EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Artur Kraszewski, UD968/2015
-Claimant
against
CG Power Systems Ireland Limited,
-Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire BL
Members: Mr. A. O'Mara
Mr. J. Moore
heard this case in Cavan on 6 January 2016
and 15th December 2016
and 1st February 2017
and 05th April 2017
and 24th May 2017
Representation:
Claimant: Mr. Gerard Nevin, Keaney Nevin, Solicitors, 6 Tower Hamlet, Farnham Street, Cavan, Co. Cavan
Respondent: Mr. Paul Rochford for Ms. Katie Doyle, IR/HR Executive, IBEC, 84/86 Lower Baggot Street, Dublin 2
Background:
Dismissal is not in dispute in this particular case.
The claimant was employed as a general operative on night shift work in the Respondent company from 28th September 2004 until 06th July 2015. He contends that he was unfairly dismissed and has lodged a claim under the Unfair Dismissals Acts 1977 to 2007.
The Respondent contends that the claimant was not unfairly dismissed and that he was summarily dismissed because of gross misconduct in that he was found asleep on the night shift on the company premises during his work shift by his supervisor. He was dismissed in accordance with the company’s disciplinary policy.
Respondent’s Case:
Giving sworn testimony, POH (supervisor) told the Tribunal that, on the occasion of a night shift spot check at the respondent’s industrial premises, the claimant was nowhere to be seen until he emerged from a place which had no apparent relevance to the claimant’s work as a manual sprayer. The place was behind bins that had to be moved. The claimant was suspended with pay pending an investigation to be carried out by AF of the respondent’s HR section. The claimant was dismissed. The decision was upheld on appeal. The respondent’s case was that the claimant had been sleeping on duty.
When the claimant had emerged he had a phone in his hand as if he had received a warning call. The claimant had asked for another chance but was told to explain himself to HR. Night shift workers were trusted and paid a premium for working unsocial hours. There was only one charge-hand at night. There were two paid breaks of twenty minutes but the claimant had not been on break at the time in question.
Under cross-examination, POH accepted that he had not personally seen the claimant asleep. POH had been accompanied by MJ (deputy supervisor) and had made a deduction. The claimant had been sent home after he was located. The claimant’s work was not all done that night. POH told the Tribunal that the claimant had had all the appearance of someone who had been asleep in that there had been the imprint of a makeshift pillow on his face. The location had been a makeshift bed.
The claimant’s representative carefully cross-examined POH as to the respondent’s procedural approach. It was not alleged that the claimant had not been asleep. The claimant had been found in a “groggy” state albeit that it was alleged that there had been hearsay. MJ had accompanied POH to support him. POH had not thought the claimant fit for work. POH had done monthly spot-checks but could not give a reason why the claimant might have been asleep or even in the spot where he had been located.
The case was adjourned to resume for two further days so that the Tribunal might hear from other witnesses for the respondent and from the claimant.
At the Tribunal hearing on 15 December 2016 the claimant’s representative said that he wanted witnesses for the respondent to wait outside so that there could be independence of evidence. He claimed that there were inconsistencies in the respondent’s evidence. The respondent’s representative said that she did not want witnesses excluded, that this application had not been made on the first hearing-day and that she wanted someone (AF) to instruct her. The claimant’s representative said that AF could hand over her file as she had made a report in which he alleged bias and an opinion. The Tribunal settled on a compromise in that AF stayed to instruct the respondent’s representative and all but one of the respondent’s other witnesses left the hearing’ room.
Giving sworn testimony, MJ said that he was nearly twenty years with the respondent and more than fifteen as a supervisor. He knew the claimant a long time. The claimant sprayed tanks. MJ said that he had called to the respondent on a spot-check but that the claimant appeared absent until MJ found him lying down. There was no reason for the claimant to have a foam pillow. The claimant had not responded at first. He was asleep. POH suspended him with pay and ordered a taxi. Two twenty-minute breaks could be taken by employees at midnight and 3.00 a.m.
Under cross-examination, MJ said that he had not spoken to POH before the hearing. He maintained that not he but POH had suspended the claimant. The Tribunal was referred to a photo of an area where the respondent had boxes. Asked if he had seen the claimant with a pillow, MJ said no. MJ did not dispute a written statement by POH. He agreed his own statement taken on 1 July 2015. He said that AF had been trying to get the facts but did not accept that there had been any “hidden agenda” against the claimant.
