EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD601/2011
MN639/2011
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr P. Pierson
Mr O. Nulty
heard this claim at Longford on 17 January 2012, 11 April 2012, 12 June 2013 and 24 July,2013.
Representation:
_______________
Claimant: Mr. Gerard Carthy, Connellan Solicitors, 3 Church Street, Longford, Co Longford
Respondent: Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Preliminary Issue:
The respondent’s representative argued that the T1A was submitted outside of the time frame allowed.
Determination on Preliminary Issue:
The Tribunal informed the parties that it was allowing the form T1A to be used under Section 8, Subsection 2 of the Unfair Dismissals Acts 1997 to 2007.
Respondent’s Case
The respondent is a large multi-national company operating stores throughout Ireland. The Retail Store Manager known as (SV) gave evidence that he worked with the claimant and that she reported directly to him from May 2009. The store has a strict policy on its mark down sales. As a sale progresses items get reduced and eventually a managers reduction sale occurs which is a clear-out of stock. This marks stock down to below cost. There is always advance notice (48 hours) given to employees as some staff will be required to work early shifts to prepare etc. The sale is not announced publicly. It is strictly against store policy for staff to purchase stock before the opening hours of the store. Customers and employees are given equal opportunity to buy the stock.
(SV) was on leave on the day of the alleged incident. The claimant was duty manager in his absence. She had a 6.30am start in order to mark down items and oversee the work of that morning. The claimant purchased a number of items approximately thirty minutes before the opening of the store. She also allowed others to make purchases. She was asked by another employee (FB) if it was ok and she told her it was. (SV) considered the claimant’s actions as gross misconduct. Another issue which arose was that there is a no tolerance policy in the stores for using tills that are logged on in another employee’s name.
At the disciplinary meeting with (SV) the claimant said she didn’t believe she had breached company policy, she heard it happened in another store. She didn’t do it maliciously and didn’t realise the till was logged under someone else’s name. The witness said it was not an easy decision to dismiss her, the other person involved got a final written warning but the claimant was the duty manager and had overall responsibility.
(SV) told the Tribunal that it was his decision to dismiss the claimant. He did so on four grounds including two breaches of reservation of sale policy, breach of till procedures and engaging in shopping on company time by the claimant and other employees resulting in theft of company time. It was the combination of breaches that led him to dismiss the claimant and the fact that she was duty manager on the day in question. As duty manager it was her responsibility to ensure that the company’s policies and procedures were followed. He accepted that the company handbook makes a distinction between negligent failure to follow procedures and deliberate failure to follow procedures. He confirmed that he did not discuss the case with the regional head of Human Resources before dismissing the claimant. He did not interview (FB) as part of his investigation into the claimant’s actions. (FB) was also sanctioned by the company but was not dismissed.
He confirmed that as part of his investigation he did not interview any of the other employees whom the claimant had allowed purchase stock. He viewed the clock-in records to ascertain if the employees involved had given back the time they had taken to purchase the stock and could find no evidence that they had done so. He confirmed that clock-in records do not monitor break times but he was satisfied that the employees in question had not given the time back to the company.
He gave further evidence that he conducted a scheduled performance review with the claimant on 14 August 2010, approximately two weeks after the incidents of 31 July 2010. The claimant received a highly effective rating at that review. He believed that it was right and proper for that review to take place as it was separate from the investigation. He told the Tribunal that it was normal to set out targets/objectives going forward as part of the performance review. This was not done at the review in August 2010 as the meeting had been a particularly lengthy meeting.
He recalled the claimant saying that different practices pertained in one of the respondent’s Dublin stores to that where the claimant worked at the time of her dismissal. After checking with a colleague at the Dublin store he found this not to be the case. He treated the claimant’s actions as gross misconduct and had no further dealings with the claimant after 22 October 2010. He denied seeking access to the claimant’s facebook page and had no recollection of accessing her facebook page. He confirmed that the company’s policies and procedures are agreed by the trade union representing company employees.
In response to questions from the Tribunal he stated that he did not know if the employees had given the time back to the company as he did not look any further than the clock in records. He told the Tribunal that no sanction was imposed on those employees.
The next witness known as (CW) a human resources manager with the respondent company conducted the appeal hearing into the claimant’s dismissal. The claimant appealed the decision on six grounds and the witness dealt in detail with each of the six grounds of appeal by way of letter dated 22 October 2010 a copy of which was opened to the Tribunal. In summary she upheld the decision to dismiss the claimant. She did not interview anyone other than the claimant as part of the appeal process as she did not deem it necessary to do so. She checked the clock-in records and none of the employees concerned had stayed over their contracted hours on the day in question. She could not prove to the Tribunal that they had not given back the time. She did not check CCTV footage as part of the appeal.
She did not accept that the claimant was unaware of the procedures as she had received training in the company’s policies and procedures. She believed that the claimant deliberately wanted to purchase goods before the store opened. She purchased in excess of twenty items before the store opened and the witness considered this to be an act of gross misconduct. She also believed that the claimant had deliberately failed to follow the company’s till procedures. She denied that the appeal process was a rubber stamping exercise.
