Allegations of fake overtime claims disputed at employment hearing

A manager sacked by Bidvest Noonan nearly four years ago said the findings of a company investigation into alleged false overtime claims, which he denies, are still causing him “difficulties” finding new work in the industry.
Marek Zalewski’s trade union, Siptu, said the contract cleaning company “failed to properly investigate the allegations” or give him a chance to account for time sheets regarded as “inflated” by the firm before dismissing him.
An Ibec official acting for the firm in defence of Mr Zalewski’s complaint under the Unfair Dismissals Act 1977 said the claimant was given “countless opportunities” to account for his time sheets – and denied he was ever accused of “dishonesty”.
The case before the Workplace Relations Commission (WRC) concluded on Friday with the complainant’s testimony – company witnesses involved in the disciplinary process having given their evidence at a previous hearing.
Mr Zalewski said he had been working 45 to 50 hours a week as an industrial manager overseeing a “small division” of the company operating in the west of Ireland from Co Cork to Co Donegal at the time the Covid-19 pandemic arrived in spring 2020.
Although a lot of customers closed down when public health restrictions came in to force, there were “a lot of urgent inquiries for decontamination works” and his division was “never so busy”.
The company had announced an overtime ban at the start of lockdown, with a direction that any additional hours would have to be “verified”, Mr Zalewski said. “But in less than a fortnight, everyone was working more than their contracted hours,” he added.
The complainant said allegations were made against him in June 2020 that he had claimed pay for time that he had not worked.
It was put to the complainant in cross-examination that he had six weeks’ notice of “discrepancies” in his time sheets, which Mr Zalewski accepted. However, he said he did not agree he was asked to come “prepared” to a meeting on June 11th, 2020 to provide evidence in support of his overtime claims.
He said the manager who met him on that date “asked me what did I do five or six weeks ago between 2pm and 3pm”.
“I asked if I could check. [The manager] told me it was not the time to check,” Mr Zalewski said.
The company’s representative, Ibec industrial relations executive Emily Maverly, asked: “Did [the manager] not ask you to bring your laptop to the meeting?”
“He did, but he didn’t allow me to check it,” Mr Zalewski said. He said he had not been told prior to the meeting what specific “gaps” the manager was concerned with, only what six-week pay periods they related to.
The specific allegations against Mr Zalewski in respect of the pay claims were that he “knowingly and deliberately requested payment for hours [he] did not carry out any work” in March and April 2020, submitting a “false pay claim” between March and April 2020, and making a false claim for a travel allowance, the tribunal was told.
“There’s no reference to dishonesty in the allegations,” Ms Maverly said.
“It might be a language barrier, but to me, submitting a false claim is dishonesty,” Mr Zalewski said.
Another investigation meeting addressed further allegations that Mr Zalewski had broken the Covid-19 public health restrictions by failing to self-isolate after travelling to Scotland, the tribunal heard.
He said he thought he was not required to self-isolate after flying to Edinburgh to take her home to Ireland by car because he was “confused” by different regulations in the two jurisdictions.
He said he had not yet received an investigation report prior to a disciplinary hearing on October 21st, 2020 and that the company’s disciplinary officer did not have the report at the meeting either. Mr Zalewski said he only received the investigator’s report a week later on October 28th.
His union advocate, Marie O’Connor of the Siptu Workers’ Rights Centre, said the report arrived just two hours before Mr Zalewski was served with notice of dismissal for gross misconduct.
The gross misconduct finding was because Mr Zalewski “at no point presented any evidence that his claims for inflated wages were justified, nor his breaches of the Covid-19 guidelines”, Ms Maverly submitted.
The investigation report stated: “Marek’s lack of backup and explanation to his wage claims are regarded as a serious concern. As a manager in a position of trust, he should be able to stand over his wage claims…failing to do so has raised a concern with trust and accountability,” the tribunal was told.
Mr Zalewski evidence was that he had sought roles like his former job at Bidvest Noonan following his dismissal but had “difficulties” with recruiters.
He said one recruitment firm had informed him following an application to another company in the sector that the client was “very happy” with his qualifications but that he “failed” in the recruitment process “because of what happened in the previous job”.
He said that he had tried to go into business as a courier and later took up work as a translator, earning less from that work than he had at Bidvest Noonan.
“Because of this allegation of theft that wasn’t upheld but was borne out in the dismissal, it has been very difficult for him to get work at the high level and he has been very open and honest in disclosing that to employers,” Ms O’Connor said.
In a closing submission, Ms O’Connor said the fact that the investigation report was only given to her client following the disciplinary meeting was “fatal” to the disciplinary process and a breach of the company’s own disciplinary manual.
She added that the report did not address the alleged breaches of public health controls and that the company disciplinary officer had therefore made factual findings of her own. “No reasonable employer could stand over that process,” Ms O’Connor said.
Ms Maverly said Mr Zalewski had “countless opportunities” to account for his time sheets from April to October 2020 and “at no point presented any evidence that his claims for inflated wages were justified, nor his breaches of the Covid-19 guidelines”.
“At no point was there an allegation of dishonesty,” she submitted, adding that the specific charges against Mr Zalewski had been set out in the company disciplinary handbook.
Adjudicator Niamh O’Carroll closed the hearing and said it would be a number of weeks before she could provide the parties with her written decision.