UD212/2012

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms C. Egan BL

Members:     Mr B. O’Carroll

                     Ms H. Henry

heard this claim at Roscommon on 26 September 2013 

Representation:

Claimant: 

Respondent:

The determination of the Tribunal was as follows:

The respondent operates a series of convenience stores attached to service stations. The claimant worked as a sales assistant in the Roscommon store from September 2007. The employment was uneventful until 5 October 2011 when the Area Manager (AM), who was responsible for six stores with around 180 employees, was conducting checks on the level of compliance by the respondent’s employees with the plastic bag levy (PBL) as he had concerns that the €0-22 charge for plastic bags was not being applied thereby leaving the respondent in breach of the relevant regulations. These checks involved AM in checking till receipts for the charging of PBL to customers and then observing CCTV footage of till operations for those receipts where PBL had not been charged.

As part of these checks of operations of 4 October 2011 AM observed the claimant, who lived very close to the store and was not on duty at the time, to purchase a loaf of bread and some milk. The claimant put a €5 note on the counter and then went to get a box of breakfast cereal which she had forgotten to get. On her return to the till after a brief conversation with the till operator (TO) the claimant took coins from her purse in order to pay TO and took back the €5 note. The receipt, which was not given to the claimant, was for €3-04 and did not include the cereal. The respondent’s position was that the claimant had not tendered the correct money for the amount on the receipt and had avoided paying for the cereal. Additionally the PBL charge had been voided.

Later on 5 October the store manager (SM) called the claimant in to work informed her that there were allegations against her in regard to her purchases on 4 October and showed her the CCTV footage. SM informed the claimant that she was suspended with pay and this was confirmed in a letter the following day. The allegations were described as misappropriation of company property which the respondent viewed as gross misconduct which could lead to dismissal. Also on 6 October the claimant attended the store and sought to pay for all three items from 4 October.

On 11 October 2011 SM wrote to the claimant inviting her to an investigation meeting the following day. The allegations were repeated and the claimant advised that she could be accompanied by a colleague and that dismissal for gross misconduct was possible.

At the investigation meeting conducted by SM on 12 October 2011 the claimant was accompanied by a colleague, SM had a note taker with him. The claimant was asked eleven pre-prepared questions. The claimant’s position was that she had paid to TO what she had been asked to pay and thought she had paid for all the items. She was not aware that she had been in breach of company policy.

On 13 October 2011 SM wrote to the claimant inviting her to a disciplinary meeting on 17 October 2011 as she had a case to answer in that she received goods from TO on 4 October 2011 without paying the full amount. The disciplinary meeting was conducted by AM, the claimant was accompanied by a different colleague. On 17 October 2011 AM wrote to the claimant to advise her that his decision was that she be dismissed with immediate effect for gross misconduct for both receiving goods from TO on 4 October 2011 without paying the full amount and for not charging for carrier bags as required by law, thus defrauding the Revenue of their tax entitlement. The claimant was advised of her right of appeal to the Retail Manager (RM).

The claimant wrote to RM on 20 October 2011 to lodge her appeal. The appeal was held on 4 November 2011. The failure of her appeal was notified to the claimant in a letter from RM on 15 November 2011.

Determination:

During his evidence to the Tribunal AM asserted that the claimant had not tendered the correct amount of cash when paying for goods on 4 October 2011. Having viewed the CCTV footage of the incident the Tribunal is satisfied that the claimant did tender cash to the value displayed on the receipt. There has been no evidence tendered to suggest any collusion between TO and the claimant in regard to the cereal not being charged for. In those circumstances the respondent cannot hold the claimant responsible for an error by TO. It was not incumbent on the claimant as a customer to keep check on what TO was charging her, the responsibility lay with TO. In the letter of suspension, the notes of the investigation meeting and the invitation to the disciplinary meeting there is no mention of anything about PBL yet the second reason for dismissal is given as not charging for carrier bags. This matter had its genesis in AM’s checking on PBL compliance and concluded with AM dismissing the claimant. It is hard to escape the conclusion that AM had pre-judged the issue and the claimant was tainted by the sins of another. For all these reasons the Tribunal is satisfied that the claimant was unfairly dismissed.  The Tribunal awards €9,500-00 under the under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)