SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
MEDICAL & INDUSTRIAL PIPELINE SYSTEMS LIMITED
(REPRESENTED BY PENINSULA BUSINESS SERVICES)
- AND -
(REPRESENTED BY HAMILTON TURNER SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Tanham
1. An appeal of an Adjudication Officer's Decision No(s). ADJ-00003218 CA-00004494-001
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 25 July 2019. The following is the Determination of the Court
This is an appeal by Mr David Dunne of an Adjudication Officer’s Decision under the Unfair Dismissals Acts 1977 – 2015 (“the Acts”) in his claim of unfair dismissal against his former employer, Medical & Industrial Pipeline Systems Limited. The Adjudication Officer found that the Complainant’s claim was well-founded and awarded the sum of €4,225 in compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr David Dunne will be referred to as “the Complainant” and Medical & Industrial Pipeline Systems Limited will be referred to as “the Respondent”.
The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 17thMay 2016.
The Complainant commenced employment with the Respondent on 14th June 1984 as a Pipeline Fitter. He was promoted to a position as Installation Manager around 1990. He served as a Director between 1991 and 1992 and was promoted to the position of Technical Services Manager in January 1999. The Complainant’s employment was terminated on 4th February 2016. He was paid a salary of €50,700 per annum. His responsibilities ranged from mechanical installing, design and manufacturing to the supervision of projects.
The Respondent is engaged in the design, manufacture, installation and maintenance of piped gas systems for all Medical, Educational, Pharmaceutical and Electronic Industries. Their Clients include hospitals, nursing homes and hospice/palliative facilities.
The Complainant appealed against the quantum of compensation awarded.
Summary of the Respondent’s Position
Mr Rory Treanor, B.L., instructed by Peninsula Business Services (Ireland) Limited, on behalf of the Respondent, stated that the Complainant was dismissed for gross misconduct. He submitted that the dismissal was both procedurally and substantially fair.
Mr Treanor said that in 2013 the Respondent engaged in the process of updating contracts of employment and its Employee Handbook. On 11th February 2013 all employees were notified of the changes and issued with updated contracts of employment and Employee Handbook. The latter documents contained a heading “Vehicle Tracking” which stated the following:-
- “The Respondent reserves the right to monitor or remotely track Respondent vehicles at all times.”
By letter dated 13th March 2014, the Complainant’s Union representative was informed that:-
- “The vehicle is fitted with a satellite tracking system.”
By correspondence dated 22nd April 2013, issued to all staff including the Complainant, the Respondent introduced a time sheet and communicated the legal requirements for all employees to accurately record their hours of the purposes of the Organisation of Working Time Act 1997. The correspondence invited employees, including the Complainant, to respond if they were unhappy with any aspect of the time recording procedure and to return his signed contract. No response was received from the Complainant.
By memo dated 27th February 2014 the Respondent advised all employees of changes to the Handbook, included the following: -
- “you are no longer allowed, regardless of what is stipulated in your Contract to use the Respondent vehicle for private use”
“time sheets are to be filled in on a daily basis and accuracy is vital”
Any discrepancy, to your benefit or detriment, within your wages or expenses payment must be brought to the attention of Management within 1 month of the original claim”
The Complainant was on sick leave from 26th March to 17th July 2014, during which time his wife became extremely ill and passed away. In December 2015, the Complainant requested the Respondent check his time sheets as he believed that he was owed time in lieu. Upon checking the data, the Respondent noticed that they did not correspond with his receipts and tolls. It reviewed the tracker device on his vehicle and discovered numerous inconsistencies. He was invited to an investigation meeting on 6th January 2016. At the meeting the Complainant stated that he had been given an assurance by the previous Managing Director that his vehicle would not have a tracker device installed and accordingly the Respondent could not rely on any information collected from same. Mr Treanor denied this and said that there were only two employees, both Supervisors, who were excluded from the obligation to have a tracker device installed. He said that this was confirmed in writing to both employees. Counsel said that of the 174 days’ timesheets reviewed only 66 were found to be within acceptable limits.
On 8th January 2016 at a further meeting of the issue, the Complainant was placed on paid suspension to allow for a proper investigation of the allegations. The Respondent wrote to the Complainant on 20th January 2016 scheduling a disciplinary hearing and setting out the case against him, as follows: -
- “Alleged breach of Respondent procedure, namely it is alleged that on numerous dates time sheet records were falsified”.
The Complainant appealed the decision to dismiss and appeal hearings were held on 21st March and 18th April 2016, conducted by a third party. By correspondence dated 26th April 2016, the Complainant’s appeal was not upheld and the sanction of dismissal was affirmed.
Mr Treanor submitted that the dismissal was fair as the Complainant had failed to perform the job he was meant to do, as he failed to attend Client sites to service medical or other critical gas equipment, this potentially posed a safety risk to users of the specialised equipment. Counsel contended that the Respondent acted reasonably in the circumstances. In support of its position, Counsel cited a range of authorities, including the case ofLooney & Co. Limited v LooneyUD834/1984, in which the Tribunal held that it was their responsibility to: -
- “consider against the facts what a reasonable employerin the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer's action and decision be judged."
In the alternative and without prejudice to this position, the Respondent contends that the actions of the Complainant contributed fully to his dismissal and submitted that the Complainant was not entitled to seek any redress under the Acts.
Summary of the Complainant’s Case
Mr Ray Ryan, B.L., instructed by Hamilton Turner Solicitors, on behalf of the Complainant, claimed that the Complainant was unfairly dismissed. He stated that the dismissal occurred on 4thFebruary 2016, he launched his appeal on 8th February 2016 and the appeal hearings were held on 21st March and 18th April 2016. The Complainant was notified by letter dated 26thApril 2016 that the decision to dismiss was upheld, yet in the 12 weeks from the date of his dismissal to the date of the appeal outcome, he was not paid.
