EMPLOYMENT APPEALS TRIBUNAL
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this claim in Cork on 31 August 2015, 5-6 November 2015 and 21 January 2016
Claimant : Mr Robert McNamara, Mandate Trade Union, 1/2 Emmet Place, Cork
Respondent : Mr Michael Kennedy, Byrne Wallace Solicitors, 88 Harcourt Street, Dublin 2
The determination of the Tribunal was as follows:
The respondent operates several retail outlets throughout the country mainly selling, food, beverages, clothing and other household products. It does not directly deal with trade unions. The events in this case occurred at its store in Bishopstown, County Cork. In the latter half of January 2014 the duty manager of that store received a report from an employee that the claimant had sent a text messages via another employee of the respondent to slow down his work rate. Based on that report this manager referred the employee to the store manager, JD and CC, the human resources manager. The employee reported the matter to JD, the store manager.
Between 20 January and 7 March 2014 this store manager, JD, held a number of meetings with the claimant, the employee who reported the matter, MS, the employee who received the e-mail to forward on, MW, and the duty manager to investigate the initial report that the claimant was asking a staff member to ease up on their work rate. He met the claimant three times as part of his investigation into this report. It emerged that on some of those occasions he had not given her sufficient notice, nor furnished her with all relevant statements nor invited her to have a representative/witness present. This manager described the latter as an oversight and a mistake on his part.
Under cross-examination of JD (investigating manager), the claimant’s representative acknowledged that the claimant had sent the e-mail (which was converted into a text message) at issue. That at the second meeting she did admit to same on realising that it was the originating e-mail that was at issue. JD said that MS had sent it to him as a text. JD did not claim to have agreed that the claimant had a witness and he did not accept that he had been biased or that the claimant had been dismissed for trade union activity. He did not know how much advance notice had been given to her. He did not assert that he had written to her to give her proper notice or all relevant documentation. The respondent’s representative stated that JP had given all documentation to the claimant.
In re-examination JD said that he had made no decision but, rather, referred the matter on to JP. He had not made any decision that there had been wrongdoing by the claimant. He had not acted as a judge in the case being investigated by him. He had had no previous issues with the claimant bar absenteeism. He did not resent anything. He had several years’ experience with the respondent. His relations with the claimant were not affected. He denied that he had told the claimant that he would get her. He had asked her to approve all minutes. He had acted in accordance with the respondent’s handbook and its different procedural stages. All notes were gone through. He had to go by the minutes.
Prior to investigating this issue the store manager had been involved in a dispute with the claimant in her capacity as a trade union shop steward. That dispute revolved around the management of a particular carpark for staff and customers in late December 2013. As a result of that dispute the claimant, among others, lodged a grievance on this issue. In reply the store manager wrote to a trade union official stating that staff should in the first instance raise matters with him. JD denied that the respondent had pre- determined his actions against the claimant. He did not dispute that staff were moved from one department to another saying that this was frequent and not done as a result of the car- park issue in December 2013.
Giving sworn testimony, MS said that he had ten years’ service with the respondent and worked in the juices area. He had rarely worked with the claimant, he could recall only one shift. He denied that he had been under pressure or that he had had to rush around. The claimant had approached him and said that he had to slow down and that this would create more work. She then had a text sent to him through MV again telling him to slow down. Extra hours would lead to extra pay for him and others. He would make more money if he “dragged himself around”. This he reported to the respondent. MS denied that he had made this up or that he had lied saying that he had told the truth throughout the matter.
Under cross-examination MS repeated that he had not been under pressure and that he had got his work done on time most days. He was contracted to work some fifteen hours per week but usually did some thirty hours. He said that on Saturdays people wanted to get home on time.
In re-examination MS said that he had not felt great when he had got “this instruction” about not working so fast.
Giving sworn testimony, MW said that she had worked for the respondent since 2007 and that she had received the message from the claimant in her e-mail. She had a cousin translate it into Polish. She did send on the message to MS. She denied that she and MS would make this up and she said that they were telling the truth. She stated that the claimant contacted her to find out if she sent the message to MS. The claimant asked her to find out if MS showed the message to anyone. She did check and told the claimant that MS had. She understood from translation that she and MS could lose out on hours.
Giving sworn testimony JP said that he was a manager who had been with the respondent for thirty six years. He was charged with presiding over the disciplinary hearing. He was furnished all the documents from JD who carried out the investigation. He had all the witness statements, minutes of all meetings and copy of the letter given to the Claimant that same evening setting out four allegations. Having reviewed all the documentation provided to him he was of the opinion that the allegations merited a disciplinary process. He had led the disciplinary process against the claimant and held the first disciplinary hearing on that same evening being the 7th of March 2014. He read through all the documents furnished to him with the claimant. He gave the claimant the opportunity to ask MS questions. The claimant was accused of seeking to create a situation where extra hours would be worked and thus extra pay.
