UD1687/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                   CASE NO.

Tesco Ireland Limited                                                                                                  UD1687/2012

                                                - Appellant

against the recommendation of the Rights Commissioner in the case of:

Eddie Harris              

                                                - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. N. O’Carroll Kelly BL

Members:     Mr. F. Cunneen

Mr. J. Maher

heard this appeal at Dublin on 8^th April 2014          

 and 19^th September 2014

Representation:

Appellant:           Eamonn McCoy, IBEC, Confederation House, 84-86, Lower Baggot Street,

                             Dublin 2

Respondent:         William Hamilton, Mandate Trade Union, O’Lehane House,

                             9, Cavendish Row, Dublin 1

This case came before the Tribunal by way of the appellant (the employer) appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-123885-ud-12/GC).

This order should be read in conjunction with UD1661/2012 as they were heard in tandem. Both parties are appealing the Rights Commissioner Recommendation of an award of €18,000.00 to the employee.

The determination of the Tribunal was as follows:

Background:

The respondent (employee) was employed as a Security Guard for the appellant company in a number of locations from the 10^th December 2001 until his dismissal on the 7^th April 2012.     On the date in question the respondent was employed in the appellant’s supermarket located in a shopping centre in North County Dublin.

The appellant company was involved in the retail sale of food products, clothing, households and other products.

The respondent had a written contract of employment and was in receipt of the company handbook.

On the 12^th March 2012 an incident occurred between the respondent and a customer just outside the appellant’s premises in the public area of the shopping centre. CCTV footage of this incident was viewed by the Tribunal. A fellow Security Guard (BA) was present at the incident and gave a written statement to management.

On the 13^th March 2012 the respondent was requested to attend an investigation meeting. He attended with his Union Representative. The Deputy Store Manager (MOS) was the Investigating Officer and the Personnel Manager (JT) was the note-taker. The CCTV footage was viewed and BA’s statement was read out. The respondent gave MOS a statement which also read out. The respondent stated he had followed the customer off the appellant’s premises after being insulted by him. He admitted to put his hands on the customer first. He also said that he had previous problems with this customer but had not officially reported it to management. The respondent and his Representative were informed the situation would have to be reviewed.

A second investigation meeting was held on the 20^th March 2012. However MOS did not attend as the Investigation Officer as she was absent on leave. JT was the Investigation Officer and another staff member (PK) was the note taker. The respondent’s Union Representative and Union Official attended with him.

A disciplinary hearing meeting was held on the 26^th March 2012 where MOS was the Investigating Officer and JT was the note taker. The respondent plus his Union Representative and Union Official attended. A letter was sent to the respondent’s Union Official the following day to clarify two issues that had been raised the previous day.

A letter of dismissal was issued to the respondent on the 30^th March 2012 from MOS with the right to appeal. The respondent and his Union Official attended an appeal hearing on the 1^st May 2012. The decision to dismiss was upheld.

Appellant’s Case:

The Deputy Manager (MOS) gave evidence. She stated that she had carried out an investigation meeting on the 13^th March 2012 and a disciplinary meeting on the 26^th March 2012. She agreed she had clarified, with Personnel, the issue of whether she had authority to dismiss the respondent at the meeting of the 26^th March 2012.

She told the Tribunal that the respondent had been dismissed from his employment as he was in breach of company policy and had admitting man handling the customer first.

BA gave evidence. He had been onsite on the day in question. He had followed the respondent when he walked out to speak to the customer in question. He had seen the respondent and the customer together. He had heard the customer call the respondent a f*****g nut case. He later asked the respondent why had the customer said that to him and he replied that he had problems with that particular customer in the past.

JT (Personnel Manager) gave evidence. She explained she was the Personnel Manager for the store in question. She had attended the investigation meeting on the 13^th March 2011 to act as note taker.

A second meeting was scheduled, and held on the 20^th March 2012, and as MOS was absent on leave she was asked to chair the meeting. (The minutes of the meeting were read out). At the outset she raised an issue of a similar incident that had occurred in 2003 with the respondent and a customer and that occasion the respondent had been given a written warning. She asked for an explanation of the matter. The respondent’s representative stated that this issue should not have been raised as the warning should only be on the personnel file for 12 months. She explained that the reason she had raised the issue was because it was a similar incident and it stated on the, undated, written warning that “any similar behaviour on your part in the future may result in more serious disciplinary action.” The union representative said the respondent was not going to comment on the matter and asked why the warning was still on the file after 9 years had passed. JT replied that she had had to check out the respondent’s work history, the warning was still on his file and it bore similarities to the incident that had occurred on the 12^th March 2012.