MJ confirmed that he did spot-checks to make sure people were working. The claimant had not been at his work-point but asleep in another area. MJ denied having moved boxes where the claimant was found. The claimant had said that he had had a splitting headache. MJ reiterated that he had seen the claimant asleep.
In re-examination MJ said that POH had surprised the claimant. Spot-checks were done from time to time.
Giving sworn testimony, AF said that she had been with the respondent since 1999 and in HR since 2003. She told the claimant the matter reported was serious. AF took the Tribunal through related documentation. She had investigated the claimant being found fast asleep. She spoke to him on the phone and put that to him. The investigation had to be impartial. All employees were entitled to dignity at work.
Under cross-examination, AF gave details of how her studies related to HR and employment law. She believed it better that the claimant remain on suspension.
It was put to AF that she had interviewed the claimant before others. She said that the claimant had been given details of the complaint against him. AF was queried as to how she was ensuring fair procedures for the claimant for whom his job was at stake. AF disagreed that her investigation had been flawed but she did concede that perhaps the claimant should not have been spoken to first.
The question of who had moved very relevant boxes was explored but it was denied that AF had been over-reacting. She denied that her investigation had been a “witch-hunt” saying that she did not believe in them and rejecting the allegation that she had “wanted to add fuel to the fire”.
Asked where the handwritten notes were, AF replied that they were typed straight onto computer. AF denied that there was something he had not told the Tribunal.
It was put to AF that she had to be independent and fair. The claimant had said that he had had a headache. AF did what she thought best. She “would not have an employee under stress.” Asked if she would have done the procedure differently, she replied that it might not have changed anything. The claimant had said he had been sick on the relevant night and that he had been on break.
The Tribunal was referred to pages headed: investigation into (the claimant) being found hidden on night shift. AF said that she was not involved in the disciplinary procedure.
Giving sworn testimony, SL (operations manager) said that she had worked for the respondent since 2009. She was given this matter for disciplinary hearing. Documents came from HR. The claimant attended with JC (a trade union representative) and RS (acting as translator).
The Tribunal was referred to a note of a disciplinary hearing on 3 July 2015. SL told the claimant that the hearing could lead to dismissal. She sought information about the claimant’s alleged sleeping on duty. SL had to make a decision. The claimant was found to have been sleeping during work hours. There was also a health-and-safety risk. Boxes would be removed by forklift. Also, if there were a fire, the outcome could be bad. SL considered all disciplinary measures. This was very serious gross misconduct. SL had dismissed others and given final written warnings. SL said that no mitigation was put forward although the claimant had the chance. No allegation was made about procedure. She thought her decision fair and reasonable. She made the decision to dismiss.
Under cross-examination, SL said that she had formed her own opinion. The claimant had not challenged the statements of POH and MJ. SL had to review the information she had and come to a decision. MJ had said that the claimant had been in a dazed state. He had had to physically rouse the claimant. SL asked the claimant if he had anything to add. SL got clarification from CN (charge-hand). It was put to SL that the reason for dismissal had changed. SL denied that dismissal had been a “fait accompli” even if the dismissal letter had been drafted on the day. The claimant had been asleep in an unfit state for work.
The case was adjourned at this point.
Giving sworn testimony on the next hearing day, JMcM (the respondent’s Managing Director) said that he had been eighteen years with the employer and that he knew the claimant. The claimant’s trade union had appealed the claimant’s dismissal to JMcM on behalf of the claimant. JMcM told the Tribunal that he had looked at the process and if translation was available. He met with the claimant and the claimant’s union representative. The appeal was based on the claimant having been on a twenty-minute break and not a forty-minute one. An earlier statement had been incorrect. The claimant had been found at 1.45 a.m. and, therefore, would not have been on break. He had apologised and said that it would not happen again. The claimant had used a concealed area.
The respondent proffered copies of a site map. The claimant’s representative objected and asked that his objection be noted but the Tribunal accepted the map as something which might be of assistance.
JMcM met the claimant with JC (shop steward) and spoke to POH and MJ. JMcM wanted to clarify how well concealed the claimant was and who had woken him. JMcM upheld the dismissal. He believed that an area had been built to facilitate the claimant lying down and that this area had been so concealed that boxes had to be moved to find him. This indicated that lying down was not a spontaneous act. The seriousness of the claimant’s conduct added to by the health and safety risk of his actions led to JMcM upholding the claimant’s dismissal. No point was made about the procedures followed. JMcM considered the impact of the claimant’s conduct. Trust had been breached. JMcM had dealt with appeals before. His findings had varied depending on the case.
Under cross-examination, JMcM said that he had not been coached before that day. The buck stopped with him. He reviewed AF’s investigation and checked that all procedures were fair and that the said procedures had been given out years before. The claimant had been represented by JC, his union representative. Asked what duty he had to the claimant, JMcM said: “To make sure that procedures are followed.” The claimant was represented by JC, a very experienced trade union representative.
JMcM spoke to the claimant who apologised. The appeal was based on the claimant resting (rather than sleeping). JMcM took it that the claimant had been asleep. Two supervisors had gone in but did not find the claimant initially. After the claimant was found MJ tried to wake him. It was first said that the claimant had been on break for forty minutes and then twenty minutes. POH and MJ were central to the allegation that someone was seen asleep. POH admitted not seeing the claimant asleep. The claimant had apologised and said it was a twenty-minute break but not forty minutes. The claimant was dismissed by JMcM because he had lied about the length of break. The claimant had been inconsistent.
JMcM looked at all the evidence. He spoke to POH and MJ on the day of appeal. Asked what kind of environment the claimant had worked in, JMcM replied that it was a busy industrial factory. Production sites had health and safety checks. Eight hours was the standard shift. AF had found something to investigate. There were inconsistencies in a statement by the claimant. MJ found the claimant asleep. The claimant’s wife had been ill and the claimant had been unwell. JMcM told the Tribunal that they could not have people taking breaks when they liked.
JMcM told the Tribunal that the claimant had lied to the respondent and had wasted the respondent’s time regarding the investigation. Trust was broken. The respondent was now making a loss. It had lost one and a half million euro and would lose six hundred thousand euro the next year. The claimant’s representative contended that breaks had to be taken in a certain way. Output had to be monitored.
Questioned by the Tribunal, JMcM said that a fork-lift could go in once a shift to get a paint-box. The claimant had said that he had been on a twenty-minute break. He had said forty minutes before. JMcM told the Tribunal that there had been an untruth. One should not be concealed. A fire alarm could go off. It was acknowledged that the claimant had been a good employee. There were seven or eight painters on the shift. Asked by the Tribunal if the outcome would have been different if the claimant had been found in a car or the canteen, JMcM conceded that this would not have been as dangerous but replied that the claimant had broken the trust and wasted a lot of time as well as having been asleep. Asked if the claimant had been dismissed for lying, JMcM said all of these reasons played a part.
Claimant’s Case:
Giving sworn testimony aided by a Tribunal-appointed interpreter, the claimant said that he was in his forties and had three children. He had come to Ireland in 2004. He had come in advance of his family. He bought a home here. He did not borrow for a car.
In July 2015 the claimant was dismissed. The Tribunal was informed about the claimant’s loss both in respect of training done to mitigate loss and his openness to self-employment. It took months to get certain documentation.
In late June 2015 the claimant was suspended by POH who said the claimant had been sleeping. The claimant said that he had had a headache and had been lying down. It was put to the claimant that JMcM said the claimant had lied and therefore dismissed him.
There was discussion at the Tribunal hearing as to whether the claimant’s trade union had said the claimant might get his job back over his break being twenty minutes or forty. There was discussion about there was any difference between night and day spraying. There were to be two breaks of twenty minutes for an eight-hour shift.
The claimant told the Tribunal that he had been told to keep his head down, to say sorry and to say that it would not happen again. He had not said that he had been sleeping. He had been adamant that he had not been.
The claimant did not agree that he had received or even been told of all of the respondent’s procedures. He said that he had not been happy but it was contended that the respondent’s procedures spoke for themselves.
Attention was given to the question of whether the claimant had not been asleep but resting. The claimant had sat over a box but had not been asleep. There had been foam all over the factory. The question of contribution was not gone into.
