ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00004723
An Account Manager
A Logistics Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 28/02/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
The Complainant was employed with the Respondent from 4th September 2001 until the employment was terminated with notice on 15th August 2016. The Complainant was paid €6095.00 gross per month and he worked 40 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment but not the Grievance and Disciplinary Procedures of the Company when he joined with a named Company in September 2001 and on transfer to the Respondent later in 2001.
The Complainant referred a complaint to the Workplace Relations Commission on 24th August 2016 alleging he had been unfairly dismissed by the Respondent and a second complaint on the same date under the Industrial Relations Act, 1969 in relation to Bullying/Harassment.
Summary of Complainant’s Case:
Unfair Dismissals Act, 1977 – 2015.
The Respondent as per the Act made their submission first and the Complainant made his submission afterwards.
The Complainant stated he was provided with a Company Car. He stated he drove this from his home in a named location in Co Kildare to Lucan. He then drove a family member’s car from Lucan to Blanchardstown to work. The Complainant stated that in accordance with his Contract of Employment he was entitled to claim expenses on the Company Car. The Complainant stated that he claimed expenses on both the Company car and on the family member’s car he drove each day. He stated that he made up the receipts for these expenses himself. The Complainant stated that yes he had claimed for a new tyre on the family member’s car as he had got a puncture while driving that car at work. The Complainant stated at the Hearing that he was bringing large Water Bottles from one Company location to another and he confirmed that he had taken two of these bottles for his own house but stated he had later returned both, the second one when he was dismissed and removing his personal belongings.
The Complainant stated he had been subject to an investigation meeting on 6th July 2016 with two named employees. The Complainant stated that he had been offered a right of representation but had refused. The Respondent informed him in advance that the investigation would look at his expenses and the removal of water bottles from the Company. A second investigation meeting took place on 7th July 2016 and the Complainant was provided with the Minutes of each of the meetings.
The Complainant was invited to attend a Disciplinary Hearing on 11th July 2016 and he confirmed that he declined representation. He was informed of the outcome by letter dated 15th July 2016 in which it was confirmed that he was to be dismissed for gross misconduct. The Complainant stated he was afforded a right of appeal. The Complainant stated that he had appealed and identified past issues he had with his Line Manager. The Appeal Hearing took place on 9th August 2016 and the Complainant confirmed that he wished his grievance against his Manager to be considered separately from his appeal in relation to his dismissal. The Complainant did receive a letter from the Respondent in relation to a delay in issuing a decision in relation to his appeal because of the annual leave of the Employee conducting the appeal. The Complainant was informed of the outcome on 5th September 2016 and the decision was to uphold the decision to dismiss.
The Complainant stated that there was no car policy or procedure in place and the Company did not have expense policy in place that he the Complainant was aware of. He stated that he was unaware he could not claim expenses on the family member’s car in relation to petrol and replacing a tyre. He also stated that no lease plan document had been provided to him.
The Complainant stated he had not worked since his dismissal and had been in receipt of Jobseekers Benefit from the Department of Social Protection. The Complainant was requested to provide a statement from the Department to confirm the dates, not the amount, he was in receipt of this Benefit but he did not do so.
Industrial Relations Act, 1969
The Complainant stated that he had lodged complaint of Bullying and Harassment against his Manager on 22nd July 2016 after he had been suspended pending investigation. This complaint was investigated on 17th November 2016. He stated he was issued with the minutes of this meeting and he confirmed that he did make amendments to the minutes. He stated that the outcome issued to him on 29th December 2016 was there was insufficient evidence to support his grievance. He stated that he was afforded a right of representation at the Hearing.
The Complainant stated that this grievance complaint should have been taken into account by the Respondent in relation to his appeal of his dismissal. The Complainant confirmed at the Hearing that he had been provided with the Grievance procedures in 2011 when he had made a previous complaint
Summary of Respondent’s Case:
Unfair Dismissals At, 1977 – 2015.
The Complainant’s Manager became aware on 20th June and again on 29th June 2016 of two reports concerning the Complainant allegedly removing large dispenser bottles from company premises without company approval. Parallel to this the Manager raised concerns in relation to expense receipts submitted through company expenses by the Complainant for the fitting of a tyre to a Company Car provided to the Complainant. As this would normally be done directly with the lease car company – lease plan – it was decided to investigate the issue. Upon review of the tyre expense claim the Company also noticed that the Complainant’s fuel expenses seemed to be excessively high and a decision was made to audit all similar Lease plan cars to see if this was standard fuel spend. This showed that the fuel spend on the Complainant’s car was excessively high compared with mileage/kilometres on another identical car in the fleet of cars. The Complainant had travelled 28000 kilometres yet had claimed 5211 litres of fuel but when compared with a comparable car with 50,000 kilometres had only bought 25413 litres of fuel. The fuel spend of the Complainant would show that he had travelled 116,577 kilometres.
The Complainant was invited to an investigation meeting and was suspended on 4th July 2016. He was informed of the incidents to be investigated as his fuel expenses and the removal of water bottles. He was afforded a right of representation. At the Hearing on 6th July 2016 the Complainant stated he was using two cars to travel to work which included a family member’s car and that this car was also diesel car. He was asked to explain seven receipts which were for unleaded petrol rather than diesel. He stated he just “gets them from the till and puts them in his pocket” and he could not explain the petrol receipts he submitted. He was asked what garage he got his receipts from and named a garage.
He was then questioned on the new tyre fitted on 14th April 2016 which he had claimed. He could not remember but agreed to revert
He was questioned on the removal of large water bottles from the premises on 17th June and 28th June 2016 and he stated he was merely borrowing them but confirmed he had not sought permission to do so. He signed off on the notes of this meeting. Post the meeting the Complainant confirmed that the tyre fitted was for a family member’s car.
