EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1667/2011 MN1724/2011
against
EMPLOYER
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007 TO 2005
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Daly B.L.
Members: Mr D. Morrison
Ms A. Moore
heard this claim at Letterkenny on 9th April 2013
Representation:
_______________
Claimant:
Respondent:
The determination of the Tribunal was as follows:-
Respondent’s case:
DD the respondents financial controller gave evidence that the respondent is one of a large chain of supermarkets. At a group meeting of 20th May the management of the supermarket were told of irregular usage of a fob/loyalty tag. These tags were issued to customers to collect loyalty points that could be used to off-set the cost of future purchases. The tag in question was used up to 28 times per day and was unregistered to any customer.
DD undertook an investigation checking the records as to the date and time the tag was used with corresponding CCTV. It proved to be the claimant who as a petrol pump attendant was scanning the tag for payments of customers purchases at an average of four or five times a day.
The claimant was called to a meeting on 23rd May 2011 and admitted to using a fob over the previous 10 days to cover a “drive off”. DD felt that his excuse was irrelevant because staff were not asked to pay for drive offs if they occurred. He carried out further investigations and went through more records for previous months.
A further meeting was called on the 1st June 2011 and the claimant was again asked to explain his actions and told it was being treated as gross misconduct. The claimant didn’t give any explanation, just asked “is that it” and walked out the door. DD stated that there was no evidence of the redeemed points being used for family benefit, it was usually alcohol and cigarettes at the end of the week. The claimant didn’t return and a decision was taken to dismiss him. DD sent him his letter of dismissal together with his P45 on 6th June 2011.
Under cross examination DD told the Tribunal that the claimant was told he could have a representative with him for his meetings, it was common practice within the business and he would have been advised of same. He knew it was a serious issue.
There was no system of appeal. Notices were on the staff notice board clearly stating that it was strictly prohibited for staff to use customer’s loyalty points and both himself and the managing director considered the issue as gross misconduct.
AK the managing director gave evidence that he was present at the meeting of 1st June. The claimant didn’t say much, just got up and left. AK was surprised at this but after consultation with DD felt there was no option but to dismiss.
Under cross examination AK said that the notice on the notice board was sufficient for staff to be aware not to use the customer’s loyalty points. Staff rosters were posted on the notice board and all information was conveyed to employees on the board.
Claimant’s case:
The claimant gave evidence of working in the store and employment being uneventful until he was called to a meeting in May 2011 asking about his use of fobs/tags. He was told it was a serious issue and was suspended for one week but he was not told it was gross misconduct and didn’t think it was a job losing situation. He didn’t see anything on the staff notice board and other staff were doing what he was doing as well.
The claimant told the Tribunal he didn’t know what unregistered tags were, he had three, one on house keys, one on car keys and his wife’s one. He just asked the girls at the tills for them and if not allowed use them, why give them out. He admitted using the fobs and felt he was just using unclaimed points. At the time he didn’t see any issue with what he was doing. The notice board was large with lots of community posters on it and he did no see the notice, it was definitely not in a prominent position.
Under cross examination the claimant said that he thought what he was doing was no big deal, he never gave it much thought. He never recalled seeing the notice. In hindsight he could now see that what he was doing was a serious matter.
Determination:
Dissenting opinion by Ms A Moore
When the fob (credit system) was introduced no meeting took place with employees to explain management policy. Employees and customers were entitled to avail of the system and fobs were freely available. From the evidence adduced, the use of unclaimed credits by employees, appears to have been common practice and therefore could not be considered “gross misconduct” justifying the dismissal of the claimant.
Majority decision
As the claimant accepted that he used the fobs to use unclaimed credit points, the issue to be determined is whether this amounts to an act of gross misconduct which justified the dismissal. The fact that the claimant did not realise that what he was doing was wrong cannot influence the Tribunal decision as to whether it was wrong or not. The test is rather “would the reasonable person believe that the act was sufficient to critically undermine the trust between the parties”. The Tribunal finds that as a result of the actions of the claimant, the relationship of trust between the parties was critically undermined. The actions of the claimant were misappropriation of credit points to himself without permission. This is akin to theft and is an act of gross misconduct which justifies dismissal.
The Tribunal does not accept the claimant’s evidence that this practice was common practice among staff. On that basis the claims under the Unfair Dismissals Acts, 1977 To 2007 fails.
There was no evidence adduced in relation to the claim under the Minimum Notice and Terms of Employment Act 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)