He replied on the 11th of March 2014 to a letter from the claimant dated the 10th of March 2014. He referred to the letter from JD dated the 7th of March 2014 and reminded her she had been given statements and what he called minutes of previous meetings. That letter warned her she could face sanctions up to dismissal. He also informed her that she could be accompanied by a colleague during this process. He held a second meeting with her on the 12th of March 2014, he suspended the meeting for an hour and then resumed the meeting and informed the claimant of his decision that her employment was terminated with immediate effect and outlined the procedures under which she could appeal and to whom.
The witness, however, said the minutes were not signed off by all concerned and perhaps should be regarded as notes.
JP said that he had not known the claimant well and that the claimant had mainly worked evenings whereas he had mainly worked days. But he had made a finding against her. He had found MS’s evidence compelling and had not found the claimant credible.
Under cross-examination JP said that he had the statements and got all the information. He “would have got formal training on how to discipline”. He had not felt it necessary to give the claimant a copy of the respondent’s procedure.
JD had given JP the statements. There had been a lot to read. He had gone through it all with the claimant. She had known all about the information she had been given. He did not argue when it was put to him that there had been a duty on him to get minutes signed or to get the times of adjournments recorded.
Asked why the claimant had not been allowed union representation, JP replied that it was company procedure to allow a work colleague be present.
The allegations against the claimant were gone through. JP admitted that he had not given all due consideration to adjournment or to a sanction other than dismissal. He believed that the claimant had set out to try to create overtime/further costs. If the floor was not finished there could be thirty extra hours for a number of people.
When it was put to JP that there was no suggestion that the claimant had been organising a go-slow JP replied that no-one should speak against their employer.
In re-examination JP said that it had been known that an employee could be dismissed without notice. JP did not disagree when it was put to him that his problem was about the claimant orchestrating a situation so that employees would “get with the programme”. JP told the Tribunal that he had been guided by the respondent’s procedure and that he had got the claimant to question her accuser. He felt that he had acted fairly and given the claimant time before making the decision to dismiss.
Recalled to give further sworn testimony on the third hearing day, JD told the Tribunal of the extent to which the respondent had CCTV. Under cross-examination he did not contest that he should have checked all facts or that the claimant had been asked to “bag up cash” even though the respondent ended up suspending her for alleged breach of trust.
Giving sworn testimony, TOS (regional manager) said that the claimant’s appeal went to him. He got all the notes and a copy of the dismissal letter. He had to make a decision. He considered other sanctions (suspension or a warning) but he thought this was serious. The claimant had asked that MS slow down. This would increase labour costs for the respondent. There was a breach of trust. It was felt that the claimant had not been truthful.
Questioned by the Tribunal, TOS suggested that it did not matter whether MS said yes or no to slowing down but said that there had been potential cost to the respondent. He did not disagree when it was put to him that the attempt had been found to be the “mortal sin”. He was sure that the claimant had not been dismissed for trade union activity but the bond of trust had been breached. The dismissal was upheld.
Under cross-examination TOS was asked if the claimant had sent a message to an employee. He replied that one employee had been told to tell another. It was put to him that the sanction of dismissal had been excessive but TOS expressed satisfaction that JP had gone through every line of the statements with the claimant and said that he thought that the claimant had been treated fairly.
Asked what advice he had got, TOS referred to the respondent’s code of practice. TOS said that the claimant had had an entitlement to be accompanied by a work colleague. TOS did accept that he had consulted the respondent’s HR in Dublin.
Giving sworn testimony, the claimant said that she had been a sales assistant who had worked for the respondent for nearly ten years. She had been a shop steward for nearly nine years.
The claimant said that she had felt under a lot of pressure about the Xmas car parking issue. The respondent’s premises was by a motorway with no bus stops. It was hard for employees to get to work without parking facilities being available on site.
The claimant said that she had felt MS was rushing around. He worked for another employer as well. She did not mean him to slow down to gain more hours. She said she did not get enough advance notice before meeting the respondent. She had wanted her trade union official to represent her but this was not permitted. She felt that her dismissal had been premeditated. Her father had been livid when the JP had called to where she lived with her parents to hand deliver his letter of the 11th of March 2014. The respondent said that it had just wanted to communicate with the claimant without a postage delay. She had thought this very unprofessional. JP had not been apologetic.
The claimant felt that there was another reason behind her dismissal. There was a long history between herself and the respondent. She had brought applications against the respondent every year about her Xmas hours and won.
She had requested an oral hearing for her appeal. Written format is the normal method within the Company for dealing with appeals. The request for an oral hearing was refused.
The claimant told the Tribunal that she had not succeeded in getting new employment since her dismissal.
Cross-examination of the claimant began. It was put to her that she had made concessions. She did not deny sending a message or its accuracy but did not accept that she had wanted any staff to drag themselves around. She had been under extreme pressure and had not thought she would lose her job. She had sent late night e-mail. She had been concerned about MS.
It was put to the claimant in cross-examination that it was simple to tell staff not to be rushing around. She did not deny this but said that she had been up late at night. She had been a shop steward. She accepted that she had hardly ever worked with MS. She said that she did not know who had told her that MS was losing weight. She would not say to drag himself around if she had known that it would lead her to the Tribunal. She had used a poor choice of words in the e-mail.
It was put to the claimant that she had fully understood JD’s position during the investigation and that the game was up. She replied that she had been under a lot of pressure and had had no-one with her. It was put to the claimant that MS had just wanted to finish work and go home to his girlfriend and that, when questioned, the claimant had been using different answers such that the respondent had lost trust and confidence in her.
It was submitted by the claimant’s representative that the claimant had been having trouble understanding. The respondent’s position was that she was giving vague answers.
The claimant was asked why MS would make an allegation against her. She said that she knew she was in trouble with the respondent but that she would worry about any employee in the shop.
It was put to the claimant that she had alleged slander. She replied that this had been her feeling. It was put to her that she had never given the same answer twice.
It was put to the claimant that the respondent did not accept that she had made a slip of the tongue and that she had said that MS was lying and that he had set her up. It was put to her that trust was “monumental” for the respondent and that MS had had nothing to gain. The claimant said that she had not known that MS had wanted to go home, that he was a co- worker and that she had had to look out for him.
The claimant accepted that JD had been “decent” to her apart from some “hassle” when she was out sick and did not feel that the respondent had used all this against her after she had taken part in carpark issues. Asked if she felt that JD had orchestrated her dismissal, she said no but that she had felt MS was “vulnerable”. She felt that the respondent had “manipulated” MS “in the sense that he was used”.
It was put to the claimant that MS had “never wavered in his testimony”, that MS’s “story did not change”, but that the claimant’s “story went for a walk”.
The claimant told the Tribunal that she had never said that JD had it in for her about car parking but that managers “all speak to each other” and that the respondent “in general had it in for (her)” and not wanted union membership increasing. She felt that the decision to dismiss her was made when the union membership went up.
The respondent submitted that it had been entitled to dismiss the claimant. The claimant contended that she had not been given time to read documentation. The respondent countered that she had approved every minute of every meeting and that days had been given before reconvening.
The claimant argued that JP could have phoned her rather than calling to her home. She accepted that the respondent did not re-hear a case as part of an appeal.
Regarding attempts to mitigate post-dismissal loss, the claimant said that she was waiting on a nursing home healthcare unit job. She had applied for care home work and had made more applications. Asked about applications in 2015, she said that she had got no response to some applications. She had been unwell in 2014 due to serious asthma. She had childcare qualifications but she said that there were no jobs in childcare. It was put to her that a dismissed employee ought to spend some time each day seeking mitigating work.
The Tribunal considered the testimony of all the witnesses before them, the relevant documents provided by the parties to include all typed minutes of both the investigation process and disciplinary and submissions submitted by both parties. It was accepted that the content of the text message (that had been originally sent by e-mail) was not in dispute. This was admitted by the respondent immediately on the second meeting. The first meeting was held without notice to the claimant nor was the agenda for that meeting. This was an isolated incident. It was never claimed that the claimant had done this with others. It did not suffer loss but it said that the situation could have led to something else.
The claimant agreed on the 7th and 12th of March 2014 to proceed with the process rather than try to refer the dispute to a third party. She did not appear to think it would be a dismissal. The respondent was not under an obligation to allow a Trade Union Official to represent the claimant at the disciplinary hearings.
It was not for the Tribunal to put itself in the place of the employer. The Tribunal did not regard itself as deciding an appeal of the dismissal decision.
The Tribunal looked at the dates of all meetings and whether the respondent management gave the claimant all possible information as to whom it was interviewing appropriate notice to allow the claimant to defend the allegations made against her.
The claimant admitted at the second meeting that she had sent the text. She later apologised. She had been grilled but got no chance to question MS. The respondent’s representative said that natural justice did not have to apply to an investigative process. The claimant had not represented herself properly. The Tribunal’s job was to look at the facts as submitted by the parties.
It was felt by the Tribunal that the respondent’s procedures had been flawed from the beginning that the claimant had not had a witness or was accompanied during some meetings. On the evening of the 7th of March, 2014 the investigation process completed. The disciplinary process commenced that same evening. It was at the completion of the investigation process that the claimant had been furnished copies of all relevant minutes, copy witness statements and a letter from JD setting out the formal allegations for consideration during the disciplinary process.
Applying an objective test, it was noted that during the disciplinary process alternative sanctions were not considered as stated in the evidence of JP. The respondent’s case was that there had been a lack of trust by the claimant and that the claimant did contribute to her dismissal. The claimant admitted to her actions at the second meeting i.e. she waited some eight days before admitting she sent the message. The claimant had not been truthful at the outset regarding the message.
It was felt by the Tribunal that the claimant had contributed by approaching people. She was disobedient in that she had contacted others. She did apologise. It was considered plausible that the claimant did not have full recall on the first day although it was noted that she had made denials. She did, however, ultimately put her hands up, admitted that she had sent the text and it would not happen again. It was an isolated incident.
Allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal is unanimous in deciding compensation to be the appropriate redress in all the circumstances of the case and, is mindful of the fact that the claimant had a major contribution to her dismissal. The tribunal deems it just and equitable that she be awarded the sum of eight thousand euro under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal