EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Brid Treacy UD931/2012
-claimant
against
Staunton Sports T/A Elvery's Sports
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr. J. Hennessy
Mr. D. Mc Evoy
heard this claim at Thurles on 12th February 2014
and 14th May 2014
Representation:
Claimant: Mr. David J Sweeney, Sweeney, Solicitors,
Marlboro House, Marlboro Street, Cork
Respondent: Mr. David McCarroll, RDJ Glynn, Solicitors,
Aengus House, Long Walk, Galway
Summary of Evidence
The respondent has a chain of sports stores throughout Ireland. The claimant commenced employment with the respondent in October 2005 as a sports advisor in one of its stores (the store) in Munster. She progressed through a number of promotions to the position of store manager in 2006. As she comes from the area she knew many of the customers and had a good relationship with them. She worked a minimum of 42 hours per week, usually 45 hours to 46 hours from 9.30 a.m. to 6.00 p.m. and exceeded 50 hours per week at Christmas time. The respondent’s clocking in system (TMS) was explained and the claimant’s clocking records were opened to the Tribunal. The claimant was aware that a CCTV was in operation in the store.
The claimant’s position was that the operations manager’s (OM’s) attitude towards her changed around the time she became pregnant in 2007. When she discussed an issue about her assistant manager with AM, her response was that she was the only store manager who was complaining and OM asked her if she was going to have another break down. This was a reference to a set-back the claimant had the previous Christmas when she was exhausted from working 60 hours a week without an assistant manager. The claimant later told OM about this in confidence and was upset by this exchange regarding it. She informed the health and safety officer in head office that OM was discriminating against her because she was pregnant and was advised to take health and safety leave. She did not formally raise a grievance.
The store was among the poorer performing stores of the respondent’s 50 stores. The performance meeting in respect of the store took place on 16 August 2011. The operations director (OD) and HRM were in attendance. The purpose of the meeting was to look at ways to improve the store’s performance, including the claimant’s staff management, to ascertain whether staff required training and to assist the claimant with plans for improvement. Time-keeping was a serious issue in the store. It was agreed at the meeting that the claimant would add her ten minute break to her lunch time break to enable her to collect her child from school. A performance improvement plan was put in place for the claimant and she successfully completed this in October 2011.
On OM’s instructions SM from security reviewed the store’s CCTV footage and reported his finding to OM. By letter dated 4 January 2012, OM invited the claimant to an investigation meeting the following day to investigate her alleged acts of gross misconduct on grounds of unauthorised absenceson 14, 15 & 17 December and her failure to clock out on the TMS system for those absences. On OM’s further instruction SM conducted the investigation meeting on 5 January 2012. SM sought to establish the reason for the claimant’s absences. He showed her the CCTV footage on disc and some snap shots he had but could not recall whether he had the TSM records. At the end of the meeting the claimant read and signed his note of the meeting. He presented this to the HR manager (HRM). The HRM conducted the disciplinary meeting with the claimant on the 9 January 2012 and OM was present as note taker. The TMS records were produced at the meeting. The most significant absences and the claimant’s explanations are outlined below.
Wednesday, 14 December
10.02 -10.24 (22 minutes)
10.24-10/33 (9 minutes)
11.59-12.02 (3 minutes)
12.17-12.59 (42 minutes)
The CCTV footage, showing the claimant returning to the store at 10.24, bears out her explanation that she had gone to borrow a hoover as the store’s one not working. She had not delegated this task to another staff member as she is known in the town. The 9 minute absence was to move her car. The later 42 minute absence was to collect her daughter from school. The respondent’s position was that it had earlier made the concession that she could add her break time to her lunch time to facilitate the collection of her child. However, the claimant clocked out for one hour for lunch time but remained in the store working throughout that break and her explanation was that this was probably to make up for her absences that day. It seems that the 3 minute absence on 14 December was not addressed at the investigation meeting. The claimant could not recall the reason for that absence.
Thursday 15 December
12.45-12.58 (13 minutes)
17.22-18.08 (46 minutes)
While at the investigation meeting the claimant could not recall with certainty the reason for her 13 minute absence on 15 December but having undertaken to check it out, could confirm at the disciplinary hearing that, as she had thought at the investigation meeting, she had gone to the post office to deal with online ordersfor the respondent. The 46 minute absence that afternoon was to attend a parent teacher meeting. The claimant did not admit at the investigation that a staff member had telephoned to tell her that AM had telephoned looking for her as she did not want to get the member of staff into trouble. She had given a different explanation to AM on the phone about this as she was afraid that she would get into trouble and she had sought consent to attend the meeting as she was afraid that she might be late returning to work and get into trouble. In her evidence to the Tribunal the claimant explained that she had forgotten about the parent teacher meeting until her daughter called on her way home from school on 15 December and reminded her about it.
