Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Hire Company

Representatives

Mr. Neil Rafter BL, instructed by Mr. Brendan Glynn, Solicitor

Hugh Hannon

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063583-001

21/05/2024

The Complainant was employed as a driver with the Respondent from 1 January 1995 until the 8 December 2023 when his employment was terminated.  The Complainant contended that he was unfairly dismissed. 

The Respondent denied the allegations and instead submitted that the Complainant’s actions had broken the relationship of trust with the employer and accordingly, following a robust investigation and disciplinary procedure, the decision to dismiss was entirely reasonable in the serious circumstances of the case. 

In his complaint form, the Complainant contended that the Respondent alleged that he had intentionally used the company fuel card to purchase diesel for his small farm business and he stated that the company fuel card had been provided to him by the company for the purpose of purchasing fuel for his bus.  The Complainant stated that he denied the allegation in the strongest possible terms, that he made a genuine mistake in using the company fuel card, and he sought to correct that genuine mistake prior to the company first contacting him in respect of the incident.  He stated that he had worked for the company for in excess of 28 years with an unblemished record prior to this incident. 

In his submission the Complainant stated that he was a part-time bus driver with the Respondent since April 1995.  He outlined the following sequence of events:

·       That on Wednesday 19 April 2023 at approximately 11.40 am, he went to a Circle K station to purchase diesel for his own use on his small farm holding.

·       That this was approximately 1 hour after hearing that his neighbour and best friend was terminally ill with cancer. This friend subsequently passed away a couple of months later.

·       That after he had filled his diesel, he walked into the Circle K where he met a gentleman he had worked with over 30 years ago and had a long chat before going to the cashier to pay for the diesel.

·       That he had become distracted because of the upsetting news about his friend and the intervening long chat with his former co-worker.

·       That when he opened his wallet the first card that came out was the company fuel card and he automatically wrongly assumed that he was driving the bus at the time and used the card to pay for his fuel (€607.57).

·       That he first realised his mistake some two days later, Friday 21 April 2023 when he went to update his accounts book to put in the amount of diesel he had purchased in Circle K.

·       That he first checked his bank balance to see if the amount came out and when it had not been taken, he checked the docket received from Circle K and it showed a different card number which he realised matched the company fuel card.

·       That he became upset and discussed the matter with his daughter, who had experience of working in business and that she advised him that he should write a note and put a cheque with it for the amount of fuel purchased and post it to the Respondent.

·       That the note and cheque were posted to the Respondent first thing the following Monday, being Monday 24 April 2023.

·       That on Monday 24 April 2023 at 16.28pm he received an email from Manager 2, informing him that the Respondent had been notified by the petrol station, about an unusual transaction on the company fuel card where they observed a driver filling diesel drums. Manager 2 invited the Complainant to attend a meeting on 27 April at 11.30am to discuss the matter.

·       That the Complainant responded to this email on 24 April 2023 at 22.57pm informing Manager 2 that he could not attend on 27 April due to other commitments.

·       That on 26 April 2023 at 4pm Manager 2 again emailed the Complainant informing him of an investigation meeting due to alleged misuse of a company fuel card that would take place on 2 May 2023.

·       That during this meeting the Complainant admitted to using the company fuel card to pay for his fuel, however he emphasised that he did so in error due to the circumstances already outlined above.

·       That following this meeting Manager 2 completed her investigation report and the matter was referred to Manager 1 for a Disciplinary Hearing.

·       That a Disciplinary Hearing with Manager 1, occurred on 21 June 2023 and that during this meeting, again the Complainant confirmed that he incorrectly used his company fuel card in error.

·       That the Complainant went through the steps required in order to use the company fuel card with Manager 1 and confirmed that he had told the cashier to input an odometer reading and fleet number. However, a random number had been provided for the odometer reading as without his reading glasses he could not see the number.

·       That also during this meeting the Complainant accepted that he would normally email or telephone Manager 1 in relation to matters of concern and apologised for not contacting her on 21 April 2023 when he realised his mistake.

·       That on 28 June 2023, outside of the 7-day period (in the agreed disciplinary procedures of the Respondent), Manager 1 wrote to the Complainant (which the Complainant did not receive until 7 July 2023 by email) confirming her decision to dismiss him from employment with the respondent.

·       That the Complainant notified Manager 3 of his intention to appeal this decision on 12 July 2023 and Patrick Hogan & Co. Solicitors also wrote to Manager 3 on 14 July 2023, notifying him of the Complainant’s intention to appeal the decision.

·       That in the letter from the Complainant’s solicitor to Manager 3 dated 14 July 2023 the following was requested: -

o   The Complainant’s contract of employment.

o   The Respondent’s disciplinary policy.

o   The Respondent's employee handbook (if any) and

o   All other documents relevant to the Complainant’s employment with the Respondent

·       That it was not until 28 August 2023 that Manager 3 sent the Complainant representative a copy of the procedure’s booklet 2018 and drivers handbook 4th edition, however he did not attach a copy of the Complainant’s contract.

·       That on 22 August 2023 Manager 3 emailed Patrick Hogan & Co. Solicitors to notify that an appeal hearing had been arranged for the Complainant at 10am on 31 August however, he advised legal representation at the internal appeal was not appropriate and that the Complainant could be accompanied by a work colleague or a union representative if he so wished.

·       That the hearing on 31 August 2023 was deferred as the Complainant’s Union Representative was on annual leave on this date.

·       That the appeal hearing in front of the Disciplinary Appeals Board eventually took place on 7 November 2023, the result of which was that the Complainant’s employment was terminated with the Respondent with effect from 8 December 2023.

The Complainant submitted that it was clear from the documents provided that the company’s decision to terminate the Complainant’s contract of employment for gross misconduct and without notice was based on a number of matters, as follows: -

i.                    The company’s allegation that he provided an incorrect odometer reading and fleet number.

The Complainant had previously explained to the Respondent that he sometimes provided a random odometer reading as without his reading glasses he could not read the odometer. He submitted that this practice was not uncommon in the company and that the company was well aware of issues experienced by some bus drivers including the Complainant in reading the odometer. In respect of the allegation that the Complainant provided the incorrect fleet number, this was not accepted by him. The Complainant gave the correct fleet number to the Circle K cashier at the time of the transaction albeit mistakenly. In the letter of 28 June 2023 provided to the Complainant by the Respondent following the disciplinary hearing it was stated as follows: - “…believe you intentionally provided incorrect odometer and fleet numbers to bypass the system to allow you to pay using the company fuel card”. The Complainant submitted that the Respondent therefore maintained that by giving the incorrect odometer and fleet number the Complainant was seeking to evade detection in respect of the purported fraud. The Complainant submitted that it was noteworthy that neither the document described by the Respondent as the communication from the fuel station nor the investigation report completed by Manager 2 state that the Complainant provided an incorrect fleet number.

ii.                   The issue of the post mark on the envelope

Immediately after realising his error on the evening of 21 April 2023 the Complainant wrote a handwritten letter enclosing a cheque reimbursing the Respondent the amount paid mistakenly using the company fuel card (€607.57) and placed the letter and cheque in the post the following Monday which was 24 April 2023. The Complainant’s daughter was with him when events transpired on the evening of 21 April 2023 and a letter from her was provided as an appendix to the submission. In the letter from the Respondent dated 28 June 2023 it referred to the envelope in which the Complainant’s letter and cheque were received by the company. They state as follows “the fact that the post mark is the 25th indicates to me that you posted your letter either very late on the 24th (after last collection time) or early on the 25th. This suggests that you only posted after … office notified you of the issue on the afternoon of the 24th and asked you to come in to explain events. Believing this I also believe this confirmed your intention in using the company fuel card to pay for your own personal fuel on the 19th and had no intention of declaring this only doing so when you realised the company was aware of the issue”. The envelope allegedly endorsed with the post mark dated 25 April 2023 and enclosing the Complainant’s handwritten letter and cheque was not furnished to the Complainant during the disciplinary process and up to the date of submission had not been furnished nor was the Complainant informed of these facts

iii.                 Whether the Respondent had verified the Complainant’s position by contacting An Post or any postal centre

The Complainant attached a copy photograph taken by him of the letter which he had written to the Respondent enclosing a cheque in the sum of €607.57 and submitted that it was evident from the attached photo the date the picture was taken was displayed on his phone as 21 April 2023 at 22.53 which was several days before the Complainant received the email from the Respondent notifying him of the report from Circle K. The Complainant submitted that therefore, the letter was written by him as he maintained, on the evening of 21 April 2023 immediately following his realisation of his error. The Complainant submitted that in those circumstances it was entirely unfair and wrongful for the company to use the post mark endorsed on the envelope to support its finding that the Complainant intentionally defrauded the company and had no intention of notifying the Respondent of his error and only did so after he had received the email from the Respondent.

iv.                 The value of the fuel purchased being similar to that used for a bus.

The Complainant outlined that he operated a small farm holding and regularly purchased fuel for his farm activities from the petrol station in question. In the letter of 28 June 2023 sent by the Respondent to the Complainant it is stated as follows “…that the value of the fuel purchased €607.57 is the typical value of fuel in a bus and I am of the view that this was deliberate on your part to disguise the purchase the reality being such value would not have raised any red flags internally because it is a reasonably normal value of a fuel tank for a bus. I believe you knew this and were quite deliberate to avoid detection”.

The Complainant submitted that the similarity in the amount of the fuel purchased is nothing more than a coincidence and this was fully explained by the Complainant to the Respondent. The Complainant submitted that he purchased fuel from that fuel station on the following dates in the following amounts: -

15 January2022           €621.21

4 April 2022                  €669.39

21 August 2022            €580.00

20 December 2022     €516.86

21 January 2023          €452.00

17 April 2023                €638.44

18    June 2023               € 61.01

13 July 2023                  €540.98

7 September 2023      €638.44

Furthermore, the Complainant submitted that he sought to provide his farm expenses ledger together with the relevant receipts arising from the above-mentioned fuel purchase during the disciplinary hearing, but the Respondent refused the Complainant’s request to provide this crucial information. The Complainant provided a copy of an extract from his ledger and submitted that as could be seen from the above information the Complainant purchased fuel of a similar value every couple of months from the fuel station and therefore the finding of the Respondent that the Complainant purchased fuel the value of €607.57 a very similar value to that of a tank of fuel for a bus in “deliberate manner” and in an attempt to “avoid detection” was totally wrong and unjustified. If the Respondent had allowed the Complainant to provide his farm expenses ledger together with the relevant receipts they could not have concluded as they did.

The Complainant submitted that his state of distress/upset on 19 April 2023 appeared not to have been considered at all by the Respondent during the course of the disciplinary process. On the morning of 19 April 2023, a short time prior to the fuel being purchased mistakenly using the company fuel card a very close friend of the Complainant, called to the Complainant’s home and informed of his terminal cancer diagnosis. This unexpected news rocked the Complainant and caused him a great deal of upset. It was in this context, during the immediate aftermath of receiving this dreadful news from his close friend that the Complainant made the error.   The Complainant submitted that despite raising this matter during the disciplinary process, nowhere was it noted in the documents furnished by the Respondent to the Complainant.  It would appear that the context in which the error was made was never considered by the Respondent and that it was simply ignored. The Complainant submitted that this was entirely unfair and wrong.

The Claim

The Complainant noted that Section 6 of the Act provides that a dismissal shall be deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. However, s.6 goes on to state that a dismissal will be deemed not to be an unfair dismissal if it results ‘wholly or mainly’ from… ‘the redundancy of the employee’. The onus is on the employer to demonstrate this and the WRC may have regard, where appropriate, to ‘the reasonableness or otherwise of the conduct… of the employer in relation to the dismissal’.

The Complainant submitted that in such circumstances it is required to consider the following issues:

a)      Were their substantial grounds accompanying the decision to dismiss pursuant to section 6(1) of the Act?

b)      Can the Respondent rely on Section 6(4)(b) of the Act in defence of the claim?

c)      Was the decision to dismiss reasonable in accordance with Section 6(7) of the Act?

The Complainant submitted that drawing from Chapter 16 of Redmond on Dismissal Law, Desmond Ryan BL referred to the Legal framework governing conduct-based dismissals in JVC Europe ltd v Panisi [2011] IEHC 279 and confirmed that the issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.  He went on to describe commentary on how a finding of gross misconduct at WRC as the zenith of possible charges relating to a disciplinary procedure in ADJ 3427 and he reflects the thinking of the EAT in Lennon and Bredin, M160/1978 in serious misconduct: “We have always held that this exemption applied only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer, we believe the legislature had in mind such things as violent assault or behaviour in the same serious category.”

The Complainant also noted that the Labour Court in Vitalie Vet v Kilsaran Concrete [2016] ELR 237, referred to summary dismissal as “the nuclear weapon of the employer’s arsenal of disciplinary sanctions.” The circumstances of that case arose during a night shift on 29 April 2020 and in the early trimester of Covid 19 at the Plant.

The Complainant cited the case of Vita Cortex ltd v Dourellan UD 1031/1992, where the EAT held as follows: “A reasonable investigation requires more than merely seeking to confirm suspicions, it must include an inquiry into all surrounding circumstances and interviewing all relevant employees on these matters”.

The Complainant also cited the 2014 case from EAT of Jonathan Hanlon and Smurfit Kappa Ireland UD 1378 /2014 where that Complainant was employed as a general operative for 7 years. His allocation for Jury Duty placed him in an unauthorised attendance conflict in his works time management recording system. The Complainant addressed these in a “clumsy and inaccurate explanation”. “His was a muddled manner” the EAT held and further held that the Respondent had chosen its most severe sanction and remarked “It was not necessarily reasonable for the respondent to accept the version promoted by some of its supervisors over that of the muddled version of the claimant.”  The Complainant submitted that it follows therefore that the Respondent decision to dismiss was unreasonable in this instance also. The Complainant specifically had some uncertainty as to the date of postage of his letter returning the moneys at issue. This was utilised partially to determine that he was not credible in his contention that he had inadvertently purchased the fuel using the fuel card. The Complainant submitted that this issue did not appear to have been properly verified beyond a simple non- acceptance of the complainant’s evidence without further analysis and without any evidence to countervail what the Complainant made out.

The Complainant submitted that the respondent was as consistent in its belief that the claimant was untruthful in his account as much as the Complainant was consistent in his contention that he did not knowingly and deliberately purchase the fuel using the Respondent’s funds. Had the Complainant been clearer in his explanations and the Respondent less certain of its position then a more amicable conclusion might have been reached. The same latitude should certainly have been provided to the Complainant herein.

The Complainant noted that the Respondent relied on s.6(4)(b) in respectfully submitting that the dismissal of the Complainant was deemed not to be unfair and was not unfair resulting wholly and mainly from the employee’s own conduct. The Complainant noted s.6(4)(c), set out hereunder: -

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

The Complainant noted that in the decision of Looney & Co. Ltd v Looney, UD 843/1984 the following was stated: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in 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.”

The Complainant submitted that in the circumstances the dismissal of the Complainant was unfair. It was the Complainant’s position that a “reasonable employer in the same position and circumstances” would not have reached the same conclusion as the Respondent in this instance, which was that the only option available to them in the face of the Complainant’s conduct was summary dismissal. The Complainant submitted that this was a draconic response in the face of the Complainant’s long previous record of service to the Respondent.

The Complainant cited the case of  Loftus and Healy -v- An Bord Telecom (13 February 1987, unreported, HC) where the High Court stated that the it was not simply a question of whether or not the employees were deprived of a fair procedure but rather “whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish … [the basis of its dismissal] as the whole or main reason for justifying their dismissal”

The Complainant also cited the decision of Myles Byrne v KJ Townmore Limited ADJ-00044532 where a very similar issue was dealt with in respect of discrepancies in clock ins and clock outs. In making the finding for the Complainant in that instance the following was concluded: “The Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 sets down standards and minimum entitlements for any workplace. The code sets out that the procedures serve “a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.”

The Complainant further noted that in the decision of McKenna v Pizza Express Ireland Limited [2007] 9 JIEC 2102, the Employment Appeals Tribunal determined that an investigation was flawed where a manager involved in the initial allegation of a free meal being provided without authority was determined to be inappropriate as investigator, in particular where other managers were available to do so. Similarly, there were others in this instance who could have carried out the investigation. The EAT in McKenna also found that the manner of the investigation amounted to a constructive dismissal on the basis of it being disproportionate to the allegation.

In addition, the Complainant noted that in Salmon v Glanbia DAC ADJ-00032713 an investigation was found to be flawed where there was an acceptance of written complaints at face value, allowing one accuser to sit in on investigation meetings of other accusers, a failure to properly interview the Complainant and a failure to allow the Complainant to cross examine his accusers. In that instance, the same Respondent manager acted as the investigator and subsequently took the decision to dismiss the employee. The Complainant submitted that each of these issues which lead to the finding of a flawed investigation in Salmon apply in the current circumstances.

The Complainant submitted that the 1993 Unfair Dismissals Act also addressed the procedural obligation dimension and section 5 (b) provides in the determination of 'fairness', the decision maker shall have regard to:

(a) the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) the extent (if any of the compliance or failure to comply by the employer are, in relation to the employee, with the procedure referred to in section 14 (1) of the 1977 Act.

The Complainant noted that the Respondent had cited the decision of O’Neill v Eurofins Professional Scientific Services Ireland Limited ADJ -00031337 in support of the contention that the response to the claimant’s alleged misuse of the Company fuel card was proportionate. The Complainant drew attention to the Respondent’s own submission where they noted the differing character in that the complainant therein was knowingly and recklessly inputting incorrect safety data in respect of medical products whereas on the current facts the complainant, a bus driver of long service with the Respondent who was notably grieving at the time committed an error which was corrected in a short amount of time thereafter. Even were the investigation satisfactory in establishing the Complainant’s culpability then still in the face of the Complainant’s record and having regard to his then circumstances, a reasonable compassionate employer would not have acted so quickly to affect the ultimate sanction.

Loss

The Complainant noted Section 7(1)(c) of the Act which defines “compensation” as: “ … payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks’ remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations …) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.” And that Section 7 (3) of the Act provides the definition of “financial loss” as follows: “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

The complainant submitted that the manner in which loss is treated under Section 7 of the Act may be stratified into three distinct headings as follows:

a.      Actual loss: This is the employee’s loss from the date of dismissal to the date of the tribunal hearing, that is, gross weekly pay less income tax, PRSI, income tax rebate received and unemployment benefit/assistance.

b.      Future loss: This is loss attributable to future loss of earnings. In considering such loss, the tribunal has to take into account factors such as the employee’s future employment prospects, skill and age.

c.       Loss of rights under protective legislation and superannuation: The employee, particularly one with long service, is awarded monies for the loss of protection under the Redundancy Payments Acts 1967 to 2015, the Unfair Dismissals Acts 1977 to 2015, and the Minimum Notice and Terms of Employment Acts 1973-2001. Such monies are frequently low but the dismissed employee will have to build up service in any new employment in order to fall within the scope of these Acts once again.  

The Complainant outlined by way of example, that should a redundancy situation arise, the loss may be considerable as the employee may be the “last in” in a new employment; therefore, the “last in, first out” principle should militate against that employee in the instance of the Complainant herein. In this instance the employee was employed for less than 104 weeks and as such had not yet accrued any rights in respect of Redundancy. In the decision of Bunyan v United Dominions Trust [1982] ILRM 404 the Labour Court determined that the appropriate formula in respect of a determination for an appropriate award for loss of rights under protective legislation would be to measure compensation on the basis of a value of 33.5% of the value of the lost rights under the Redundancy Payments Acts, being the accrued rights the claimant therein had lost.

The Complainant submitted that if he is found to be incorrect in that submission then the award in respect of any loss of accrued rights under protective employment legislation should be applied on the basis of the same metric as was utilised in Bunyan and stated that this head of loss if found to be applicable should on this basis amount to 33.5% of the statutory redundancy payment which would have been applied. The Complainant submitted that the application of this rationale was further illustrated by the decision of Frank O’Dwyer v Tesco Ireland ADJ-00034404 where the employee therein was constructively dismissed following bullying and harassment. He had been working for his employer from 17 September 2007 to 2 July 2021. Prior to dismissal Mr O’Dwyer’s weekly earnings were €467.00 per week. Evidence was led to the effect that Mr O’Dwyer was unable to work as a result of psychiatric injuries as claimed and his reaching of retirement age from April 2022. An award of €15,000.00 was given in those circumstances having regard to the loss of Redundancy benefits less 26 weeks where the Complainant was unfit for work.

In conclusion the Complainant submitted that the company’s decision to terminate his contract of employment for gross misconduct without notice was fundamentally flawed. The Respondent reached factual conclusions during the disciplinary process which were not supported by evidence. Indeed, they refused to even consider certain evidence that was material to the Complainant’s claim.

The Complainant submitted that he wished to be reinstated to his former position within the respondent company and to secure payment for his loss of earnings experienced since his contract of employment was terminated.

Witness evidence – the Complainant:

The Complainant gave evidence that he had had previous difficulty with Manager 1 in 2016.  He advised that there had been three drivers in the area and that Manager 1 had contacted the others to say that there was a new finish time of 1pm.  He stated that he did not agree with this change as his situation was different, that he had a farm to run and he couldn’t do a 1pm pick up.  He stated that Manager 1 advised him that he had to do the pick-up, and that if he did not, he could stay at home.  He stated that she advised there was no point in attending for that pick- up at 4pm as the clients would be gone home.  He stated that he did the hours for approximately three weeks and then he had to cease.  He stated that he received a written warning.  He confirmed that he received a phone call from Manager 4 who confirmed that he would seek to resolve the matter, and he stated that it was resolved on the basis of additional hours entitlement being provided.  He stated that Manager 1 was “not one bit pleased or nice about it”. 

The Complainant outlined a second incident where he described a breakdown and his follow up phone call to Manager 1.  Again, he described Manager 1 as being very unsocial on the call and she took issue with how he had disembarked the passengers in that incident.  He stated that a senior representative of the recipient of the service had phoned in and was very angry and the Complainant believed that Manager 1 passed on that anger to him.  He stated that he again received a warning in relation to this matter. 

The Complainant also described a further incident where fuel was stolen from his bus overnight while the bus was parked outside his home and he stated that when he contacted the Respondent, he was advised to report the incident to the Guards and to fill in an incident form. 

The Complainant also outlined what he described as a negative interaction which took place in March 2022 when he phoned the Respondent to advise that the fuel card he was using had been rejected in a particular location but had worked earlier at another location.  He stated that Manager 1 had tried to put the blame on him and at the time told him to get another job. 

The Complainant gave evidence that on the morning of 19 April 2023 he went into town to get diesel for himself.  He stated that while he was en route, he received a phone call that a neighbour of his had gotten the news that he had just weeks to live.  He stated that he had been working with this neighbour fighting a case about the water supply and he now understood he was going to be left on his own.  He stated that as he was filling the fuel, he met an old friend and ended up discussing his neighbour’s bad news.  He stated that he was extremely upset at the time and that in the circumstances on the morning, he pulled out the wrong card.  He stated that he knew the fleet number and that he always picked random odometer numbers and that he simply keyed them in by mistake.  He stated that it wasn’t a good day, that his head was spinning, and that he couldn’t think straight or do anything right.  He stated that there were two issues that were engaging his mind at the time of the incident, and they related to his neighbour getting such bad news and the issue regarding the group water scheme where he was going to be left fighting alone. 

The Complainant gave evidence that the transaction of paying for the fuel took only moments as it was possible to swipe both cards.  The Complainant stated that on 21 April 2023 he was working on his own farm expenses and that he normally kept a logbook of all expenses and checked at the end of each week to see if all payments he had made had gone through.  He stated that he noticed a discrepancy and he realised he had used the Respondent fuel card.  He stated that he had asked his daughter for advice, and he had acted accordingly.  In that regard, the Complainant gave evidence that he wrote a letter and a cheque and kept a screen shot of it and that he intended to post it on Saturday but that he ended up having a particularly busy day and did not get to post the letter and the cheque until the Monday morning. He further gave evidence that he emailed the Respondent on the Monday afternoon and advised them of his mistake.  He stated that he received an email soon after from the Respondent inviting him to a meeting and that he had a fair idea that the meeting was about the purchase that had happened earlier in the week.  He stated that he wasn’t unduly concerned as he thought he would simply be able to explain the error he had made. 

The Complainant gave evidence that at the investigation meeting he described what had occurred and that Manager 1, who was investigating the matter, seemed to accept what he said.  He also gave evidence that he apologised for not having phoned Manager 1 on the Friday evening when it came to his notice, but he stated that it was 10pm at night and he didn’t feel it was appropriate to ring at that late hour.  He stated that in addition to that, normally the Supervisor phones are switched off on a Friday evening, somewhere between 4 and 4:30pm. 

The Complainant gave evidence that at the hearing Manager 1 raised the issue of the misuse of card and stated that he purchased that amount of fuel in order to disguise the fact that it was a personal purchase and not a company purchase.  He stated that he contradicted her, and he confirmed to her that he got that amount approximately once in every three months and that he had tax claim forms that would show that was the case.  He stated that Manager 1 had asked him about the prompts required in order to make a payment with the card and he advised that he told her that at the time he wasn’t thinking about the Respondent bus, he was thinking about his friend who had just received bad news.  He stated that he advised Manager 1 that he did approximately the same mileage every day and so he always estimated what that was.  He stated that he told her about the neighbour and that he knew the fleet number without having to check each time. He stated that in those circumstances the prompts did not raise a red flag and that he advised her accordingly at the investigation meeting. 

The Complainant stated that at the investigation meeting, Manager 1 seemed to accept his explanation, and that she did not go through any further detail at the investigation meeting.  He confirmed that the meeting lasted approximately 20 minutes.

The Complainant gave evidence that in relation to his correspondence advising the respondent of his mistake, he told Manager 1 at the investigation meeting that he posted the letter on the Monday morning and that at the time he talked to the Postmaster. He advised that he could not recall being shown the envelope with the date of 26 April but that “there might have been a photocopy going around”. 

He stated that when he then received the email, he got very agitated and upset and had to go to the Doctor and that he was still attending the Doctor in relation to the upset caused to him by the entire incident.  He stated that it had serious implications for his good name.  He stated that he was told that it would take six days if the letter was sent by registered post and that he understood the Respondent did not accept registered post unless they knew where it was coming from.  He stated that he never stole anything in his life and that he had his good name to protect. 

The Complainant confirmed that there was a delay in relation to holding the appeal hearing as Manager 4, who was to hear the appeal, was on holiday when his appeal was initially lodged.  He stated that thereafter he had difficulty getting union representation and legal representation.  He stated that the appeal was completely “one sided”.  The Complainant gave evidence that at the appeal hearing he offered to show Manager 4 the logbook where he recorded his own business activities, and he stated that this was shut down immediately and he was not allowed to provide that evidence.  He stated that if he had told one little white lie and stated that he had purchased the fuel to bring it home for the Respondent bus, that he wouldn’t be in the position he was now in.  In relation to the appeal, he stated that he had to delay it again as he was unhappy with the union official representing him at the time.  He stated that he got very little chance to speak at the hearing and that it was ultimately about who Manager 4 believed.  He stated that Manager 4 had said to him “I know who to believe”. 

The Complainant gave evidence that he did discuss how he had purchased the fuel, and he had discussed the sanctions that had been applied but that there was no discussion about the envelope containing his letter of clarification to the Respondent.  The Complainant again talked about the impact of the issue on his mental health and what a detrimental effect it had. 

Cross examination of the Complainant:

Under cross examination the Complainant confirmed that in relation to  19 April 2023 he may not have mentioned to Manager 2 that he had received a call about his friend but that he had described the circumstances to Manager 1 during the investigation.  He confirmed that he could not recall the details of the discussion in relation to posting the letter and the cheque to the Respondent on 22 April, but that he was very clear that he had posted it on 24 April.  In relation to the note of the meeting taken by Manager 1, he confirmed that he could not remember all the detail of what he had said.

The Complainant accepted that in his email to Manager 2 on 24 April, he had stated that he had sent the letter to her on the previous Saturday, however he accepted that he had confirmed at hearing that he had posted the letter on 24 April.  The Complainant confirmed that the content of the email must have been a misprint, and he confirmed that he had no further explanation for the discrepancy.  In relation to a query as to why he had been so late in responding to Manager 1’s email, he simply responded that that was when he sent the email.  In relation to his failure to make contact with the Respondent managers on 21 April when he realised his error in using the wrong card, the Respondent representative put it to him that he could have emailed at 10pm if he felt it was too late to make a phone call, to which the Complainant responded that at that time he still had to write the letter and the cheque.  The Respondent representative put it to him, what was the most important matter to take care of once he had realised his error, was it to bring the error to the attention of the Respondent or to write a letter that could not possibly reach the Respondent until sometime the following week.  The Complainant responded that in hindsight he accepted that he should have told them.  The Complainant however did not accept that he took no steps to bring the matter to attention. 

The Respondent representative asked the Complainant why he had typed out a letter and a cheque and then taken a screenshot of them, why he had chosen that way to deal with the matter and the Complainant stated that he had no particular reason for doing so.  The Respondent representative further noted that the screenshot showed that it was taken on 21 April while the letter itself was dated 22 April and asked for an explanation of that discrepancy.  The Complainant responded that he didn’t know why he had done that, that it was his intention to post the letter on the Saturday and so he had dated it 22 April. 

The Respondent representative also put it to the Complainant, that if he had taken the screenshot as evidence to prove that he had taken action on 21 April, why had he never produced it as part of the investigation process and the Complainant responded that he did not think of it.  The Respondent representative stated that it was difficult not to be sceptical about that position, that if a screenshot had been taken for the purpose of demonstrating that he had taken action on 21 April, could he explain why he had then not used it for the purpose for which it was intended and the Complainant answered “no”.  The Respondent representative put it to the Complainant that it was in fact a fabricated document, to which the Complainant responded “no”. 

The Respondent representative put it to the Complainant that on the day of the incident he had filled 10 drums in all with fuel and that he had then gone into the shop, that he had to take out his company fuel card which was a different colour to a normal bank card and that it seemed strange that this did not alert him to the fact that he was using the company fuel card.  The Respondent representative also put it to the Complainant that he needed to insert the company fleet number, the odometer reading and the company pin number, and yet all of those actions and all of those prompts had not alerted him.   The Complainant did not respond. 

The Respondent representative drew the Complainant’s attention to the list of receipts provided by the Respondent and noted that item 6 on that list was for the amount of €638.44 and that this transaction occurred two days before the transaction in question and that two days later a further transaction for €600 was visible.  The Respondent representative asked the Complainant for an explanation of these amounts.  The Complainant responded that he probably used a lot of fuel during that period.  He stated he brought invoices to the Appeal Board along with his log book but that these were not considered.  The Respondent representative asked the Complainant if he had ever sent a letter to Manager 1 before this letter and the Complainant confirmed that no, he had not, that he normally corresponded with her through email but that on this occasion there was cheque involved so he could not email.  The Respondent representative put it to the Complainant that he could have sent an email to alert Manager 1 to the circumstances and the Complainant confirmed that in hindsight he probably should have. 

The Complainant confirmed that he did accept that the amount purchased on that day on the credit card for his personal use was more or less the same amount as was used for the company bus.  He accepted that the correspondence sent by him through the post was postmarked 25 April and that he had never phoned or emailed the Respondent to alert them prior to their email, however, he did not accept that it was reasonable to conclude that he had deliberately used the company fuel card to purchase fuel for his own use and that the Respondent could have relied on his word. 

Mitigation of Loss:

The Complainant gave evidence that he wasn’t aware of some of the jobs advertised by the Respondent after the termination of his employment but that he had made efforts to seek alternative employment, that he had looked at the papers and on the phone and if he saw something that might have been suitable he emailed them and he stated that he had applied for some contractors work. 

The Respondent representative put it to the Complainant that he had secured no other employment in the intervening period and that there was some evidence that he had attempted to find work, but there was also a question in relation to fitness to work, but that all in all there was a gap of approximately seven months where it appeared that no attempts had been made to seek alternative employment and thereby mitigate his loss.  In response the Complainant confirmed that he could not find any driving jobs and that there was a significant period of time when he was not well and he was not fit to work for months.  He confirmed that this was for approximately 6-8 months, and he also confirmed that he had no medical evidence to support that position.  The Complainant then confirmed that he was revising that to say that it was for approximately six months and that he was suffering from depression but again he had no medical evidence to support that fact.  He accepted that most of his applications for jobs were made after the early dates of the hearing. 

Complainant concluding remarks:

The Complainant representative drew attention to what he described as “the heated relationship between the Complainant and Manager 1” and the belief that the Complainant was subjected to differential treatment as a result of that historical poor relationship.  He submitted that the enquiry into all the circumstances surrounding the incident that took place, was insufficient, and particularly in circumstances where this was an employee who had never faced any similar issue in the past and had a long history of employment with the Respondent.  He referred to the fact that despite the belief that the Complainant had stolen from the Respondent, there was no referral of the matter to the Gardaí. 

The Complainant representative also focused attention on the appeal process and stated that there should have been a greater regard to what the Complainant wanted to say and what information he wanted to bring forward in defence of his position, particularly as he was going through a difficult time in relation to the allegations he was facing.  He stated that the Complainant acknowledged that he had made a mistake but that this should not have prevented the Respondent from a proper and thorough investigation.  He stated that the evidence they gathered was not sufficient to conclude that the Complainant had been guilty of the gross misconduct described.

In relation to mitigation of loss, the Complainant representative accepted that there was a gap of some time, and that this was explained by the fact that the Complainant was suffering from depression and he accepted that there was no medical evidence of this.  The Complainant representative referred to the Complainant’s submission in relation to the requirement to consider loss in terms of both the actual loss and the projected loss.

The Respondent submitted that it was its position that the Complainant was fairly dismissed for gross misconduct concerning his deliberate misuse of the company fuel card to make a personal fuel purchase of €607.57.  In reaching this conclusion the Respondent rejected the Complainant’s explanation of having used the company fuel card in error and the reasons for this conclusion were as follows:

A.      Given the number of specific steps required to be taken in order to use the company fuel card to complete a transaction, including providing an odometer reading and a company fleet number, it was not credible that the Complainant did not realise at the time that he was using the company fuel card to purchase fuel for his personal use

B.      The delay in the Complainant informing the Respondent of the matter, which in the event, did not occur until after the Respondent had first notified the Complainant

C.      On realising his purported error, the Complainant’s use of a letter sent by post to make the disclosure instead of immediately telephoning or emailing the Respondent, his usual form of communication

D.     The value of the transaction being such as to be entirely consistent with refuelling a bus

The Respondent submitted that the Complainant’s dismissal also occurred at the conclusion of a full and fair disciplinary process, including an appeal heard by the Respondent Appeal Board, comprising three members including an independent Chairperson who was a former Chairperson of the Labour Court.  The Respondent submitted that in all the circumstances, the Respondent’s decision to reject the Complainant’s explanation of having acted in error, was fair and reasonable and consequently it came within the band of reasonableness of decision making by an employer and it submitted therefore it should not be interfered with in the instant claim. 

Background:

The Respondent outlined the following background to the case:

1.      That the Complainant commenced employment as a driver with the Respondent in April 1995 and that at the time of termination of his employment, he was working on a part time basis and received a salary of €605.16 per week.  His supervisor was Manager 2 and his line manager was Manager 1. 

2.      That on 20 April 2023, the Senior Cards Operations Manager from a local Circle K petrol station, sent an email to the Respondent, stating that a driver had been observed “filling diesel drums” the previous day, 19 April 2023.  The card number used in the transaction was provided in the email by which the Complainant was identified as the driver in question

3.      The matter was then investigated by Manager 2

4.      The Complainant was notified of the matter by email sent by Manager 2 at 16:28 on 24 April 2023.  The email from Circle K was attached and the Complainant was requested to attend a meeting on 27 April 2023.  The Complainant replied at 22:57 on 24 April 2023 to say that he was unable to attend on 27 April 2023 “due to other commitments” and he stated: “however, in relation to your email, there is a letter posted to (Manager 1) since Saturday, which should arrive tomorrow or Wednesday at the latest”

5.      Subsequently Manager 1 received the letter from the Complainant in which he admitted to using the company fuel card in error on 19 April 2023, which he stated he only discovered on 21 April 2023.  He enclosed with his letter a cheque in the amount of €607.57.  This letter was dated 22 April 2023, whereas the envelope in which it was sent, contained a postmark of 25 April 2023. 

6.      By email of 26 April 2023, headed: “Investigation meeting: Alleged misuse of company fuel care”, Manager 2 sought the attendance of the Complainant at an investigation meeting on 2 May 2023.  The Complainant was asked to advise Manager 2 if he would be attending with his trade union representative or colleague.  The Complainant replied via email on 28 April, again noting that he would not be able to attend the meeting until the following week, as he stated he had had a fall from the company bus and was in severe pain

7.      The investigation meeting did actually take place on 2 May 2023 and a record of same was contained in a report from Manager 2.  The Complainant attended the meeting without a representative.  During the meeting the Complainant stated that he had used the company fuel card in error, which he did not realise until 21 April 2023 when, preparing his VAT receipts/returns at the end of the month, he noticed the payment had not shown up on his personal credit/debit.  He stated that on Saturday 22 April, he wrote and sent a letter with a cheque to Manager 1.  He explained the steps to be taken in order to complete a transaction on the company fuel card, which he confirmed included entering the four-digit pin code, and giving an odometer reader.  In respect of the odometer reading, the Complainant stated that he would enter “any digit of numbers” for his own personal fuel transactions”

8.      The matter then proceeded to disciplinary hearing by letter from Manager 1 on 13 June 2023.  The Complainant was invited to a disciplinary hearing on 21 June 2023.  In that letter the Complainant was informed that the allegation against him was: “Misuse of company fuel card” and Manager 2’s investigation report and the Circle K email was appended to that letter.  The Complainant was also informed that he was entitled to be accompanied at the disciplinary hearing by a trade union representative or a work colleague.

9.      The disciplinary hearing was conducted by Manager 1 of 21 June 2023 and a record of the meeting was taken.  The letter was initially sent to the Complainant by registered post but as it was not collected by the Complainant, it was also sent by email on 7 July 2023.

10.  The Complainant again declined to have a representative with him at the disciplinary hearing.  During the hearing Manager 1 confirmed with the Complainant that in order to use the company fuel card, the following steps had to be carried out:

a.      Swiping the fuel card at the side of the card machine

b.      Providing a company fleet number

c.       Providing an odometer reading

d.      Entering the pin for the company card

11.  When asked why the completion of the above steps did not flag to the Complainant that he was using the company fuel card, his explanation was that it was a mistake.  The Complainant stated he gave an incorrect odometer reading as without his glasses he could not read it correctly, but he maintained that he had given the correct company fleet number.  He did not appear to understand however that as he was not driving a company bus, there was no correct company fleet number or odometer reading

12.  The Complainant told Manager 1 that he had written his letter on 21 April, the day he realised his error, but that he did not post it until the following Monday, 24 April.  Manager 1 pointed out to the Complainant that at the investigation meeting he had said he had posted the letter on 22 April, although the Complainant maintained he had told Manager 1 that the date of postage was 24 April 2023

13.  The Complainant confirmed that his usual method of communication with Manager 1 was by way of phone call or email.

14.  In reaching the conclusion that the Complainant had intentionally misused his company fuel card, Manager 1 had regard to the following:

a.      The number of prompts given during the transaction in question, demonstrating a company card was being used

b.      That at the investigation meeting he had said he had posted his letter on Saturday 22 April 2023, whereas during the disciplinary hearing he said he posted it on 24 April 2023, when, in fact, the letter had a post mark of 25 April 2023, indicating that it was posted late on 24 April or early on 25 April 2023.  Crucially, this was after the complainant had been notified of the matter by Manager 1 in her email sent at 16:28 on 24 April 2023.  Furthermore, the Complainant had not called or emailed Manager 1 directly on 21 April 2023, after realising his supposed error, despite this being his usual method of communication with her

c.       The value of the fuel in question of €607.57 was the typical value of fuelling the company bus which seemed to be deliberate in order to disguise the purchase

15.  Based on the foregoing, Manager 1 concluded that the Complainant’s conduct was intentional and amounted to gross misconduct.  Accordingly, she decided his employment should be terminated without notice

16.  The Complainant was informed of his right to appeal to the Appeal Board, to be lodged within seven days

17.  By email of 12 July 2023, the Complainant confirmed he was appealing and in addition, his Solicitor wrote on behalf of the Complainant by letter on 14 July, confirming that he wished to appeal.  As per the Respondent disciplinary procedure however and as communicated through the Complainant’s Solicitor, the Complainant was entitled only to be accompanied at the appeal by a work colleague or union representative

18.  The appeal hearing took place before the Appeals Board on 7 November 2023.  The Appeals Board comprised of three members: a company nominee, the union nominee and an independent Chairperson (former Chairperson of the Labour Court).  The Respondent submission was prepared and presented by Manager 3 and the Complainant was represented by his union representative.  The Appeals Board outcome of  7 November 2023, rejected the appeal.  The decision noted that no issue had been raised at the appeal hearing concerning procedural fairness of the investigation or the disciplinary hearing.  It was noted that the only argument advanced on behalf of the Complainant, was his contention that the use of the company fuel card for his private use was inadvertent.  The Appeals Board was satisfied however that there was “ample evidential basis for the decision makers conclusion” that the Complainant “actions amounted to gross misconduct”.  The Appeals Board was therefore satisfied that in all the circumstances of the case, “the sanction of dismissal was within the range of reasonable responses to the misconduct found to have occurred”. 

19.  By letter of 6 December 2023 to the Complainant, Manager 1 enclosed the Appeals Board decision and confirmed the Complainant’s employment would terminate with effect from 8 December 2023.

20.  A different firm of Solicitors then wrote to the Respondent on behalf of the Complainant by letter of 7 February 2024, complaining that the decision to dismiss the Complainant was “fundamentally flawed” and seeking for the Complainant to be reinstated, in default of which a complaint would be lodged with the WRC.

21.  The Complainant’s complaint to the WRC was lodged by that firm of Solicitors on 21 May 2024

The Reasonableness Test

The Respondent submitted that the Band of Reasonableness Principle, provides that a dismissal is unfair if no reasonable employer would have dismissed in the circumstances, but not unfair if a reasonable employer might reasonably have dismissed.  The band of Reasonableness Principle has been endorsed in this jurisdiction in many decisions, including by the Employment Appeals Tribunal.  The Respondent noted the Tribunal position in the case of Bunyan v United Dominions Trust [1982] ILRM 404 (413), “the tribunal therefore des not decide the question whether, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

The Respondent also drew attention to the case of Allied Irish Bank v Purcell [2012] ELR 189, where the Circuit Court held: Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] I.R.L.R. 91 and the following statement of Lord Denning MR at p93:

‘The correct test is: was it reasonable for the Respondents to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view’.  “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the Respondents view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The Respondent also noted that the case law on the application of the Band of Reasonableness Principle confirms that the role of the Adjudicating body is not itself to determine the guilt of innocence of the employee, but rather to assess if the Respondent had a genuine belief based on reasonable grounds, arising from a fair procedure, that the employee was guilty of the alleged misconduct.  The Respondent opened the case of O’Riordan v Great Southern Hotels UD/1469/2003, where the Employment Appeals Tribunal stated: “In cases of gross misconduct, the function of the Tribunal is not to determine the guilt or innocence of the person accused to wrong doing.  The test for the Tribunal in such cases is whether the Respondent had a genuine belief based on reasonable grounds arising from a fair investigation, that the employee was guilty of the alleged wrongdoing”.  

The Respondent noted that this reasoning was also endorsed by the High Court in Bank of Ireland v Reilly [2015] ELR 229, in which Noonan J. remarked as follows: “Section 6 (7) [of the Unfair Dismissals Act] makes clear that the court may have regard to the reasonableness of the Respondent’s conduct in relation to the dismissal.  That is however not to say that the Court or other relevant body may substitute it’s own judgement as to whether the dismissal was reasonable for that of the Respondent.  The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

The Respondent stated that in the instant case; after conducting a full and fair process, Manager 1 was persuaded by the following in reaching her conclusion that the Complainant had acted deliberately:

a.      Given the number of specific steps required to be taken in order to use the company fuel card, the completed transaction, including providing an odometer reading and a company fleet number, it was not credible that the Complainant did not realise at the time that he was using the company fuel card to purchase fuel for his personal use

b.      The delay in the Complainant informing the Respondent of the matter, which in the event, did not occur until after the Respondent had first notified the Complainant

c.       On realising his purported error, the Complainant’s use of a letter sent by post to make the disclosure, instead of immediately telephoning or emailing the Respondent, his usual form of communication

d.      The value of the transaction being such as to be entirely consistent with refuelling a company bus.

The Respondent submitted that based on the foregoing, it was the Respondent’s position, that it had a genuine belief based on reasonable grounds arising from a fair investigation, that the Complainant had deliberately misused the company fuel card and that consequently the decision to dismiss should not be found to be unfair.

Sanction of Dismissal: 

The Respondent noted that the band of reasonable principle also applies when examining the reasonableness of the sanction imposed by the Respondent and noted the case of Kelly v CIE (unreported CC, 11 February 1985), where the Circuit Court affirmed the view that it is not within its power to intervene in any way with the Respondents decision by reducing it to, or submitting it for, some more lenient measure of discipline, such as a period of suspension: “If, in all the circumstances, there are substantial grounds to justify the dismissal, then the decision of management to that effect, is not to be subjected to interference from the tribunal nor from this court on appeal.  The policy of the [Unfair Dismissals] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the Respondent in all the circumstances, then it must stand alone”. 

The Respondent noted that the same approach was approved by the Labour Court on many occasions and cited the example of O’Brien v Dunne Stores Limited UDD 1714 (7 April 2017). 

The Respondent submitted that in assessing the proportionality of the sanction imposed, the case law confirms that this must be examined based on the facts in each particular case and having regard to the particular employment concerned.  The Complainant noted the case of Byrne v Marks and Spencer (Ireland) Ltd, UD 826/2013, where the Complainant’s dismissal for making and drinking a hot beverage whilst at work and without paying, contrary to policy, was upheld as fair by the Employment Appeals Tribunal (EAT), even though the EAT had identified various flaws within the process.  The Respondent noted that this was because the EAT had concluded that there was no doubt of zero tolerance policy within the company on theft, no matter what its form, and no matter what its value, and as this fact would have been well known to the Complainant, the dismissal in the circumstances “whilst undeniably harsh, was not unfair”. 

The Respondent also noted the case of A Complainant v A Respondent, ADJ-00007474 (20 March 2018) regarding the summary dismissal of the complainant warehouse selector by a large retail store for gross misconduct due to his unauthorised removal and consumption of a number of loose sweets placed in a crate and due to be discarded was upheld as fair.  In reaching her decision, the Adjudication Officer held: “I have considered the proportionality of the sanction and while admittedly harsh for a first offence on a blemish free record, I found that the complainant was on proper notice of a zero tolerance policy on theft (no matter the scale) and the respondent held an honest belief that trust had been severed by this breach of policy and contract”. 

The Respondent also noted the case of O’Neill v Eurofins Professional Scientific Services Ireland Limited, ADJ-00031336 (12 January 2022), where the complainant was employed on a pharmaceutical site and was responsible for producing raw data used for ensuring the safety and quality of the water supply in the production of human pharmaceutical products.  In that case the complainant was dismissed for inputting incorrect data in respect of samples he was aware he had not examined, which the Respondent viewed as falsification of data amounting to gross misconduct.  It was the Respondent’s position that it operated in a highly regulated environment and that the complainant’s characterisation of the incident was untenable in the context of his 18 years of experience.  The dismissal was upheld as fair on the basis that the actions of the complainant amounted to gross misconduct, and the sanction of dismissal was found to be proportionate having regard to all the circumstances.  In reaching his decision, the Adjudication Officer held: “my task is not to consider what sanction I might impose if I were in the shoes of the respondent, but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses”. 

The Respondent submitted that it was its’ position that the Complainants actions of deliberately misusing the company fuel card, as found by the Respondent and upheld by the Appeals Board, clearly amounted to gross misconduct.  In this respect, this conduct amounted to a fraudulent claim for payment in respect of expenses “as identified as an example of misconduct in the Respondent disciplinary procedure”, not legitimately incurred in the course of the Complainant’s employment.  The Respondent submitted that it relied on trust in respect of the use by employees of the company fuel card and the Complainants actions amounted to a clear breach of that trust, rendering untenable his continued employment with the Respondent.  The Respondent submitted that in these circumstances the decision to dismiss the Complainant, notwithstanding his long service, came within the bands of reasonableness within which the Respondent was entitled to act. 

In conclusion, the Respondent submitted that that the Complainant was fairly dismissed at the conclusion of a full and fair disciplinary process, for deliberate misuse of the company fuel card, that the Respondents actions came within the band of reasonableness in terms of a) its findings that the Complainant had acted deliberately and b) the sanction imposed in respect of his conduct and that consequently, the Employers decision should not be interfered with. 

Representations at hearing:

At hearing the Respondent representative outlined that the Complainant was dismissed for gross misconduct for having used the company fuel card for his personal use.  He stated that there was no dispute in relation to that, that it was a fact, and that it was accepted by the Complainant that he had done so.  He noted however the Complainants position that this was done accidentally, however that after investigation the Respondent was satisfied that that was not the case. 

The Respondent representative drew attention to the fact that the Appeals Board was notably impartial having an employer representative, a trade union representative and being chaired independently by the former Chairperson of the Labour Court, and the Respondent representative noted that the outcome of the appeal was a finding that there was ample evidence to support the dismissal.  The Respondent representative drew attention to the fact that the Complainants employment was terminated in July 2023 but that he continued to be paid until the outcome of the appeal was received in December 2023.

Witness evidence – Manager 2:

Manager 2 confirmed that she commenced employment with the Respondent in 2021.  She confirmed that the Complainant had started work in 1995 prior to her commencement of employment.  She confirmed that she had no previous day to day dealings with the Complainant as he did not attend in the Department for his work. 

She confirmed that the email from Circle K in relation to the transaction which occurred on 19 April 2023, was sent to her to investigate and she confirmed that she contacted the Complainant by email advising him of the concern.  She advised that the Complainant had been identified through the use of the card number as each card number was linked to a particular employee. 

She confirmed that she invited the Complainant to attend the office to discuss the matter.  She confirmed that a number of attempts were made to set up an investigation meeting and that it ultimately took place on 2 May.  She confirmed that she recorded the details of what was said at that meeting and that in that meeting the Complainant had said that he had used the work card in error and he had advised her that he had a small farm for which he was purchasing fuel on the day.  She confirmed that after the meeting she sent the notes of the meeting to Manager 1 and that she had no further direct involvement in the matter. 

Under cross examination Manager 2 confirmed that she had identified the Complainant through a database which links a particular company fuel card to a particular member of staff.  She confirmed that she would not normally be involved in checking transactions on those cards.  She confirmed again that she had no previous dealings with the employee and that she did not examine the employees file as she dealt with the instant matter. 

Manager 2 confirmed that she was not aware the Complainant had received news of a bereavement and that he did not refer to it at the investigation meeting with her, but she did confirm that he advised that he had made an accidental purchase. 

The Complainant representative asked Manager 2 why she had formed the view that the Complainant had lied, to which she responded it was her role to gather the facts, that she did not presume anything, but that she only confirmed that he had made the transaction.  The Complainant representative again asked Manager 2 on what basis did she decide that the Complainants account of what had happened was untrue, to which Manager 2 again responded that it was her role only to gather the facts. 

The Complainant representative then asked Manager 2 if she would accept, that in the circumstances, it was possible for a person to make a mistake, to which she responded that she could not say, that she did not think at that stage that his friend was deceased.  Manager 2 confirmed that the Complainant would refill his bus approximately every two weeks and that the transaction was for more or less the same amount of money each time.  The Complainant representative put it to Manager 2 that in the circumstances described by the Complainant, it would not be unusual for someone to act on auto pilot and that in the case where he was distressed, that by acting on auto pilot, such an error could occur where the Complainant was distracted by the receipt of bad news.  Manager 2 accepted that the circumstances would be upsetting and could indeed lead to a mistake, however she stated that she was of the view that if that happened to her, she would do something about it straight away as soon as it came to her attention.  

The Complainant representative put it to Manager 2 that that was exactly what the Complainant had done, that he wrote a letter and sent if off on the next working day after the matter came to attention.  Manager 2 responded that he did not however make a phone call or send an email.  The Complainant representative noted that there was nobody in work over the weekend and that the Complainant would be aware of that.  However, Manager 2 stated that an email sent over the weekend would have been picked up straight away on a Monday morning.  The Complainant representative put it to Manager 2 that the Complainant had sent a letter with a cheque on Monday 24 April to which Manager 2 responded that in his correspondence to Manager 1, he had confirmed that he had posted it to her on 22 April.  The Complainant representative asked Manager 2 in terms of allegations of theft, why this had not been reported to An Garda Siochána and Manager 2 responded that an allegation that was tantamount to an allegation of theft, would be a matter for an internal investigation in the first instance.  She confirmed that it was not part of her role to conduct a criminal investigation or to refer a matter to An Garda Siochána.

Witness evidence Manager 1:

Manager 1 confirmed that she was employed by the Respondent for approximately 25 years but that she was in her current role since 2014.  She confirmed that she would not have a lot of direct dealings with drivers as they were based outside of the office setting and she confirmed that she had had some dealings with the Complainant over the years when he would ring with queries.  She confirmed that he would use her mobile number to contact her in relation to any queries he had and that her number was available to all drivers and was contactable at all times.  She stated that the regular means of communication however was through email. 

She confirmed that prior to the disciplinary hearing she had read the letter from the Complainant, dated 22 April and that she had noted that the envelope within which it was contained, was stamped by An Post as 25 April 2023.  She confirmed that she received the correspondence on 26 April 2023.  She confirmed also that she did receive Manager 2’s note of the investigation meeting.

Manager 1 gave evidence that she conducted a disciplinary meeting with the Complainant on 21 June and that he attended without representation and that he chose not to be accompanied at the hearing.  She confirmed that she kept no separate note of the disciplinary meeting but that she incorporated everything that was discussed at the meeting in her letter to the Complainant following the hearing. 

She stated that she was very clear that in order to use the company fuel card, it was necessary to swipe the card, input the odometer reading, the company fleet number and then use the card pin number, in order to complete a transaction.  She stated she believed that the Complainants actions were deliberate because nothing added up.  The number of prompts needed to use the card should have alerted the Complainant that he was using the company card.  The amount of fuel purchased was also similar to his normal purchase of fuel for the company bus.  The letter acknowledging an error made was only submitted to the Respondent after the invitation to an investigation hearing was issued to him and she stated that in all those circumstances she had concluded that his actions in using the company fuel card, were intentional. 

Manager 1 also stated that drivers are trusted with a fuel card and when that trust is broken there is no way back. 

Manager 1 confirmed that the Complainant was paid pending the outcome of the appeal.  Manager 1 further confirmed that she did not see reinstatement as an option, that the relationship with drivers is one based on trust and that in circumstances where the trust was damaged reinstatement was not a realistic option.  She stated that if Circle K had not alerted the Respondent they would never have known what had occurred.

Manager 1 responded to queries from the Complainant representative regarding a history of difficulties between her and the Complainant and stated that there was absolutely no issue between them.  She stated that all drivers communicated with their managers and that the Complainant had contacted her several times and there had been no issues.  She confirmed that she had no recollection of the issues described by the Complainant. 

Manager 1 confirmed that she had held a disciplinary meeting with the Complainant in 2017, she stated that she had never said he was a waste of space and that she wouldn’t have it in for anybody.  She further confirmed that there were numerous vacancies available through contractors and direct employment opportunities with other companies.

Under cross examination Manager 1 confirmed that she did recall the issue in relation to the half day working arrangement and confirmed that it was a national issue, was being dealt with nationally and that it was not within her remit to resolve the issues locally.  She confirmed that she did not tell the Complainant that he could stay at home if he wasn’t prepared to accept the new arrangements, that she would need the drivers.  She confirmed that at the time there was an issue for 3 drivers, not just the Complainant and that it was not resolved by Manager 4 but was resolved nationally.

Manager 1 confirmed that she did recall the incident in 2017 of the breakdown, and she confirmed that the service user was not upset but was concerned for the safety of passengers.  She advised that she regularly has to deal with similar issues, and she had accepted the Complainant ‘s explanations for his actions at the time.  She confirmed that she did not recall issuing a written warning on that occasion.  She confirmed that another manager had issued a warning to the Complainant that year.

She confirmed also that she had some recollection of the Complainant making contact in 2018 in relation to fuel being stolen from the bus while parked outside his home.  She confirmed that she had advised him to report the matter to the guards and to fill out an incident form.  The Complainant representative asked Manager 1 why then had the instant case not been reported to the Gardai.  Manager 1 responded that the 2018 incident had been a theft that took place at the Complainants home and that there was no evidence as to who the perpetrator(s) might be.  In the instant case, there was a statement from the fuel station that required internal investigation.  She stated it would not have been possible for the Respondent to investigate the previous incident.

Manager 1 confirmed that the Complainant did not raise the issue of his friends diagnosis at the disciplinary hearing and confirmed that she would accept that he might have been distracted in the circumstances.  The Complainant representative put it to Manager 1 that it was often the case that incorrect odometer numbers were used in purchasing transaction, to which Manager 1 responded that the Complainant didn’t have a bus with him so the questions should not have arisen but that it is a different number every time a driver attends.  She also advised that you’d have to take down a number in order to provide it, that you could not just guess a number.

In response to the Complainant representative query about the Complainant’s bereavement, Manager 1 responded that the Complainant was not bereaved at that time and she did not accept that he could just have put in numbers due to having heard the news of his friends illness.

Manager 1 confirmed that she would have been available for phone contact on a Friday night after 4 pm.  She accepted that the Complainant needed to post in the cheque but that he could have and should have either phoned or emailed to alert the Respondent.  She stated that these would have been his usual methods of communication but that he had opted not to do so on this occasion.

She advised that the date of 22 April 2023 on the cheques was hand written but that the date on the envelope was stamped by An Post, that the postal service in the area was quite good and that she would have expected something posted on 22 April would have gotten to the Respondent earlier than the date it was actually received on 26 April.  She confirmed that correspondence was only received after the Complainant had been invited to the investigation.

Witness evidence – Manager 3

Manager 3 confirmed that he was the Employee Relations Manager with the Respondent and that he held that role for the last six years.  He confirmed that he had various roles within the Respondent company in the area of HR and that he had worked there for approximately 25 years. 

He confirmed that the final stage in the disciplinary process of the Respondent was the appeal stage and that the procedure provides for an Appeals Board or a hearing by a higher-level manager and that in the instant case it was considered that it was important to have an independent board look at the matter given the seriousness of the case.  He stated that the Appeal Board was comprised of the Head of Employee Relations in the company, the SIPTU organiser and an independent Chairperson who was the former Chairperson of the Labour Court.  He stated that he was involved in presenting the case to the Appeals Board on behalf of the Respondent. 

He stated that there were some delays in setting up the appeal and these were mainly due to challenges that the Complainant had in relation to legal representation and he said there was some back and forth in relation to legal representation at the appeals hearing and internal procedures and that the procedure provided for a colleague or trade union representative.  He stated that this presented some delays for the Complainant but that he remained on full pay throughout.  He stated that he prepared the Respondent submission to the Appeals Board.  He confirmed that the appeal hearing operated on the basis of the appellant being allowed to present their position first and that at this particular appeal hearing, the Complainant was represented by a SIPTU representative.  He stated that this was followed by him outlining the company position and then there was a cross examination provided for and that there were questions from the Appeals Panel.  He stated that from his observations of the appeal process, the Appeals Board considered and asked questions in relation to procedural fairness, the value of the purchase, the fact that there were ten different drums on the back of the Complainants jeep and that ultimately the outcome of the appeal had issued on 6 December and that it had upheld the decision to dismiss.

