EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE -claimant UD2248/2011
MN2288/2011
against
EMPLOYER -respondent
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr P. Casey
Mr D. McEvoy
heard this claim at Cork on 11th June 2013
and 2nd September 2013
Representation:
_______________
Claimant: Mr Noel Murphy, Independent Workers Union, 55 North Main Street, Cork
Respondent: Ms Sarah Daly B.L. instructed by,
Eugene F. Collins, Solicitors, Temple Chambers, 3 Burlington Road, Dublin 4
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent has several hundred retail stores throughout Ireland and the UK selling women’s clothing. The claimant worked with the respondent as a sales assistant from November 2007 until her dismissal in April 2011.
In October 2010 the claimant was dismissed for a breach of company security procedures in that while the shop was trading she had left the till open and unattended while she went to get change. On appeal, this sanction was reduced to a final written warning and following retraining on procedures the claimant was returned to her normal duties. The claimant initially maintained that she was not aware that her dismissal had been reduced to a final written warning but in cross-examination she accepted she had received the letter of 11 October 2010 informing her of the more lenient sanction.
In January 2011, having received a low store score, all members of staff were issued with a Record of Counselling, listing a number of ways in which their work standard needed to improve. Following two further incidents that occurred on 2 & 3 March 2011 the claimant was dismissed on 22 April 2011.
On 2 March 2011, at around 6.30pm, after closing time but before cashing-up procedures had been completed, the store manager (SM) found three members of staff, including the claimant, gathered around a gondola displaying nail varnish and the claimant painting her nails with Star Gazer nail varnish (a concession product rather than the respondent’s). When SM questioned the claimant about the two garments she had in her hand, the claimant told her that she had found them and was taking them upstairs. The claimant admitted that she had not dealt with the rubbish; all members of staff are responsible for dealing with the rubbish and recovery of the store for the following morning.
On the following morning, 3 March, when SM arrived for her shift at midday, a supervisor reported to her that the claimant, who was on fitting-room duty, had left her position and was trying on a cardigan from the store in a fitting room, with the curtain closed, thus blocking off the view to the other fitting rooms.
At an investigation meeting on 7 March, conducted by SM, the claimant explained that she was using only a little bit of the nail varnish to touch up her nails which had been painted in a similar colour; she had intended purchasing the nail varnish but admitted that she had not taken any steps to so do in the interim because she wanted to avoid confrontation about her conduct with SM as the claimant knew she had been wrong. SM established that the claimant was aware of her responsibilities when on fitting-room duty as well as the reasons underlying those responsibilities, which were the protection against theft and the provision of customer service. She explained to SM that the fitting-rooms were quiet on the morning of 3 March 2011 and she tried on the cardigan; it took only two seconds and she had only closed the curtain of the fitting room when she saw the supervisor approaching. The claimant felt that she was not committing a major security breach but agreed that her behaviour waswrong. Following a break, the meeting reconvened and SM suspended the claimant on pay, pending a disciplinary meeting.The claimant’sevidence to the Tribunalwas that shehad intended purchasing the nail varnish but got a fright when SM called out to them and returned it to the stand. She accepted that subsequently she had not taken any steps to purchase it. Following the investigation meeting the claimant raised a grievance about the manner in which SM had conducted the investigation but the grievance was not upheld. It was SM’s evidence that the other two girls who had been with the claimant at the gondola had clean disciplinary records,
The disciplinary hearing was conducted on 22 April 2011 by a store manager (OM) from another store. While admitting to the incidents on 2 & 3 March the claimant did not agree that her behaviour on 2 March constituted misappropriation of company property. She clarified to OM that the nail varnish used had been a tester. She was aware that it was not permissible to try on clothes while on duty but had done it because she was ‘bored’. She told OM that the respondent’s reaction was ‘over the top’. She contended that others were doing worse and getting away with it. She felt that she was being singled out. OM sought guidance from the HR department, during adjournments taken at the disciplinary meeting, to ensure consistent application and adherence to the respondent’s policies. As the claimant was on a final written warning at this stage for a breach of security and had failed to provide an adequate explanation for her behaviour OM felt that dismissal was the appropriate sanction and dismissed the claimant at the end of the meeting. In a letter dated 3 May the respondent confirmed the dismissal for gross misconduct on the grounds of misappropriation or unauthorised possession of company property, for serious breach of company policies and operating procedures and for loss of trust and confidence. The respondent’s position was that there were no testers in the particular brand of nail varnish; once the seal was broken an item could not be sold and had to be placed in the spoils area (but as the nail varnish was a concession product that would be a matter for the concession manager). The respondent was not aware that other employees were trying on clothes while on fitting-room duty.
