MN1000/2011, UD877/2011, WT359/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

EMPLOYEE                                                                                                 MN1000/2011                      

                         - claimant                                                                               UD877/2011       

                                                            WT359/2011

against

EMPLOYER              - respondent

EMPLOYER                                                  - respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms D.  Donovan B.L.

Members:     Mr J.  Browne

                     Mr N.  Dowling

heard this claim at Wexford on 14^th December 2012

        and 29^th August 2013

Representation:

Claimant(s) : In Person

Respondent(s) :

The determination of the Tribunal was as follows:-

The claim under the Organisation of Working Time Act, 1997 was withdrawn.

Background:

The claimant was employed as a Team Member in the respondent fast food outlet from October 2006 to January 2011.  She was trained by her Supervisor, was given a statement of terms of employment and the staff handbook.  On the 28^th December 2010 it came to the respondent’s attention that the claimant was observed giving a child a free ice cream.  She was called to a meeting where she said she had given the child the ice cream as she was cute and had paid for the ice cream herself with a tip she had received from a prior customer.  There were also a number of irregularities with her transactions on the same day concerning food not being recorded correctly through the till.  The Manager and the claimant closed off her till and cashed it up.  It was € 1.50 over.  The claimant was suspended with pay and requested to attend a meeting in Dublin on the 3^rd January 2011 at 11.00 a.m.

She attended the meeting with a colleague to act as a witness.  The Senior Area Manager held the meeting.  A letter dated the 5^th January 2011 was sent to the claimant to inform her that for reasons of gross misconduct she was dismissed.  She was given 5 working days in order to appeal the decision.

On the 6^th January 2011 she wrote a letter of appeal.   The Human Resource Manager investigated the matters with other staff but none of these staff were present on the day of the Employment Appeals Tribunal hearing.  The decision to dismiss the claimant was upheld. 

Respondent’s Position:

The respondent contends that the claimant breached company “tills procedure” and “free food” policy by inputting meals and handing out meals that did not correspond with that inputted.   The respondent contends also that the claimant breached the “no tips” policy.   They believe fair procedures were used.  Upon investigation other staff were dismissed for giving out free food. 

Claimant’s Position:

The claimant contends she had not given out free food to the child but had paid for it from a tip she had received from a customer.  She explained there was a practice of ringing in a different chicken meals and handing out different chicken meals to balance stock levels.  A supervisor colleague had told her to do it. 

She gave evidence of loss.

Determination:

The Tribunal is satisfied on the evidence of the parties that the claimant did not breach the respondent’s ‘no free food’ policy but rather the claimant paid for an ice cream given to a child out of tips which she had received and she did not give out free meals but rang them incorrectly into the till in an effort to balance stock figures.

The incorrect ringing in of orders is a breach of the respondent’s ‘till operation’ procedure.   However, the Tribunal finds that the claimant did this because there was a practice whereby this was done to keep stock levels accurate.   The evidence does not support any other finding.

The Tribunal does not find that the claimant breached a ‘tips policy’ as if there was such a policy at the material time the claimant and other staff members were unaware of it and simply put tips into the till.

Whereas the Tribunal accepts that the respondent was entitled to take action, taking into account all the circumstances including the claimant’s length of service with the respondent and her reasons for the conduct the Tribunal finds that the sanction of dismissal was not justified.

Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €15,000.00 plus two weeks’ notice in the amount of €650.66 under the Minimum Notice & Terms of Employment Acts 1973-2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)