EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jason Kelly - Claimant UD1042/2015
Against
M & J Gleeson & Co. Limited T/A C&C Gleeson - Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O'Carroll-Kelly BL
Members: Mr. F. Moloney
Mr. A. Butler
heard this claim at Dublin on 16th August 2016 and 17th October 2016
Representation:
Claimant: Mr Oliver McDonagh, SIPTU, Liberty Hall, Dublin 1
Respondent: Ms. Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Background:
The claimant was employed as a Route Planner for the respondent’s wholesale drinks company from July 2004 until his dismissal in August 2015. He was responsible for planning the route of product deliveries to customers and managing invoices and client accounts. Circa August 2014 the respondent consolidated their three Dublin depots into one depot in Dublin 12. The claimant relocated to that location.
In late May 2015 it came to the company’s attention that there were some inconsistencies and irregularities in relation to the collection of deliveries and the administration of delivery/collection dockets for same for a particular account. The client in question was a public house that had closed in early 2015. Investigation and disciplinary meetings were held with the claimant.
On the 11th of August 2015 a letter of dismissal issued to the claimant informing him that his employment was terminated due to his actions which the company considered to be an act of gross misconduct. He was given the right to appeal the decision. The claimant filed a letter to appeal the decision.
Respondent’s Position:
A Depot Operations Manager gave evidence to the Tribunal. He outlined the amalgamation of the depots into one site. The new site was in a “chaotic” state and he was employed in November 2014 to specifically put processes and policies in place. He relied heavily on the claimant’s knowledge of the respondent’s systems. The claimant, as Route Planner, was responsible for allocating the orders received to the different delivery trucks. The company could receive up to three hundred orders per day.
The sales representatives enter the orders into the respondent’s computer system and the Route Planner in turn allocates the order to a delivery truck. For the most part the respondent company carries out its own deliveries. It is rare for a courier service to be used but it has happened on occasion when an error was made with an order or if the customer urgently requires a delivery. The claimant as the Route Planner was the main point of contact for the sales representatives.
The Depot Operations Manager outlined that a miscount can occur when an order is picked. If a customer is left short as result of this; a credit can be applied to the customer’s account. The sales representative in this instance refers the matter to the Regional Sales Manager for credit who in turn approves the credit and refers the matter to the data entry personnel in the office. Other than the Regional Sales Manager the claimant was the only employee based on site who could allocate credit to a customer.
A delivery docket dated 30th March 2015 was opened to the Tribunal. The docket pertained to a particular customer and was purported to have been signed for by that customer. The claimant also signed this docket and a Sales Representative (PS) was listed on the docket.
The Sales Representative was not present as a witness for the respondent. The Tribunal heard that he was dismissed from his employment with the company having openly admitted his part in the events. However, he did not name any one else involved.
On the 30th March 2015 the delivery docket in question was returned by the Sales Representative with a request for a credit for the docket amount which was a sum of approximately €2,556 on the basis that the stock was not delivered. The sales representative raised the credit issue with the depot administration staff who in turn needed to get approval to apply the credit. The administration staff sought this approval from the claimant.
Subsequently, on the 27th May at 7.14am under Despatch 2 the order delivery date for this customer was pushed out which meant that the customer would not be invoiced until the “pushed out” date. This meant that the customer would not be billed until December 2015. In addition each individual quantity was cancelled. This meant that in addition to not receiving the bill until December 2015 the bill would also be for zero.
The Sales Representative had organised the delivery for a Friday. The Sales Representative then contacted the claimant for the order to go out earlier by courier. The Route Planner altered the order to delivery on Wednesday instead of Friday. The courier arrived at 8am on Wednesday morning which was unusually early given that public houses would not usually be open to receive stock at that time. The delivery docket was printed at 7.06am and was printed under the login of Despatch 2 which was used by the Route Planner. The Route Planner handed the docket to the picker at 7.27am. The claimant as Route Planner would usually sign the delivery docket and send the order to the warehouse for picking. The claimant admitted that he had signed this docket. As far as the company knew the stock was delivered to the customer by the courier. However, the courier service later admitted to not delivering the stock to the customer. At the time of the transaction the premises had been closed for a number of months and the owner incarcerated.
In or around May 2015 the Commercial Support Manager contacted the Regional Sales Manager to notify him that the Sales Representative had raised a query regarding the sum of discount the customer in question was owed. The outstanding sum on the account was €18,000 and it had previously been made clear to sales representatives in a meeting that customers could not be offered discount unless their accounts were clear.
