal as “exception codes”. In short, employees are expected to use an exception code in the course of their daily job if something unusual crops up and the scanning instructions do not tally with the facts on the ground. So for example a pallet may be directed to a particular loading bay and when the driver gets to that bay he might find that the bay is already full.
In short, the system of exception codes by their very nature allow for the possibility of mistakes and irregularities in the workplace though it has been stated repeatedly in evidence that this is very much the exception and not the rule.
In addition to this the Tribunal heard evidence that all the General Operatives were in essence, working against the clock. Occupational experts had at some time been brought into the workplace and assessed the approximate time any particular task is likely to take. The Tribunal was given no information regarding the way in which this assessment was conducted but accepts that a bonus system was in operation such that a bonus would apply if a task was completed by a General Operative in less time than the said workplace report allowed for.
On a date unknown but prior to the 4th April 2013 a routine audit was carried out of the exception code reports which disclosed, what the respondent company felt was an unusual amount of exception code uses by the claimant over a number of shifts. The Tribunal notes that no comparator evidence was given so it cannot confirm the degree of irregularities that the company alleges had arisen. The Assistant Manager and the claimant’s own line manager called the claimant for a meeting on the 4th April 2013 to discuss the perceived irregularities. This meeting has been described as a fact finding meeting and two completely different accounts of how this meeting was conducted was heard by the Tribunal. So for example the respondent’s witnesses described the meeting as being for the purpose of seeking information whilst the claimant’s account more confrontational where he was repeatedly called a “cheater” and had “abused” the system. The Tribunal saw no contemporaneous notes and can only note the the claimant had no prior knowledge of this meeting and was completely unprepared for any type of confrontational meeting. The claimant’s line manager confirmed that the claimant appeared flustered and panicked. The Tribunal notes that the claimant does appear to have conceded that he did not do things exactly as he was meant to but there is no suggestion that he accepted any wrongdoing on his part such that would amount to dishonesty and/or fraud. In fact the claimant appears to have suggested that he could change his practice moving forward “wiping the slate clean” was the phrase he used before the Tribunal.
The next day (April 5th) the claimant was invited to a meeting to review the claimant’s compliance with the company’s policies and procedures. At the meeting, described as an investigation meeting, the claimant offered a more rounded explanation for the manner in which he used exception codes. The claimant accepted that the practice was not best practice per the company’s own policy but was one which had been brought about through his own particular experience in the workplace. In short, the claimant, who used to work nights, said that the night time operations support had encouraged drivers to use the “Sin Bin” area as little as possible and advised forklift operators to try, as best as they could, to deal with problems as they arose rather than overloading the sin bin with too much work. To buy time to sort out their problems as they arose the claimant said he was told and had always used, the exception codes so that time was not lost to him. Whilst the claimant realised that this was not what exception codes were for and he developed “bad habits” he had followed the advice of colleagues here and had felt it was a reasonable way of dealing with matters. The claimant could see no gain to himself (as verified by his earnings being constant for several years) and there is no allegation that the claimant was not at all times pulling his weight in the workplace.
Most importantly the claimant maintained that he had never been fully trained in this aspect of his employment and he had never differentiated between what he had been doing on the night shift and what he was doing on the day shift when he moved there. The Tribunal notes that the claimant was represented by a trade union official at this meeting and that the claimant’s unblemished work record was asked to be taken into account.
The Tribunal finds that there were very good objective reasons to more thoroughly considered the claimant’s explanation in the aftermath of this meeting. Despite this the investigator did not conduct a comprehensive investigation. This meant that the “Sin Bin” operations were never questioned, the night shift staff were never involved, the amount Type, timing and duration of training was never shown. Also, the claimant’s history in the workplace was never regarded for the purposes of either confirming his conduct and/or confirming that the claimant’s practice had been consistent from the night to the day shift and the fact that his remuneration had remained the same was given no consideration. Instead the investigator placed undue weight on the fact that the absence of explicit direction from line management was a factor that automatically put the matter into the disciplinary process.
When the matter went forward to a disciplinary meeting/hearing conducted by RB, his decision to rely on the flawed investigation and his refusal to reconsider and/or examine any aspect of the investigation meant his own input became inherently flawed. RB discounted any of the reasons offered (though same had not been satisfactorily investigated) and moved instead to make the very serious findings that the claimant was behaving dishonestly and fraudulently with the intention of committing these acts for personal gain.
On balance the Tribunal has to find that the decision to dismiss the claimant (which was confirmed on appeal) was unfair in all the circumstances. The Tribunal recognises the claimant’s efforts to mitigate his losses and notes that he is in the process of upskilling himself on a full time basis in response to his situation and the Tribunal awards the sum of €25,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Furthermore the Tribunal awards the claimant €2,872.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal