UD202/2012, MN152/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007                                                

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms E. Kearney BL

Members:     Mr W. O'Carroll

                    Ms H. Henry

heard these claims at Galway on 9 October 2013

                                          and 25 February 2014

Representation:

_______________

Claimant:      

         Ms Dawn Carney, Sheehan & Co, Solicitors, Augustine Court,

                      St Augustine Street, Galway

Respondent:  

         Ms Michelle Ni Longain, Byrne Wallace, Solicitors,

         2 Grand Canal Square, Dublin 2

Respondent’s Case

The respondent’s head of security told the Tribunal how he had arranged for two CCTV cameras, one in the retail area, and the other in the food preparation area, to be installed in the days before 25 September 2011. This was in response to a request from the store manager. He confirmed that the staff were not told of the installation of these cameras. The technician who had operated the CCTV alerted the witness to seven incidents involving the claimant on 25 September and a further incident on 27 September 2011.

The witness attended the store on 6 October 2011 at the request of the store manager and met the claimant, who declined the opportunity to be accompanied, for an investigation meeting the following morning. The witness was accompanied by the technician, the store manager and the store human resource manager.

The respondent’s store manager gave evidence in relation to the employee purchases policy. In that regard employees who purchase food on the premises should get their receipt signed by a store manager. The witness told the Tribunal that he became aware that there were serious breaches of company policy in the deli area of the store in relation to the employee purchases policy. Accordingly CCTV cameras were installed. On viewing CCTV footage recorded on the cameras he invited the claimant to attend an investigation meeting on 7 October 2011. He gave evidence that the claimant was asked if she wished to have a colleague present with her when she came to the meeting room and she declined this offer. The claimant was shown CCTV footage and admitted to consuming food without payment. This was in clear breach of the employee purchases policy which the claimant had said she understood and in which she had received regular training.

The investigation meeting concluded and was followed approximately 15 minutes later by a disciplinary meeting conducted by the witness. The allegations were again put to the claimant who said that she knew that she had done wrong and was sorry. The claimant was informed that it was a very serious matter and she was suspended with pay pending a further disciplinary meeting scheduled for the following day, 8 October 2011. The witness told the Tribunal that he had no further involvement in the matter, he was going on annual leave and he handed the matter over to the assistant store manager known as (LM).

He gave further evidence that there was a general problem in the deli area concerning food being consumed without payment. There were issues with employees other than the claimant and they were all treated in the same manner.

(LM) gave evidence that she conducted the disciplinary hearing with the claimant on 8 October 2011. She told the Tribunal that she offered the claimant the opportunity of having a work colleague present at the meeting and this offer was declined. She gave evidence that she recounted the events of the investigation hearing and the first disciplinary hearing including the CCTV footage. She stated that the claimant confirmed that she understood the employee purchases policy and admitted to consuming food without payment. She said she was sorry and she knew what she had done was wrong. The meeting was adjourned for 10/15 minutes and then re-convened. The claimant was then informed that due to the seriousness of the breaches of the company’s policies and procedures her contract of employment was terminated with immediate effect. The claimant was given 7 days to appeal this decision and she did not exercise this right of appeal.

Claimant’s Case

The claimant commenced working for the respondent company as a deli assistant on 18 September 2007. She accepted that she attended an induction training process and was provided with a copy of the company’s policies and procedures. She also received regular refresher training courses in relation to these procedures. She enjoyed her work and had a good rapport with the customers. She had no issues/difficulties in her workplace and worked alongside 8/9 other employees.

On 7 October 2011 while at her workplace she was called to attend a meeting with the Store Manager and the Human Resources Manager. She received no advance notification of this meeting. She was asked a number of questions in relation to purchasing and consuming food on the premises and confirmed that she understood the employee purchases policy. She was shown CCTV footage from her workplace area and admitted to consuming food without payment. She did not see any malice in her actions and described to the Tribunal that she would have eaten a chip, goujon or chicken wing. She told the Tribunal that food which is not purchased/consumed is thrown out at the end of each day. She told the Store Manager that she was sorry for what she had done.

She was told that she was suspended with pay and told to report for a further meeting at 11am on the following morning, 8 October 2011. She was due to report for work at 2pm that day and understood that she would receive a telling off at the meeting at 11am. She met with (LM) on the morning of 8 October 2011. She again admitted that she had done wrong. (LM) then left the room for a few minutes and returned informing her that she was dismissed from her employment. She told the Tribunal that she then became upset and left the workplace.

The Tribunal was provided with documentary evidence in relation to her efforts to secure alternative employment since her dismissal.

Determination

The Tribunal carefully considered the evidence adduced at the hearing. It was accepted that there was a consumption of food issue in the deli area for some time. Once this was highlighted to management the company’s method of dealing with this was to install covert CCTV cameras to monitor same. Once such footage was collated in this case the claimant’s actions were immediately investigated.

The Tribunal acknowledges the seriousness of the issue and the fact that the claimant admitted taking and eating the food. However the Tribunal is of the view that the investigation and disciplinary process actually invoked by the company fell short of acceptable practice.

In those circumstances the Tribunal finds that the claimant was unfairly dismissed but is satisfied that she contributed by ⅔ to the fact of her dismissal. The Tribunal awards the claimant the sum of €8,800.00 under the Unfair Dismissals Acts 1977 to 2007.

The Tribunal also awards the claimant the sum of €511.98 this sum being the equivalent of two week’s pay under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)