Case Number: ADJ-00024768. Workplace Relations Commission.
| Docket Number | ADJ-00024768 |
| Hearing Date | 22 January 2020 |
| Date | 01 June 2020 |
| Year | 2020 |
| Court | Workplace Relations Commission |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024768
Parties:
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Complainant |
Respondent |
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Anonymised Parties |
A Metal Fabricator |
A Truck Repair Company |
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Representatives |
Andrew McCann, Fingal Citizens Information Service |
Kara Turner, Eversheds Sutherland Solicitors |
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Act |
Complaint/Dispute Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00031493-001 |
10/10/2019 |
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Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00031493-002 |
10/10/2019 |
Date of Adjudication Hearing: 22/01/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:These complaints were submitted to the WRC on October 10th 2019 and, in accordance with section 41 of the Workplace Relations Act 2015 and section 8 of the Unfair Dismissals Acts 1977 - 2015, they were assigned to me by the Director General. I conducted a hearing on January 22nd 2020, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant was represented by Mr Andrew McCann of the Fingal Citizens Information Centre, assisted by Ms Trish Halligan. The respondent was represented by Ms Kara Turner of Eversheds Sutherland Solicitors. The respondent’s Managing Director and a General Manager attended the hearing and gave evidence.
Background:
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The respondent is a heavy goods maintenance and repair business with operations at four locations in Dublin. The complainant is a metal fabricator and he commenced working with the company on February 16th 2015. He was dismissed on July 26th 2019 following an investigation into the theft of company property. On behalf of the complainant, Mr McCann argued that his dismissal was unfair. He submitted that there was no substantive proof of theft, that a proper procedure was not followed during the investigation into the complainant’s conduct and that the appeal process was delayed and flawed. Mr McCann also submitted that the respondent’s decision to dismiss the complainant for gross misconduct deprived him of his entitlement to notice. Chronology of Events Leading to the Complainant’s Dismissal On Monday, June 24th 2019, the respondent’s managing director, “MD,” was informed that the complainant had been seen leaving the premises carrying items belonging to the company. She reviewed the CCTV footage of the facility and in the recording from Friday, June 21st, she observed the complainant packing items into two backpacks and leaving the premises with the backpacks and carrying other items. As he was leaving work on June 24th, MD approached the complainant and showed him the footage of the previous Friday. She instructed the complainant to attend a meeting the following morning to discuss the CCTV footage with a non-executive director of the company, “NE.” NE is a former managing director and is MD’s father. At the meeting with NE the next day, the complainant said that he brought his own tools with him to work, with his lunch and his water bottle, and he brought them home in the evenings. NE asked the complainant about cutting disks and other “consumables” such as spray paint and brake oil. He also said that a customer had seen him with a piece of steel. The complainant said that there may have been a cutting disk on a grinder that he had borrowed. Later that day, NE informed the complainant that he was being suspended to allow an investigation to take place into theft or unauthorised possession of company property. Following his meetings with the complainant, NE looked at the CCTV footage of June 21st and 24th and he decided that the complainant had a case to answer concerning the alleged theft or unauthorised possession of company property. The general manager, “GEN,” of another depot was appointed to conduct a disciplinary investigation. A disciplinary meeting was held on July 2nd 2019. NE accompanied GEN, who chaired the meeting and the complainant was accompanied by a work colleague. At the meeting, the complainant said that he owned everything that he put in his backpack except a “big angle grinder.” He said that he had borrowed this and that he had approval to do so from a colleague. GEN showed the complainant footage of June 21st where he is seen putting tools into a bag, and further footage of Monday, June 24th, where he is seen putting a can of spray paint into his bag. The complainant said that this proved nothing and that, for all the managers knew, he could have left these items in the changing room. The meeting ended with the managers saying that they may have to look at whatever additional CCTV footage is available. The complainant got married on Friday, July 5th and he was on holidays until July 18th. The disciplinary meeting was reconvened on July 25th. GEN said that the purpose of the reconvened meeting was “to go over the events of June 21st and 24th 2019 when (the complainant) was seen to have removed his own and company tools from the premises and to act in an inconsistent manner in relation to consumable items which he claims he removed from (his work) section and left in the locker room.” In response to a question about where he left the items he had put into his backpack, the complainant said that he left them in “the top left hand corner of the locker room.” GEN said that the items were not there before the meeting of July 2nd, but had been placed there afterwards. GEN asked why a person would leave items like cutting disks in a locker room, but the complainant said that there was nothing strange about this, although he agreed that generally, people left their clothes and personal items in the locker room. The complainant said that on the morning of June 21st, he had a list of things that he wanted to bring home and this list was in a black notebook. He did not contact his line manager about his plans to bring the items home. GEN asked the complainant about items that he was seen wrapping in red rags, but he said that he couldn’t remember what these items were, and that he just took a few rags. He said that the tools that he put in the bag on Friday, June 21st included a square, an angle grinder, a tape, a drill, battery packs and other items. He also took a length of steel. Apart from the piece of steel, he said that he brought all the... |
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