The HR manager for who supports the respondent’s 57 stores in Ireland and 35 in Scotland told the Tribunal that using a product and not paying for it constitutes misappropriation of that product. Any misappropriation of stock regardless of the value is deemed gross misconduct warranting disciplinary action. With 20,000 staff across the UK and Ireland in 600 stores any breach is considered seriously as there would be a significant loss to the respondent if it was common practice for staff to ignore the policies and tolerating such behaviour would create a dangerous precedent It would be only in cases involving some exceptional circumstances that dismissal would not follow misappropriation of goods. Some 76 employees of its 20,000 staff had been dismissed in 2012. The fitting rooms are a high risk area for stock loss so it is imperative that the designated person mans them. The fitting rooms are high risk for stock loss and it is imperative that the designated employee be there to prevent theft and to provide customer service to drive sales.
The claimant’s appeal was not considered by the respondent as her letter of appeal was outside the five-day prescribed time limit for lodging an appeal. The claimant’s letter of appeal was received by the respondent on 18 May 2011 although it was dated 22 April 2011. The claimant’s evidence to the Tribunal was that she and her trade union official prepared the appeal letter immediately following her dismissal on 22 April and posted it on the same day. The claimant accepted that she had received the letter of 3 May advising her that she could appeal the dismissal, but did not raise any question regarding her earlier letter of appeal as she could not be bothered arguing about it.
In her evidence to the Tribunal the claimant’s position was that she thought the bottle of nail varnish was a tester as the seal on the bottle was broken and had intended buying the nail varnish but not that bottle as it was a tester and should be put in the ‘spoils’ area. Her evidence regarding the fitting room incident was thatshe was taking new items of clothing to the back of the fittings room to have them activated and just threw the cardigan over her shoulder; it only took about two seconds and she did not realise it gave rise to any risk. When a supervisor entered the fitting room area she got a fright and went into a cubicle and closed the curtain. The claimant was never instructed that she had to stay at the entrance to the fitting rooms. The claimant did not view this incident as a breach of security procedures. It was quiet in the store she was bored and did not think it would be a big deal to try it on. She “knew it was wrong but everybody did it …and she thought she would ‘get away with it.” The claimant found the whole investigation process degrading.
The respondent’s evidence was that they do not activate the clothes. The fitting rooms are situated in a U-shaped space. The respondent’s evidence was that while the claimant may go around to the back of the fitting rooms several times a day to check on customers that would only take 20 seconds. SM pointed to a number of inconsistencies between the claimant’s version of events during the investigation and in her evidence to the Tribunal. The other two girls who had been at the gondola with the claimant on 2 March were not painting their nails and had clean disciplinary records. The respondent would have let the incident of 2 March pass but for the fact that within 24 hours the claimant had breached security procedures.
Determination
The claimant was suspended on pay and ultimately dismissed for misappropriation of property, a serious breach of operating procedures and breach of trust causing a loss of confidence in her.
The function of the Tribunal is set out in Looney & Co. Ltd. v. Looney (UD 843/1984):
It is not for the Tribunal … to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.
Again, in Bunyan v. UDT (Ireland) Ltd. [1982] ILRM 404 at p. 413, it was stated:
[T]he fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved (emphasis added). … The Tribunal therefore does not decide the question whether or not, on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
Thus, it is not for the Tribunal to substitute its decision for that of the employer but to ask itself if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The Tribunal, taking cognisance of the vast number of the respondent’s stores and employees accepts that it is vital for it to have strict policies guarding against theft by the public and misappropriation by employees and to ensure strict adherence to those policies. Furthermore, it is an established principle in employment law that it is not the value of the product that is misappropriated that is the relevant consideration but the loss of trust resulting from that misappropriation which is the vital issue when deciding on a disciplinary sanction. Noting the respondent’s position that it was the combination of both incidents within a 24-hour period that gave rise to disciplinary action being taken and in light of the final written warning on the claimant’s record the Tribunal in all the circumstances finds that the dismissal came within the band of reasonable responses of a reasonable employer.
There were a number of inconsistencies and contradictions in the claimant’s versions of the nail varnish incident. The Tribunal accepts that the respondent did not receive the claimant’s letter of appeal until well outside the time allowed for lodging an appeal. The claimant had notice from the respondent’s letter of 3 May that it had not received any letter of appeal from her but chose not to do anything about it. The Tribunal finds that it was not unreasonable of the respondent not to consider her appeal.
For the above reasons the Tribunal finds that the claims under the Unfair Dismissals Acts 1977 to 2007 fails.
Section 8 of the Minimum Notice and Terms of Employment Acts, 1973 to 2005 provides that there is no entitlement to notice where dismissal is for misconduct. Accordingly, the claim under those Acts is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)