UD411/2012, PW114/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                       CASE NO.

EMPLOYEE                                                                                                                              UD411/2012

                                                             - appellant                                                      PW114/2012

against the recommendation of the Rights Commissioner in the case of:

EMPLOYER     - respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. N. O’Carroll Kelly B.L.

Members:     Mr J. O’Neill

                     Mr C. Ryan

heard this appeal at Dublin on 27th June 2013

Representation:

Appellant(s) :

Respondent(s) :

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of an appeal by an employee (the appellant) against a decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, reference (r-116734-ud-11/EH) and the Payment of Wages Act, 1991, reference (r-116731-pw-11/EH).

Background:

The appellant was employed as a Sales Assistant from the 3^rd March 2005 until the 13^th July 2011 in the respondent food retail store.  On the 8^th July 2011 a customer used the ATM machine but forgot to remove the € 200.   The customer returned to the store and explained what happened to a Security Officer (JB).  JB explained that the money would have gone back into the machine.  JB took the customers telephone number, advised him to speak to his bank and told him he would look at the CCTV footage. 

On viewing the footage JB observed the appellant removing the money from the machine and walking away.  JB informed the Manager (KM) he had viewed the footage.  KM spoke to HR and the union shop steward and met with the appellant.  The appellant admitted taking the money from the machine.  When asked why he did not hand it over straight away he replied that his head was “not in the right place”, his mother had recently passed away.  There was a short break in the meeting.  The appellant was very upset.  The meeting resumed and the appellant was informed he was suspended with pay.  An interpreter was requested for the following meeting.

A disciplinary meeting was held on the 11^th July 2013.  The appellant brought his Union Official (and representative at the EAT hearing) to the meeting.  KM briefed the Union Official of what had occurred and the CCTV footage was viewed.  KM said that after the incident the appellant had passed KM, who was on a break, but did not mention the incident or hand over the money.  The appellant asked to see the honesty policy but there was none on file. The appellant was dismissed for a breach of the honesty policy. 

A letter dated the 13^th July 2011 stated this.  It was also stated: “Theft or fraud or attempted fraud if proven to the Company’s satisfaction.  This applies equally to the property of the Company, suppliers, staff members, customers and the social committee / fund.” He was informed he could appeal the decision within 5 working days. 

Respondent’s Position:

KM felt all trust had gone and felt there was no alternative but to dismiss the appellant.  The appellant had the opportunity to hand over the money and had not.  Fair procedures was used in the disciplinary process.

Appellant’s Position:

The appellant agreed he had taken the money out of the machine and had intended to hand it over.  When asked why he had not given the money to KM when he was talking to him, he replied that he did not want to disturb him.  He stated there had been no prior issues in his six and a half years employed with the respondent.  He said that when he removed the money from the machine he had looked around to see if anyone was around.  He thought someone would return for it. 

He explained that he had had some personal issues, his mother had passed away a month previously.

When asked he said that he was aware of the CCTV cameras.  He told the Tribunal that he had found a wallet in the past and had handed it in.  When put to him, he agreed he could have handed the money over to another new Manager. 

Determination:

The Tribunal has carefully considered the evidence and submissions adduced in this matter.  The basic facts in this case are not in dispute.  The Tribunal finds the appellant acted in breach of the respondent’s company policy having taken and concealing the € 200 from the ATM machine which warranted dismissal.

Accordingly the Tribunal upholds the Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007 and the Payment of Wages Act, 1991.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)