UD134/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

EMPLOYEE                                                                      -claimant                         UD134/2012

Against

EMPLOYER  -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. P.  Wallace

Members:        Mr T.  Gill

                        Mr F.  Dorgan

heard this claim at Limerick on 25th September 2013

Representation:

_______________

Claimant:        

Respondent:   

Summary of Evidence

The respondent is a fast food chain. The claimant worked in one of the branches as a manager. The staff get a food allowance which equates to a ‘meal’ for each shift they work. The respondent maintains that this food allowance was only to be consumed on the premises, by the staff member.  The food policy states,

‘Staff food must be consumed by you on the premises, in the designated staff dining area…A manager must ring in your staff food prior to you leaving for the floor.’ 

As a manager the claimant was aware of this policy.  If a staff member is using their food allowance it must be put through the till prior to consumption.

The area manager was doing an investigation into the higher than normal food losses in the branch the claimant worked in. As part of the investigation he viewed CCTV footage of the claimant handing food over the counter and compared it to the till receipts.  The till receipts did not show the food that was handed out.  He only checked the till receipts that corresponded with times on the CCTV that the food was handed out, not for the full day.   It became clear that the claimant was handing food out without putting the order through the till.

On the 27^th of September 2011, after the investigation the area manager called the claimant to the office for a meeting.  The store manager was also present at this meeting. The area manager asked the claimant to explain her actions (giving out free food); the claimant admitted handing the food out and said that this was not the first time. He informed her that her actions would result in disciplinary action and possibly dismissal. The claimant was very upset and asked what would happen if she resigned. The area manager told her that if she resigned it would be the end of the matter; he then gave her a pen and paper and left the room.  He also told her there would be no issue with a reference. On his return, she asked him what she should write in the resignation letter. The area manager informed her that it was up to her what she wrote. The claimant then wrote the letter of resignation.

The area manager disputes saying ‘whatever happens, either way your job is gone’ or that he instructed her that her best chance at another job and a reference was to resign.

The area manager has no knowledge of the food policy issued to the claimant (and provided to the Tribunal) which omits the words ‘by you’.  The claimant’s food policy states,

‘Staff food must be consumed on the premises, in the designated staff dining area…A manager must ring in your staff food prior to you leaving for the floor.’ 

The claimant was not given notice of this meeting or offered the opportunity to have a representative present.  The area manager maintains that the respondent’s disciplinary procedures would only ‘kick-in’ after the investigation meeting.

The store manager confirmed that it is the policy that staff food cannot be given away to anyone else. He also gave evidence that he did not witness the claimant handing out her staff food. He did not hear the area manager say, ‘whatever happens, either way your job is gone’, but confirms that the area manager did say (re: resignation) ‘it’s the best way.’

The claimant was never informed that she could not pass on her staff food to anyone else or that it was for her consumption only.  There was no ‘designated staff dining area.’ The claimant’s version of the staff food policy does not stipulate that the food must be consumed by her.   Previous to this incident the claimant has given her staff meal to her sister in view of the store manager.  Staff food might not necessarily be put through the till at the time of consumption but will always be put through that day at some stage, usually at the end of the shift.

On the 27^th of September 2011 that claimant was called to a meeting at the start of her shift.  She received no prior notice of this meeting.  The area manager showed the claimant the till receipt print-out that matched the time she issued the food. The claimant made it clear that this was her staff food that she gave to her sister and that it was put through the till at a later stage as was common practise among the staff.

The area manager informed her that this was a ‘sackable offence’.  The claimant was very upset and asked to be issued with a final warning instead of being sacked as she wasn’t aware that giving her staff food to someone else was not permitted.  The area manager told the claimant that if she didn’t resign she would be fired without a reference.  He then left a paper and pen on front of her to write her resignation letter. The claimant continued to plead with both managers to retain her job but eventually succumbed and wrote the resignation in order to secure a reference in the hope of securing another job.

The claimant gave evidence of her loss and her attempts to mitigate her loss.

Determination

The Tribunal find that the respondent did not adhere to any procedures during this process and did not follow the laws of natural justice; hence the claim for unfair dismissal must succeed.

The Tribunal award the claimant €22,716.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)