As a result of the query the Regional Sales Manager decided to visit the customer’s premises. At that point the respondent company had no reason to believe there was any issue. However, he discovered that the customer’s premises was closed and appeared to be for some time.
The Sales Representative was placed under investigation but the company also had to consider the transactions that were carried out internally. The Depot Operations Manager asked the claimant to a meeting to assist him in understanding the transactions that had occurred. He told the claimant that there was CCTV of the delivery leaving the depot but yet credit had been applied to a customer’s account for a delivery not received. The claimant had no explanation to offer. The Depot Operations Manager asked the claimant for the details of the suspect order and the claimant used the computer system. He informed the Depot Operations Manager that he did not know why the item was cancelled nor could he tell who had cancelled it but that it could have been done by the data entry personnel in the office.
Subsequently, the Depot Operations Manager questioned the Administrator regarding the credit that had been applied to the customer’s account. He did not expect her to remember the credit being applied as it was over three months ago at that stage; however she did recall it due to the unusually high sum. The Sales Representative had given her the paperwork for the credit and she told the witness she had checked with the claimant about applying the credit.
The claimant was suspended with pay on the 20th July 2015 pending an investigation into inconsistencies surrounding the collection of deliveries and the administration of delivery/collection dockets for same. A second letter invited the claimant to an investigation meeting on the 21st July. A note taker was present at this meeting and the notes of the meeting were opened to the Tribunal. The claimant admitted to signing the delivery docket.
The Depot Operations Manager considered the fact that there were only two employees on site at 7am with the skillset required to carry out the actions required for cancellation. One was the claimant and the other was an employee who was training at the time. The data entry personnel in the office were not in work at 7.14am. The witness also checked the CCTV and there were no other employees with the required skillset present when the cancellation was carried out at 7.14am. He disputed the claimant’s contention that the order was cancelled due to human error as a number of steps had to be taken before accessing the cancellation section of the computer system.
The Depot Operations Manager compiled an investigation report. The findings contained within that report stated that there were inconsistencies in the claimant’s evidence. That it was clear that the claimant understood the process in relation to the collection of deliveries and the administration of delivery/collection dockets for same. The report stated that the evidence indicated that the claimant corroborated an instruction given to give credit in relation to a delivery that had been collected and for which he had signed. It was reasonable to determine that the claimant cancelled the order on the 27th May but it was not feasible that the order was cancelled due to human error. He considered the matter to be misconduct and recommended a disciplinary hearing. As the respondent company has a flat management structure he also conducted the disciplinary process.
The disciplinary hearing was conducted on the 7th August 2015 and the notes of this meeting were opened to the Tribunal. The meeting focused on the issues of the credit given to the customer on a collected order and on the cancelling down of stock and the pushed out delivery date. The claimant admitted giving the docket to the picker and stated that he had changed the delivery date as the Sales Representative had told him the order was being collected. The claimant also admitted putting the order on for a same day load collection but denied zeroing down the quantities or pushing out the delivery dates. The Depot Operations Manager found this answer unacceptable as the login of Despatch 2 had changed the load and this was a task that only a person with high skills could carry out. The other individual was loading trucks at the time. He reached a decision to decision to dismiss the claimant from the employment. The claimant had a right of appeal.
During cross-examination the witness accepted that the claimant had previously raised the issue that other staff members were using the same login of Despatch 2. The witness recalled this but stated that the login was only used by the claimant on his laptop. It was clarified to the Tribunal that the login was password protected.
The witness stated that he was aware that the claimant was on a final written warning at the time but this did no have any bearing on the decision to dismiss.
In reply to questions from the Tribunal, the witness stated that usually the respondent’s driver would return the stock to the warehouse and it was reconciled as returns. However, when the courier was used in March this did not happen although the delivery docket had stated the stock was not delivered. The company now conducts a weekly stock count.
The Regional Sales Manager with responsibility for the Dublin area gave evidence that he was contacted by the Commercial Support Manager regarding an unusual query that he had received from the Sales Representative in question concerning the level of discount a particular customer was due.