Mr Ryan stated that the Union did not agree with the new contracts of employment and the new Employee Handbook introduced by the Respondent in 2013. The Union engaged in negotiations with the Respondent on these matters on behalf of its members, including the Complainant. However, there was no collective agreement reached concerning the proposed changes. This engagement took place from 28th June 2013 to 20th March 2014. The matter ultimately resulted in a facilitation hearing at the Workplace Relation Commission (WRC), where it was agreed that the Respondent would furnish the Union with a new and edited version of the Employee Handbook for consideration. The Respondent has not furnished the Union with the new draft to date as recommended by the WRC.
Therefore, Counsel contended that the Respondent was not entitled to rely on the proposed changes to the Complainant’s contract of employment and the Employee Handbook either through clear agreement or acquiescence. He disputed the Respondent’s reliance on the Complainant’s contract of employment which it purported to change in order to allow the Respondent to install a tracking device despite his clear understanding that this would not happen.
Counsel said that the use of tracking devices on Respondent vehicles caused much contention within the workplace. Two senior and long serving members of staff and union members have specific clauses in their contacts of employment advising that their vehicles would not have tracking devices in them. The Complainant was more senior than these two individuals and he said that he received commitments from a Director in the past that his vehicle would not be fitted with a tracking device.
Secondly, Mr Ryan disputed the Respondent’s impression that the change of practice in filing in Expense Sheets to filling in Expense and Time Sheets was understood and agreed. He said that the Complainant contended that the introduction of the Expense and Time Sheets as opposed to Expense Sheets was introduced at some stage in the period between early 2013 and 2015. However, the Complainant did not notice the change until late 2015. He submits that he had always filled in his expense sheets retrospectively using his diary as a reference. In any event, any correspondence regarding proposed change to contractual terms or work practices were subject to agreement being achieved with the Union on behalf of the Respondent’s employees, including the Complainant.
Counsel disputed the Respondent’s contention that it was the Complainant who requested an analysis of his hours. Instead, he submitted that it was the Respondent who raised the idea of a look back of hours worked. He said that Ms Sheeran, HR raised it on a number of occasions after the Complainant returned to work in August 2014. He said that this was not new, as over the years the Complainant and the Respondent would engage in a reconciliation of hours worked over a given period of time to establish if the Complainant was in the ‘red’ or the ‘black’ regarding hours.
Counsel submitted that the investigation process was unfair as at both the initial investigation meeting on 6th January 2016 and the second such meeting on 8th January 2016 the Complainant was not given the opportunity to have a representative with him. He referred to the fact that the CEO (Mr. Lar Sheeran) suspended the Complainant at the onset of the second meeting on 8thJanuary 2016 and alleged that Mr Sheeran had engaged in inappropriate commentary at the start of the meeting concerning the Complainant’s further employment with the Respondent when he referenced the Complainant’s late wife, and said“you would be better off resigning”and“Liz would be disappointed”.
Counsel submitted that the approach by the Respondent is outside what could be considered fair procedures at the disciplinary stage. A central tenet of fair procedures is that the person sitting in judgement should be free from bias’. It is submitted that CEO was not and could not be free from bias.
Mr Ryan submitted that Mr. Mitchell’s role as the appeal officer in the Complainant’s case was entirely inappropriate and unfair arising from the fact that he had an economic relationship with the Respondent as a contractor providing training. Therefore, he submitted that it was impossible to establish the absence of a subjective bias in the appeals process. He referred to the case ofConnolly v. McConnell JR 172, where the Supreme Court stated as follows: -
- “when a person holds a full-time pensionable office from which he may be removed, and thus be deprived of his means of livelihood and of his pension rights, the domestic tribunal or body having the power to remove him are exercising quasi-judicial functions. Therefore, they may not remove him without first according to him natural justice. He must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him - audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause - nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly.”
It was also submitted that Mr. Mitchell went well beyond the terms of reference of the apply process and consequently rendered his outcome unfair.
Mr Ryan submitted that the Respondent’s approach was outside what could be considered fair procedures at investigation stage. The case ofCollier v. PepsiCo International Food & Beverages LimitedUD/672/2009 concerned an employee who had been dismissed following the discovery of a serious stock discrepancy. The Tribunal found that the employer had not acted as a reasonable employer would have acted in the circumstances because the employee had not been given copies of the stock losses or the opportunity to review those figures and the basis on which they were calculated. The employee did not receive sufficient prior notification of the investigatory meeting to enable him to prepare properly for it. The employer was also held to have breached fair procedures when it allowed one particular representative to take part in both the investigatory and disciplinary meetings and also be consulted at the appeals stage.
On 8th February 2016 the Complainant’s trade union representative wrote to the Respondent setting out the grounds of the Complainant’s appeal under the following headings:-
- - Breach of procedure/hours of work
- Tracking Device
- Fair Procedures
- Duty of Care
Counsel outlined in great detail the issue of the Complainant’s losses and efforts to mitigate such losses. In June 2016 the Complainant underwent retraining in a new field when he commenced training as an Emergency Medical Technician. The training took place during weekends and during this period the Complainant also undertook part time work on weekdays. The Complainant also took up part time work with An Post for the months of November 2016 and January 2017. He was employed as an Emergency Medical Technician on 3rd April 2017, initially 25 hours per week were available to him.
Summary of Witness Evidence
Ms Tina Sheeran, HR Director
Ms Sheeran was the Managing Director at the time of the Complainant’s dismissal, she is now the Human Resources Director. She is a major shareholder in the company.
She told the Court that the Complainant was a Technical Services Manager with responsibility for Quality Control, he was responsible for viewing sites under construction, in charge of all maintenance, annual servicing of Client’s equipment, emergency call outs and trouble shooting. She said that while he was given instructions and worked closely with Mr Michael Fitzgerald, Director, he was however, quite autonomous. Other workers reported to him and he was responsible for ensuring work was completed properly.
She said that he was a long-standing employee, having commenced in the company in 1984. Ms Sheeran was most complementary of the Complainant’s tenure with the Respondent. She said that he was instrumental in getting the Company to where it is today. He was highly skilled and very knowledgeable and she attributed the success of the company to him.
Ms Sheeran said that she joined the company in 2007 and became Managing Director in 2013, at a time when the company was not doing well and need ‘new blood’. She said that it needed to improve its efficiency in order to ensure it was fully compliant with its statutory obligations. She was responsible for the direction the company was going. Ms Sheeran said that she was the person who in the first instance was responsible for discipline. She said that when she commenced the Respondent’s terms and conditions of employment were woefully deficient and she set about improving them. She initiated new Time and Expense Form, thereby replacing the Expense Forms which did not record times of work or breaks, as required by the Organisation of Working Time Act. She also introduced new rules and she had been informed that employees were using their phones while driving and in order to comply with new Revenue rules to inform staff that they were not permitted to use company vehicles for private use. She said that as accuracy was vital she introduced the new expenses and timesheets. In order to notify staff of these new procedures, she held a meeting with them on an off-site location.
The witness said that she distributed the new improved contracts of employment and Employee Handbook to all employees including the Complainant, however, despite sending it to him on two occasions, he failed to return it with his signature of acceptance. She said that the fact that company vehicles were fitted with tracker devices was well known within the company and was the subject of a lot of discussion among staff. She said that she wrote to the Complainant on three occasions to inform him that his vehicle was fitted with a tracker device. She said that she had no reason to believe that he did not know that the tracker device was fitted to his company vehicle. The witness said that only two named employees were exempt from the use of trackers, there were Supervisors and had written assurances that there would be no tracker devices in the vehicle provided by the company to them. She said that the Complainant did not have such an exemption.
Ms Sheeran recounted the events which lead to the Complainant’s dismissal. She said that following a period of absence when the Complainant had a hip replacement, he returned to work in April 2013. In December 2013, he submitted a remittance for 21 days which he claimed were owed to him as time off in lieu of hours worked. The Respondent paid the outstanding amount and sought validation from the Complainant. She said that she wrote to the Complainant on three occasions seeking the information and was of the view that his delay was unacceptable.
She said that the Complainant’s Union wrote to her enquiring about “retrospective audit involving receipts etc” and sought a meeting with her to discuss the impact of this on its members. Ms Sheeran said that she thought that the Complainant may have understood that her actions in seeking validation were personal to him, but she said that they were not, there were three others that she was seeking validation for at the time. However, after she received the letter from the Union she said that the Respondent decided to draw a line in the sand on the issue.
In March 2014, the Complainant had a second hip replacement and when he was almost due to return to work his wife was diagnosed with a very serious illness and died shortly thereafter. At the time, Ms Sheeran said that she wrote to him offering him flexibility with his working hours and stated that the Respondent was happy to facilitate him to submit his timesheets by email.
She told the Court that when he declared that he was fit to return she wrote to him to ask him to attend for a medical assessment to ensure that he was fit to return. She said that he returned to work in August 2014. Ms Sheeran said that on 5th December 2015 the Complainant informed her that there was outstanding time owed to him. She said that when she reviewed his timesheets and carried out a tally she came across a receipt for a tool bought in Tallaght at a time when he was supposed to be at a Client in Clonee. She said she checked to see if he had a tracker device or if he was exempt and discovered that he had a device. She then proceeded to carry out a very detailed analysis of his timesheets, his tracker recording, his receipts and toll receipts. The witness said that she spent some time on this exercise over the Christmas period. She said that she came across a number of occasions when the information she gathered did not correlate to the timesheets submitted by the Complainant. Therefore, she said that she invited him to an investigation meeting. She said that at the meeting which was held on 6thJanuary 2016, she asked the Complainant to explain the discrepancies she had uncovered. He told her that he had an exemption from tracker use and she told him that he had not as she had checked. She said that she told him that there had been a tracker device on his vehicle since 2013.
Ms Sheeran said that as the Complainant was visibly upset at the meeting that she was concerned for his wellbeing and thought he might be suffering from post-traumatic stress after the death of his wife. She said that this meeting was followed up with a meeting on 8th January 2016, which was initially chaired by Mr Lar Sheeran until she decided to step into the Chair as she said that it would not have been appropriate for Mr Sheeran to be involved at that point. Ms Sheeran said that at this meeting the Complainant was suspended on full pay pending a further investigation. She said that as she was concerned about the Complainant she decided to send him for a medical assessment. At the meeting, she said that she handed the Complainant documents to demonstrate the inconsistencies she discovered between his timesheets and the tracker records, expense receipts and toll receipts. The witness said that she supplied this information in order to provide him with an opportunity to respond to the allegations being made.
On 12th January 2016, a hand delivered medical cert was delivered to the office stating that the Complainant was fit to work. She said that she was then satisfied that there was no medical reason to falsify his timesheets, however, as his answers did not add up and he was fit for duty, she decided that the matter should progress to a disciplinary hearing.
The witness said that on receipt of the medical certificate she had no choice but to refer the matter to Mr Sheeran (CEO) to commence disciplinary proceedings against the Complainant. She said that she wrote to the Complainant on 20th January 2016 giving him details of the disciplinary hearing to take place on 29th January 2016, this letter was accompanied by a large number of documents, including comparison timesheets and a spreadsheet which she had compiled showing the discrepancies discovered. She said that while the meeting was going ahead she was requested to put the information into a different format.
The witness was asked to go through the spreadsheets she had prepared which showed that on a number of occasions when the Complainant said he was at a particular location/Client, he was elsewhere.
Under cross-examination, the witness was questioned about the spreadsheets presented to the Court and it was put to her that the Complainant never saw these spreadsheets. She accepted that the information was not fully complete when presented to the Complainant at the investigation stage as she was awaiting his answers to the questions she posed. The witness said that the Complainant was not presented with the spreadsheets at the disciplinary meeting however, she said it was the document in raw form. She said that following the meeting the Complainant confirmed that the notes of the meeting were an accurate account of the meeting.
Ms Sheeran was asked about her “findings” following the investigation. She denied that she had made “findings”, however, she said that as she was satisfied that there were questions to be answered, she decided to send it up the powerline. She denied that she found evidence of misconduct by the Complainant but that there were questions to be answered.
The witness was asked whether the letter dated 20th January 2016 informing the Complainant of a disciplinary hearing was written by her. She replied that as Company Secretary she wrote all such letters. She said while the letter did not advise him that his actions could amount to gross misconduct and could lead to his dismissal, it was accompanied by the Employee Handbook. She said that while the allegation as described on the letter may have been generalised [“Alleged breach of company procedures, namely it is alleged that on numerous dates timesheet records were falsified], the nub of the allegation came down to the question of whether or not the Complainant filled in the timesheets correctly.
The witness was questioned as to when she spoke with Mr Sheeran about the need for a disciplinary hearing on the matter. She said that on 8th January 2016 she handed over all her research to Mr Sheeran to commence a disciplinary process as there were questions to be answered and the Complainant was deemed fit to participate in this process.
She said that at the disciplinary hearing the Complainant was informed of the conclusions she had reached from her investigation and that there were questions to be answered.
The witness accepted that there had been a custom and practice within the company whereby employees’ hours of work were reconciled to ensure that they were paid for 39 hours work per week, this was to take account of long days some days versus short days on other occasions and any time worked over 39 hours per week was paid as extra time or time off in lieu. She said that the system of reconciling time was more relaxed in the past, however, due to the employer’s obligations under the Organisation of Working Time Act and the fact that the Company bills Clients according to information gathered via the timesheets, she had tightened up the process. She said that the tracker information is used to bill Clients.
Ms Sheeran said that she was aware that the Complainant was greatly affected by his wife’s death, however, she said that it was not until the investigation that he told the Respondent that he was not handling the situation well.
The witness was questioned about the instructions given to the Complainant at the completion of the investigation meeting on 6thJanuary 2016 when she informed him that there would be a follow up meeting after the Directors had reviewed the information and after seeking advice from the Respondent’s advisors. Ms Sheeran stated that she was advised to keep the Directors out of the loop at that stage and to suspend the Complainant. She said that she did not speak to the Directors after the investigation. However, she said that she had to tell them about her concerns.
The witness stated that the Complainant was not informed prior to the meeting on 8th January 2016 that the purpose of that meeting was to place him on suspension. She said that at that meeting Mr Sheeran informed him that he was on suspension with full pay.
The witness was questioned about the letter of suspension and the fact that it informed him that he should not seek to contact or influence any potential witness in any way and was not informed of his right to bring witnesses to the disciplinary meeting on 29th January 2016. Ms Sheeran accepted that this was correct, however, she said that she was thinking of Clients and the reputation of the company when she referred to the potential witnesses.
Ms Sheeran said that following her investigation she concluded that the Complainant had incorrectly completed his timesheets, she did not find that he wilfully did so in order to gain financially. However, she said that the implications of stating that he was servicing a Client when he was not present at the Clients’ premises meant that it could have financial implications and safety risks for the Respondent.
Ms Sheeran said that had her mother been alive, the appeal would have been heard by her. Instead it was decided to go outside the company for an appeal person and two names were given to the Complainant to choose a person to make his appeal to. She said that as the Complainant knew Mr Pearse Mitchell and had spoken very highly of him in the past it was decided to go with him. Ms Sheeran said that she had no involvement in the appeal process, other than on agreeing the terms of reference for the appeal.
The witness said that Mr Mitchell had conducted work on health and safety issues for the Respondent on a number of occasions. He was asked to carry out the appeal process and was instructed to ensure that the Respondent had followed the correct procedures when conducting the disciplinary process, to provide the Complainant with an opportunity to account for himself and to consider the proportionality of the sanction taken.
Mr Pearse Mitchell, Appeals Officer
Mr Pearse Mitchell, Annbrook Safety Training, gave evidence on behalf of the Respondent. He said that he was requested by the Respondent to carry out an appeal by the Complainant of the Respondent’s decision to dismiss him. He said that his remit was to decide whether or not the Respondent had followed their disciplinary procedures correctly. He said that he held appeal hearings on two dates, 21stMarch and 18thApril 2016. At the first meeting Mr Mitchell said that he asked the Complainant to complete a questionnaire. These were questions which he said that he needed answers from the Complainant to assist him in his task. However, he said that the Complainant’s trade union representative came up with issues in the meeting which needed to be clarified, therefore, he adjourned the first meeting to seek such clarification.
Mr Pearse said that he wrote his report, dated 26thApril 2016, following his deliberation after both meetings had completed. He said that he considered the appeal on five issues as raised by the trade union official and which he deemed were most important, as follows: -
- Breach of Procedures- Fair Procedures
Contracts of Employment
Hours of Work
Duty of Care
Having completed his deliberations and having achieved little or no responses from the Complainant, he concluded that there were grounds for dismissal as the facts showed that he had falsified the timesheets by stating that he was in one place when the tracker device records showed that he was elsewhere and he received no counter argument from the Complainant.
Under cross-examination, Counsel for the Complainant asked the witness why his report referred to “our procedures” when he was referring to the Respondent’s procedures. The witness could not recount why he made that reference. Similarly, he was asked about references in his report to “our home address” when referring to the Respondent’s. He replied that he was not sure but that he could have taken some information from different documents.
He was asked if he had taken account of the Complainant’s long service and unblemished record in coming to his decision to uphold the dismissal. He replied that his remit was confined to examining the procedures and whether or not the Respondent had fully complied with them.
Mr Mitchell said that he found the process very challenging as he found it so difficult to get answers to the questions he posed of the Complainant, as his trade union representative constantly attempted to muddy the waters and was deliberately obtrusive. He said that he did not communicate with the Respondent during the appeals process other than to clarify matters raised by his trade union representative. In doing so he said that he had to speak to Ms Sheeran, Mr Sheeran and Mr Michael Fitzgerald. However, he said that while he took notes of these discussions he did not furnished those notes to the Complainant. He said that when little or no answers were forthcoming from the Complainant to balance out the Respondent’s decision to dismiss him, he had little alternative but to uphold the decision to dismiss.
The witness asked if he got advice on how to carry out an appeal as he said that he had not done it before. He said that he “googled” it and came up with a structure and spoke to a friend who worked in recruitment.
The witness was asked if he concluded that the Complainant had incurred a financial gain in the way he completed the timesheets. He said that yes, he did conclude that. He was asked if he had interviewed any other witness, he answered that he did not but that he had spoken by telephone to Ms Sheeran and Mr Sheeran.
In his report, Mr Mitchell concluded that the Complainant had made the following breaches and accordingly held that his dismissal was fair: -
- oRepeatedly & systematically falsified your records
oGained financially from your actions
oNot worked to commonly acceptable standards of behaviour
oDisregarded Management instructions to read documents
oPut yourself in a position of ignorance which lead to your Termination of Employment
Mr Mitchell was questioned why he found that the above breaches when the Respondent had dismissed him for one breach – “Alleged breach of company procedures, namely it is alleged that on numerous dates timesheet records were falsified”.Mr Mitchell replied that these were the breaches he found.
Mr Mitchell said that he concluded that the Complainant had been provided with a contract of employment and an Employee Handbook, both of which outlined that company vehicles were fitted with tracker devices. He said that he also concluded that the Respondent had utilised its disciplinary procedures correctly. He was questioned why he found so when Mr Sheeran had been present at the meeting when the Complainant was suspended, yet he also conducted the disciplinary meeting and made the decision to dismiss, which was contrary to the Respondent’s procedures. He replied that overall, he was satisfied that the procedures were followed correctly. He said that he took into the account the Complainant’s long service, his previous position as a Director of the Company and his wife’s death in tragic circumstances. However, he concluded that there were serious inconsistencies in his time sheets and the Complainant had gained financially from those inconsistencies, which he deemed to be a very serious matter. On that basis he upheld the Respondent’s position to dismiss him.
Mr Michael Fitzgerald, Engineering Technical Manager
Mr Michael Fitzgerald has been employed with the Respondent since 1982, when the company commenced operating. He was briefly the Managing Director around 2013 to 2016 and had held the position as Engineering Technical Manager since 2016. He said that he was not the Managing Director when the events, the subject of this claim, were in issue and he was not involved in any aspect of the investigation or the disciplinary process. He said he was aware of the matter and supplied company records when requested by management.
The witness was asked if he was aware that the Complainant was not attending Clients at certain times when he was supposed to be. He said that he was not aware.
Mr Fitzgerald said that in the early days of the company, time and expenses were recorded, whereas after the statutory regulations changed, new more detailed timesheets were introduced.
The witness was asked if he told the Complainant that there was no tracker device on his company van, he replied that officially he did not, however, he may have implied such in an informal way, when questioned about it by the Complainant. He said that he was aware that two named Supervisors were specifically exempted from having tracker devices installed in their company vehicles. On that basis due to the Complainant’s superior position in the Company he assumed that he was in a similar position.
The witness was questioned on the services carried out in each of the Respondent’s Clients, including hospitals, universities and laboratories. He gave details of each and stated that if their installations were not properly maintained and serviced, it could lead to consequential detriments for the Respondent. He said that there were no complaints by any of the Respondent’s Clients as a result of the Complainant’s allegedly inappropriate actions.
Mr Fitzgerald said that he had worked very closely with the Complainant over many years and on the day he was suspended the Complainant came to his office to shake his hand and apologies to him. He said that the Complainant was visibly upset. Mr Fitzgerald said that he was shocked and stunned that the Complainant was being suspended.
Mr James Lar Sheeran, Chairman of the Company
Mr Sheeran told the Court that he was the founder and major shareholder of the business and is currently its Chairman. At the period in question in this case, he was the Chief Executive Officer. He said that he conducted the disciplinary hearing and made the decision to dismiss the Complainant for gross misconduct.
He recounted the events leading to the Complainant’s dismissal. He said that Ms Sheeran informed him that there were discrepancies in the Complainant’s timesheets and that she had carried out an investigation which required further investigation. He said that the purpose of the meeting was to allow the Complainant to account for the discrepancies discovered.
Mr Sheeran attended the meeting on 8thJanuary 2016, however shortly after commencing the meeting, Ms Sheeran joined the meeting and informed him that having been given advice, it was not appropriate for him to continue with the meeting, therefore he left and she took over. He said that at the point at which he left the meeting only preliminary matters had been dealt with However, he said that prior to leaving the Complainant asked to have an “off the record” conversation as they had known each other for over thirty years. Mr Sheeran said that the Complainant told him that he had f****ed up and asked him if he (Mr Sheeran) was in his position what would he do. Mr Sheeran told him that he would resign and keep his reputation. He also said to the Complainant that Liz would be disappointed (referring to the Complainant’s wife) as she was a very moral person. When questioned about this conversation, Mr Sheeran said that the Complainant admitted that he did wrong and apologised.
Mr Sheeran told the Court that he conducted the disciplinary meeting held on 29thJanuary 2016. He said that the Complainant was accompanied by his trade union official, who behaved in a very hostile manner at the meeting and answered most of the questions which were directed to the Complainant. He described the meeting as being “toxic” with the trade union representative threatening industrial actions. He said that the latter used terms should as “vile”, “disgusting”, “sham” “repulsive”, “sinful”, “immoral” about the Respondent and its disciplinary process. He said it was very unpleasant and while the intent of the meeting was to allow the Complainant to refute the allegations made against him and to hear any mitigating responses, he was not permitted to speak most of the time. He said that prior to the meeting, the Complainant was requested to bring his diary, which he failed to do. Mr Sheeran said that the only answers received from the Complainant when he was asked why he was not at the Clients at the times he claimed he was, he answered that he was at this wife’s grave or picking up his daughter.
Following the disciplinary meeting on 29th January 2016, the Complainant was issued with a letter dated 4th February 2016 informing him of Mr Sheeran’s decision. Mr Sheeran stated that this letter referred to twelve instances where the Complainant was found to have given false information as to his whereabouts on certain days. Mr Sheeran said that the impact of his actions resulted in Clients being billed for work which was not carried out. The implications of which could damage the Company’s reputation and accordingly Mr Sheeran said that he made the decision to dismiss the Complainant for gross misconduct.
Mr Sheeran accepted that the Complainant was very much grieving the loss of his wife, however, his therapist/counsellor had deemed him fit for work, as evidenced by the certificate dated 12th January 2016. Furthermore, he said that the Complainant had been offered flexibility/compassion due to his wife’s death and was informed that he could work variable hours if he wished to do so. Mr Sheeran said that he had no difficulty with the Complainant visiting his wife’s grave, however he had a difficulty with him claiming to be attending Clients at the same time. He said that the Complainant was misleading the company and he had a difficulty with paying him for work not done. As a result, he said that the Complainant’s action had destroyed all trust and confidence he had in him. He said that he felt betrayed.
Under cross-examination, the witness was questioned why he had decided that the Complainant was guilty of gross misconduct. Mr Sheeran said that when the Complainant did not answer the questions put to him and did not refute the allegations made, he had to rely on the information gathered that indicated he had falsified the time sheets.
It was also put to him that his involvement in the process was contrary to natural justice, as he was involved at all stages – investigation, suspension, discipline and dismissal and had already advised the Complainant that he should resign. He said that he had had no involvement in the investigation process, Ms Sheeran carried out that work. He said that he had suspended the Complainant pending a disciplinary hearing. However, he said that when he realised that he should not have been involved in the suspension, he had left the meeting and it was Ms Sheeran who made the decision to suspend the Complainant. He said that this occurred as a call came through to advise him not to proceed with the meeting. He said that at that point he was not fully aware of the dept of the problems and the consequences for the company.
Mr Sheeran was asked about the Clients which the Complainant indicated he had attended to but had not done so. The witness said that all of the Clients’ installations were checked by the Respondent’s fitters to make sure that all was in order.
Mr Sheeran said that in 2013/2014, the Respondent introduced more formal procedures for time keeping and expense in order to comply with legal, NERA and Revenue requirements. He said that in his view all employees knew that the company vehicles were fitted with tracker devices, he told the Court that he owned a company which sells and installs tracker devices. He said that all employees received a notice in their payslips that tracker devices were installed in company vehicles. He said that he received such a notice attached to his payslip and said that all employees had received two or three letters confirming same. Mr Sheeran said that only two employees, both Supervisors, were specifically excluded from having tracker devices in their company vehicles.
The witness was questioned about a letter from the Complainant’s union dated 1stFebruary 2016 referring to the Complainant’s disciplinary process and seeking to bring the matter to a close. Mr Sheeran said that this letter may have crossed in the post with his letter dated 4thFebruary 2016 informing the Complainant of his dismissal.
Mr Sheeran was questioned about his reference to an appeal in the dismissal letter and was asked if the appeal was to be referred to him. He responded by saying that if there was to be an appeal it was to be directed to him so that he could assign an appropriate person to conduct the appeal.
Finally, Mr Sheeran disputed the Complainant’s contention that on the days when he recorded the incorrect information on the timesheets, he had telephoned Clients before the appointed times to inform them that he would not be turning up as he was emotionally unable to do so (due to his wife’s passing). Mr Sheeran said that this was the first time he had heard that excuse from the Complainant.
Mr David Dunne, the Complainant
Mr Dunne said that he commenced employment with the Respondent in June 1984. There were two employees employed with he started. The company was solely involved in installation at the time. He said that he became a Director of the company between 1991 and 1992 and was promoted to the position of Technical Services Manager in January 1999. He worked closely with Mr Michael Fitzgerald, working with him on a daily basis since he commenced employment in 1984.
With reference to his working hours and the completion of time sheets, the Complainant said that the tradition was to work whatever hours were required of him, sometimes long days other times shorter. He was always paid for a 39-hour week, therefore on occasions his time would need to be balanced and if the Respondent owed him hours he would be paid for the extra hours/days or take time off in lieu. He said that he never had to fill in time sheets until around 2013, but until them he filled in expense sheets only. He said that he reported to Mr Michael Fitzgerald, who assigned work to him and who kept a record of his daily Client visits.
He told the Court that he had a hip replacement in 2013 and was out of work for three months. In March 2014 he had a second hip replacement and was due to return to work at the beginning of June 2014 when his wife was diagnosed with a serious illness. He said that she died shorty thereafter and he did not return until later in August 2014. He said that his wife’s passing was a major upheaval in his life and still is.
With reference to the question of whether or not he knew there was a tracker device installed in his company vehicle he said that he was present when the two Supervisors received letters which stated that their company vehicles were exempt from the installation of tracking devices. He said that he asked Mr Michael Fitzgerald if his company vehicle would be fitted with one, he was told that he would never need one.
He said that he returned to work following illness, in August 2014, he asked about his hours of work and whether or not he was owed any hours. He discussed the issue with Ms Sheeran, she told him that he owed hours. The Complainant disagreed with this and asked for details. After Christmas 2015 Ms Sheeran produced a very detailed spreadsheet outlining details of his hours and work movements.
It was put to the witness that he had overstated his hours worked and falsified records, stating that he was attending Clients when it was clear from the tracker device that he was elsewhere. He said that there was no financial gain in doing so. He told the Court that he would often go to his wife’s grave and sit there. This helped him deal with his grief. He said that he would ring the Clients he was due to visit that day and explain that he could not attend as he was not up to it. He said that the Clients always understood and never complained. He said that he would organise with the Clients to attend on a different day.
When asked if he admitted to any wrongdoing, he said that he would never do anything to hurt the company. He referred to the “off the record” conversation with Mr Sheeran and said that he asked him what he would do if he were in his situation. Mr Sheeran told him he would resign. The witness said that he was upset at the time. It was in the middle of a meeting where Mr Sheeran had suspended him, then unsuspended him as he had to leave the meeting and he was then suspended again by Ms Sheeran when she took over the meeting.
Mr Dunne said that following his suspension he bid farewell to Mr Michael Fitzgerald and apologised to him for dropping him in it, as it was a very busy time and he would not be there to assist him.
Under cross-examination the witness was asked if he logged the second calls made to Clients that he missed on the days that he was attending his wife’s grave or picking up his daughter. He answered that yes, he did. He was asked why today (at the hearing before the Court) was this the first time that he was mentioning this. He said that that had always been the situation. However, he said that his head was all over the place during the disciplinary process and he could not take it all in, yet he accepted that he was certified as fit to work at this time.
Mr Dunne was asked about the appeal hearing when he was required to answer questions in writing. He said that he answered all the questions.
The witness was asked if he accepted that he falsified records, he denied that he had. He did not accept that he had been paid for work not done and denied that he had endangered the Respondent’s business. Furthermore, he denied that in failing to attend to Clients it could have put the Clients at risk. He did accept that he was not where his records said he was.
The witness was asked about his participation in the disciplinary meeting held on 29th January 2016. He said that he was satisfied with his trade union representative, he agreed with the derogatory references he made about the Respondent and its processes and with the threat of industrial action made by his representative. He said that he had answered any questions he could. It was put to him that he had been given ample time to give an explanation for his actions but had failed to do so. He disputed that contention.
When asked about the flexibility granted to him by the Respondent following his wife’s death, he accepted that this did not include allowing him to record his whereabouts incorrectly on the timesheets.
A letter dated 11thFebruary 2013 was opened to the witness. It was a letter addressed to him from Ms Sheeran outlining the Respondent’s requirement to abide by Employment Directives and thereby included a new contract of employment and Employee Handbook. It required him to study the documents and sign a form confirming that he had done so. He said that he did not remember receiving the documents. He said that he was out on sick leave having had his hip replaced at that time. This document contained details of the tracker device. The witness said that he was not aware of the tracker device on his vehicle. He accepted that when he returned to work following his hip replacement in 2013 that Ms Sheeran reissued him with the contract, however, he said that he did not read it. He said that he was not happy with the changes to the recording system and had difficulty embracing those changes. He accepted that he had received a strongly worded letter from Mr Lar Sheeran in September 2013 requiring him to give detailed account of his time worked. The letter stated that his delay in furnishing the requested information was a serious breach of discipline and was a matter of record. The witness was asked about his reply to Mr Sheeran when he wrote that he was of the view that he did not need to justify his time off and supplied a document which gave very scant information. He told the Court that it was silly of him to supply so little information, however, he said it was done in a hurry. He accepted that it did not address what the Respondent had requested him to do.
Details of the occasions he said that he was visiting Clients when he was not were presented to the witness during the appeal hearing, these showed that there were a number of occasions when he claimed for time off in lieu of hours worked in respect of over-claimed hours. It was put to the witness that this information demonstrated that he did gain financially by inaccurate recording. He denied this accusation. He said that he did not keep records on a daily basis, however, he said that Mr Michael Fitzgerald kept details of the Clients he was due to visit on a daily basis and inform him of his schedule of work on a weekly basis. In conclusion, the witness accepted that the timesheets he completed were overstated and that he overclaimed hours.
The witness was critical of the meeting held on 8th January 2016, on the basis that he was informed beforehand that it was a follow up meeting and he was not advised to have representation at that meeting. It turned out that he was suspended. He said that he was of the view that he was more or less dismissed at that meeting.
Mr Dunne gave details of his efforts to mitigate his losses. In June 2016 he commenced training as an Emergency Medical Technician, at his own expense. This training took place at weekends. During this time, he also undertook part time work on weekdays. Following the completion of the training course in August 2016, he took some time to engage with a counsellor and undertook some part time work.
He regained employment as an EMT on 25 April 2017 on a part time basis until around July 2019, when he commenced working full time as an EMT. Details of his losses were outlined to the Court, these amounted to almost €99,000.
Findings and Conclusions of the Court
With regard to the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provide:-
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—
- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.
- The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.
It is clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of fair procedures which lays down that certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirement of fair procedures that cannot be dispensed with regardless of the particular circumstances.