Two statements from two colleagues (CW and PB) were read out at the meeting regarding the customer in question. JT told the Tribunal that neither she nor management were aware of any prior problems with this customer. No issues had been raised with management. JT also viewed the CCTV footage and met with PB and CW before typing her notes and handing them to MOS. MOS chaired the disciplinary hearing on the 26^th March 2012 where she, JT, was the note taker.

On cross-examination JT stated she felt there had been a fair investigation into the matter but did agree that company policy did state that warning only remained on a personnel file for a period of 12 months. She told the Tribunal that she had not made the decision to dismiss the respondent. When asked, she said that no issues from any staff member had been raised with management regarding the customer in question.

When put to her, she said that she had only become aware of the incident with the customer in question and the respondent’s wife at the first investigation meeting on the 13^th March 2012.

When asked by the Tribunal she said that she had not been present in the store on the day in question.

PB (Appeals Manager) gave evidence. The appeal hearing was held in the North County Dublin store on the 1^st May 2012. At the time he was a Manager in the appellant’s store in Drogheda.

The respondent’s union representative raised five points at the meeting regarding the respondent’s dismissal:

1. The penalty did not take into account mitigating circumstances.

            2.   The issue of the production of an old warning against the respondent.

3. The Manager (MOS) responsible for the disciplinary hearing opened the meeting by informing the respondent of what they had found against him as a result of what was discussed at the investigatory meetings and what penalties they would be considering.

4. The Note Taker (JT) at the disciplinary hearing was the person who conducted the investigation.

5. The Deputy Manager (MOS) had confirmed at the disciplinary hearing that in conjunction with and taking advice from her HR department decide on the sanction that would be imposed.

PB told the Tribunal that he looked at all the statements, the CCTV footage, took into account the matter that the customer in question had caused distress in the past and interviewed with MOS on the 4^th May 2012. He felt, when viewing the CCTV footage that the respondent should have known how to deal with the situation. He said it could be clearly seen that the respondent pursued the customer on the day in question. When asked, he said that at the meeting an incident that had occurred in another store had been raised, the sanction in this case had been a written warning. After the meeting he looked into the matter and found it was a different matter. Having considered the matter in its totality he upheld the decision to dismiss the respondent and confirmed it by letter dated the 13^th June 2012.

On cross-examination PB stated that he had viewed the respondent’s personnel file and checked what training he had been given when employed with the respondent. PB told the Tribunal that he felt there was no alternative but to uphold the decision to dismiss the respondent in the circumstances.

Respondent’s Case:

The respondent gave evidence. He explained that on the day in question he had been standing at the entrance to the store at the lectern. The customer in question crossed by him and the respondent told him he would prefer if he did not come near him. The customer called him a f*****g headcase and other abusive terms. He followed the customer out of the store into the common area and caught him by the collar and the customer caught him by the shirt. He told the customer that he was sick of him calling him names and “this better be the end of it”. They parted and the respondent returned to the store. He finished his shift and left the store.

The appellant told the Tribunal that he had been abused by this customer over a period of two and a half years. He had told his Supervisor (BK) about it but agreed he had not made any formal complaints. A few weeks previous he had been travelling up the escalator with his wife (also an employee of the respondent) when the customer in question hurled abusive at him. His wife wanted to go back and confront him but decided against it.

When asked he said that he had not attacked the customer in question but felt, that day, that he had had enough. This man had been abusing him for years.

The respondent gave evidence of loss.

On cross-examination he stated that he agreed that had not made any formal complaints concerning this customer who was well known for verbally abusing the female staff. He had first met this customer in the old premises about four and a half years previous but he, the customer, had not regularly visited the new larger premises. When asked, he said that he had received formal training from the appellant but not conflict training. It was seldom that a customer or a shoplifter were aggressive.

When asked he said that this customer had humiliated him in the past and was constantly degrading him. He said he was concerned for his safety in regard to this customer who had told him “his friends would pay him a visit”. He told the Tribunal that he had regretted what had occurred on that day in question but felt it did not warrant him being dismissed for it.

When asked by the Tribunal, he said that he had “just snapped” that day following years of abusive comments.

