EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYER UD1125/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. A. Taaffe
Members: Mr. L. Tobin
Mr. P. Trehy
heard this appeal at Dublin on 10th January 2014
Representation:
_______________
Appellant(s):
Ms. Mairéad Crosby for Ms. Fiona Higgins, IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2
Respondent(s):
Mr. William Hamilton, Mandate Trade Union, O'Lehane House,
9 Cavendish Row, Dublin 1
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employer appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-119842-ud-12/JC which stated that the claimant should be re-engaged within six weeks of 26 June 2012 and that the period from the date of dismissal (27 October 2011) to the date of re-engagement should be treated as a period of unpaid suspension.
Giving sworn testimony at the Tribunal hearing SS (supermarket store manager) said that he had given the respondent a final written warning in July 2011 but that in October 2011 the respondent had left the store without permission to collect trolleys. The respondent had done this without telling management or signing out. Trolleys could be collected but only with authorisation. The respondent came back with no trolleys. It was put him that he had breached store policy.
The respondent was one of three people on the store’s fire safety team. He was assumed to be present when he had not signed out. He had received fire safety training over numerous years. They would do drills about four times a year. The respondent would train new employees on fire evacuation.
The respondent admitted having left the building without telling management. His final written warning was to stay on file for twelve months. Any subsequent breach would merit dismissal.
Asked why the respondent had been dismissed, SS said that the respondent had been given the benefit of the doubt in the past when he was not dismissed but put on a final written warning. The respondent was allowed to appeal his dismissal.
Under cross-examination SS accepted that the collecting of supermarket trolleys was part of the work but said that the respondent would have to tell management. SS did not know if there was a written shopping trolley policy or if such a policy had been given to the respondent but said that the respondent knew he should not leave the store without permission.
SS could not say whether it had been deliberate or just negligent when the respondent had omitted to tell management of his going out to look for trolleys. Neither could he say if the respondent had previously omitted to tell management he was going out for trolleys.
Giving sworn testimony, AF (regional HR manager) said that she had dealt with the respondent’s appeal. She took into account that the respondent had been on a final written warning received some twelve weeks before the dismissal which she upheld. She said that it was established procedure that no-one should leave their store without management permission.
Giving sworn testimony, the respondent said that it had been part of his job to watch for trolleys going out but that he had got no training or guidelines. He had never seen a trolley policy before. He did not know that he had to get permission to leave the store. They regularly had to get trolleys. JMcG (manager) had said to collect trolleys from around the town. The store was liable to heavy fines for any trolleys found.
The respondent admitted that he had been negligent in not telling anyone on the last occasion that he had left the store to look for trolleys. He told the Tribunal that there had been more staff in on that day.
In cross-examination the respondent denied that he had been told about signing out or the importance of his presence due to fire training he had received. He just signed the documents he was told to sign. There were just two fire drills in five years. They were just told to stand by the fire panel.
The respondent admitted that it was the practice in the store to tell somebody if one was leaving the store to look for trolleys. One would just tell a colleague. He could have told somebody. He admitted that and he had apologised for it. No permission was needed. The store had been fined a total of three hundred euro because of two trolleys found. He had seen trolleys at the credit union near the store.
The respondent said that he had a bag of applications for work after his dismissal but that he had only got sixty euro per week for about six weeks.
The respondent’s representative said that the respondent was seeking re-engagement. The preferred remedy of the store, if the respondent were found to have been unfairly dismissed, was compensation.
Determination:
The Tribunal has carefully considered the evidence adduced both verbal and written.
It is common case that the respondent breached the terms and conditions of his employment. It was also additionally agreed by the parties that, in the course of this breach, he continued to discharge his work duties to the appellant.
The Tribunal is satisfied that, while the appellants were not themselves “ad idem” on the form of the breach (a) that it was the first time that it had been committed by the respondent and (b) that no adverse consequences for the appellant arose as a result of its commission.
It is found that the breach does not constitute gross misconduct on the part of the respondent and that, therefore, the decision to dismiss the respondent was a disproportionate response to the circumstances that presented to the appellant.
Having heard sworn testimony from both sides, the Tribunal finds that dismissal was disproportionate. Dismissing the employer appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-119842-ud-12/JC which stated that the claimant should be re-engaged within six weeks of 26 June 2012 and that the period from the date of dismissal (27 October 2011) to the date of re-engagement should be treated as a period of unpaid suspension, the Tribunal is unanimous in upholding the said Rights Commissioner Recommendation r-119842-ud-12/JC under the said Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)