Having examined the disciplinary procedures adopted in this case, the Court notes that following the meeting on 6th January 2016 held to investigate“alleged breach of company procedure, namely it is alleged that on numerous timesheets records were falsified”, the Complainant was informed by text on 7th January 2016 that a “follow-up” meeting would be held the next day, 8thJanuary 2016. However, he was not advised to bring a representative and was not advised of the possible implications of that meeting. The Court is of the view that he did not receive sufficient prior notification of the investigatory meeting to enable him to prepare properly for it. It was at that meeting that he was suspended to allow an investigation into the allegation made against him.
The disciplinary meeting which followed, on 29th January 2016 was conducted by Mr Sheeran, whom it turned out had chaired part of the investigation meeting on 8th January. While Mr Sheeran put it to the Court that he should not have done so and had left the meeting after preliminary matters had been attended to, the Court notes that in fact he had suspended the Complainant before leaving the meeting. As Mr Sheeran was also the manager who made the decision to dismiss the Complainant the Court must find the Respondent to be in breach of fair procedures when it allowed one particular representative to take part in both the investigatory and disciplinary meetings.
Furthermore, the Court notes that the appeal hearing was conducted by a person with little experience in this field. Notwithstanding that, it was very thorough and comprehensive in attempting to elicit information from the Complainant on the allegations put to him. He received ample opportunity at the meeting to appeal the decision to terminate his employment. However, there was a similar lack of cooperation from the Complainant as occurred at the disciplinary meeting and it was dominated by interactions with his trade union representative.
Did the Complainant Contribute to his own Dismissal ?
Having carefully considered the submissions of both parties, the extensive documentation made available to the Court, the minutes of meetings and the transcribed record by a Stenographer of the appeal meetings and the evidence tendered by all witnesses, it is evident that the Complainant did falsify time sheets and as admitted by him, he overclaimed for hours he purported to work.
The Court notes that arising from the absence of fixed hours of the Complainant over the years the parties would engage in a reconciliation of hours of work over a given period of time to establish if hours were owed to either party. While the Complainant told the Court that there was a custom and practice of flexibility with regard to his hours and he had traditionally reconciled the hours he worked to reflect his 39-hour week and claimed pay or time off in lieu of hours worked over 39 hours, he accepted that this arrangement changed after 2013. However, the Complainant did not embrace those changes and resisted them.
Furthermore, he was of the view that following the death of his wife, he could makead hocarrangements with the Respondent’s Clients when he did not feel like attending to their premises and decided to visit his wife’s grave or pick up his daughter instead. Clearly the passing of his wife had a major impact on the Complainant’s well-being, however, the Respondent indicated that it was willing to adjust his hours to suit him, which he did not avail of. The Complainant told the Court that he had a special arrangement in place with the Clients and that he would visit them at another time. The hearing before the Court was the first time this reason was given for his actions. However, the Court notes that these Clients were charged for the visit which never happened and furthermore, there were potential risks when the service was not carried out. Regardless of whatever flexibility arrangement was in place following his wife’s passing, it is clear to the Court that he had no right to falsify records and claim that he worked hours that he did not. In such circumstances, the Court cannot accept that the reason given by the Complainant excuse his actions.
The Court notes the “off the record” conversation which was opened to the Court, was also referenced in a letter dated 1stFebruary 2016 from the Complainant’s trade union representative to the Respondent. Notwithstanding that it was an “off the record “ conversation between the Complainant and Mr Sheeran, there was no objection to it being adduced in evidence and Mr Sheeran’s evidence was not contested. During that conversation, which took place at the meeting on 8thJanuary 2016, it appears that the Complainant admitted that he f*****d up and asked Mr Sheeran what he would do if he were in his situation. This reference and his admission before the Court that he had overclaimed hours and was not where he claimed he was, leads the Court to the conclusion that the regardless of how difficult his circumstances were following the death of his wife, the Respondent had reasonable grounds to believe that the Complainant was guilty of a serious breach of trust and confidence.
Having examined the recorded transcripts of the disciplinary meeting on 29th January and the appeal hearing held on 21st March and 18th April 2016, at which the Complainant was accompanied by his trade union representative, it is clear that the Complainant played a small part in the meetings and allowed his representative to answer questions on his behalf. The Complainant declined to answer many questions put to him which in the view of the Court was unsatisfactory to the point of being unacceptable and did not allow the Complainant to account for himself. Furthermore, it led to a very negative, uncooperative atmosphere at both meetings, which did not assist the Complainant in raising any defence for his actions.
The Court finds that in the circumstances it was reasonable for the Respondent to treat the falsification of records as being a very serious action by the Complainant, warranting dismissal for gross misconduct and because the bond of trust between employee and employer had broken down.
This justifiably, in the Court’s view, compounded the Respondent’s loss of trust and confidence in his integrity and led to the decision to terminate his employment,
In conclusion, while the Court finds that the dismissal was procedurally unfair, the Court also finds that the Complainant contributed substantially to his own dismissal. Therefore, the Court must evaluate the efforts he claims to have made to mitigate the loss he suffered as a consequence of his unfair dismissal.
Counsel informed the Court that the Complainant’s preferred remedy in the circumstances of this case was that of compensation.
The Court has taken account of the losses suffered by the Complainant arising from his dismissal. The Court has also taken into account, as it is required to do by section 7(2)(b) of the Acts, the extent to which the Complainant’s conduct contributed to the loss that he suffered. In that regard, the Court is satisfied that the Complainant, by his conduct, contributed to a significant degree to his dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.
While the Court concurs with the Decision of the Adjudication Officer, it hereby varies the award of compensation ordered. The Court orders the Respondent to pay the Complainant compensation in the sum of €25,000.00.
The Court so Determines.
Signed on behalf of the Labour Court
6 August 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.