EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Gavin Wallace UD1288/2013
Charles Hurst Dublin Limited T/A The Audi Centre
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran BL
Members: Ms. J. Winters
Mr. P. Trehy
heard this claim at Dublin on 12th December 2014
and 11th February 2015
and 12th February 2015
Claimant: Vanessa Fitzpatrick, ESA Consultants, The Novum Building,
Clonshaugh Industrial Estate, Clonshaugh, Dublin 17
Respondent: Mr. Tiernan Lowey BL instructed by:
Francis X Burke & Co., Solicitors, 10 Coundon Court, Killiney, Co. Dublin
The respondent company provides a retail and aftersales service of high quality cars to its clients. The claimant was employed as an aftersales manager from 8 August 2011 until his dismissal on 8 July 2013 for gross misconduct. He was provided with a contract of employment and a company handbook.
The Head of Services Manager (PC) evidence. He commenced employment with the respondent in 2012. The respondent company was experiencing losses in revenue. (PC) was appointed to discover why this was occurring. In his first month (PC) discovered major losses for the respondent involving internal charges – ten in total. On inspection of the respondent’s Vehicle Health Check (VHC) system he discovered numerous discrepancies. (PC explained to the Tribunal what the VHC system involved).
When investigating the claimant’s sales figures he found they did not nearly match those of his junior colleagues. There was a major discrepancy between figures and monies received and it was discovered that his performance figures had been exaggerated. An example was given concerning the cost of a car service that was carried out, which only created two thirds of the total revenue it should have had for the respondent.
An investigation meeting took place on the 11 February 2013 between the claimant and (PC). Another staff member (CC) took notes. (The minutes of this meeting were opened to the Tribunal). A number of irregularities were put to the claimant.
A letter dated the 15 March 2013 was submitted to (PC) from the claimant. The claimant stated in his letter that the meeting of the 11 February 2013 was a formal disciplinary meeting, (PC) refuted this. (PC) told the Tribunal that it had been an investigation meeting – a “fact finding time”. All company records and accounts were being investigated. A letter dated the 20 March 2013, including the minutes of the 11 February 2013 meeting were sent to the claimant. A further investigation meeting was to be held on the 27 March 2013 and the claimant was informed he could have a current staff member or a trade union representative attend with him.
The investigation meeting took place on the 3 April 2013. The claimant, a colleague, (PC) and (CC) attended. The issues at hand were discussed. (PC) told the Tribunal that the claimant was “defensive” and “irate” at this meeting which appeared to be “going around in circles”. (PC) produced the claimant’s CV as he (the claimant), had said at the 11 March 2013 meeting, that he had never been trained on one of the respondent’s computer systems – Kerridge. However it appeared on the claimant’s CV that he had in fact trained people in the past on this same system.
Following the meeting (PC) contacted some of the customers named on the invoices in question. On 29 April 2013 (PC) produced his findings of the investigation. In evidence to the Tribunal on the second day of the hearing the witness accepted that one such irregularity appeared not to be irregularity and this may have been an error on behalf of the company. This was only discovered during the course of the cross-examination on the second day of the hearing and was not noticed during the actual investigation process. However all of the other discrepancies remained.
On 2 May 2013 (PC) requested the claimant to come into his office for a meeting. He was not advised that he could bring someone with him. (No minutes of this meeting were produced for the Tribunal). The claimant was informed that he was suspended with pay pending further investigation. The Tribunal was told that the claimant was very abrupt, stormed out to his desk and started to gather his personal belongings. (PC) restrained the claimant from taking the company diary as it contained sensitive information and he also requested the return of the company keys.
Following the claimant’s suspension (PC) took over the claimant’s client list. On sight of various emails between the claimant and a former employee who had left for a rival company some six months earlier, it came to light the claimant was potentially forwarding sensitive company information to this person. (PC) forwarded these emails to his superior and the entire matter subsequently progressed to a disciplinary hearing.
PC gave evidence that the document the claimant sent was saved as ‘Dublin 5 year plan’ and contained detailed salary information and was drafted in the brand’s exclusive font. The template was different but the information contained was the respondent’s information. The leaking of the document posed a real threat to the respondent’s business.
The Tribunal heard evidence from (MF), head of sales for new cars that he conducted the disciplinary hearing which was held on 21 May 2013. He had no role in the matter before that. He was assisted by (MS), Human Resources department in issuing a letter to the claimant dated 15 May 2013 which outlined the allegations against the claimant. A copy of this letter was opened to the Tribunal. He followed the company’s disciplinary policy in relation to the disciplinary hearing. He wanted to be fair to the claimant who was afforded representation at the disciplinary hearing. A note-taker was present at the hearing and copies of the minutes of the hearing were opened to the Tribunal. These were also provided to the claimant and the witness confirmed that they are an accurate account of the hearing. He told the Tribunal that while the claimant admitted that he had made mistakes he (the witness) did not find it credible that he could have made so many mistakes. He was satisfied that the claimant had not provided any explanation for the discrepancies on the authorization forms.