There was a second investigation meeting held on 7th July 2016. Again the Complainant was afforded representation but he declined. The Complainant stated at this Hearing that the garage where he received receipts was a different named garage to that he had already named and he confirmed the new tyre was fitted on a family members car but that he had submitted a receipt for this for his car and stated that he needed to use the family car for personal reasons. The Complainant had previously stated that the puncture occurred at the weekend but was now stating it happened on his way to work. He stated he was holding his hands up and sought a second chance with the Company and he apologised. Subsequent to this meeting the Respondent informed the Complainant that the Garage he had named where he had got the receipts submitted stated they did not issue handwritten receipts and that they had never seen the receipts he had submitted.
The Complainant was invited to attend a Disciplinary Hearing on 11th July 2016 and he was afforded a right of representation which he declined. At this meeting the Complainant admitted that the family member’s car was in fact a petrol car and not a diesel car as he had previously stated. He confessed he had written the receipts himself which he submitted in relation to his expenses and he had been doing this for the past year. He admitted he was wrong and should have informed his Manager. He apologised and requested the Company to consider his 16 years of service. The Complainant signed off on the minutes of this meeting. The Complainant was informed by letter dated 12th July 2016 that the value of the handwritten receipts was €4082 since March 2015 and could not be matched to any real fuel purchase. The Complainant sent an email the following day 13th July 2016 in which he stated that if he had used just one car this would have accounted for the fuel receipts. The Complainant was informed of the outcome by letter dated 15th July 2016 and confirmed that he was to be dismissed for gross misconduct. He was afforded a right of appeal to an external Manager, being the Director Human Resources, Northern Europe.
The Complainant appealed the decision to dismiss by email dated 28th July 2016 in which he alludes to problems with his Line Manager in relation to past issues. The Appeal Hearing took place on 9th August 2016 and at this meeting he confirmed that he wished his grievance complaints dealt with separately from his appeal on his dismissal. This was agreed. The HR Director informed the Complainant post the Hearing that she was on annual leave for two weeks and issued the decision in relation to the appeal on 5th September 2016 and the decision was to uphold the dismissal.
IBEC on behalf of the Respondent identified and referenced a number of Decisions of the Employment Appeal Tribunal.
The Respondent also stated that reinstatement was not an option as requested by the Complainant due to the breakdown in trust and confidence.
Industrial Relations Act, 1969
The Complainant submitted a Grievance to the Respondent on 22nd July 2016, alleging Bullying and Harassment against his named Line Manager. The Complainant had submitted his complaint under the Industrial Relations Act, 1969 to the WRC on 24th August 2016, this was prior to the formal Grievance investigation process commenced and after he had been dismissed by the Respondent on 15th July 2016 – with one months’ notice.
A Member of the Management Board Northern Europe was appointed to investigate the Grievance and he was invited to attend an investigation meeting on 18th October 2016. He was afforded a right to be accompanied. The Complainant did not attend this meeting or a rescheduled meeting on 24th October 2016. The Complainant did attend a reconvened meeting on 17th November 2016. The Complainant declined representation. At this meeting the Complainant raised a large number of issues backdated to 2009. The Complainant had never submitted any complaint during his 16 years against his Manager. The Complainant had lodged a previous complaint against another employee and had utilised the Grievance Procedure that time in 2011.
The Investigation Officer appointed also met the named Manager of the Complainant. The Investigator issued his findings on 29th December 2016 and did not uphold the grievance complaint due to insufficient evidence. The Complainant was informed of the outcome by letter.
Findings and Conclusions:
Unfair Dismissals Act, 1977 – 2015.
On the basis of the evidence from both Parties and submissions I find as follows: The Complainant was a Manager with the Respondent for some 16 years and the evidence from both Parties was that the Complainant, in his position, signed off on expenses for other employees.
I do not accept the evidence from the Complainant that he was unaware he could not submit receipts for petrol and a tyre for a family members car and to submit these receipts as legitimate receipts for his own Company Car.
I find that the Complainant was afforded fair procedures and natural justice and that the Investigation, disciplinary and appeals process was conducted in line with Company Disciplinary Procedures. I also find that this process was in line with S.I. 146/2000.
Industrial Relations Act, 1969.
The evidence from both Parties at the Hearing was that the Complainant submitted his complaint of Bullying and Harassment against his named Manager on 22nd July 2016, some 7 days after he had been dismissed by the Respondent for gross misconduct. I also note that the Complainant referred his dispute to the WRC prior to the investigation commencing into his Grievance. I note that the Complainant was aware of the Grievance Procedures of the Company as he had utilised them in 2011. I also note that the Complainant did not lodge any complaint during his 16 years of employment alleging Bullying/Harassment against his named Manager until after he had been dismissed.
I note that the Respondent did conduct an investigation and did appoint an external Investigator from the Company in Northern Europe to conduct the investigation. I note the outcome that there was insufficient evidence to substantiate the Grievance.
The Labour Court has held that in relation to disputes referred to the WRC under the Industrial Relations Act, 1969 an employee must have utilised and exhausted the internal process prior to lodging a complaint or referring a dispute to the WRC. This did not happen in this dispute.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Unfair Dismissals Act, 1977 – 2015 CA-00006623-0091
On the basis of the evidence and my findings above and in accordance with Section 8 (1) (c) of the Unfair Dismissals Act,1997 – 2015 I declare this complaint is not well founded.
Industrial Relations Act, 1969 – CA-00006623-002
In accordance with Section 13 of the Act I declare this complaint is not well founded.
Dated: 14 June 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Unfair Dismissal – Gross Misconduct – Expenses
IR – Bullying/Harassment -