UD2170/2011, MN2204/2011, WT885/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                CASE NO.

Employee        -           claimant                                                                      UD2170/2011

                                                                                                                        MN2204/2011

                                                                                                                        WT885/2011

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:       Ms N. O'Carroll-Kelly B.L.

Members:        Mr. R. Prole

                        Mr. S. O'Donnell

heard this claim at Trim on 8th March 2013

                            and 19th September 2013

Representation:

_______________

Claimant:         Mr. Darach MacNamara B.L. instructed by,

Dillon Geraghty & Co, Solicitors, "Belmont", O'Growney Street,

Athboy, Co Meath

Respondent:    Mr. Terry MacNamara, IBEC, 3rd Floor, Pier One, Quay Street,

Donegal Town, Co Donegal

The claim under the Organisation of Working Time Act, 1997 was withdrawn at the outset.

Preliminary Issue

Extensive evidence was presented to the Tribunal on the first day of hearing on whether the claimant had enough service to qualify her to make a claim under the Unfair Dismissals Acts, 1977 to 2007. The claimant commenced employment on the 3^rd of August 2010 and was dismissed on the 28^th of July 2011. The claimant worked in one of the respondent shops on the 27^th & 28^th of July 2010 for training purposes. She was paid for this work and was in receipt of expenses for the trip.

Preliminary Determination

The Tribunal find that the claimant has the required service to make a claim under the Unfair Dismissals Acts, 1977 to 2007 and therefore accept jurisdiction to hear this claim.

Respondent’s Case

The respondent has a number of convenience stores and forecourt garages, one of which employed the claimant as the deli manager. The claimant was dismissed for gross misconduct, as a result of theft of food items from the deli.

The store manager (TM) gave evidence. The food waste policy is very clear. When the deli is closing any leftover cooked food is to be recorded in the ‘waste’ book and disposed of the following morning. This policy later changed requiring the waste food to be disposed of immediately after recording. There was never any other policy in place; staff members did not have permission to take home waste food or out of date food. TM maintains that this policy was communicated to all the staff at a meeting the day before the respondent shop opened for business.

TM disputes giving the claimant a ‘breakfast pack’, biscuits or anything else to take home, he also disputes ever receiving any waste food i.e. chicken wings etc. from the claimant. It was not ‘custom and practise’ to bring any waste food home; it was strictly prohibited.

In or around the 10^th of July 2011 a staff member brought it to TM’s attention that there might be an issue with the claimant removing food from the deli. All staff were aware that CCTV was in operation and being monitored. TM then reviewed the CCTV footage and compared it to the recorded food waste. The CCTV showed the claimant leaving the premises with food from the deli. TM then contacted the respondent CEO/accountant, (ID).

On the 15^th of July 2011 TM showed ID the CCTV footage. ID then called the claimant into the room and offered to show her the CCTV. The claimant had no notice of this meeting and was not offered a representative as it was not a disciplinary meeting. ID informed the claimant that she was suspected of removing items from the deli and that she was being suspended.

The Operations Manager (JF) gave evidence on the strict food waste policy and that under no circumstances were staff permitted to remove un-purchased items from the store. JF disputes ever telling the claimant that she could ‘bring it or bin it.’ All staff were instructed before the store opened that no items should be removed from the store and that there was monitored CCTV in place. JF maintains that at a meeting before the shop opened staff were instructed specifically by the respondent owner, that waste food should not be removed from the shop.

The food waste policy is in place as, if staff are permitted to bring waste food home it incentivises them to cook more food than necessary. That is why the policy is strict and enforced. If staff wish to purchase any goods there is a ‘personal purchases’ policy in place. JF spoke to the claimant regularly and requested that if she became aware of anyone removing any food items to tell him immediately. The respondent’s food policy is not included in the claimant’s contract.

The respondent shop receives free stock from suppliers. The staff are not permitted to accept this stock for personal use; it is all recorded and becomes property of the respondent. On the 15^th of July the claimant was given a tray of sausages by a supplier. Even though the sausages were given to the claimant for personal use, they belong to the respondent and should be treated as such regardless of the sell by date or who the supplier was.

There were two advisors (fresh food/supplies) engaged when the shop was being set up. These advisors are not respondent employees and therefore have no authorisation to instruct the claimant on taking waste food home. JF has no knowledge of any staff members removing items from the shop.

The Chief Financial Officer (ID) gave evidence. She was contacted by the store manager (TM) on the 14^th of July regarding an issue with the claimant. TM informed her that the claimant appeared to be removing food from the deli. ID travelled to the shop the following day to view the CCTV footage of the claimant that TM had already identified. ID then called the claimant into the office, informed her that she was concerned about what she saw on the CCTV footage and asked the claimant if she wished to view it. The claimant declined to view the CCTV. ID suspended the claimant immediately. This meeting was not documented. ID did not speak to any other staff members regarding practices in the shop or to the staff member that reported the incident to TM.

By letter dated the 20^th of July 2011 ID confirmed the claimant’s suspension and invited her to a disciplinary meeting on the 27^th of July. The allegations were outlined to the claimant; she was offered the right to representation and informed that the resulting disciplinary action could be up to and including dismissal for gross misconduct. A copy of the respondent’s disciplinary procedure was also included with that letter.

The disciplinary meeting took place on the 27^th of July. The claimant was represented. All the allegations were put to the claimant with the corresponding CCTV evidence. The claimant accepted that all the incidents occurred but that the food she removed was waste food not fit for consumption. The claimant also maintained that this was standard practise and that she had permission from JF (the operations manager) to remove waste food. JF was present at the disciplinary meeting and disputed giving the claimant permission to remove the food. The claimant said the tray of sausages were a personal gift as they were going out of date and nothing to do with the respondent. The claimant was given every opportunity to put her case forward. At the conclusion of the meeting the claimant added that she did not think the procedures used were fair as she should have received warnings. ID informed the claimant that the disciplinary process was “handled like this” as her actions were “seen as gross misconduct from the outset” as it was theft.

ID considered the situation and decided that as the items were taken when they shouldn’t have been it was gross misconduct and therefore warranted the claimant’s dismissal. This was confirmed by letter dated the 28^th of July 2011. No lesser sanction was appropriate as the respondent had lost trust in the claimant; her actions were considered theft regardless of the quality of the waste food. ID maintains that by the claimant putting the food in her bag when leaving the premises she was intentionally concealing it; this allegation was not put to the claimant during the disciplinary process.

The claimant appealed the decision to dismiss her to the respondent owner (JmcC). JmcC gave evidence. At the staff meeting before the shop opened he outlined the standards expected of the staff. He outlined the respondent’s security policy and the zero tolerance attitude to theft. JmcC did not mention the waste food policy at this meeting; “theft is theft, I didn’t need to go into detail.”

JmcC received the appeal letter from the claimant outlining her grounds for appeal. The appeal meeting took place on the 10^th of October 2011. The claimant could have viewed the CCTV footage if she requested it. JmcC listened to the claimant’s explanation that she had permission from JF to remove the waste items. JmcC does not accept that the claimant had any authorisation to remove waste items. The policy is in place as theft is a huge problem. The claimant did not provide any new evidence to warrant changing the decision to dismiss her; “it was a blame game with her.”

Claimant’s Case

After extensive experience in the catering industry the claimant commenced employment with the respondent as the deli manager in August 2010. The waste food policy was not discussed at the staff meeting before the shop opened. As far as the claimant was concerned the two people helping set up the deli were respondent employees and accepted their instructions.

In reference to any waste food, JF told the claimant that she could ‘bring it or bin it.’ The claimant is aware that any fresh food must be purchased and did so on occasion. The claimant accepts that she did take some waste food home and also distributed it among the staff. The store manager and the other staff often accepted waste food at the end of the day to take home. The claimant was also given items such as biscuits that were out of date by the store manager. The store manager gave the claimant a ‘breakfast pack’ on one occasion. This was common practice in the respondent shop. The claimant never took anything that was not out of date. The claimant never concealed the food she brought home; she just put the items in her bag with her deli uniform.

In relation to the tray of sausages; the supplier gave them to her personally. He did not supply sausages to the respondent so the stock was never destined for the shop. As the sausages were out of date the next morning he asked her if she could use them in the deli. As the claimant had already cooked all the sausages for the day and the sausages were going out of date the following morning she told the supplier she had no use for them. The supplier told the claimant to have the sausages.

On the 15^th of July the claimant was called to the office; she felt very intimidated in the small room. She received no notice of this meeting and wasn’t offered representation. When asked about removing the items the claimant explained that “we always do it” and the policy has always been ‘bin it or bring it.’ The claimant was told “to take yourself off home, you’re suspended.”

The claimant gave evidence of her loss and her attempts to mitigate her loss.

Determination

Having carefully considered the evidence adduced by both parties the Tribunal find that the claimant was unfairly dismissed. There was no written waste food policy in place in the respondent and no mention of same in the claimant’s contract of employment.

The Tribunal award the claimant €4,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.

The claimant is awarded €400.00 being the equivalent to one weeks pay in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)