EMPLOYMENT APPEALS TRIBUNAL
Dariusz Kaszycki – appellant No 1
Lukasz Sieprawski – appellant No 2
against the recommendation of the Rights Commissioner in the case of:
Panelto Foods - respondent
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr P. Pierson
Ms H. Henry
heard this appeal at Longford on 9th October 2015
Appellant(s) : Mr Niall Phillips, SIPTU, Misc Unit, Liberty Hall, Eden Quay, Dublin 1
Respondent(s) : Mr Michael O'Sullivan, Arra HRD Ltd, Castlelost West, Rochfort Bridge, Co. Westmeath
This case came before the Tribunal by way of an appeal by the employees (appellants) against the recommendations of the Rights Commissioner references (r-136544-ud-13/SR, r-136545-ud-13/SR) under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal has carefully considered the evidence adduced. The two appellants came before this Tribunal on foot of an appeal from the Rights Commissioner’s recommendation. This has been a de novo hearing.
The appellants (DK) and (LS) commenced their employment with the respondent company in 2009 and 2011 respectively. The two gentlemen were part of the cleaning staff in this busy factory workplace. On 10 January 2013 both appellants’ employment was terminated by reason of gross misconduct and more particularly by the wilful act of inserting an incorrect start time in the workplace time sheet.
In making it’s finding, the Tribunal is, and has to be mindful of the fact that the appellants fully took responsibility for their actions and recognised that the action was wrong and regrettable.
On 1 January 2013 the two appellants arrived for their shifts at 7.30am and 8am. Whilst both signed in, neither specified their start time until later in the day, at which time they both inserted 5am as their start time. There can be no doubt that this act was intended to create a situation where the two gentlemen would be incorrectly remunerated for hours not worked. This matter came to light arising out of the vigilant observations of the security personnel then on site.
This matter was investigated by the production supervisor (BF), with the production manager (PC) making a decision to dismiss following a disciplinary meeting held on 8 January 2013. As previously stated, the investigation process and the disciplinary process were made considerably easier by reason of the appellants’ decision to admit to their wrongdoing. It is admirable that no attempt was made to obfuscate or otherwise not own up to the act. They took full responsibility, and even before this Tribunal they continue to accept responsibility.
Much was made in the course of the evidence of the actions of a 3rd employee, (MN) who was not before the Tribunal, and whose actions and intentions cannot be presumed to be understood by the Tribunal. However the parties do seem to agree that (MN) had also incorrectly stated his start time to be 5am on the morning of 1 January 2013, and that at a point unknown, but very soon thereafter this, (MN’s) start time, was changed to 8am – the correct start time. No explanation was offered to the Tribunal as to how this came about, but the respondent’s witnesses confirmed that the decision was made not to pursue (MN) as the time sheet he presented for payroll purposes was true and accurate.
The appellants before this Tribunal rely on an argument that the respondent company demonstrated an inequality in their approach to the two appellants on the one hand, and to (MN) on the other hand. However the Tribunal cannot accept that the actions being compared are in fact comparable in the way the appellants contend. How, and in what circumstances (MN) came to mend his hand the Tribunal cannot know. The fact remains that (MN) ultimately submitted a correct time sheet and the appellants did not. The Tribunal cannot criticise the respondent employer for not pursuing (MN) who did not, in the final analysis attempt to defraud the company.
The Tribunal finds that it cannot accept that the actions of the appellants could be constituted as anything other than gross misconduct. There is a long line of authority to the effect that even where exacting procedures are not applied in the course of a disciplinary process, an action of gross misconduct can attract no sanction other than dismissal. In practice, so for example, the fact that the production manager arrived at the final meeting with prepared letters of dismissal, does not invalidate the process because the Tribunal agrees that an attempt to defraud the company by seeking to be paid for hours not worked cannot be seen as anything other than gross misconduct.
Having regard to the further argument of the disproportionality sanction, the Tribunal accepts the contention of the general manager, who conducted the appeal hearing, that his responsibility is when to know to draw the line and ensure that the line cannot be crossed. To run an effective and well disciplined workplace, rules must be known and outcomes have to be recognised as inevitable for certain acts. Whilst the incident and the outcome are regrettable, especially in light of previously untainted records, the Tribunal cannot find that the appellants were unfairly dismissed.
Accordingly the Tribunal dismisses the appeals and upholds the recommendations of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal