Case Number: ADJ-00021487. Workplace Relations Commission

• Docket Number: ADJ-00021487
• Date: 03 June 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant started working for a previous owner of the Respondent on the 1st of October 2014. His employment ended by his dismissal by the Respondent on the 26th of March 2019 for misconduct. He took up employment on the 25th of April 2019, two weeks post his dismissal. He was in receipt of a gross salary when in employment by the Respondent of €37,000.00. The Complainant gave evidence that two weeks after his dismissal he started working in a wholesale company at a gross wage of €25,000.00 as he had no reference from the Respondent. He worked there for three months to the end of June 2019. He then sourced employment with a filling station at a salary of €32,000.00 gross per annum.

Summary of Respondent’s Case:

The Respondent’s case is that on the 19th of March 2019 the Complainant was placed on paid suspension pending a disciplinary investigation for being in possession of a stolen mobile phone. He had been found in possession of the mobile phone that had “gone missing” from the depot in December 2018. The security manager became aware that a Samsung phone had gone missing after being scanned into the depot. The security manager carried out an investigation. The investigation revealed that the phone had been registered on the Respondent’s account in December 2018 and it was registered to the Complainant. The security manager interviewed the Complainant in the presence of the business development manager. The Complainant explained that the Respondents IT department had issued the phone to him. He was asked to provide the IMEI number on the screen and he did this. The security manager informed the Complainant that that number belonged to a phone that was “lost” in the centre in December 2018. At that stage the Complainant advised that he bought the phone on “Adverts” and provided a different explanation as to how the phone came into his possession. This was noted in a witness statement. The Complainant was unable to supply any documented proof of the purchase from Adverts. The security manager stated that the Complainant’s action had put the reputation of the company at risk as the customer was aware that the phone was registered to a member of the Respondents’ staff/management. The security manager concluded that the Complainant was fully aware he was committing fraud by receiving stolen goods. The Complaint’s own statement was taken on the 19th of March 2019. His case was that he was looking for a mobile phone for his wife for Christmas. He searched Adverts. He met the seller in a local town. He received the IMEI number from the seller. The Complainant went to a phone shop and asked if there was anything on the number. The phone shop advised there was nothing on the IMEI number. The Complainant purchased the phone from the seller. The Complainant stated that after a week his wife didn’t like the phone and he decided to put the SIM from his work phone into the new phone and use it as his work phone. He stated the first time he knew there was an issue with the phone was when the security supervisor contacted him on the 19th of March 2019. The Complainant was invited to a disciplinary meeting on the 21st March 2019 by letter and email dated 20th March 2019. He was provided with the documentation that was to be reviewed with him at the meeting. The letter went on to state that this was considered gross misconduct and any action up to and including dismissal may take place. The disciplinary meeting was held on the 21st of March 2019. The meeting was conducted by a business development manager and the human resources manager was present. I was provided with the minutes of the meeting. The format of the meeting was that the business development manager asked questions and the Complainant answered them. During the disciplinary hearing the Complainant asked for a break. The hearing reconvened after fifteen minutes. The Complainant then asked if he could change his statement. The then offered a new explanation as to how he acquired the phone. He stated that he had purchased it from a former employee of the Respondent who worked with a different delivery company. The Complainant explained that he had had issues with this individual and implied he had been involved in his departure from the Respondent’s employment. He was in contact with this individual who was aware that his work phone had a broken screen. This individual advised the Complainant that he had a friend who would sell him a phone. He gave information to the disciplinary hearing that this individual had been involved in taking drugs. The Complainant stated at the meeting that he was fearful of this individual and that was why he had not told the truth about buying the phone from him. The Complainant again reiterated that he didn’t know the phone was stolen. The meeting was adjourned so that further investigations could be completed. The disciplinary team met with two of the Complainant’s co-workers the following morning to speak with them in relation to the defence being offered by the Complainant. They also ascertained from time records that the individual identified by the Complainant as having sold the phone to him was in the depot on the day the phone was allegedly sold to the Complainant until after the Complainant left the depot. The disciplinary team reconvened the disciplinary hearing with the Complainant on the 22nd of March 2019 at 12.30pm. The HR manager reviewed the minutes of the previous meeting and the reason for the adjournment. The interviews with the co-employees and subsequent investigation points were also reviewed in the presence of the Complainant. The Complainant had the opportunity to review everything that had been discussed during the initial disciplinary meeting. The meeting was adjourned for fourteen minutes. When the meeting reconvened the decision maker advised that he could see no credible evidence that the Complainant had purchased the phone. The decision maker informed the Complainant that he had made the decision to terminate his contract with immediate effect. The HR manager confirmed this verbally to the Complainant that his contract was being terminated with immediate effect for gross misconduct. He was advised he would write to him in the coming days confirming this. He was advised that he would have the right to appeal and the details of how to do so would be in the letter. The Respondent wrote to the Complainant on the 25th of March 2019 and sent him a four-page letter. It went through the history of the investigation and the decision to terminate his employment. The letter went on to state that they regretted that the course of action was necessary but, in the circumstances, they felt that there was no alternative. Details of to whom the appeal should be made was set out in the letter. The Complainant wrote on the 27th of March 2019 to the appeal officer requesting a number of documents including contract of employment, disciplinary policy, minutes of meeting in the investigation, copy of any written statements, copy of all documentation concerning the theft of the phone, scans on stolen delivery, CCTV footage containing the theft of the phone, correspondence to the customer for the stolen phone. The HR supervisor replied to the Complainant’s letter 4th of April 2019 advising that the documentation outlined as part of the appeal letter has been requested from the various functions with the Respondent and it would be provided to him ahead of his appeal meeting. The letter stated that it would schedule the appeal meeting as soon as it was in a position to provide the documentation. The letter confirmed that he would remain unpaid until the appeal outcome has been determined. It gave a telephone number for the HR supervisor. On the 15th of May 2019 a letter was sent to the Complainant enclosing a copy of the contract of employment, disciplinary policy, minutes of all meetings attended in relation to the investigation, file notes from the disciplinary meetings and the investigation which took place during the adjournment, statement that the Complainant had made and also the security supervisor. The Complainant was advised that the scans of the...