EMPLOYMENT APPEALS TRIBUNAL
Richard Hoban - claimant
Applus Car Testing Service Limited, T/A National Car Testing Service - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr. D. Hegarty
Ms H. Kelleher
heard this claim at Cork on the 7 July 2014, the 28 August 2014 and the 10 March 2015
Claimant: Mr. Donncha Kiely BL instructed by Mr. Charles C Daly & Co, Solicitors, 17 Casement Square, Cobh, Co Cork
Respondent: Mr. Paul Twomey BL instructed by Ms Janet Keane, Kate McMahon & Associates, Solicitors, 223 The Capel Building, Marys Abbey, Dublin 7
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent company operates the national car testing (NCT) service on behalf of the Road Safety Authority (RSA). Regular audits of the test centres are carried out to ensure a high standard of service is delivered.
The claimant commenced employment with the respondent company in December 2006 in the role of vehicle co-ordinator/administrator in Centre A. His duties included booking in vehicles for testing, taking payments, general office duties and occasionally acting as car marshal. The claimant had no role in testing vehicles.
On the commencement of employment the employees are given the Employment Handbook as well as the Code of Integrity. These highlight the company rules and give guidance to employees. The contractual conflict of interest clause provides that where a family member or friend presents a vehicle for inspection it must be reported to the line manager or manager who will arrange for another vehicle inspector (VI) to carry out the test. Under the Code of Integrity an employee is not permitted to drive a vehicle that is not his/hers to the test centre for a test. Employees can only bring their own or a family member’s car for a test and must inform the team leader when doing so.
VIs (vehicle inspectors/testers) can benefit from a productivity scheme payment. As part of the scheme there is a facility to test a vehicle at short notice where there has been a cancellation and a time slot is available on a given day. The facility was introduced to boost the number of vehicles tested and employees were encouraged to make family, friends or others aware of the facility. A short notice booking declaration form is completed by the presenter/owner of the vehicle in such circumstances. The vehicle owner’s passport or driving licence must be presented to obtain the road worthiness certificate.
The claimant found his working environment difficult at times. He was isolated and excluded and constantly overlooked when work was being delegated. On one occasion he had dealt with an aggressive customer who had, driven his car at him outside the premises. There was a dispute as to whether the claimant had said that he had been hit by the car in that incident. When he reported the incident, the manager asked him what he had done to cause such an incident. Following on from the incident the claimant was sent to the respondent’s Fonthill site for training for one week. However, personnel there were taken aback on his arrival as he had not been scheduled in for training so he worked alongside the administration staff there for the week. While there he noticed some differences between the presenter identification processes there and on his return to Cork sought to implement these.
On 20 July 2012 the claimant sent an e-mail to the respondent’s HR manager (HRM), outlining some problems he was having in the workplace including inter alia: that he was being ignored and excluded by other members of staff; that the manager was not very interactive with him and delegates all the work to his colleague; that when he mentioned the latter point to the manager he told him that it was because of his “terrible” body odour and that he did not want to stand near him because of “that smell”; that some VIs test acquaintances’ cars at lunch time; and that VIs ask the administration staff to reassign acquaintances’ cars to them. In this e-mail the claimant informed HRM that he finds the workplace stressful and depressing, that the respondent is failing in its duty of care to him and referred to his earlier and similar experience there which resulted in his having to take sick leave.
HRM met with the claimant on site on 9 August and in her follow-up email of 30 August 2012 to him, she reiterated her request for the specifics details including the names of those who had ignored him, the dates on which it had occurred and the names of any witnesses to the incidents. She also sought supporting evidence on the alleged testing of acquaintances’ cars at lunch time and the reassignment of cars to VIs, as this would be “a very serious matter”. In this regard HRM informed the claimant that the manager accepted that work was done in the centre at lunch time in connection with the productivity scheme payment. As regards the booking in processes the manager and the regional manager (RM) had assured her that the processes in place in Centre A were acceptable. Finally, HRM informed the claimant that the manager accepted that he had dealt with the body odour issue insensitively and had undertaken to apologise to him about it.
RM is responsible for eight test centres in the southwest region of the country and visits each centre about once a month. There are 42 employees in Centre A, 12 of whom are VIs. On 4 September 2012 while sitting in his car on such a visit to Centre A, RM observed the claimant driving a vehicle and believing that it was not the claimant’s own car, checked and discovered that the particular vehicle had been tested that day. At an informal meeting later that day, the claimant confirmed to RM that he had driven the car to the centre that morning, booked it into an available time slot using his own driver’s licence as presenter ID and had not informed his superiors. The claimant admitted that it was not his car but he was thinking of buying it. When RM told him that this warranted further investigation, the claimant wanted to know “on what grounds?” and when he was told by RM that he suspected there were breaches of policy and of the code of integrity, the claimant indicated that he would provide a list of every staff member who had brought cars in for testing.
