EMPLOYMENT APPEALS TRIBUNAL
Keith Guiney -Claimant
An Post -Respondent
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. D. Peakin
Mr. J. Jordan
heard this claim at Dublin on 11th June 2015 and 30th September 2015
Claimant: Mr. Cormac O Dailigh, Frank O Donoghue, CWU, 575 Nth Circular Rd, Dublin
Respondent: Mr. Seamus Clarke BL instructed by Ms Freda Mahon, An Post, Solicitors Office, General Post Office, O'Connell Street, Dublin 1
The claimant worked as a postman with the respondent initially employed on a specific purpose contract in 2006 and on a permanent contract since 2011. The claimant was dismissed by letter dated 12th September 2011 following a finding that he allowed another person deliver his mail contrary to section 53 of the Communication Regulation (Postal Services Act) 2011. The claimant appealed the decision to dismiss by letter dated 13th September 2011, however the appeal was not considered until March 2014 at which stage the dismissal was upheld. The claimant remained on full pay during this time.
The Tribunal heard evidence from TM, the claimant’s team leader. In March 2011 the claimant had been under his supervision for approximately 6 months but he had a poor attendance record during that time. On 30th March 2011, a member of the public phoned the delivery service unit (DSU) to say that she had received post that was not for her and asked why a young woman with a baseball cap and carrying a mail bag was delivering post? TM went to the location in question. He approached the young woman with his official identification and queried why she had An Post items and where the claimant was. She told him that she was the claimant’s sister and that the claimant was not about. TM took possession of the mail bag and brought the post back to the DSU wherein he counted 85 undelivered letters. He telephoned the claimant asking where he was. The claimant told him that he was in his mother’s house having a break. The witness was instructed by his superior to find the claimant and retrieve the rest of the post. The claimant asked him what would happen next and TM said that the respondent would be in touch. He brought the post that the claimant had retained back to the DSU and another casual employee completed the delivery. The matter was referred to head office.
The Tribunal heard evidence from DH, HR manager. The witness explained that An Post employees are not permitted to delegate the delivery of mail to other persons. He believed that this was made clear to all employees by way of a hand book given to employees during their training. No handbook was opened to the Tribunal. Furthermore, he believed that the claimant should have been aware that it is an offence to interfere with the post and delegate delivery to a person not employed by An Post. DH maintained these matters all formed part of the claimant’s induction training.
The witness met with the claimant on the 31st March 2011 the day after the incident. He did not dispute the matters put to him but said that he was suffering with knee problems and did not want to take sick leave as he already had taken a considerable amount of time off. He also said that he did not think that allowing his sister to assist in delivering his mail was a serious disciplinary matter. He was suspended with immediate effect on full pay, without prejudice to the outcome of the matter.
The Tribunal heard evidence from LJ who stated that the claimant had previously been the subject of a performance management process which initially was a pre-disciplinary process for the claimant. His attendance record was quite bad and he had been asked to attend a course of treatment due to a substance abuse problem, however, the evidence before the Tribunal was not clear as to what treatment course was completed by the claimant (if any). LJ wrote to the claimant in relation to the March 2011 incident on 11th May 2011 wherein she noted that the respondent views the incident as a serious matter and are considering disciplinary action against him up to and including his dismissal. The letter invited the claimant to avail of an oral hearing into the incident which he did.
The Tribunal heard evidence from TO’S, who was involved in the oral hearing on 1st June 2011. She told the Tribunal that the claimant attended with his union representative and again told his employer that he did not think that his sister delivering the mail was a serious disciplinary matter. He had a knee injury on the day and was anxious not to miss any further days from work and the notes state that he asked his sister (not his girlfriend) to assist him. The claimant’s union representative stated that the claimant made an innocent mistake. He was at the time of the meeting receiving treatment for his additions and genuinely wished to stay in his job. TOS indicated that the notes of the meeting would be forwarded to the claimant for any changes on his part and stated that any further documentation he wanted to submit would be considered.
The witness was asked why the claimant was ultimately dismissed. She explained that it was as a result of having a non-employee delivering post. This is a serious breach of regulations and is totally unacceptable. The security of the mail is paramount and anything that compromises that is a serious issue. While other sanctions were considered TOS believed this was an act of gross misconduct which cannot be tolerated by An Post. A recommendation for his dismissal was sent to MG on 8th September 2011 and notification of his dismissal was sent to him by letter dated 12th September 2011.
The Tribunal heard evidence from MG head of employee relations who made the decision to dismiss. He had never met the claimant but believed that this was a straight forward decision; the security of mail/registered post could not be compromised. The idea that an employee would give the post to a non-employee for delivery is unacceptable and he did not believe any alternative sanction to dismissal was appropriate.
The Tribunal heard evidence from PK, the group HR director who conducted an appeal based on the written documents before him. He confirmed that he received the appeal in September 2011 but appears to have lost file thereafter until March 2014. He confirmed that there was no communication between An Post and the claimant during that period but he remained on full pay. He upheld the decision to dismiss in March 2014 but did not discuss the matter with the claimant or any other party despite the delay.
The claimant told the Tribunal that the morning in question was a Monday and that he had suffered a knee injury at the weekend. He didn’t feel well and telephoned his girlfriend to help him with his delivery. The reason he asked her to help was that he was aware he had a bad attendance record and he didn’t want to miss any further time from work. She picked him up to drive him around and he gave her a small satchel of mail to deliver for one road. Not long afterwards she rang him to say that TM had arrived and taken the mail from her. The claimant stated that when TM questioned his girlfriend she panicked and said she was his sister. The claimant disputes TM’s version of events and says that he was around the corner from his girlfriend (not in his mother’s house) and he telephoned TM who instructed him to finish his route and then go home. TM later arrived at his house and took the remainder of underlived mail away with him.
The claimant was asked about his training and he said that he remembered an aptitude test and a manual handling course but had no recollection of anything about the postal rules and regulations. He admitted to having an ongoing addiction problem and having to attend for methadone every day.
On cross examination it was put to him that that the incident occurred on a Wednesday and not a Monday wherein he replied that he had received help “the other days as well”. It transpired that the claimant sought help from his sister on three different days, not just 30th March 2011, but was only found out on that date. An Post was aware of these other incidents. He stated that he was in a bad place at the time and didn’t remember what he had said at the oral hearing but maintained that it was his girlfriend that helped him, not his sister.
He told the Tribunal that wrote appealing the decision and remained on the pay role. He was told that the company he would be in touch and he assumed his appeal was successful although he never attended for work during that time. Two and a half years later, by letter dated 20th March 2014 he received notice that his appeal was not successful and the dismissal was upheld. The claimant gave evidence of his attempts to mitigate his loss and noted to the Tribunal that he sought reinstatement.
The Tribunal considered the evidence of both parties carefully. The claimant had a checkered employment history with An Post complicated by a serious substance abuse problem. He was ultimately dismissed for allowing a non-employee deliver mail he was responsible for certainly on one occasion and possibly on two other occasions. In light of the legislation and An Post rules opened to the Tribunal this has to be considered as a very serious infraction for which the claimant seems to have taken no real responsibility for. The claimant was dismissed in March 2014 and his evidence to the Tribunal was that since that date he was not really in a position to work due to his addictions. He has one longstanding job offer that remains open to him but his substance abuse problem prevents him from taking this job up.
On the other hand the process adopted in dismissing the claimant was not very well handled by the respondent. While the initial stages of the investigation were appropriate the appeal offered to the respondent was conducted in an appalling manner. The letter of appeal acknowledges the claimant’s conduct as a serious breach of policy but he maintained he was not aware of the company policies in question. Evidence was given by the respondent before the Tribunal as to the content of these policies but they were never in fact opened to the Tribunal nor was any evidence adduced as to whether the claimant specifically was made aware of same. PK proceeds to lose the claimants file for a period of two and a half years and then conducts a review of the papers as a purported appeal. Despite the passage of time he does not discuss this file with anyone and does not even contact the claimant in relation to the matters raised in his letter of appeal. The decision to dismiss is upheld.
In spite of this however the Tribunal must ultimately look at why the claimant was dismissed and whether the employer acted fairly and reasonably in all of the circumstances. In the initial stages of the process the claimant was given every opportunity to explain himself, was offered the opportunity to review the notes of the oral hearing for changes and submit whatever documentation he wished for consideration. It was accepted by the claimant that he gave post to a non-employee (be it his sister or his girlfriend) for delivery which he should have known was completely unacceptable behaviour. In all of the circumstances the ultimate decision to dismiss was reasonable therefore the Tribunal does not believe that the claimant was unfairly dismissed accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal