ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021487
Delivery centre manager
Conor O'Gorman IBEC
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: 14/11/2019 and 23/01/2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant started working for a previous owner of the Respondent on the 1st of October 2014.
His employment ended by his dismissal by the Respondent on the 26th of March 2019 for misconduct.
He took up employment on the 25th of April 2019, two weeks post his dismissal.
He was in receipt of a gross salary when in employment by the Respondent of €37,000.00. The Complainant gave evidence that two weeks after his dismissal he started working in a wholesale company at a gross wage of €25,000.00 as he had no reference from the Respondent. He worked there for three months to the end of June 2019. He then sourced employment with a filling station at a salary of €32,000.00 gross per annum.
Summary of Respondent’s Case:
The Respondent’s case is that on the 19th of March 2019 the Complainant was placed on paid suspension pending a disciplinary investigation for being in possession of a stolen mobile phone.
He had been found in possession of the mobile phone that had “gone missing” from the depot in December 2018.
The security manager became aware that a Samsung phone had gone missing after being scanned into the depot. The security manager carried out an investigation. The investigation revealed that the phone had been registered on the Respondent’s account in December 2018 and it was registered to the Complainant. The security manager interviewed the Complainant in the presence of the business development manager. The Complainant explained that the Respondents IT department had issued the phone to him. He was asked to provide the IMEI number on the screen and he did this. The security manager informed the Complainant that that number belonged to a phone that was “lost” in the centre in December 2018. At that stage the Complainant advised that he bought the phone on “Adverts” and provided a different explanation as to how the phone came into his possession. This was noted in a witness statement. The Complainant was unable to supply any documented proof of the purchase from Adverts.
The security manager stated that the Complainant’s action had put the reputation of the company at risk as the customer was aware that the phone was registered to a member of the Respondents’ staff/management. The security manager concluded that the Complainant was fully aware he was committing fraud by receiving stolen goods.
The Complaint’s own statement was taken on the 19th of March 2019. His case was that he was looking for a mobile phone for his wife for Christmas. He searched Adverts. He met the seller in a local town. He received the IMEI number from the seller. The Complainant went to a phone shop and asked if there was anything on the number. The phone shop advised there was nothing on the IMEI number. The Complainant purchased the phone from the seller. The Complainant stated that after a week his wife didn’t like the phone and he decided to put the SIM from his work phone into the new phone and use it as his work phone. He stated the first time he knew there was an issue with the phone was when the security supervisor contacted him on the 19th of March 2019.
The Complainant was invited to a disciplinary meeting on the 21st March 2019 by letter and email dated 20th March 2019. He was provided with the documentation that was to be reviewed with him at the meeting. The letter went on to state that this was considered gross misconduct and any action up to and including dismissal may take place.
The disciplinary meeting was held on the 21st of March 2019. The meeting was conducted by a business development manager and the human resources manager was present. I was provided with the minutes of the meeting. The format of the meeting was that the business development manager asked questions and the Complainant answered them. During the disciplinary hearing the Complainant asked for a break. The hearing reconvened after fifteen minutes. The Complainant then asked if he could change his statement. The then offered a new explanation as to how he acquired the phone. He stated that he had purchased it from a former employee of the Respondent who worked with a different delivery company. The Complainant explained that he had had issues with this individual and implied he had been involved in his departure from the Respondent’s employment. He was in contact with this individual who was aware that his work phone had a broken screen. This individual advised the Complainant that he had a friend who would sell him a phone. He gave information to the disciplinary hearing that this individual had been involved in taking drugs. The Complainant stated at the meeting that he was fearful of this individual and that was why he had not told the truth about buying the phone from him. The Complainant again reiterated that he didn’t know the phone was stolen. The meeting was adjourned so that further investigations could be completed.
The disciplinary team met with two of the Complainant’s co-workers the following morning to speak with them in relation to the defence being offered by the Complainant. They also ascertained from time records that the individual identified by the Complainant as having sold the phone to him was in the depot on the day the phone was allegedly sold to the Complainant until after the Complainant left the depot.
The disciplinary team reconvened the disciplinary hearing with the Complainant on the 22nd of March 2019 at 12.30pm. The HR manager reviewed the minutes of the previous meeting and the reason for the adjournment. The interviews with the co-employees and subsequent investigation points were also reviewed in the presence of the Complainant. The Complainant had the opportunity to review everything that had been discussed during the initial disciplinary meeting. The meeting was adjourned for fourteen minutes.
When the meeting reconvened the decision maker advised that he could see no credible evidence that the Complainant had purchased the phone. The decision maker informed the Complainant that he had made the decision to terminate his contract with immediate effect. The HR manager confirmed this verbally to the Complainant that his contract was being terminated with immediate effect for gross misconduct. He was advised he would write to him in the coming days confirming this. He was advised that he would have the right to appeal and the details of how to do so would be in the letter.
The Respondent wrote to the Complainant on the 25th of March 2019 and sent him a four-page letter. It went through the history of the investigation and the decision to terminate his employment. The letter went on to state that they regretted that the course of action was necessary but, in the circumstances, they felt that there was no alternative. Details of to whom the appeal should be made was set out in the letter.
The Complainant wrote on the 27th of March 2019 to the appeal officer requesting a number of documents including contract of employment, disciplinary policy, minutes of meeting in the investigation, copy of any written statements, copy of all documentation concerning the theft of the phone, scans on stolen delivery, CCTV footage containing the theft of the phone, correspondence to the customer for the stolen phone.
The HR supervisor replied to the Complainant’s letter 4th of April 2019 advising that the documentation outlined as part of the appeal letter has been requested from the various functions with the Respondent and it would be provided to him ahead of his appeal meeting. The letter stated that it would schedule the appeal meeting as soon as it was in a position to provide the documentation. The letter confirmed that he would remain unpaid until the appeal outcome has been determined. It gave a telephone number for the HR supervisor.
On the 15th of May 2019 a letter was sent to the Complainant enclosing a copy of the contract of employment, disciplinary policy, minutes of all meetings attended in relation to the investigation, file notes from the disciplinary meetings and the investigation which took place during the adjournment, statement that the Complainant had made and also the security supervisor. The Complainant was advised that the scans of the stolen delivery were no longer available and there was no CCTV footage on the theft of the phone, there was no correspondence provided either with the customer with regard to the stolen phone. The letter went on to confirm a suitable time and date to schedule the appeal meeting with the appeal decision maker. The HR manager gave his mobile phone to contact.
As the Respondent received no reply to its letter of the 15th of May 2019 it wrote again to the Complainant on the 11th of June 2019 asking him to confirm a suitable time and date to schedule the appeal meeting. The letter gave a deadline of the 21st of June 2019 to hear from the Complainant, failing same the Respondent would form the reasonable opinion that he was withdrawing his appeal and deem the matter closed.
The Respondent gave evidence that the first time it received a letter from the WRC advising of the claim was on the 11th of June 2019 and this crossed with the HR manager’s letter to the Complainant.
The Respondent’s case is the fact of dismissal was not in dispute. The Complainant was dismissed by reason of his own conduct. The Respondent submitted that the dismissal was not unfair as it resulted wholly from the conduct of the employee in accordance with Section 9 (4) (b) of the Unfair Dismissal’s Act 1977 as amended. The Respondent submitted it had full regard to the facts, issues and circumstances. It had full regard to the effect of highlighting the contradictory nature of the Complainant’s various explanations for his possession of the phone. These contradictions led to the decision maker reaching his decision. The Respondent relied on the test of reasonableness as set out in British Leyland UK Limited –v- Swift 1981 ILRL 91 which set out that if a reasonable employer might have dismissed him, then the dismissal was fair. The Respondent submitted that it acted reasonably in this case.
The Respondent submitted the Complainant was afforded at all times the benefits of fair procedures in line with the established policy, the LRC code of practice on grievance and disciplinary procedures (SI 146 of 2000) and the universal principles of natural justice. The Respondent relied on the fact that the Complainant did not engage in an appeal. It relied on the case of Pungor –v- MBCC Foods Limited (UD 584/2015). In this case the employment appeal stated that the employee in that case had an obligation to exhaust the internal disciplinary processes prior to seeking to enforce her rights externally. The Respondent also relied on the case of Aryzta –v- Vilnis Cacs UD/17/106.
Summary of Complainant’s Case:
The Complainant’s case was that he was approached on the 19th of March 2019 by the security officer and questioned about his phone. He was advised that the security officer was going to take a statement and he was put on two weeks paid suspension while the matter of the phone was being investigated. The Complainant left his phone unlocked and allowed it to be checked by the Respondent.
On the 20th of March 2019 he received the disciplinary invitation to a meeting. The disciplinary meeting was on the 21st of March 2019.
The Complainant admitted that he had told an earlier false story and that he changed his story as to who sold the mobile phone. He stated that everything else in his statement had stayed the same.
The disciplinary hearing started at 4.30pm, he asked for a break at 5.55pm and the meeting adjourned at 7.30pm. The following day he received a phone call advising him the meeting was being reconvened an hour and fifteen minutes later.
The Complainant agreed that he was asked to leave the room while the decision makers deliberated. They called him back after ten minutes and advised him they were terminating his contract.
The Complainant explained that he asked for the statements from his colleagues and he was advised that the decision makers did not get written statements.
The Complainant submitted that he had never been involved in anything like that before, he had never taken anything in his life, he had clean reputation up until then.
He felt the decision was severe considering there was no evidence other than he was in possession of a stolen phone. He said he didn’t get a chance to prove that he wanted to stay. His evidence was he didn’t know the phone was stolen. He only made a saving of €80.00 on the phone.
He submitted that he didn’t receive a report in December 2018 that the phone was stolen. If he had received a report an alarm bell would have gone off when he was offered the same or similar phone and he would have gone through official levels as regards to the offer.
He submitted he gave all the information that he could remember to the decision makers and that the time when he bought the phone was a very busy time and he couldn’t remember all the details surrounding how he acquired the phone. The reason for the three different explanations for having possession of the phone was that he could “not think straight”. He answered the questions that he could answer, but “he really wasn’t thinking about what he was saying”.
He submitted that he reasonably believed that “justice would prevail” and it would be recognised that he had nothing to do with the stolen phone. He did everything he could when it was discovered the phone was stolen and he was more than helpful. He said unfortunately justice did not prevail. He ended up losing the best job he had, a job that he enjoyed.
He accepted under cross examination that he had agreed to all of the meetings and did not object to them when they were being scheduled. He submitted he should have been allowed to speak with the witnesses.
The Complainant wrote to the Respondent looking for information to complete his appeal. He was advised that the information would take some time to gather. He never received the information.
He explained he needed to go back to work for financial reasons and he was never given an opportunity to appeal his unfair dismissal.
He submitted that the whole investigation and disciplinary hearing happened very quickly in the space of a few days.
He advised that while he received the Respondents letter of the 4th of April 2019 didn’t receive the letters of the 15th of May 2019 or the 11th of June 2019. He said if the letters had been posted he should have received them.
Findings and Conclusions:
Most of the facts of this case were not in dispute. The Complainant was a depot manager in a role of responsibility with the Respondent. At the time of the decision to dismiss him, he accepted that the phone he was in possession of was stolen, though he maintained that he did not know that it was stolen at the time he took possession of it.
The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly ( IEHC 241). In that case, Noonan J. looked at s.6(7) of the Unfair Dismissals Act 1977 and outlined that it provided that a court have regard to the reasonableness of the employer's conduct in relation to a dismissal. He stated:
“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.
In relation to s.6 of the Unfair Dismissals Act 1977, Noonan J. in Reilly highlighted the onus that is on the employer to establish that there were substantial grounds justifying a dismissal, and that the dismissal resulted wholly or mainly from a matter specified in s.6(4) of the 1977 Act, which includes the conduct of the employee.
I have reviewed the evidence presented to me in writing and presented orally on the hearing dates.
I have reviewed the Respondents disciplinary procedure and note that it referred to the Code of Practice with the general principle of natural justice and fair procedures as set out in S.I. No. 146 of 2000 of the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).
I find that the procedures set out in the Respondents disciplinary procedure were detailed, proportionate and extensive. In the main, the process followed was so. However as regards the investigation procedure, paragraph A)4. D of the Respondent’s disciplinary procedure states:
…” this investigation meeting itself should not be interpreted as a disciplinary hearing as no disciplinary sanction would ever be issued on foot of an investigatory meeting. Instead the facts established in an investigatory meeting may be used to identify whether or not a formal disciplinary hearing out to be conducted”.
The statement from the security manager presented to me at the final paragraph set out:
“In conclusion from the investigation on the matter, [complainant] was fully aware he was committing fraud by receiving stolen goods in my opinion”.
This statement went beyond establishing facts only and strayed into making a finding.
While the Respondents disciplinary process set out in a number of paragraphs that the investigation would be completed “as quickly as possible” and disciplinary action is “taken speedily and in a fair and uniform and consistent manner”. In most of the cases where complaints as to the length of time that a disciplinary process took is raised, the time taken was too long. However, in this case, the time involved was too short. I accept the Complainants issue with the speed the investigation and disciplinary hearings took place. The first approach that the Complainant received about the phone was the 19th March 2019. He received his statement and that of the security manager on the 20th March 2019, his disciplinary hearing (first part) was held on the 21st March 2019 and his colleagues interviewed on the 22nd March 2019. The process was proceeding at such a speed that minutes of the notes of the Complainants colleagues were not typed up and provided to the Complainant. Instead they were “reviewed” with the Complainant at his disciplinary meeting (part two) on the 22nd March 2019. When the Complainant attended the second part of his disciplinary meeting, he did not have in his possession information that the decision maker had.
The importance of fair procedures in cases involving dismissal on grounds of misconduct has been long set out in our case law. The Respondent in its outcome letter referred to “the information provided from your colleagues” as part of the basis for its decision. The Complainant at the WRC hearing set out that he wanted to cross examine those colleagues. While this request was not referred to in the minutes of the disciplinary hearing or the Complainant’s letter of the 27th March 2019, it is an entitlement for the Complainant under the principles of natural justice.
Overall, I find that there have been procedural flaws in the investigation process and disciplinary hearing, which resulted in the dismissal of the Complainant.
However, I do find that the Complainant contributed to the situation he found himself in. He provided three explanations as to how the stolen phone ended up in his possession. He accepted that he was in possession of a stolen phone, though disputed he was aware of same at the time he took possession of it. None of the three explanations he provided were in anyway convincing.
The Complainant also should have followed up on the appeal hearing if he wished to bring one. I note that the Complainant had the name of the person to whom he was to bring an appeal and the Respondents HR manager’s mobile number. He commenced the appeal process but didn’t progress it. Instead he proceeded to lodge his complaint with the WRC.
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.
The complaint is well founded.
On the basis that the Complainant was a manager with the Respondent and his actions seriously compromised the Respondents reputation, I award the Complainant €4,500.00 which is the sum I consider just and equitable having regard to all of the circumstances of this case.
Dated: 3rd June 2020
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Unfair dismissal. Witness statements. Investigation outcome beyond establishing fact.