Under cross examination Manager 3 confirmed that he believed that in terms of an appeal, every opportunity was given to the Complainant to put forward his position and that it was not the case that it was not a full de novo hearing, and that any facts or observations performed by the Complainant, were given consideration.  Manager 3 confirmed that the Complainant had an opportunity to raise issues in relation to procedural fairness and that he had confirmed that there were no issues in relation to procedural fairness.  In relation to the steps required to purchase fuel, these were verified specifically with the Complainant by the Appeal Board.  He stated that again, from his observations of the process, all the submissions were reviewed and all of the evidence was aired and that these were the subject of deliberations by the Appeals Board.  He stated that it was open to the Appeals Board to make a different finding and that they had the right to overturn the decision to dismiss. 

The Complainant representative put it to Manager 3 that the Complainant did not have the opportunity to furnish his logbook and that this matter was not adequately considered.  Manager 3 responded that while the Chairperson of the Appeal Board did express surprise at the proposal to submit the document, he did not actually rule it out.  Manager 3 confirmed that he could not give specific evidence to the deliberations of the Appeals Board as he was not a member on the Appeals Board and therefore was not party to their deliberations. 

The Complainant representative again asked Manager 3 if the Appeals Board could have overturned the decision and if this had ever happened in the past.  Manager 3 confirmed that it was possible for the Appeal Board to overturn a decision to dismiss, that it did come within their remit to do so, and that he was aware of Appeals Boards who had made such decisions in the past.

I have given careful consideration to the submissions provided by the parties, together with all supporting documentation, and to the case law relied upon by the parties.  I have also taken account of the witness evidence given under oath/affirmation , as well as representations at hearing

In the first instance, I consider it important to clarify the role of the Adjudication Officer in relation to a complaint of unfair dismissal.  In this regard I rely upon the established case law which determined that the role of the Adjudication Officer is not to determine whether or not the Complainant did or did not carry out the act of which he/she was charged but rather to establish if the Respondent has proven that the dismissal was not unfair and in so doing to determine if the decision to dismiss was a proportionate response and within the band of sanctions which could be imposed by a reasonable employer.  In such circumstances I will not seek to determine if the Complainant acted as alleged by the Respondent, but rather I will seek to determine if the Respondent has proven that the dismissal was fair and proportionate in all the circumstances of this case.

In that regard I will consider each of the following:

·       Procedural Fairness

·       Proportionality/Reasonableness of the decision to dismiss

Procedural Fairness

I summarise below, the  procedure utilised by the Respondent and accepted by the Complainant as having been utilised:

·       The Complainant was made aware of the concerns brought to attention by an employee of Circle K in relation to the purchase of fuel on 19 April 2023 soon after as it was received and the Respondent had identified the driver who was in possession of the card and was provided with a copy of the relevant email.

·       The Respondent invited the Complainant to attend a meeting on 27 April 2023 to discuss the matter

·       When the Complainant advised of his unavailability for the proposed meeting the Respondent made arrangements for his attendance at an investigation meeting which took place on 2 May 2023

·       The Complainant was offered the option to be represented at the meeting by a colleague or trade union representative.  He chose to attend unaccompanied.

·       That meeting was a fact gathering exercise where the Complainant was asked to give his explanation for the events of 19 April

·       The investigation was conducted by Manager 2, who then provided her account of the meeting to Manager 1

·       The Complainant was then invited to attend a meeting under the Disciplinary Procedure and again was offered the opportunity to bring representation.  Again, the Complainant chose to attend unaccompanied.

·       The Complainant was given the opportunity to provide further explanation of his actions in relation to the events of 19 April

·       Subsequent to that meeting Manager 1 issued a letter to the Complainant confirming her conclusion that the Complainant’s actions were intentional and amounted to gross misconduct.  She also confirmed her decision to dismiss him from employment.  In that letter she set out the basis for her decision and advised him of his right to appeal and the details of how he should proceed should he decide to lodge an appeal

·       The Complainant did lodge an appeal on 12 July 2023, and his legal representative also wrote confirming his intention to appeal on 14 July 2023

·       There were some delays due to unavailability off a member of the appeals board and due to issues surrounding potential legal representation at the appeal hearing

·       Ultimately the appeal was held on 7 November 2023.  The Appeal Board comprised of 3 members: a management representative, a union representative and an independent chairperson.  The Complainant was represented at that hearing by his trade union official.

·       The Appeal Board concluded that there was “ample evidential basis for the decision makers conclusion that the Complainants actions amounted to gross misconduct and that the sanction of dismissal was within the range of reasonable responses to the misconduct found to have occurred.

·       This decision was issued to the Complainant on 6 December 2023 and it was confirmed that his dismissal would take effect from 8 December 2023.  The Complainant was paid his full salary throughout the period from the decision to dismiss until 8 December 2023.

I noted the Complainant concerns in relation to that procedure as follows:

·       Investigation Process

o   Failure to adequately investigate

·       Disciplinary Procedure

o   Bias of person (Manager 1) who was the decision maker at the disciplinary stage

o   Failure to adequately investigate

o   Failure to properly interview the Complainant

o   Failure to allow the Complainant to cross examine his accusers

·       Appeal

o   Delays in providing relevant documents in advance of the appeal hearing

o   Non acceptance of evidence which the Complainant wished to submit

Investigation Process – Failure to adequately investigate

I noted that the investigation process was a fact-finding exercise and in itself did not reach any conclusion in relation to the actions of the Complainant.  I noted that the Complainant had the right to representation confirmed to him in advance of the hearing and that he had been provided with a copy of the correspondence received from a staff member in Circle K.  I noted also that, in advance of the meeting the Complainant had written to the Respondent and accepted that he had used the company fuel card to purchase fuel for his own use, that he had done so inadvertently and that he had sent a cheque in the amount of the purchase.

The note of that meeting set out that the Complainant described how he often bought fuel in bulk using his own personal credit card and that he had done so on this occasion using the company card in error.  He described how he had noticed the error while attending to his books on 21 April 2023 and that on Saturday 22 April he had written a letter and cheque and posted it to Manager 1.

I noted that he also outlined to Manager 2, the steps involved in using the company fuel card.

During this process Manager 1 had sought to understand if the Complainant accepted that he had used the company fuel card and if so, in what circumstances had he done so.  I noted that the Complainant gave no information in relation to the circumstances which he later said gave rise to his inadvertent use of the card.  His only explanation was that he often purchased in bulk for his own use and on this occasion simply used the wrong card.  In those circumstances, Manager 1 clarified with him the unique steps required to carry out a purchase using the company card.

Manager 1 made no further enquiries but, based on the evidence of the Complainant, I have concluded that she had no further basis for doing so.

The Disciplinary Process

Bias of person (Manager 1) who was the decision maker at the disciplinary stage

The Complainant contended that Manager 1 was biased in this matter arising from previous issues between them both. His submission cited case law in support of this contention.  I noted that at hearing the Complainant outlined an issue relating to changed working times where he alleged Manager 1 failed to resolve the issue and then advised that if he did not accept the change he could stay at home.  He stated that the matter was ultimately resolved by Manager 4 but that Manager 1 “was not one bit pleased”.  This issued occurred in 2016.

I noted Manager 1’s position that the issue involved was a national issue and was ultimately resolved at that level.  She confirmed that neither she nor Manager 4 had the authority to address the matter.

The second incident he raised related to a breakdown he had where he made phone contact with Manager 1 and described her as being “very unsociable” He also described her as passing on the anger of a customer to him in relation to how he had disembarked passengers from the bus and that he had received a warning in relation to the matter.

I noted Manager 1’s account of that incident and her position that she had accepted the Complainant’s explanation for why he had disembarked the passengers and that she had not issued any disciplinary sanction in relation to the matter.  I noted that she gave evidence that another manager had issued him with a warning in relation to a separate matter that year.

The third incident referred to by the Complainant related to fuel being stolen from his bus overnight while it was parked outside his house.  He gave evidence that when he contacted Manager 1 she advised him to report it to the guards and to fill up an incident form.  I noted that Manager 1’s position was that this would be the normal course of action in the circumstances.

The final incident referred to by the Complainant related to what he described as a negative interaction between himself and Manager 1 in March 2022 when he phoned her to advise that the company fuel card had not worked in a particular location.  He gave evidence that Manager 1 had tried to put the blame on him and told him to get another job.  I noted Manager 1’s evidence that she could not recall this incident as ever having occurred.

In considering the question of bias on the part of Manager 1 I noted that the first issue raised by the Complainant related to something that occurred 7 years prior to the disciplinary hearing and the most recent event occurred over a year beforehand.  I am satisfied with the clarification provided by Manager 1 in relation to the first issue that she did not have the authority to resolve the rostering/pay issue as this was a national issue.  In relation to the remaining issues I am not satisfied that anything of any significance occurred between Manager 1 and the Complainant that would give rise to an inference of bias on the part of the Manager.  The issues described do not constitute anything more than day-to day interactions around operational issues and the Complainant has not provided any detailed evidence to support his allegations.  I must therefore conclude that there was no evidence of bias on the part of the Manager in conducting the disciplinary process.

Failure to adequately investigate

I noted the Complainant position that Manager 1 had failed to adequately investigate the matter and within the disciplinary process this specifically referred to not having sought verification from An Post in relation to the date of posting of the letter/cheque. The Complainant had submitted that the Complainant was “muddled” in relation to evidence given but that he was consistent in his position that he had inadvertently used the company fuel card.

I considering this issue I noted the following:

·       That the Complainant hand wrote a letter and a cheque in relation to the purchase at issue and both the letter and cheque were dated 22 April 2023

·       On 24 April 2023 the Complainant replied to an invitation to a meeting regarding the purchase and advised Manager 2 that “there’s a letter posted to (Manager1) since Saturday”.  Saturday would have been 22 April 2023

·       In the investigation meeting with Manager 2 on 2 May 2023 the Complainant confirmed that he had posted the letter/cheque to Manager 1 on 22 April 2023

·       In the disciplinary hearing Manager 2 drew attention to the fact that the envelope containing the letter/cheque was post marked 25 April 2023 and sought clarity in relation to the date the letter was posted

·       At that meeting the Complainant responded that the letter was posted on 24 April 2023.

I further noted that at hearing the Complainant provided a copy of a screenshot showing the cheque and the letter and this was dated 21 April 2023. 

In considering if Manager 2 adequately investigated this matter I do not consider the screenshot relevant as it was not produced to her at the disciplinary hearing and therefore she could not have taken it into account.  She had ample evidence to suggest that the Complainant was not being entirely honest in his evidence in relation to the date on which he posted the letter and cheque.  The envelope stamped by An Post clearly showed a post date of 25 April 2023,and,, in my view, it was reasonable for her to conclude, on the balance of probabilities, without further enquiry with An Post that the correspondence had been posted late on 24 April and so was post marked 25 April. 

Failure to properly interview the Complainant

While the Complainant set out this assertion he provided little by way of specific examples of such a deficit. 

Equally, the fact that Manager 1 did not retain a note of the interview makes it difficult to conduct a full assessment of the interview as a whole.  Nonetheless, the letter of 28 June from Manager 1 confirming his dismissal did include some detail of the discussion that took place in the disciplinary hearing and based on that letter I have concluded that the main points at issue in this matter were all put to the Complainant prior to a disciplinary decision being made.

Failure to allow the Complainant to cross examine his accusers

The Complainant submitted that he did not get the opportunity to cross examine his accuser.  In this instance the information provided by the staff member in Circle K was the basis for establishing the investigation and the Complainant was furnished with a copy of same.  At every stage of the process the Complainant accepted that he had used the company fuel card albeit his position was that he did so inadvertently.  In such circumstances it would seem both impractical and unnecessary to have cross examined this person, who merely stated facts which were not contested by the Complainant.

It is noteworthy that the Complainant never sought the option to cross examine the individual concerned.  

Appeal

Delays in providing relevant documents in advance of the appeal hearing

The Complainant outlined in his submission that he had sought a number of documents on 14 July 2023 in advance of the appeal hearing  and that it was not until 28 August 2023 that his representatives received 2 of those documents.  He submitted that he never received a copy of his contract of employment.  This position was not disputed by the Respondent.

In this regard I accept the Complainant position that a copy of his contract of employment was not provided.  However, the Complainant was in receipt of the statement provided by the employee at Circle and all correspondence relating to the investigation and disciplinary process.  In relation to the documents provided in August 2023, while there was a delay between the request for those documents and the receipt of same, it is clear that the Complainant representatives were in possession of the relevant documents well in advance of the appeal hearing which did not take place until November 2023.

Non acceptance of evidence which the Complainant wished to submit

It was the Complainant’s position that he had wished to present his farm ledgers to the appeal board as evidence that he regularly purchased fuel of the same monetary value as that purchased with the company card and that he was denied that opportunity.  In considering the Respondent position I noted that the Respondent did not provide any note or minute of the appeal meeting.  However, Manager 4 who presented the Respondent case to the Appeal Board gave evidence that while the Chairperson of the Appeal Board expressed surprise at the suggestion that this evidence would be given he did not reject it’s submission.

I noted the letter from the Chairperson of the Appeal Board containing the Board’s decision and , in particular, his statement that “an appeal to this Appeals Board does not amount to a de novo hearing of the disciplinary process”  In this regard,it is evident that the role of the Appeal Board was not to hear new evidence not previously presented or to make decisions on the guilt or otherwise of the Complainant.  Rather its’ role was to examine the procedures and assess the thoroughness and fairness of those procedures and to establish if there were sufficient grounds presented within that process to support the decision made.

The leger would have been new evidence and I cannot see how it would have undermined the evidence already gathered within the investigation and disciplinary process.

Having reviewed all of the above in some detail I consider that the Respondent followed a robust process in addressing matters which gave rise to his dismissal.  I noted that at all times the Complainant was made aware of the details of the allegations against him and of the seriousness and potential consequences that might arise.  He was afforded the opportunity to bring a representative, and he chose not to do so. 

Much was made of the failure of the Respondent to seek further information from An Post in relation to the date of posting of the letter and cheques from the Complainant and in relation to the fact that the Complainant’s farm ledgers were not considered.  I have outlined in detail above the inconsistencies in the evidence of the Complainant in relation to the dates relating to the correspondence and the fact that the envelope was date stamped by An Post.  I have also set out why I do not see it as significant that the farm ledgers were not considered.

I consider the investigation conducted by Ms. Byrne to have been thorough based on the information provided by the Complainant at that time.

,

In relation to the disciplinary hearing, the Complainant was again advised of the allegations and the potential consequences that might arise.  He was again afforded the right to representation and chose not to do so;  and while it is possible to point out some minor imperfections, there was nothing done which could be described as fatal to a fair process.  Manager 1 issued a letter clearly outlining her decision to dismiss him and setting out the basis for her decision.  In that correspondence she also advised the Complainant of his right to appeal her decision.

The Respondent appeal process was particularly robust in terms of the union/management and independent representation.  During that process the Complainant had the opportunity to put forward his position and was afforded and availed of the opportunity for representation.

In all of the above circumstances I find that the Respondent did apply a fair procedure when addressing the allegations that gave rise to the Complainant’s dismissal and in the procedure to dismiss.

Proportionality/Reasonableness of the Decision to Dismiss

I noted the respective positions of the parties in relation to decision to dismiss.  In particular I considered the Complainant position that the Respondent failed to take account of the Complainant’s distress and upset on 19 April and failed to adequately consider the Complainant’s view that he had inadvertently used the company fuel card.

I noted the basis on which Manager 1 concluded that the Complainants action on 19 April were deliberate and an intentional misuse of the company card and I outline consideration of them below:

Dates relating to letter/cheque and postage of same

The Complainant gave evidence that he first noticed that he had used the incorrect card late on the evening of 21 April and that he wrote a letter and a cheque at that time to clarify his mistake to the employer and to reimburse the monies.  He then gave evidence at hearing that he took a screenshot of those documents on 21 April.  He confirmed in writing to Manager 1 by email on 24 April and verbally confirmed to Manager 2 at the investigation meeting that he had put the correspondence in the post on Saturday 22 April.  The first occasion on which he mentioned posting the correspondence on 24 April was at the investigation meeting when faced with an envelope postmarked 25 April and then he proffered the view that the note of the investigation meeting was incorrect and that he had told Manager 1 during the investigation that he had posted it on 24 April.

Manager 2 had not found his evidence credible during the disciplinary process and had concluded that he was seeking to disguise the fact that he had only issued the letter and cheque after he had received the email from the Respondent about the concern raised by the Circle K staff member.

I noted that at hearing the Complainant could not provide any plausible explanation for writing a letter and cheque on 21 April and dating them both 22 April.  He could not provide an explanation for taking a screenshot dated 21 April as a record of his then activity and then not producing that as evidence in any of the internal processes.

In relation to this matter, I find that the Complainant was not credible in the information provided within the internal processes nor was he credible in his evidence at hearing. 

Steps required to complete a transaction using the company card

I noted that at all stages of the investigation, disciplinary and appeals procedures the Complainant was asked about the steps required to complete a transaction with the company card.  It is common case that the steps involved require the user to swipe the card, provide an odometer reading to the cashier, provide the fleet number to the cashier and then insert the PIN.  While a user might know the fleet number it would be necessary to take the odometer reading from the bus.  I noted the Complainant evidence that he “made up” an odometer reading, that he always did this and that this was due to him not being able to read the number without his glasses.

Nonetheless, on 19 April the Complainant drove into the petrol station in his own jeep and he filled ten drums in the back of the jeep with diesel.  He then went into the shop and swiped the company card to pay for the fuel, he put in a false odometer number, he put in a fleet number and the PIN for the company card.

Had the Complainant acted as he should, he would have filled his diesel and simply have swiped his own card and put in that PIN.  I noted also the Respondent position that his own visa debit card and the company fuel card were very different in appearance.

Manager 1 concluded based on the difference in the vehicles, the need to fill the drums and on the number of steps required to use the company card that this could not have been done inadvertently.  I believe another employer, in similar circumstances, could reasonably have reached the same conclusion.

Failure to take account of the Complainant’s distress and upset on 19 April

I noted the Complainant contention that the Respondent should have taken into account the Complainant’s level of distress and upset over the news of his friend’s terminal illness.  In that regard I noted that there was no evidence that he ever raised the matter at the investigation meeting.  I noted that he did raise the matter at the disciplinary meeting and at the appeal meeting and it is clear that the Respondent gave no particular weight to this information. 

In considering the relevance of this evidence I noted that again the Complainant gave different accounts of when he heard about this and how long before the incident he heard the news.  In one account he heard it while he was at home approximately an hour before he left to buy fuel, in another version he got a phone call while travelling to the petrol station. 

I noted the evidence of Manager 1 at hearing that she did not believe it was significant as the Complainant’s friend had received bad news in relation to his prognosis but was still alive.

I understand that the loss of a close friend can be very upsetting for any individual and I sympathise with the Complainant on his loss.  I also consider Manager 1’s response to be quite insensitive.  Nonetheless, I am not convinced that a more benign consideration of that matter would have had any significant influence on the outcome.

Taking all of the above into account I find that the Respondent did utilise fair procedures and has demonstrated that the decision to dismiss the Complainant fell within the range of reasonable responses that could be expected from a reasonable employer in similar circumstances.  In all the circumstance I find that the dismissal of the Complainant was a fair dismissal.

Anonymisation of this Decision

The Complainant made a submission following the final hearing in this matter seeking anonymisation of this decision.  He appended a detailed letter from his treating physician citing the potential impact on the Complainant’s wellbeing arising from his information coming into the public domain.

In the circumstances described I have used my discretion to anonymise the decision

I found that the Respondent utilised fair procedures and demonstrated that the decision to dismiss the Complainant fell within the range of reasonable responses that could be expected from a reasonable employer in similar circumstances and that the dismissal of the Complainant was a fair dismissal. In these circumstances it is my decision that this complaint is not well founded.

Unfair dismissal