The case was adjourned to resume in April 2017 with a fresh interpreter.
The case resumed on 24th May 2017. The claimant resumed evidence. He was asked if he was sleeping and he replied “no”. He was asked if he had intended to sleep and he also replied in the negative. He had lain down because he had a headache and the lighting was “going into” his eyes and “blinking”. Also at the time he was on a forty minute break. He did not move boxes to conceal himself.
It was put to the claimant that a person approached him (whilst in that position) and he replied that no one approached him. When put to him that two people said that they had approached him he replied that was “not correct”. He disagreed that someone had to shake his boot. The claimant stated that he was lying down looking at the work line and he saw people walking around. He got up and met MJ and then MJ called POH.
Regarding health and safety concerns the claimant did not think that there were concerns. The claimant explained that he was employed as a spray painter. He explained that the sprayed “tanks” were then baked or dried in an oven and the process took 20 minutes per tank. Ultimately this led to a practice of taking a 40 minute break as opposed to two 20 minute breaks.
The claimant gave evidence as to his loss.
The Tribunal heard evidence from JC. He works in the company for 38 years, he commenced in 1979. He had been a shop steward for ten years. He gave up that position as shop steward but is still involved in the trade union on the trade union committee. He explained that he they received all the documents and statements regarding the claimant’s situation. Prior to the meeting with the Respondent he had a meeting with the claimant and had a translator present. He told the claimant to be honest at the meeting and to apologise for any actions that were not proper.
Both parties agreed to send submissions to the Tribunal by 21st June 2017.
Determination:
The Tribunal has considered all of the evidence including documentary and oral evidence, including the two sets of submissions on behalf of the Claimant (one submitted at the conclusion of the hearing) and the submissions of each party on 21 June 2017.
In this case, a number of matters are common case.
The Claimant was a highly-regarded employee with no disciplinary record. He worked for the Respondent from 28 September 2004, for approximately 11 years, up to the date of his dismissal.
It is agreed that the Claimant was not at his post for in excess of 20 minutes, being from 1.15 am on the night in question until 1.45 on the night in question. The second agreed matter in relation to the night in question is that he was lying down in an area that was covered and was used for the storage of paint at this time. It is not disputed that there was a practice whereby the Claimant and others who were painting on the night-shift would sometimes take one 40-minute break rather than two 20-minute breaks.
In this case the position of the Claimant is that he was on a break and that he was allowed to be where he was. The position of the Respondent is that the Claimant should not have been where he was at all, and he was not properly on a break, as his superior CN had said that there was no clearance for a 40 minute break in his statement, as there was in all such circumstances.
An email was sent by POH just after the incident, stating that he and MJ had found the Claimant “fast asleep” under a rack behind boxes of powder paint. It stated that they had entered the building at 1.30 am and had found the Claimant 15 minutes later, and that he was found as MJ had noticed a moving boot under the rack behind powder paint. He had then been brought to the office, told that he had been found asleep on the premises, and that he was being suspended with pay pending investigation, and that he would be given a chance to explain himself in due course.
An investigation took place, conducted by AF. She had a meeting with the complainant, at which he was accompanied by JC, the Shop Steward of his union, and by RS, a colleague who translated for him. The meeting took place on 26 June 2015. The notes submitted by the Respondent stated that the Claimant said at that meeting that he was not asleep but was just lying down, as he had a recurrent headache for three days. He stated that he had taken a decongestant and paracetamol and went to lie down for a while as he had a problem with the light, but was going to return to paint. He had gone to lie down around 1 am or 1.10 am. He stated that he was on a break, and that the breaks were flexible.
AF then interviewed CN again on 29 June 2015, MJ on 1 July 2015, POH by phone on 1 July 2015 and AA on 26 July 2015. MJ said he had to wake the Claimant by hitting his boot and that he was in a deep sleep. He stated that the Claimant had hidden himself behind boxes. He only stated that he had a headache when in the office. POH stated that when he saw the Claimant that he was very sleepy.
AA stated that breaks were taken at a variety of times and were different every night, and that sometimes there would be one break of 40 minutes rather than 2 breaks of 20 minutes. The notes submitted by the Respondent as an appendix to the report of AF state that “Sometimes have two breaks at one time for 40 minutes not 2 20 minutes because the second break could be very late. CN did not say to take the break on this night. We take breaks when the work suits.”
None of the other statements of employees were provided to the Claimant before AF made her conclusions, nor was what they said put to him and his responses sought.
In concluding the report AF states that “definitive rules need to be formed around the paint area’s break time. Not being clear on break times make the issue difficult to monitor…. I believe that this matter must be passed on for disciplinary hearing as (the claimants’) story is not credible or consistent.”
There followed a disciplinary process by SL. The Claimant was called to a hearing on 3 July 2015 by letter dated 2 July 2015. The letter merely stated that the “disciplinary hearing is taking place following a formal investigation into your conduct on the 25th June 2015” and did not contain any specific allegations. It stated that the Claimant could be accompanied by a Trade Union official and a translator and could respond to the allegations (which were not specified) and to present any mitigating circumstances. It further stated that “if any documentation is being relied upon in the hearing you will find a copy enclosed.” There was disagreement in the hearing as to whether any documentation was enclosed with that. It was stated by the Claimant that he only received the documentation on which the company was relying at the beginning of the hearing on 3 July 2015.
Lack of clarifications in relation to allegations against the Claimant
However, at the meeting of 3 July 2015, the Claimant confirms that he had received all the relevant documentation (though it was not recited what such documentation was). It is notable that no allegation of specific wrongdoing was put to the Claimant, although he was told that he faced possible sanction up to dismissal. Was he accused of being asleep? Of lying down on the factory floor? Of taking a longer break than he should?
At the meeting, the Claimant was accompanied by his union representative and his work colleague acting as translator. Again, at this meeting, according to the notes kept by the Respondent, the Claimant stated that he was on a break from 1.10 am and that it would last 40-45 minutes. He stated that he had one break all night. The Claimant’s union representative, JC, stated that he would like to know when the breaks were going to happen: “Going by CN’s own statement he reckons he was on break that’s the important part. I want to know when the second break was going to happen.” SL stated in reply that she would “clarify breaks.”
A phone call took place later that day between CN and SL. The notes were taken by MK on behalf of the Respondent. It was apparently a short phone call, with the notes running to just over a page and recording only 12 questions and answers. It is notable because of the questioning in relation to breaks. It is to be noted that at this stage, the Claimant said that he was on a break at the time of the incident.
SL questioned CN in relation to breaks. The notes record as follows:
“SL – CN (named), I want to follow up on some points following a disciplinary hearing with (the claimant) this afternoon.
CN - OK.
SL- Can you tell me do operators take a 40 minute break or 2 20 minute breaks
CN - 2 20 minute breaks
SL - Are you aware of any agreement in place whereby they can take a 40 minute break instead of 2 20 minute breaks
CN - No
SL - Is there any circumstances whereby sometimes they take a 40 minute break as opposed to 2 20 minute breaks
CN- An odd time a sprayer would take a 40 minute break but that would be agreed with me beforehand
SL - Was there any agreement or discussion with (the claimant) about him taking a 40 minute break on the night in question
CN- No
SL - When operators agree with you in advance to take a 40 minute break, what is the reason behind it
CN - It depends on whats on the line. If there is a large amount of large tanks on the line, sometimes they might take a longer shift break if there were several tanks 5-6 for example in front of them at the beginning of shift
SL - Was that the case last week
CN no, there was a reasonable amount of stuff on the line but not that amount
SL - So there was no reason to take a 40 minute break in your opinion
CN- no
SL- you said you didn’t see A that night. he said you said you tell them when to take a break
CN - if I’m going for 3 trollies I’ll hold up three fingers to indicate how many trolleys to do before break
SL- Do you go on break with the rest of the lads
CN - Most lads do be gone so I take lids off to make things easier for the lads to start when they come back and get moving. I’d be there trying to get the next batch of stuff ready. That night I was taking down cable boxes and numbering them.
SL - Is there a time you check on the lads
CN - usually stick my head round the bottom of oven, only get as far as first booth. It wouldn’t be normal for me to go as far as the automatic booth.
SL - ok thanks so CN.”
