Manager who was abroad when wife reported him ill has €81,000 dismissal award cut

A small firm’s operations manager whose wife reported him too sick to work only for a company phone bill to show he was out of the State on the day in question has had an award for unfair dismissal reduced from almost €81,000 to €32,000 by the Labour Court.

Miro Krpeta had been employed for 15 years by Inspection Services Ltd, a firm based in Dublin Port that provides cargo verification and certification services. In 2006, Mr Krpeta had been appointed as operations manager for the company.

In evidence, the court heard that, in late 2018, he had sought to take annual leave on December 24th but was informed that the company’s owner, Bill Saarsteiner, was due to be off on that day and as one of them had to be available at all times, the request had to be refused.

On the morning of December 24th, Mr Krpeta’s wife texted his employer to say he had a vomiting bug and would not be able to come to work and so Mr Saarsteiner was obliged to go to the office instead.

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The following month, Mr Saarsteiner received the bill for Mr Krpeta’s company phone which listed it as roaming in the EU on December 24th. After a number of days, Mr Saarsteiner asked Mr Krpeta, who had previously been issued with a verbal warning in relation to an unrelated incident, to attend a meeting and to bring his phone and laptop which he was requested to hand over.

Mr Saarsteiner told the court that at that meeting, despite being instructed not to, Mr Krpeta deleted the data on his phone. The data on both the phone and his laptop was subsequently found to be irretrievable.

Full pay

He was suspended on full pay pending an investigation which an independent party carried out. The investigator subsequently upheld two of three allegations — in relation to his absence on December 24th and the deletion of the phone’s data — made against Mr Krpeta but found there was no conclusive evidence that he had deleted the files from his laptop.

Nevertheless, Mr Saarsteiner pursued the three charges against Mr Krpeta at a disciplinary hearing which he oversaw on March 26th, 2019, and three days later he informed the manager in writing that he was summarily dismissed.

Mr Krpeta appealed and a barrister was appointed to run that process which ultimately upheld two of the three complaints made against him at the disciplinary hearing.

In his evidence, Mr Krpeta said he did not remember asking his wife to send the text on December 24th but acknowledged when asked by the court for clarification that he had been in Croatia on the day in question.

In relation to the January meeting, he said he had sought to be accompanied but this request had been refused. He said that when asked to hand over the phone he had sought to remove personal items including photographs and was told to do this at the time. When he encountered difficulties, he performed a factory reset, believing that the company would still be able to access backed-up data.

Mr David Boughton, for the employer, submitted that the decision to dismiss fell within the band of reasonableness test and while “it was accepted that Mr Saarsteiner had received the complaint, made the decision to suspend, conducted the disciplinary hearing and made the decision to dismiss ... this does not necessarily mean that fair procedures were not applied”.

Procedures

Mr Krpeta, who was represented by Siptu, argued that the dismissal was substantively and procedurally unfair.

The court ultimately found that the procedures followed in coming to the decision to dismiss were “fundamentally flawed”.

It identified a number of issues with the employer’s actions in the circumstances, including that “Mr Saarsteiner by his own evidence had decided before he even met the complainant and heard his version of events that he was being lied to ... It is difficult to reconcile that state of mind with the role of impartial decision maker in a disciplinary process”, the court found.

It nevertheless put the contribution of Mr Krpeta to his own dismissal at 77 per cent and, as the maximum the complainant was entitled to seek was €138,000, set aside the decision by an adjudicator at the WRC that he be paid €80,930.77 and instead set the figure at €32,000.

In a related case, Mr Krpeta, who was unemployed for 32 months before securing work at €29,000 annually having earned €69,000 a year at Inspection Services, was awarded €7,961 in lieu of notice.