Following the conclusion of the disciplinary hearing he met with the claimant on 4 June 2013 and informed him verbally of the outcome of the hearing. He subsequently wrote a detailed letter to him dated 6 June 2013 (a copy of which was opened to the Tribunal) confirming his findings which stated inter alia that “…I found it appropriate to summarily dismiss you for your conduct with effect from Tuesday 4 June 2013.” He found that it reasonable to conclude that the claimant had breached his contractual obligations, breached data protection rules and broken the trust and confidence that the company can have in him as an employee. He also found that the claimant had breached his obligation to carry out his duties and use confidential company information in good faith, in particular by sending emails to a competitor, information which he described as valuable information. The claimant was afforded the right to appeal his decision and he (the witness) had no further involvement in the matter. He accepted that he was not aware that the claimant had written to the company on 12 March 2013 alleging that he was being harassed by the company. He told the Tribunal that the company does not have a policy in relation to confidential letters and documentation. In that regard a common sense approach is adopted by staff.
The Human Resources business partner gave evidence that he advised (PC) and (MF) throughout the investigation and disciplinary processes. He was involved in the preparation of the letter signed by (MF) inviting the claimant to attend the disciplinary hearing and also in the letter signed by (MF) dated 6 June 2013 informing the claimant of his dismissal. He told the Tribunal that the decision to dismiss the claimant was made by (MF). He had no role in the appeals process.
He could not confirm to the Tribunal as to how the claimant was invited to the initial meeting conducted by (PC) on 11 December 2013. The minutes of this meeting describe the meeting as a formal investigation meeting. He could not offer any explanation for this description as he did not write the minutes of the meeting. He believes that the entire process was conducted in a reasonable time frame. He gave evidence that he advises both the company and employees in relation to employment issues. He gave evidence that the company have a separate training department but he was not aware of any specific training given to the claimant.
The claimant’s appeal was heard by GP in Lisburn on 2nd July 2013. The appeal officer did not find the grounds for appeal well founded and upheld the dismissal.
Summary of claimant’s case:
The claimant worked in the south Dublin service department. He had worked for the brand since 1998, trained with them and was a brand ambassador. He spent a brief period with a different brand since then. He trained on Kerridge once while working in Belfast. He had no performance issues until 2011 when the new head of business told him to pull his socks up. Nothing was specified.
PC called him to a meeting without notice of what it concerned. He was not offered a witness or given any documents. He was gobsmacked.
The new VHC system had been introduced without any formal training and was not always used in the beginning. It was a quotation system and did not reflect what was invoiced to the customer. The job card created by the mechanic generated the invoice which reflected what the customer paid. Bonuses were paid to the whole department and not individuals.
On 11th February PC said to him in an offhand way that he could forget about the meeting. The claimant was unsettled by this and so wrote to the HR department prior to a planned week off. On his return he found a letter from PC on his desk which shocked him. He was suffering from palpitations and shortness of breath.
At the investigation meeting (on 3/4/13) he was accused of not charging for an oil leak. He contended that the note said that it was cleaned and should be checked on the next service, not that it was repaired. On another he contended that the customer had chosen not to have the auxiliary belt changed at the same time as the timing belt.
An invoice for 499 for timing belt and pump was amended to 449 as the customer insisted that he had an agreement for that price. The claimant wrote on it €449 received in cash and produced a copy of this for the Tribunal which he had gotten from the customer since.
The brand introduced a national pricing strategy which overrode itemised prices on the invoices.
He was suspended on 2nd May 2013 and told to take his belongings and leave his keys. He found this very distressing.
He brought the parts manager with him to the disciplinary hearing. He was not offered and did not ask for witness statements. After that meeting there was further investigation regarding the emails. He found the ongoing disciplinary procedure very stressful. He met MF whom he felt was biased against him. The disciplinary meeting was held on 21st May 2013 and reconvened on 2nd June 2013. He was told he was dismissed for breach of confidentiality regarding the emails to PD and other allegations.
PD had previously worked with the respondent and the claimant believed he still acted as a consultant for the respondent. He was employed by a different company who imported for a different brand and had a dealership for yet another brand on the northside of Dublin.
He contended that a document entitled (Alfa Romeo) was created by a third party in 2006 and had last been amended by PD. The claimant was taking a service manager course and he used this document was part of that training.
In cross-examination the claimant contended that the information in the document had nothing to do with the Dublin office. He sent the information to PD as he had created a calculator. He agreed that the 5 year plan was not available on the SIMI website. He contended that the 5 year plan he sent to PD was a dummy document which PD had created and sent to the claimant. He had sent it back to PD. He did not believe that it was the respondent’s actual 5 year plan. He agreed it would have been unacceptable to send it if it was the actual 5 year plan.
Dissenting opinion of Mr Trehy:
The disciplinary hearing should not have been held by MF as he was not impartial.
The time it took to carry out the whole process was circa three months and this was too long. Refer to the Respondent’s own disciplinary procedures regarding disciplinary process. The appeal hearing introduced new material allegations. The Claimant had given a reasonable explanation as to the allegations. The Respondent admitted that the sensitive information was sent by Mr. D to Mr. W.
An investigatory meeting was held on the 19/2/13. No reply was heard and the Claimant wrote to Mr. C on the 12/3/13, regarding the investigation. Mr. C wrote to the Claimant on the 23/3/13, in the letter it was clearly stated and I quote, “I would like to summarise what we discussed, my findings and my suggested way forward.” This completed that exercise. The matter was to be discussed further, if training was needed, clarification of his duties, with Mr. C. Mr. F should not have held the disciplinary meeting, as his department was directly involved. Sensitive information was sent to the Claimant. This was given as evidence by Mr. F.
On balance this member is of the opinion that the dismissal under the Unfair Dismissals Acts, 1977 to 2007, was unfair.
The Tribunal by majority find that:
a/Having regard to all the circumstances of this case the Respondent acted fairly and reasonably.
b/The Claimant did not address or explain or did not adequately address or explain the issue of leaked documents or information to a third party, to the satisfaction of the Tribunal.
c/In relation to formal disciplinary meetings the Claimant was asked if he wished to have someone accompany him, and on certain occasions he indicated that he did.
d/The weight of the evidence in relation to the leakage of documents or information to third parties was in favour of the Respondent.
e/The deliberate or reckless leakage of documents or information to third parties involving probable serious threat or prejudice to the Respondent’s business, by the Claimant amounted to gross misconduct.
f/The Respondents did not establish to the satisfaction of the Tribunal the allegations against the Claimant regarding the alleged discrepancies involving invoices, vehicle health checks, pricing, servicing, repairs and related matters.
g/The onus of proof in relation to the allegations regarding the leakage of documents or information to third parties, involving probable serious threat or prejudice to the Respondent’s business, has been established by the Respondent, to the satisfaction of the Tribunal.
h/The Claimant was suspended on full basic pay so that an inquiry could take place as to whether disciplinary action should be taken against him and if so what sanction should be administered.
i/The suspension in itself did not attract the rules of natural justice as it was only enacted for the purpose of enquiry.
j/The trust and confidence which is essential and endemic in the employer, employee relationship, in this particular case had irretrievably broken down.
k/The sanction of dismissal was fair.
In making its decision the Tribunal is mindful of the following principles and tenets expressed in statute and in the cases of:
1/ Union of Construction and Allied Trades and Technicians v Brane 1981 I.R.LR.224 “Tribunals must not fall into the error of asking themselves the question , ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one who would not. It is sufficient that a reasonable employer would regard the circumstances as a sufficient reason for dismissing”
2/ Bunyan v United Dominions Trust 1982 I.L.R.M. 404. “The Tribunal therefor does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”.
3/ Hennessy v Read & Write Shop Limited UD 192/1978, The “test of reasonableness” according to the Employment Appeals Tribunal, applies to the following: a/ the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss, and b/ the employer’s conclusions following such enquiry that the Claimant should be dismissed.
4/ O’Callaghan v Dunnes Stores, E.A.T. 2014 “Trust and confidence were essential elements in the employment relationship”.
5/ The following cases adopted the view that there are different types of suspensions, i.e. a suspension as a punishment, attracting the rules of natural justice. However where a suspension was not imposed as a punishment but merely as a holding operation pending enquiry this in itself did not attract the rules of natural justice. Higgins v The Governor and Company of the Bank of Ireland unreported High Court O’Keefe J., January 2013, Rochford v Storey, High Court unreported judgement of O’Hanlon J. Quirke v An Bord Luthcleas na hEireann, Barr J. 1988 I.R. 83, and Morgan v The Provost of Trinity College Dublin 2003, 3 I.R. 157.
6/Under Section 6 (4) of the Unfair Dismissals Act 1977, “----------- the dismissal of an employee shall be deemed for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from one or more of the following: (b) conduct of the employee,” -----.
Accordingly, by majority the Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal