EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee – claimant UD1428/2012
MN822/2012
WT346/2012
Against
Employer – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr W. Power
Ms M. Maher
heard this claim at Dublin on 5th December 2013
Representation:
_______________
Claimant(s): Mr Éinde O’Donnell
Purdy Fitzgerald Solicitors
Kiltartan House, Forster Street, Galway
Respondent(s): No appearance by or on behalf of receiver
The determination of the Tribunal was as follows:-
There was no appearance by or representation on behalf of the Receiver of the respondent company. The Receiver indicated by letter in advance of the hearing that he did not intend to defend the claim at the hearing.
The claimant withdrew the claims under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 Acts and the Organisation of Working Time Act, 1997 at the outset of the hearing.
The claimant gave evidence. He was employed by the respondent company in the Blanchardstown store from September 2008 until 11th April 2012. He worked in various roles including at the cash desk. There were no previous disciplinary issues. He was in a security role at the time of his dismissal. He was dismissed for allegedly placing orange PPG (previously played game) stickers on a new game console in order to buy it at a discount price. The claimant disputed this.
On 11th March 2012 a customer traded in a nearly new PS Vita game console. The store supervisor carried out the transaction and gave it to the claimant. The claimant brought it to the storeroom and placed orange PPG stickers on it. He put the console aside so that he could buy it later. Employees received a 30% discount off goods except for new hardware. He added that console to the store inventory. Every morning staff accounted for hardware and high value goods in store by counting and comparing against a stock print off. He purchased the console, which still had the PPG stickers on it, through the supervisor on 16th March 2012. On the same day a PS Vita console was missing from the store count and could not be found.
The claimant was asked to attend an investigation meeting on Wednesday 21st 2012 with the Loss Prevention Supervisor and a note taker. He was not given any notice of this meeting nor was he informed what it was for. He was offered to bring colleague but he declined. During the meeting he was told that work experience students had stolen the PPG console and that they had later paid for it. He was accused of having taken a new console from the stock room and applying orange PPG stickers on it in order to purchase it at a discount. The claimant insisted that he had bought the PPG console and not a new one. He was told CCTV footage backed up their accusation, but was not allowed to view this until a later date. The claimant questioned at the disciplinary meeting on 11th April 2012 why the serial number of this unit had not been taken as he believed this would have corroborated his version of events.
He discovered that statements had been taken while he was on his day off. He was told that a statement by the supervisor supported the accusation but he was not shown this until a later date. When he did see it he contended that it supported his side of the story.
He was suspended at the end of the meeting. He had to hand in his uniform and was escorted out of the store by the Loss Prevention Manager.
After the meeting the claimant wrote a four page letter on 25th March 2012 to the HR Manager, Regional Manager for Ireland and the HR Department to state his side and express his unhappiness at how he had been treated. He sought a meeting with a senior HR Manager and for him to be able to bring an independent witness. He then sought legal advice. He was then invited to view the CCTV footage prior to a scheduled disciplinary meeting. The footage showed him retrieving the console from the stockroom. He printed a further white sticker with a bar code to assist the supervisor so he would not have to look up the code. The CCTV quality was poor and it was difficult to tell if there were stickers on the console or not, but the claimant knew they were there. The company maintained that this showed the console without stickers. After viewing the CCTV the store manager called the claimant into his office and attempted to have an impromptu disciplinary meeting with the claimant, but the claimant left as there was already a meeting scheduled.
He was not shown the CCTV again. During the disciplinary meeting 11th April 2012 the respondent’s interviewers left the room to view the footage again. His solicitor was not permitted to attend the meeting. The claimant was permitted to bring a colleague or trade union official. He believed the respondent relied solely on CCTV footage to back up their allegation.
The claimant was dismissed following the meeting. He appealed the decision. This hearing was held by the Regional Manager on 16th May 2012 who upheld the decision to dismiss.
The claimant gave evidence of his loss and mitigation. He submitted notes from the meetings and statements provided to him.
Determination:
Having heard the uncontested evidence of the claimant and considered the documents submitted the Tribunal finds that the dismissal was not justified. The claimant gave detailed evidence of substantial procedural unfairness. The Tribunal awards the claimant €65,000 (sixty-five thousand euro), in respect of 104 weeks at €625.00 gross pay per week, under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)