EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Gubbins UD424/2013
Cemex (Roi) Limited T/A Cemex
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr J. Horan
Mr D. McEvoy
heard this claim at Thurles on 16th December 2014 and 17th February 2015
Mr Philip English, English Leahy Solicitors,
8 St Michael Street, Tipperary, Co Tipperary
Ms Róisín Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The respondent is a supplier of stone and cement products to the construction industry and the claimant was employed as a truck driver from 1st July 1997 until his dismissal for very serious misconduct on 14th November 2012.
On 15th October 2012 the claimant delivered a quantity of concrete to a customer. However the customer only required part of the delivery and this left the claimant with an amount left over. There was a policy in place to deal with the treatment of left over concrete and the claimant was aware of the policy. However instead of acting in accordance with this policy the driver decided to deliver the excess concrete to his brother-in-law for his use without payment to the respondent. The respondent denied that there was a notorious practice among drivers of using left over concrete for their own gain.
An investigation was carried out into the incident and although initially the claimant said he delivered the concrete somewhere else on the instruction of the customer he later said that he had in fact delivered it to his brother-in-law. The claimant was on paid suspension during the suspension and disciplinary process.
A disciplinary hearing was held at which the claimant was represented by his Trade Union and it was decided to dismiss the claimant with affect from 14th November 2012 (the date of the hearing). A letter confirming the dismissal and offering the claimant an opportunity to appeal this decision issued to the claimant on the same date.
The claimant appealed the decision to dismiss him and was represented by his Trade Union at the appeal hearing. The person who heard the appeal upheld the decision to dismiss the claimant on the grounds of very serious misconduct.
The claimant agreed that he had given the left over concrete to his brother-in-law on 15th October 2012. However he told the Tribunal that the customer had told him to do as he liked with the excess and as his brother-in-law had previously asked him for any left over concrete the claimant decided to give this concrete to him.
The claimant was aware of the company policy with regard to returning unused concrete but had never seen a written policy in relation to this. On the day in question the claimant had noted that the moulds for making large blocks were already full and that the other area in the quarry for returned concrete was already overflowing. Therefore he decided to give this concrete to his brother-in-law rather than return it to the quarry. When asked what he would have done with the concrete had his brother-in-law not wanted it he said he would have returned it to the quarry. The claimant told the Tribunal that there was a notorious practice by other drivers of using left over concrete for their own gain but that he had never engaged in this practice.
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant has not established that the decision of the respondent to dismiss him was unfair.
The claimant was afforded ample opportunity to explain his actions and to defend himself at the disciplinary and appeal hearings, at both of which he was represented.
The incident that led to the dismissal of the claimant was deemed by the respondent to be very serious misconduct on the part of the claimant and the Tribunal is satisfied that in all the circumstances the decision to dismiss was a reasonable response by the respondent.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal