EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE , UD256/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. D. Hegarty
Mr. D. McEvoy
heard this case in Cork on 29 July 2013
Representation:
_______________
Claimant(s):
Respondent(s):
No legal representation
The determination of the Tribunal was as follows:-
The allegation
An unfair dismissal claim was brought in respect of the employment of a shop assistant from 1 February 2008 to 8 December 2011. It was alleged that the employer company (hereafter referred to as the respondent) had dismissed the claimant for gross misconduct without fair procedures or even substantial justification for the dismissal.
The claimant held a post as an assistant in a fish shop owned by the respondent. In October 2011 she returned from maternity leave but found that the respondent’s attitude to her had changed a lot. On 1 December 2011 the claimant was given a verbal warning for her behaviour and attitude.
On 3 December 2011 the claimant was using a VISA machine to put through a payment when she accidentally undercharged a shopper.
Subsequent to the undercharging, the claimant was called to a meeting on 7 December. It was the respondent’s position that the shopper had told her of the undercharging but that she had done nothing about the matter. She was shown CCTV footage of the incident and was suspended on full pay pending the conclusion of an investigation.
A disciplinary hearing was held on 8 December. Gross misconduct was the charge levelled at the claimant. Her attitude and performance after her return from maternity leave were found wanting. The meeting was adjourned so that the respondent could decide on its next step.
After a quarter of an hour the 8 December meeting resumed and the claimant was summarily dismissed. The claimant was told that she would receive reasons for her dismissal in written form and that she could appeal against the sanction taken. She did not receive the written reasons and the appeal resulted in her dismissal being upheld by the managing director who had already authorised her dismissal.
The defence
The respondent contended that the claimant’s dismissal was justified in that there were substantial grounds for it. The respondent cited the way in which the claimant had worked and her competence in doing her work. It was argued that she had failed to act courteously or professionally in that she had ignored the shopper who had told her that she had undercharged. It was alleged that company procedures and policies had been seriously infringed, that the claimant had significantly failed to serve the shopper in line with her routine and established duties and that, in being unprofessional and disrespectful to the shopper, she had given an unacceptable level of customer service which had the effect of bringing the respondent into disrepute.
It was also contended that the claimant had not offered any defence or justification for her conduct when the opportunity was given to her during the disciplinary process. In fact, it was alleged that she had not answered questions in a way that would have indicated a wish to give information or take an active part in the disciplinary process.
Determination:
The Tribunal, having heard sworn testimony from both claimant and respondent at the hearing, was not satisfied that the respondent’s procedures were all that they might have been. The respondent did not seem to have had the benefit of human resource management advice as to how to proceed. CCTV footage was used to dismiss the claimant in a manner that was, in the view of the Tribunal, procedurally unfair. More importantly, the claimant’s explanations were not taken into account at all. No or no adequate consideration was afforded to the claimant such as might allow her to put her case given that she admitted her own error. In the view of the Tribunal the fundamental principle of natural justice audi alterem partem was not observed. The Tribunal thus finds the dismissal to be unfair on the basis of the respondent’s defective procedures alone. Further, the dismissal was a disproportionate response to the matters alleged against the claimant.
However, the Tribunal was not entirely satisfied that the claimant made sufficient efforts to mitigate her position. In all the circumstances, the Tribunal does not believe it appropriate to order that the claimant be reinstated in her position but, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, and by unanimity deems it just and equitable to order that the respondent pay the claimant compensation under the said legislation in the amount of €10,000.00 (ten thousand euro).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)