Claimant’s Case
The claimant had worked for various employers before commencing with the respondent company in October 2007. Her job title was section manager with responsibility for food, back warehouse and lingerie. Up to the time of her dismissal she had no previous disciplinary matters. Her performance was always very good as noted in her performance review notes. On the day of the incident which led to her dismissal she arrived at work at 6.15am. She was returning from a period of pregnancy related sick leave and was anxious to catch up on emails. She printed the sale lists and briefed the staff on stock for mark down. FB commenced work at 8am that day.
Before the store opened the claimant purchased a number of items as she had heard this was often done in another branches of the respondent company. The previous day she had learned the sex of her baby and purchased baby clothes. She recalled FB asking if purchasing in advance of opening was permitted. Other employees were permitted to make purchases and she registered the purchases at the till. The time she had taken to purchase the items she had given back in break time and had commenced work earlier than scheduled.
She attended her performance development review (PDR) in early August 2010. The process conducted by the store manager took five hours and she set out examples of how she achieved the goals set out at her previous PDR meeting. At the conclusion of that PDR she was given no goals which she thought was odd. The claimant first heard of an issue on the 24 August 2010. She was given one hour to prepare for an investigation meeting having been told that she breached reservation of sale policy and allowing other employees to make purchases was not common practice. Her understanding of the company reservation of sale policy was that you were not permitted to order or reserve sale items. The policy document refers to ordering and reserving only and makes no mention of purchasing and that was how she interpreted the policy. On the issue of breaching till procedure the claimant inadvertently used another employee’s log on to make the purchases. As a duty manager she unsecured the till and failed to enter her own log on. She accepts that this was an error on her behalf. Prior to this she had some tensions with the store manager which were unrelated. As the union representative in the branch she had been involved in duty manager payment negotiations. On another occasion he accused her of being aggressive and during the period approaching her maternity leave he put her under pressure to decide on deferring her December salary in order for him to hire a replacement. The store manager conducted her disciplinary meeting which she believed was unfair given their past working relationship. She was informed of the outcome by telephone call and dismissed from her employment on the 1 September 2010 the day after her disciplinary meeting. She appealed her dismissal and was informed by letter that the decision to dismiss her was upheld.
Determination
In deciding whether the dismissal in this case was fair or unfair, the Tribunal had firstly to identify the employer’s reason for the dismissal of its employee and secondly, once the reason for dismissal was established, the Tribunal had then to decide whether this reason was fair or unfair. In determining the fairness or otherwise of the employer’s actions, the test of reasonableness, which is emphasised in Section 6(7) of the 1977 Act, must be applied to:-
A. The nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant and,
B. The employer’s conclusion following such enquiry that that claimant should be dismissed.
The Tribunal have studied the evidence given by each party, at length. The claimant was a line manager, and on the day in question was also duty manager for the store, which carried a heavy responsibility. In breach of company policy she purchased and allowed other staff members to purchase sale items prior to the shop opening. In addition, she breached till operating procedures. In a nut-shell, these ‘actions’ were the reasons underpinning the respondent’s decision to dismiss the claimant.
Having established the reason for the claimant’s dismissal, the Tribunal must now establish whether the reasons for the dismissal were fair or unfair, applying the test of reasonableness as set out above. In this regard and with regard to the enquiry carried out by the respondent, it was clear from the evidence furnished at the hearing that the investigation process was flawed in the following respects;
A. The claimant received one hour’s notice of the investigation meeting. She was also informed that the meeting was in respect of one matter only, being the sales reservation breach, whereas, at the meeting several other matters were raised, of which the claimant had no notice.
B. The disciplinary hearing was not objective, as it was overseen by a person with whom the claimant had a past history, as was clear from the evidence given at the hearing. This hearing should have been overseen by an independent person who had no knowledge or past dealings with the claimant.
C. When the claimant appealed the decision of the disciplinary hearing to dismiss her, the appeal was heard by a person who did not carry out an independent and objective review of the matter. This individual gave evidence that she did not interview the claimant or other staff members, she did not take into consideration the claimant’s good work record with the company, and she did not conduct her own investigation into the matter. Her evidence was that she conducted her appeal by only reading the file pertaining to the investigation which led to the claimant’s dismissal. This evidence, in particular, left the Tribunal in no doubt that the appeal investigator failed to carry out an independent and thorough investigation and merely rubber stamped the earlier decision.
Accordingly, for these reasons the Tribunal finds that the dismissal was unfair. However, the Tribunal finds the claimant contributed to her own downfall by her actions especially so given her standing in the company. In addition she could have safeguarded herself by seeking authorisation from her superiors before carrying out the actions which led to her dismissal. However she chose not to do so. Consequently, the Tribunal direct that the claimant be re-engaged by the respondent from the date of receipt of this determination. The Tribunal make no award in respect of a monetary payment to the claimant under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also determines that the claimant’s continuity of employment be preserved.
The Tribunal makes no award in respect of the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)