It is notable in this exchange that SL asked CN three times whether there were 40 minute breaks and only on the third question was it confirmed that there was. She essentially cross-examined CN in relation to this aspect of his answers, yet was happy to accept his first answer in relation to the next question, i.e. whether there was any discussion with the claimant to allow him to take a 40 minute break.
SL also had a short telephone conversation with MJ on 3 July 2015. In it he again stated that he found the Claimant asleep and had to wake him.
SL reconvened the hearing the following Monday, 6 July 2015. This meeting was very short, according to the note taken by the Respondent. SL asked for further comments, stated that MJ was adamant that he had to wake the Claimant, and that CN “confirmed that it is not the norm to take a 40 minute break instead of 2 20 minute breaks and that he (CN) gave no approval to take 40 minute breaks.”
SL concluded that the Claimant was asleep. She also stated that “you claimed you had a headache and lay down but I do not feel this is consistent with information provided.” It is not clear what this finding indicates. SL went on as follows: “Due to breach of H & S, rules and procedures, being in a concealed area, I regret that I am dismissing you form the company with immediate effect.”
She then informed the Claimant of his right of appeal, and stated that he would be escorted off the premises. That afternoon, the Claimant was provided with a letter that stated as follows:
“At the meeting it was outlined the reason for the disciplinary hearing was because of your conduct on the 25 June 2015, being found in a concealed area of the factory in an unfit state for work.”
There was no evidence that the Claimant was ever told what the disciplinary hearing was for. The letter of 2 July 2015 contained no reason, just that it “followed a formal investigation into your conduct on the 25th June 2015.” The notes of the respondent again only record that the Claimant was told that the hearing filled a formal investigation in relation to “alleged conduct on the 25th June 2015.”
The letter of 6 July 2015 further stated as follows:
“During the investigation and disciplinary process you claimed you had a headache, sat down and then lay down for a short time. You denied being asleep and in an unfit state although you had exceeded your break time. You were in a highly concealed area of the factory, so much concealed that it took over 15 minutes to find you. Cushioning like a pillow was found in the area. This is not consistent with an instantaneous decision to lie down.
The company believes that this is an act of Gross Misconduct and fits it has no alternative but to dismiss you with immediate effect….”
Lack of evidence in relation to findings against the Claimant
There was no evidence in the notes of the Respondent that there was any discussion of whether the Claimant was or was not in a fit state to be at work, and no evidence that he denied being so. There was no evidence in the notes of the Respondent that it was agreed that the Claimant had exceeded his break time - it is to be assumed that SL was making a finding here that he was on a 20 minute break and that it had therefore been exceeded because he had, on his own admission, taken his break at 1.10 or 1.15 a.m. and was on break when he was found at 1.45 a.m. When SL rejects the notion of an “instantaneous decision to lie down” she is impliedly rejecting that the Claimant went to lie down because of a headache on the basis that he had taken foam to put under his head. It is not clear why lying down without putting foam under his head would be less culpable than putting foam under his head.
Lack of opportunity to question those making allegations, or respond effectively to the allegations
The Claimant was interviewed first in the series of meetings leading to an investigation report. He was not given an opportunity to comment on the statements of others. However, this was termed an investigation report and was not stated to be a disciplinary action. What came from SL’s report was a recommendation that there be a disciplinary hearing against the Claimant, rather than any sanction against him. However, there was a finding that the Claimant’s story “was not credible or consistent.”
When the proceedings went on to become disciplinary proceedings, the Claimant was not given the opportunity to confront those who had made statements against him. In addition, he was again not given the opportunity to respond to the allegations against him.
Based on the contemporaneous notes of the hearing on 6 July 2015, the Tribunal finds that the decision to dismiss the Claimant had been taken in advance of that meeting, despite the evidence of SL to state that it had not.
The Claimant was given an appeal, but his dismissal was upheld by JMcM. There was no hearing and only an opportunity to submit a paper submission. In the circumstances, and given that the Claimant was provided with a P45 on the 6 July and escorted off the premises, it is clear that he was no longer an employee at the time of the appeal, but that had he succeeded, his employment would have been revived, as found in Roberts v. West Coast trains Ltd. [2004] IRLR 788.
While there is nothing ostensibly objectionable to the conduct of the appeal, it is notable that the reasons given as to the failure of the appeal are different to the reason to dismiss. In the circumstances, the Tribunal must focus on the reasons given at the time of the dismissal.
Submission of the Respondent
In its written submissions provided after the hearing, the Respondent submitted that there were two considerations for the Tribunal - first, was the sanction within the reasonable range of responses given the circumstances, and secondly, was the claimant afforded fair procedures?
The Respondent pointed out that there were inconsistencies in the Claimant’s evidence. In particular, the assertion by the Claimant that he went on break at 1.10 but was only lying down for 10 to 15 minutes and yet was not found until 1.45. The Tribunal does not consider that this is a fundamental inconsistency when the Claimant had said that he took some tablets to relieve his headache and then lay down. He is not recorded as stating that he immediately went to lie down.
Another inconsistency that was pointed out was that relating to whether the Claimant was on a 20 or 40 minute break, as the Claimant changed his story and told JMcM and his union representative that he was on a 20 minute break (according to JC) but where he had previously had said it was a 40 minute break.
It is notable that the Respondent has no record of breaks that was submitted into evidence, and apparently no recording of break times, when it is apparently so concerned about rigidly adhering to the correct breaks.
At this point the Tribunal must point out that it seems that the only person who knows the length of break that the Claimant was on was the Claimant himself, as his charge hand was not very convincing in the notes that were provided to the Tribunal, and it is notable that he was not called in evidence. AF found that there were no definitive rules in relation to break times, recommending that such should be made, and that not being clear on break times made this issue difficult to monitor.
A further inconsistency that was submitted by the Respondent was not receiving the documentation in relation to the investigation until after he had been dismissed, in circumstances where he was recorded as acknowledging having received them during the hearing which he was dismissed on 6 July 2015, and where the union representative states that he had received them. This inconsistency cannot be said to have been the reason for his dismissal as it only arose at the hearing.
The Respondent concludes that in light of these inconsistencies, together with his conduct on the night of 25 June 2015 and his attempts to conceal that conduct, the relationship of trust and confidence with the Claimant had broken down.
The Tribunal disagrees.
It is not clear why the Claimant was dismissed. The reasons as to why his appeal was upheld are not the reasons for dismissal. These were stated to be inconsistencies, being on a 40 minute break without consent and that lying down was not a spontaneous act.
None of the inconsistencies are material, except perhaps that relating to whether the Claimant was on a break. It is not reasonable in circumstances where there is inconsistency in relation to breaks, where no clear procedures established in relation to same (as found by the investigation of the Respondent) to terminate the Claimant. In addition, was JMcM stating that if lying down had been a spontaneous act, he would not have been terminated? Or that if he had been on a 40 minute break with permission he would not have been terminated?
At the appeal hearing, it was recorded by JMcM that the Claimant said that he was on a 20 minute break and apologised. The Claimant explained this change of evidence by stating that he was told to say this by his union representative. His union representative denied this, saying that he just told the Claimant to tell the truth.
A number of very important factors are at play in this case.
- This is a long-standing employee with no disciplinary record.
- The employee is not a native English speaker, and requires a translator at each hearing (whom he is tasked to arrange).
Lack of fair procedures in relation to the hearings
It is not clear what was “not credible or consistent” in relation to the Claimant’s story. It is more than regrettable in the circumstances that there was a factual finding of lack of credibility and consistency when the Claimant was not provided with the statements of other parties and allowed to respond to them as would be dictated by natural justice. This is particularly so in a case where the Claimant is not a native English speaker.
It is clear that the concern of the Respondent, and indeed the expressions of the rationale of the disciplining and terminating the employment of the Claimant by the Respondent, altered during the course of dealing with the actions of the night in question.
Given the failures both of procedure (in particular not fully providing the rationale for disciplinary charges, and not allowing testing of the evidence in advance of a factual finding) and of substance (the termination of a longstanding employee of good character for an infraction of being in a concealed area of the workplace in or around the time of the employee’s break, in circumstances where the investigation that preceded the disciplinary action found that there was no clarity in relation to break times), the Tribunal finds that the dismissal of the Claimant was unfair.
The Tribunal awards the Claimant the proved losses for the termination, being EUR 50,000 (fifty thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
This is a majority decision of the Tribunal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)