EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1902/2011, MN1961/2011
WT767/2011
against
EMPLOYER
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr E. Murray
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 11th April and 23rd July 2013
Representation:
Claimant: Mr Terry O’ Driscoll B L instructed by
Mark Boland, Boland & Quirke, Solicitors, 72 South Mall, Cork
Respondent : Mr Stephen Moran B L instructed by
Gergana Toromanova, Solicitor, Red Cow Complex, Naas Road, Dublin 22
This case arises out of the dismissal of the Claimant from her position as hotel worker with the Respondent who are hotel and conference centre operators.
The confluence of the evidence given on behalf of the Respondent was that the Claimant was a part-time member of staff working primarily in the convention centre in the Respondent’s hotel in Cork. Contrary to company policy the Claimant removed a bag or bags containing conference promotional material from the hotel. It was acknowledged that the goods removed were of very little value and comprised pens and whistles. It also appears that during the course of a recent conference a pair of expensive sunglasses went missing. When asked by her supervisor about the goods that were removed the Claimant acknowledged that she had the goods and brought them back to the hotel on the next occasion that she was rostered to work. She acknowledged that she had taken them. She denied any knowledge of the sunglasses.
She apologised. The Respondent took the view that any act dishonesty constituted gross miss-conduct. Furthermore, there was a rigorous system operated within the hotel for the handling of lost property and the Claimant had not complied with this procedure.
On her return to work on the 4th of May 2011 the Claimant was called to a meeting in the office of the banqueting manager. Her line supervisor was also present at the meeting. The events were put to the Claimant and the facts were established to the satisfaction of the banqueting manager who decided that he had no option but to terminate the Claimant’s employment.
The Claimant gave evidence that she did remove whistles, pens and a bag. The bag was as far as she was aware in the nature of a shopping bag and was not a conference bag as had been alleged. She regarded these items as being discarded as they were in a cloakroom where items left over after conferences were often left before being thrown out. She did not regard the items as of being any value and thought that she was merely taking home goods that were going to be thrown out in any event. When her supervisor contacted her about the items she returned them at the next available opportunity which was when she was next at work. On the day she returned to work. She was called to a meeting in the banqueting manager’s office. She was not told that this was a disciplinary meeting and she was not advised to bring anybody to the meeting with her. She acknowledged that she had removed the items but did not regard them as being of any significance as she understood that they were going to be thrown out. She gave evidence that she had a difficulty with her employer previously over payment for hours that she had worked and she felt that the company had taken the opportunity of dismissing her because she was an annoyance to them in the context of her other complaint.
Determination
Having heard the evidence the Tribunal are satisfied that the Claimant did remove goods from the hotel premises in contravention of her contract of employment and her general obligation of honesty and trustworthiness to her employer. The goods however were of very little or no value and from the evidence the Tribunal takes the view that it was likely that these goods were stored preliminary to being discarded. Whereas an employee has a duty to act honestly at all times, the Tribunal takes the view that it was unreasonable of the employer not to have regard to the trivial nature of the goods in question in dealing with the matter. The Tribunal are satisfied that there is no evidence to suggest that the Claimant removed a pair of valuable sunglasses.
The Tribunal are of the view that this matter might have been dealt with by way of a lesser sanction than dismissal.
Furthermore, the Tribunal are satisfied that the procedures adopted by the employer were deficient. They failed to advise the Claimant in advance that the meeting she was attending on the 4th of May was a disciplinary meeting and they did not give her the opportunity to have a colleague or union representative present at the meeting.
In all the circumstances the Tribunal finds that the Claimant was unfairly dismissed. The removal of goods however from the hotel in contravention of the Claimant’s
duties to her employers and her contract of employment is a significant matter and in
removing those goods the Claimant contributed significantly to her own dismissal.
Having regard to that contribution the Tribunal finds that the appropriate remedy in this case is damages and makes a total award under the provisions of the
Unfair Dismissal Acts of €8000.00.
In addition, the Tribunal awards the sum of €531.14 in respect of the claim under the
Minimum Notice and Terms of Employments Acts.
The Tribunal makes no award in respect of the claim under the Organisation of
Working Time Act as no adequate evidence has been provided in respect of this aspect of the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)