Friday 17 December
11.07-11.27 (20 minutes) tea
15.22-16.22 (60 minutes) lunch
14.35- 15.12 (37 minutes)
The claimant could not recall the reason for her 37 minute absence at the investigation meeting but on checking it confirmed at the disciplinary hearing that she had gone to a local shop to have a name printed on a jersey for a customer.
At both meetings the claimant acknowledged that she was aware of company procedures and the contents of the handbook; she acknowledged the seriousness of the position given that she was a manager and that she had been giving bad example.
HRM’s position was that a manager is expected to give good example and that it is vital to be able to trust a manager to implement the respondent’s policies. HRM took the decision to dismiss the claimant for wilful and ongoing unauthorised absences. HRM considered other sanctions but because of the claimant’s dishonesty and the loss of trust in her she felt dismissal was the appropriate sanction. She had left the store without manager. Her time keeping had been an issue in her performance improvement plan in mid 2011. Anther factor influencing her decision was the fact that the claimant left other staff to cover for her during busy periods.
The claimant’s position was that she took these breaks as the issues arose and because she failed to think things through. She made the case that she had been working with the respondent for 6 years and did not have a disciplinary record. She promised that there would not be a repeat of this behaviour. She was paid a salary and frequently worked beyond the 6.30 pm finish time to 7.00 pm or later in the evenings as well as lunch break for no recompense. She had obliged the respondent and worked in the respondent’s store in another town, which left her store without a manager. Her husband had helped when the store was flooding in October 2010 and on another occasion he had delivered goods to a customer.
The claimant’s appeal was heard by the Operations Director (OD), who was not present at the hearing due to a family bereavement. The claimant raised the issue of her deteriorating relationship with OM who had been note taker at the disciplinary meeting. The dismissal was upheld.
Determination
The Employee Handbook, for which the claimant signed, forms part of the claimant’s terms and conditions of employment. Under various subtopics it provides:
“Should an employee for some reason, find it necessary to leave work during normal working hours, your manager must be advised of the circumstances and grant permission.
All employees are obliged to clock in when they commence employment and clock out when they finish, using the Time Management System (TMS). Persistent failure to adhere to the use of the TMS or misuse or fraudulent use of the TMS may result in disciplinary action up to and including dismissal.
Employees should clockout when going to lunch, going on any breaks and/or leaving the store. Should an employee need to leave the store for personal business, authorisationmust first be obtained from the manager and the employee must clock out.
It is essential that all employees use the electronic time recording system (TMS) …when they take breaks, to ensure that their hours are accurately recorded every day. Failure to clock in/out may lead to a loss of payment, as TMS is the time recording used for payroll calculation. A continual failure to clock in/out may result in the corrective action procedure being implemented.
The respondent invoked the disciplinary procedure against the claimant for taking a number of unauthorised absencesover 3 days in December 2011 and failing to clock out on the TMS system for these and dismissed the claimant for gross misconduct.
The claimant accepted throughout the disciplinary process that she was aware of the respondent’s policies and procedures and readily admitted to her wrongdoing and its seriousness given her position as a manager who is expected to set good example and adhere to the policies. It is common case that the claimant was very apologetic and promised there would not be a recurrence. A number of her absences were work related. By working through her lunch time, for which she had clocked out on Wednesday 14 December, she had more than made up for her non-related work absences earlier that morning. She frequently worked beyond closing time for no recompense.
The most serious issues centred on the 46 minute absence on Thursday 15 December and the claimant’s failure to be truthful in regard to this absence with OM and at the investigation meeting. Notwithstanding the claimant’s explanations for this the Tribunal finds that this warranted a disciplinary sanction. The respondent placed much emphasis on the fact that the claimant was a manager. Having regard to all the circumstances, including the directory nature of the language used in the provisions from the handbook (in the particular in the second and fourth paragraphs), the Tribunal unanimously finds that respondent had other sanctions open to it and that the sanction of dismissal was disproportionate. Accordingly, the Tribunal finds that the dismissal was unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal determines that compensation is the most appropriate remedy and awards the claimant compensation in the amount of €20,000.00 under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)