When the witness reviewed the customer’s account he found that the customer had not been trading with the company. There were no current transactions on the account but the account had an outstanding debt. He went to the customer’s premises and found it to be closed. He found it unusual that the premises were closed yet the Sales Representative was enquiring about discount. He suspended the Sales Representative and conducted an investigation. Initially the Sales Representative denied matters. It turned out that there were a series of peculiar instances with the sales representative and the same courier. The Regional Sales Manager had forbidden anyone from using a courier service without his explicit approval. He went to meet with the courier service and found the service to consist of two men with a van. He did not take statements from these individuals. He stated that there was no way that one employee could operate this “system”. The customer account in question was being used as a conduit. In order for this to happen the stock had to be released internally. The Regional Sales Manager did not even realise that an invoice date could be pushed into the future. He believed the only way a customer could receive credit was through his authorisation as Regional Sales Manager. He did not realise that the Route Planner could also apply a credit as they did not have dealings with each other.
During cross-examination he stated that it was unusual that the customer account in question continued to grow but it had occurred because it was being “carefully manicured.” It would not have happened if the Sales Representative had been carrying out his duties.
On the second day of the hearing the Depot Operations Manager refuted that the claimant’s work colleague (VD) who accompanied him to the meeting on the 21st of July 2015 was told she would not be welcome at the next meeting. He explained that he had called VD as he had been informed both she had the claimant had been openly discussing the case and he had said they should not due to its sensitive nature.
The Cork Depot Operations Manager (BM) gave evidence. BM gave detailed evidence of the process of inputting orders through the IT system and how orders were cancelled. The IT system was the same throughout the seven depots owned by the respondent company.
BM explained the order in question was number 7407915. A printout opened to the Tribunal showed this order “hit the system” at 10.56a.m. on the 26th of May 2015. The following day, the 27th of May, the delivery docket for this order was printed out at 7.06a.m. The order was then cancelled off the system at 7.14a.m. After the order was cancelled the same order was picked and collected for delivery by a courier at 8.00a.m. BM explained that when this order was cancelled the date was pushed out to December 2015.
BM told the Tribunal that the claimant had emailed at 6.48a.m on the 27th of May 2015 asking:
“Would I be correct in saying if an order comes on for example today and put on load for next Tuesday 2nd of June. Does that docket get charged in June when the delivery is made???? (4 employees named) are under the impression the order is invoiced on the day the order is input and not when it is delivered.”
BM explained that it appeared the claimant wanted to know when the client was in fact invoiced for stock received.
Under cross-examination BM refuted he had told the claimant previously that he should “watch his back.” When asked was it unusual for staff to use each others computers BM replied that he was unaware of the practice and thought they had their own computers and log-ins.
When asked he said that he thought there were two people in the office during the time in question but the person who had performed the transaction would have had to know the order number.
When asked if there were any technical IT issues that day he replied that he was unaware if there had been any.
When asked if the order would have been cancelled in error he replied that presumed orders were cancelled in error in the past but it took seven steps on the computer to cancel an order.
An Administrator (NL) gave evidence. She explained that she had worked alongside the claimant. NL stated that she was unaware the client relating to this delivery was in fact closed for business months previously. She explained that she was authorised to process an order or credit an account.
NL told the Tribunal that she remembered the delivery docket in question. The Sales Representative (PS) asked her to raise a credit for the account. NL said why as it had been signed for. PS told her it was okay to do so as he had discussed it with the claimant. NL said she approached the claimant and asked him herself. The claimant replied that it was okay to do it.
Under cross-examination NL clarified that she spoke directly to the claimant regarding the delivery docket and told him PS had told her that he, the claimant, had said it was okay to credit the account and the claimant said “it was okay”.
A Systems Stock Controller (SW) gave evidence. He explained that he worked in the same office as the claimant. He commenced work at 6a.m., the claimant usually at 5.30a.m. They were usually the only two in the office until about 7a.m. excluding drivers who would come into the office.
On the day in question, the 27th of May 2015, SW said he was receiving in wines from around 7a.m. to 7.30a.m. He stated that he was not using the claimant’s log-in; he was Dispatch 4 and not Dispatch 2.
SW explained that he had cancelled orders in the past, there were six to seven steps to follow and he had never cancelled an order by mistake but he had seen it done before by others.
Under cross-examination SW stated that he was the person in the office that cancelled the orders and would never cancel an order unless he was in receipt of the delivery docket. When asked SW agreed he had seen other staff use the claimant’s computer in the past but was not aware if the claimant had complained of it.
The Transport Controller (PK) at the time in question gave evidence. He explained that at the time in question the claimant was training him in to be a Route Planner to cover staff on leave. PK also covered the claimant’s role for a number of months after the claimant was dismissed. He commenced work at 9a.m. with the other office staff but when he was doing the Route Planner’s role he started between 6 to 7a.m.
When put to him PK said it was very unusual for a courier to pick up an order for a pub at 8a.m. Most public houses were not open at that time to accept their deliveries.
Under cross-examination he agreed that “early houses” were open at that time of the morning and could have accepted deliveries. He agreed he had used the claimant’s computer while he was being trained as a Route Planner. The claimant had given him his access code to use his computer.
When put to him PK said he could not recall talking to the claimant about hearing management discussing his case while he was suspended from work.
The Human Resource Manager (AF) for Ireland gave evidence. The claimant’s contract of employment was opened to the Tribunal under the hearing of disciplinary procedures and the list of examples of conduct that may lead to summary dismissal, notably “theft and/or irregularities”.
AF explained that the respondent does not recognise trade unions and the claimant’s father, who worked for the respondent, accompanied him to a meeting. The claimant requested the grievance procedure. AF spoke to her colleague in Belfast who sent it to him. However the procedure was incorrect in respect of where the claimant was employed and she rectified this and sent him the correct policy on her return from annual leave.
When asked AF explained that the respondent was a “lean organisation” and it would not have been appropriate for one of the claimant’s peers to chair his appeal hearing and therefore a member of management from Belfast was appointed. She explained that the “lean organisation” meant the respondent did not have a number of levels of management employed.
When asked AF said she could not recall if the claimant’s second witness at his meeting (VD) was told she could not attend the next formal meeting with him.
When asked by the Tribunal AF said she had not attended any meetings with the claimant but was to attend the appeal hearing but the claimant did not go ahead with it.
Claimant’s Case:
A colleague of the claimant (VD) gave evidence. She explained that she had worked for the respondent for a number of years and had since taken voluntary redundancy. The witness explained, when asked, that she did not arrive for work before 8a.m.
On the 21st of July 2014 she attended an investigation meeting with the claimant, PB and CS from Human Resources. The witness told the Tribunal that when she entered the room she sat behind the claimant, which was her choice although she had not been invited to sit at the table. She explained that her role was to take notes for the claimant at this meeting.
Following the meeting PB called her into his office and told her she would not be welcome at the next meeting. When asked why she did not raise this issue with Human Resources she replied that she did not know CS and AF were on holidays.
The witness told the Tribunal that she felt PB was “the judge, jury and executioner.”
Under cross-examination she said that she had been “furious” when PB told her she would not be welcome at the claimant’s next meeting but agreed she did not report the issue to Human Resources. She told the Tribunal that she had attended meetings with colleagues in the past and had never discussed publicly what had occurred at them. When PB had told her this she asked him who had said she had been publicly discussing the case but he would not disclose who told him.
The claimant gave evidence. He explained that he had worked for the respondent for a period of 12 years having been promoted through the years to the role of Route Planner.
He told the Tribunal there had been no issues working for the respondent until he was requested to tell untruths at a hearing. Following this the relationship deteriorated and he received a final written warning. He found that he was no longer allowed to carry out his duties and the person he had trained, PK, was carrying out his duties. He was sent to work downstairs instead.
He attended a conference in Galway for the respondent and it was on this occasion BM, the Cork Depot Operations Manager, told him to watch his back. The claimant told the Tribunal that he knew the respondent wanted him out of there.
The claimant told the Tribunal that he had no particular recollection of the day in question, the 27th of May 2014. He was “100% sure” he was not involved in it. The Sales Representative, PS, had admitted his part in the incident and he did not know the courier who picked up the delivery in question. This courier had also admitted his part in the matter.
When asked he said he could not explain why the order had been cancelled on the system but stated that he had not done it. Route Planner did not cancel orders, SW did. He agreed he had gone down to the General Operative to get the particular order picked manually.
The claimant told the Tribunal that other staff did use his computer from time to time and he had raised the issue with management at staff meetings. The IT system was “easy enough to use when trained”.
The claimant said he was shocked by the whole matter and could not believe it when he was dismissed.
The claimant gave evidence of his efforts to mitigate his loss of earnings and the new job he acquired in August 2015 earning €2,000 less than when employed by the respondent.
Under cross-examination he explained his shift began at 6a.m. There were four desktops in the office and drivers and other staff were always in and out of the office.
When put to him he agreed he was one of the most experienced staff in the office.
When asked, the claimant said he could not remember if PS contacted him on his work mobile or his personal mobile phone that day. He explained that his personal mobile number was printed on the staff contact sheet.
He refuted NL had asked him about the delivery docket in question, a Route Planner did not sign off on credit.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter.
The Tribunal finds the claimant was fairly dismissed in all the circumstances. Accordingly, the claimant under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)