The respondents’ wife gave evidence. She is also employed in the same store by the appellant company. She explained to the Tribunal that this customer was well known by the staff for his abusive comments and behaviour. She had seen and heard this customer make abusive comments in public towards her husband. She said it was not in her husband’s nature to react as he had on the day in question but he had just had enough. It was very “out of character” for him to do. After her husbands’ dismissal the customer in question had approached her to make comments concerning her husbands employment.

On cross-examination she told the Tribunal that she had not reported the customer’s comments to management. When put to her what she would have done in the same situation as her husband she replied that she would not know.

CW and PB confirmed they both gave written statements.

Determination:

Dissenting opinion of Mr. Maher

Having considered the totality of the evidence presented to the Tribunal by both parties, I am strongly of the view that the ultimate sanction of dismissal was not proportionate, given all the circumstances pertaining to the case, viz.

The respondent’s clean disciplinary record for the previous nine years.

Previous widely known staff issues with the particular customer.

The extent of particular incident.

The out of character/spur of the moment reaction of the respondent to the customer's comments on the day in question.

The respondent’s age and his ability to obtain alternative employment.

Other options were open to the Company, e.g. final written warning, suspension without pay/reduction in pay, relocation (the Company has many other stores), alternative work in that or another store.

Whilst the respondent’s actions merited sanction, it was unreasonable of the Company not give more weighty consideration to these matters in imposing and upholding the ultimate penalty of dismissal which, in my opinion, renders the dismissal unfair.

Majority Decision of the Tribunal:

The Tribunal have carefully considered all of the evidence over the two day hearing together with the supporting documentation and legal agreement.

The respondent was involved in an altercation in the appellant’s Balbriggan store on the 12^th March, 2012. The respondent accepts that he “lost the head and snapped”. CCTV footage showed the respondent pursuing a customer out of the store and manhandling him out in the Mall. The respondent, as did his wife, stated that DOF had a history of verbally abusing the claimant in the store. Evidence was adduced in relation to the DOF’s alleged verbal abuse in a different store and on one occasion just outside the Balbriggan store. There was no evidence of the verbal abuse within the Balbriggan store prior to the incident of the 12^th March. Furthermore, the respondent never reported any of the alleged previous incidents to his line manager, HR or his Union Representative. The respondent said he didn’t report it because “it takes time to fill out all the paper work”. The disciplinary process was invoked following completion of that process the respondent was dismissed.

The respondent raised several procedural flaws within the disciplinary process.

The respondent stated that JT’s role in the process was contrary to fair procedure and best practice. JT was involved in the three meetings. Her role in the first meeting was as a note taker, investigating officer in the second and note taker in the third. From the meeting notes dated the 13^th March 2012 it is clear that JT did ask one question during that meeting. The Tribunal find that nothing turned on that and her role she played in the process was otherwise carried out efficiently and in accordance with fair procedures.

The respondent took issue with the fact that MOS left the disciplinary hearing to seek advice. It transpired during her evidence that the advice she sought was whether or not she had the power to dismiss. She was informed by HR that she did have such powers. No evidence was adduced that any other advice or opinion was sought by MOS. The Tribunal find that it was correct and proper of MOS to establish what her powers were when she was unclear on the point.

The respondent took issue with the fact that the decision following the appeal hearing took over six weeks to issue. PB stated that he was very much aware that the respondent’s job was at stake and that he needed time to satisfy himself that he had established all of the facts and that his decision to uphold the dismissal was the correct one. The Tribunal find that whilst there was a short delay in issuing the decision the delay was justified.

Evidence was adduced that a warning on the respondent’s file that was issued nine years prior to the subject matter of this claim was taken into account when making the decision to dismiss. JT stated that she did not take the matter into account and that it was only mentioned in passing to highlight the similarities between the two events. There is nothing in the documentation submitted to suggest that this issue was one that was taken into account at the time the decision was made. JT did not make the decision to dismiss.

The respondent stated that the sanction was disproportionate. The respondent was employed as a security guard. One of his functions was to prevent the type of the occurrence that forms the subject matter of this claim. On the day in question the respondent was unprovoked. He took it upon himself to following the injured party out of the store and assaulted him. The Tribunal are satisfied that in all of the circumstances the sanction was proportionate.

The Tribunal find that whilst the appellant’s procedures were not perfect, their failings were not such as to render the dismissal unfair.

The appellant’s (employer) appeal under the Unfair Dismissals Acts, 1977 to 2007 succeeds.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)