ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00016025
A meat processing plant
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 06/11/2018
Workplace Relations Commission Adjudication Officer: Emile Daly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was dismissed after 22 years of service. The reason for the dismissal was that the Complainant admitted to “clocking in” at 6am each morning on behalf of her brother who he did not present himself at work until a half an hour later. She admitted doing this for 18 months prior to it being detected by the Respondent.
Summary of Respondent’s Case:
(a) The Complainant started work on 1 September 1996 as a general operative. Her work record was good, she had no disciplinary problems and she was promoted to the administration section of the Respondent’s business.
(b) She was dismissed from her position on 12 June 2018. The dismissal was based on admissions by the Complainant to offences of gross misconduct, namely that over an 18-month period, on arrival into work at 6 am she clocked not only on her own behalf but also on behalf of her brother who did not appear into work until half an hour later, ie 6.30am. In this way her brother was paid for a half an hour of work for 18 months for work which he did not do.
(c) The matter came to light one morning when the general manager of the plant looked for and could not find the Complainant’s brother who was clocked in, but who had not yet arrived.
(d) The finding of gross misconduct was based on an investigation meeting that took place on 31 May 2018; a disciplinary meeting that took place on 5 June 2018 and an appeal which took place on 26 June 2018.
(e) The letter inviting the Complainant to the investigation dated 29 May 2018 stated that there would be an investigation into the offence of falsifying time records. The Respondent points to the Respondent booklet of Policies and Procedures which sets out what offences may attract a disciplinary sanction of dismissal which includes (on page 14) “Falsification of Company Records in any form or industrial sabotage.”
(f) The Complainant accepted the facts of the offence at the investigation meeting on 29 May 2018. The Complainant did not, subsequent to her admission at the investigation meeting, deny that she had done what was alleged, nor did she deny it at the Adjudication hearing.
(g) In relation to her contention that she was persuaded to be cooperate and to admit the allegation at the investigation hearing, because her line manager had given her the impression that it would not be dealt with severely; the Respondent witness said that her line manager would not have known the contents of the investigation letter nor would he have known about the alleged offence. In any event they say that it was never suggested that the matter was not serious or that it would not be dealt with seriously.
(h) The fact of the offence having been admitted at the investigation meeting then prompted a disciplinary hearing, during which the Complainant expressed the hope that she would not be penalised severely, that other employees were doing the same thing, that her brother had asked her to do it, that she was not happy about doing it but felt committed to follow his wishes and that she did not benefit from this personally. She also stated that her and her brother were each not paid enough and that her brother worked through lunchtime every day. At the Adjudication hearing the Respondent witness said that if an employee worked through lunch time her or she would be paid, if they took a break at lunchtime they would not be paid, so it was untrue for the Complainant to say that her actions in clocking in her brother early were to rebalance an unfairness to for working through lunchtime and not being paid for that. In any event the Respondent said that this was not an action that the Complainant could decide unilaterally. Rather it was for management to determine.
(i) The Respondent denied that this practice by other employees was either widespread or accepted. When the Complainant was asked who else did she see doing this, she would not say.
(j) To suggest that the offence was not serious was incorrect. The action was akin to theft, and the only reason that the Respondent did not describe it as such during the disciplinary process was by way of an act of courtesy to the Complainant, whose long-term service had been highly valued up until this point.
(k) The issue of a pay review which the Complainant and her brother were in dispute with the Respondent over, was not relevant to the incident nor to how it was dealt with.
(l) The Respondent concluded that under the case law (Martin v Audio Video Centre Ltd UD 617/1991; Looney and Co. Ltd UD 843/1984 and Thompson v Power Supermarkets Ltd. UD531/1998) the Adjudicator in determining whether a dismissal is fair or otherwise, should not replace the Respondent’s decision with a decision that she might decide but rather she must have regard to whether the decision fell into a band of reasonable responses to misconduct. It is not relevant that the Complainant did not benefit from the misconduct personally and the monetary value of the fraud is also not relevant. Rather, the relevant consideration is whether trust and confidence had broken down as a result of the misconduct admitted by the Complainant and, if proven, a long unblemished service does not mend that.
Summary of Complainant’s Case:
The Complainant was dismissed after 22 years of service for “clocking in” to work on behalf of her brother when he was not there. There was no denial by the Complainant that this occurred. The Complaint arises because
(a) the Complainant was led to believe by management within the Respondent that the offence would be dealt with leniently and this led her to make admissions freely. However instead, on foot of her admissions, she was dismissed.
(b) The Complainant said that prior to the investigation meeting because of the way in which the letter (inviting her to the investigation) was given to her by her line manager, his tone and manner led her to believe that the whole process was not serious and that the consequences of it would not be great for her.
(c) The Complainant contended that the penalty of dismissal, given she had a 22 year-long unblemished work record and was highly regarded, was disproportionate to the offence, one that she personally did not benefit from.
(d) The Complainant admitted to the offence at the first opportunity
(e) The Complainant contended that the practice of clocking in on another employee’s behalf was widespread within the work place and that a blind eye was shown towards this practice. When asked about this contention during the investigation process the Complainant did not say who the other offenders were. At the hearing she explained that she did not tell management who the other offenders were not out of a refusal to cooperate but rather because she did not know their names, as they were foreign nationals. She did not mean to imply any disrespect by this, she just did not know their names to repeat them.
(f) The Complainant asked at the hearing why was it allowed go on for as long as it did and that this was evidence that the Respondent knew that the practice was going on. She said that the Respondent were quite happy to accept this as long as the work was done well and on time, which in both her and her brother’s case, it was.
(g) The Complainant contended that the reason that she was singled out was because she was in a senior position and that the management wished to make an example out of her.
(h) The Complainant relied on the case of Horan v Glanbia Meats plc UD602/2000
(i) During the investigation the Complainant explained that she was never comfortable doing what her brother had asked her to do, but did so partly out of loyalty to him and partly because he always worked through lunchtime for a half hour and in her mind, because he was not paid during this time, the half hour of work of wrongly clocked in time, was made up for at lunchtime
(j) The other issue raised by the Complainant at the investigation meeting was that both her and her brother were unhappy with their pay level and had requested a review of this. She believed that this was relevant to the harsh way the Respondent treated her.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
This is a most regrettable case in that up until this incident, the Complainant had worked successfully and loyally for the Respondent for most of her working life. This relationship was a good one, the Complainant had worked hard and in all the years, was never disciplined. She was well liked and respected within the work place and she had been promoted and was relied upon by the Respondent.
In a dismissal case the function of an Adjudicator is to look at the offence, decide whether it is reasonably comes within the definition of misconduct, decide whether the disciplinary procedures were fair and followed and decide whether the Respondent‘s dismissal of employee comes within a band of reasonable responses to misconduct.
In this case I find that it was reasonable for the Respondent to dismiss the Complainant.
The clocking in process relies on the honesty of employees. They are paid on the basis of a clocked in start time and a clocked-out finish time. To meddle with this without sanction of the Respondent when the effect of doing so is to defraud the Respondent is a serious offence. It is dishonest and therefore goes to the heart of the bond of trust between employee and employer.
I am not persuaded by the argument that the Complainant was induced into making admissions. I do not accept that her line manager knew of the details of the alleged offence when he gave her the investigation letter. In any event she should not have relied on this belief to allow her think that she would not be sanctioned. I think that the Complainant made the admissions because had done what was alleged, she regarded what she had been doing was wrong and wished to come clean.
I accept the integrity displayed by the Complainant in immediately owning up to the offence and I accept her evidence that she was attempting to rebalance what she regarded as being an unfairness in her brother not being paid when he worked through lunchtime. However, regardless of the inaccuracy of this, which emerged during the Adjudication hearing, this was not her decision to take.
Her action was dishonest and it broke the trust between the parties. The fact that she did not benefit personally, the fact that the financial loss to the company, while unmeasured may not have been significant; the fact that she had a long unblemished record; none of these are relevant in the circumstances of admitting to fraud, even if it was called “falsification of company records” during the disciplinary process. Furthermore, I do not consider that the sanction of dismissal, while severe in its effect upon the Complainant, was unreasonable in the circumstances. I do not find this complaint to be well founded.
Workplace Relations Commission Adjudication Officer: Emile Daly