EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1135/2014
CLAIM(S) OF:
John Hynes
- claimant
against
An Post
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. L. Tobin
Mr A. Butler
heard this claim at Dublin on 14th October 2015 and 26th April 2016
Representation:
_______________
Claimant(s) : Mr Michael McCormack BL instructed by Hennessy Perrozzi, Solicitors, Burgundy House, Forster Way, Swords, Co Dublin
Respondent(s) : Mr Tony Kerr BL instructed by Ms Freda Mahon, An Post Solicitors Office, General Post Office, O'Connell Street, Dublin 1
Summary of Respondent’s Case
At the time of dismissal the claimant was employed by the respondent in Kilbarrack Delivery Service Unit having been an employee of An Post since 1984. Concerns were raised as to potential illegal activity within Kilbarrack DSU between 2010 and 2012 which led to the installation of covert CCTV cameras in March 2012 focusing on one particular area within the DSU. An objection was raised by Counsel for the applicant in relation to the respondent’s proposal to show edited CCTV footage to the Tribunal however the Tribunal felt it appropriate to view the footage for the purpose of the hearing. Two particular instances were referred to the Tribunal; one concerning two packages containing I-Phones that went missing and a second concerning the contents of a Hewlett Packard package that went missing.
(EMcA), security manager with the respondent company gave evidence that two packages of mail containing 23 IPhones had gone missing from the one of the respondent’s DSUs. Following a trace/tracking investigation it was established that the last scan of the packages was carried out at Kilbarrack DSU. Following a review of staffing arrangements and CCTV footage an individual Person 1 emerged as a suspect (Person 1 was not before the Tribunal and did not give evidence). The head of security subsequently authorised the installation of four covert security cameras in Kilbarrack DSU. These cameras were installed as set out above 24 March 2012.
The witness gave evidence that he observed the security cameras all day on 26 March 2012, part of which footage was shown to the Tribunal. The witness told the Tribunal that he discerned irregular activity on the footage which showed Person 1 removing the outer packaging of a Hewlett Packard package and subsequently placing the contents, a laptop, in a storage press in an office within the DSU. Later that night the CCTV footage showed Person 1 returning to the DSU and retrieving the laptop from the press. The CCTV footage shows him some minutes later, handing something through a hatch to the claimant who the witness positively identified from the CCTV footage. Both the claimant and Person 1 maintained that what was handed through the hatch were cartons of cigarettes which the respondent did not accept. EMcA believes that the aforementioned laptop was handed to the claimant and not cigarettes. The matter subsequently progressed to a disciplinary hearing. He (the witness) did not attend the hearing.
(EB), Human Resources manager gave evidence that she reviewed the complete file, including portions of the CCTV footage. Following this review she was satisfied that the claimant was the only person who could have received the contents of the package on 26 March 2012. She was satisfied that the claimant had presented himself at the public office in Kilbarrack DSU and took the item from (Person No 1). She concluded that the claimant must have known that the item was stolen. She did not make any finding in relation to the aforementioned IPhones.
She accepted that the claimant had an unblemished record prior to this matter. Whilst she gave consideration to this she decided that dismissal could be the only outcome as theft is a very serious matter. The claimant was informed of this decision by way of letter dated 21 May 2014 (a copy of which was opened to the Tribunal). The decision was based on the grounds of loss of trust and confidence in him as an employee.
Under cross-examination EB indicated that the CCTV footage was central to the decision to dismiss the claimant. She stated that she did consider a lesser sanction but given theft was so serious it undermines trust and confidence between the employer and employee. Further, An Post have an obligation to deliver mail with ‘honesty and integrity’. She also stated that the disciplinary process undertaken by the respondent was drafted in agreement with the unions. No objection to this process was raised during the disciplinary stage when the claimant was represented by the CWU.
The Head of Employee Relations (MG) told the Tribunal that he heard the claimant’s appeal on 10th June 2014. Based on the evidence available, MG upheld the dismissal. He did not feel it was a harsh decision given the nature of the postal delivery system. Theft cannot be tolerated by the respondent.
Summary of Claimant’s case
The claimant told the Tribunal that no opportunity was afforded to him to cross-examine the person who identified him on the CCTV footage. He was not aware who was making the decision in relation to his dismissal. Although his union representatives informed the claimant that “this is the process we go through”, it was “way over his head”. It was submitted on behalf of the claimant that the disciplinary process conducted by the respondent was not adequately explained or notified to the claimant. He had not had sight of the CCTV footage that formed part of the decision to dismiss nor was he aware of who the various decision makers were during the course of the disciplinary process.
The claimant gave evidence of loss and his efforts to mitigate his loss.
Determination
Having assessed the relevant evidence the Tribunal believes that the ultimate decision to dismiss the claimant was reasonable. The onus of proving the dismissal was fair in this case lay with the respondent and the Tribunal must decide whether the respondent acted fairly and reasonably in all of the circumstances. A decision to dismiss was made based on serious allegations against the claimant. The Tribunal believe that he was given various opportunities to displace the view that he was involved in and/or an accessory to the theft of the contents of mail in the charge of the respondent. At all times he was represented by the CWU however it does not seem to the Tribunal that the claimant himself engaged in the process to any material extent. A particular focus was placed on whether or not the claimant understood the disciplinary process but given the CWU were involved in the negotiation of the respondent’s procedure and represented the claimant during the process, it is difficult to see how this argument can be sustained before this Tribunal.
The Tribunal does not believe that the claimant was unfairly dismissed therefore the claim under the Unfair Dismissals Acts 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)