On 19 September RM wrote to the claimant informing him that in the interim a whistle blower had written in stating that he had seen him driving vehicles, that were not his own and were due tests, to and from the centre and invited him to an investigation meeting on 25 September. In this letter, RM set out the registration of the vehicles involved, the dates on which the claimant had driven them to and from the centre and the presenter identification (his driving licence and in two cases he had also produced his mobile phone number). The whistleblower wished to remain anonymous, which is allowed under the respondent’s Whistleblower Process. The claimant had completed short notice booking declaration forms.
The investigation meeting was rescheduled on a number of occasions due to the claimant’s holiday arrangements, sick leave and a physiotherapy appointment and it was ultimately held on 25 October 2012. It was conducted by RM who was accompanied by the manager of the Limerick test centre (ML). It is not clear whether LM was the note taker at the meeting. The claimant was represented by his solicitor. During the course of this meeting the claimant admitted to driving the cars, which were neither his own nor belonging to a close family member, to the centre for testing, to having completed the short term booking declaration forms and presented his own credentials as presenter identification; in one case he had made the booking through the call centre. The claimant’s position at this meeting was that the manager had encouraged him to bring in the vehicles for testing, the vehicle owners had given him the fee in advance for the tests and he had not received any benefit. The claimant provided the names of four other employees who bring in cars not belonging to them or to their close family members for testing but he did not have the full details of these with him at the meeting. Following a recess RM suspended the claimant pending further investigation. The claimant’s solicitor’s request for a copy of the minutes of the meeting was refused. At this stage the claimant was of the view that the decision to dismiss him had already been made. On being recalled to give evidence at a resumed hearing on 28 August 2014, RM clarified that at the 25 October meeting he had been given the names of four employees, including the manager, who drove cars not belonging to them or their members to the centre for testing. On being again recalled on a later date RM’s evidence was that he had not asked the manager if he brought cars in for testing.
At the commencement of the disciplinary meeting on 2 November 2012, RM told the claimant that a decision had been made and asked the claimant if he had anything to add before the decision was formalised. As the claimant had nothing to add RM left the meeting and returned with a letter of dismissal which he then presented to the claimant. RM’s evidence was that he had typed the letter when he had left the meeting. RM did not accept the claimant’s assertion that it was common practice at the test centre for employees to drive vehicles not belonging to themselves or to a close family member. He took the decision to dismiss the claimant for gross misconduct on the grounds that he had breached the code of integrity. The claimant had not furnished him with dates, times and vehicle registration numbers of the employees, whom he had alleged were involved in the same practice. RM accepted that the claimant had no influence on the testing of any vehicle which he booked under his own credentials as he was not an inspector. The claimant’s evidence was that the meeting on 2 November lasted about three minutes. He did not have the details, which RM sought, with him but he felt RM could have obtained the information by cross-referencing, as he done in his case. His position was that the minutes of the meetings produced by the respondent to the Tribunal were not a true reflection of those meetings.
The claimant appealed his dismissal. His letter of appeal of 16 November 2012, stated:
“Yes, I brought cars in for testing. Indeed, I would have been encouraged from time to time to do so by my boss. I never sought to hide in any manner or form what I was doing. Indeed, I gave the names of others who did likewise at the meeting with (RM) on the 25th of October and I feel that I am somehow being treated differently to others.
This is my position. “
The appeal hearing was conducted by the Operations and Quality Manager (MOQ) on 5 December 2012 in the canteen in the Blarney test centre. The claimant put forward his position, as set out in his letter of appeal: that he had been instructed to engage in the practice by the manager and that it was common practice in Centre A. Subsequent to the meeting, MOQ phoned the manager who categorically denied ever asking the claimant to bring cars in for testing and he was not aware of any such practice in Cork. He also phoned three employees (the team leader, a member of the administration staff and a VI) who worked on the same shift as the claimant and, as outlined in his report, put the following questions to them:
If they had brought a car for test that was not their own or that of a close family member ?
They all replied no.
If they would do such a thing?
They all replied no
Why they would not do this?
They all replied that they knew it was against company policy
From this MOQ concluded that the claimant was aware that staff are prohibited from bringing cars, which are not their own or belonging to a close family member, for tests; MOQ did not accept that the claimant did not realise that it was a problem. MOQ felt dismissal was the correct sanction and rejected the claimant’s appeal.
While MOQ asserted that the claimant could not not substantiate his assertion that others were engaged in this practice, the claimant’s position was that he had prepared a report containing some of these details but was not given the opportunity to produce it. The claimant had successfully sought an extension of time of the appeal hearing on the grounds that he was preparing a report for the hearing. He had this report containing some details of others’ involvement in the practice but he was not asked for this report and was not given the opportunity to present these details
MOQ’s evidence was that when he conducts appeals he usually gets a broad outline regarding the situation from the HR department. However, he goes into the appeal meeting with an open mind. It is a golden ruler that that an employee does not bring in a car, that is not his own or belonging to a close family member, for testing. He felt that if there was a question about the respondent’s integrity then its service would be worthless. The respondent had invested €100K over the years in the code of integrity.
The manager of the Centre A told the Tribunal that he had been working there for 15 years and described having only a working relationship with the claimant. The claimant had given two different versions of the incident with the aggressive customer; in the initial version he told staff members he had not been hit but in a later version he claimed he had been hit but not injured. Around this time the claimant asked him, “Is it me? Is it me? I am being ignored”. He advised the claimant to change his attitude and that would help the situation in the workplace. The manager denied bringing in vehicles himself for testing. He denied instructing employees to drive vehicles on behalf of others to the test centre and explained that everyone was aware that this was not permitted. He did not accept that this was a practice in the centre in 2012 or at anytime since 2007. He was not involved in the claimant’s disciplinary process. He had not been interviewed by RM during the investigatory process. His views had not been canvassed during the process. He accepted that he had a conversation with the claimant about personal hygiene but denied telling him that he “stank”. The claimant’s evidence on this issue was that when he asked his manager why he was being excluded the manager took him to the hall, which has an echo, leaned against the wall, smirked and told him, “It is because you f- - - --- stink”. The claimant felt “about one inch tall” and felt like crying; he felt that if he had a personal hygiene problem his family would have told him. The manager was a qualified VI.
In his evidence to the Tribunal, the claimant confirmed that on his manager’s instruction he regularly drove vehicles to the centre to fill slots which became available due to late cancellations. The practice was introduced to ensure vehicle inspectors met the required quotas for the productivity payment. This practice began in 2007. There was no benefit or gain for him as he was not a vehicle inspector. He explained that he could not influence the test results and the vehicles he took to the centre often failed the test. He provided his details on the short term booking forms as the presenter of the vehicle and never felt he was doing anything wrong as he was acting on the manager’s instruction. He brought in the cars to fill the empty slots. He did it to help out. Some employees brought in cars for testing on a regular basis but the respondent was turning blind eye to these. He referred to a practice at the centre where a folder was held containing copies of drivers’ licences and passports but this folder was later removed. The test centre was closed to the public during lunch time and the VIs would regularly test vehicles for friends and mechanics.
The respondent placed much emphasis on its Code of Integrity. In particular, this case centred on the clause therein which states: “Driving a vehicle that is not your own to the test centre for a test is not permitted.” By way of comment the Tribunal notes that in the respondent’s evidence a broader version of this rule is being applied viz that employees may drive their own vehicle or that of a close family member to the centre for testing.
There was a dispute as to whether the manager had instructed and encouraged staff to bring in cars for testing to fill vacant/available slots, which would increase the VIs’ productivity payment. Having considered the evidence before it, the Tribunal unanimously accepts the claimant’s evidence on the issue. On 13 August, 14 August, 15 August, 16 August and on 4 September the claimant drove a different vehicle each day for testing to and from the test centre; the first and second vehicles were again respectively driven by him to and from the test centre on 23 August (for a retest) and 22 August. The facts that the claimant openly engaged in the practice, that there was no financial gain to him and that he could not influence the test results lead the Tribunal to accept the claimant’s evidence that he had been instructed and/or encouraged by his manager to do so and that it was a common practice in Centre A. On this point the Tribunal also accepts the claimant’s evidence that the practice was long standing. It does not accept that all of a sudden in one week in September 2012 the claimant began to vigorously engage in the practice and openly drive in four vehicles for testing on four consecutive days.
The respondent’s procedures were seriously flawed. The failure to interview the manager, whom the claimant had alleged, instructed members of staff to engage in the practice and who was one of the four employees who had been named as engaging in the practice, was not only a fatal flaw but is indicative of a sham investigation. The failure to include the names of four individuals, given by the claimant during the 25 October meeting, in the minutes of the meeting, supports this conclusion by the Tribunal. The recorded minutes of the meeting portray a different picture to what had actually transpired on this issue. At two different places in those minutes it is recorded that the claimant’s solicitor attempted to give names of employees involved in the practice to RM but those attempts did not succeed.
In this case the same senior member of management who observed the breach of the rule went on to conduct the investigation and the disciplinary hearing, such as it was. The Tribunal is satisfied that in this case this breached the rules of fair procedures.
The appeal process was also flawed. Organisations may have exemplary policies and rules but these may not always be observed by its employees or those who are empowered to implement them. Under the Code of Integrity an employee is not permitted to drive a vehicle that is not his/hers to the test centre. The claimant‘s position throughout the investigatory process when questioned about his breach of this rule was that he was acting on his manager’s instruction and encouragement and that this practice was common in Centre A. However, these crucial questions were not pursued by MOQ in his appeal investigation when he questioned the three members of staff. Similarly the pertinent question as to whether they had seen the claimant engage in the practice over the years was not canvassed with the three members of staff. Conducting an appeal investigation over the phone as distinct from face to face questioning of witnesses, in particular when these witnesses are available in person, is not as conducive to eliciting the truth or the further probing of issues with those being interviewed and was unfair.
For these reasons the Tribunal is satisfied that the dismissal was substantively and procedurally flawed. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal, being satisfied that compensation is the appropriate remedy in this case, awards the claimant the sum of €30,000.00 in compensation under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal