UD871/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                            CASE NO.

                                                                                                                                    UD871/2012

Carmel Murphy,          -           Claimant

Against

Cara Pharmacy            -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr M. Gilvarry

Members:     Mr. D. Morrison

Ms. A. Moore

heard this claim at Carrick-On-Shannon on 5th February 2014 and 10th April 2014

Representation:

Claimant:         Ms Niamh McGovern, McGovern & Associates, Solicitors,

                        Equity House, Dublin Road, Carrick-On-Shannon, Co. Leitrim

Respondent:    Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street,

                        Donegal Town, Co Donegal

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is a pharmacy group with 15 retails stores, 177 staff with a turnover of €20m. A number of stores are located in the north west of Ireland. The claimant worked in store D and was employed as a sales assistant. She worked a thirty hour week. Her duties included ordering for the pharmacy and she also did administration tasks. The claimant was pleasant, very receptive, and flexible and had a good working relationship with all staff. She had been an exemplary member of staff. The claimant had taken on extra responsibilities and the respondent was very appreciative of this.

The store had a full team of staff and the respondent expected that all work was completed during the day.

CN is joint Director since 2002 and Regional Manager and CB is Operations Manager for the past eleven years. She liaised with management and was based in Donegal. FD was manager of store D since 2003. She commenced a period of sick leave in January 2011 and is still absent on sick leave. MQ has since been appointed to manage Store D.

In around 17^th January 2012 it was brought to CN’s attention that there was an IOU in the lodgement bag in the store. Both the witness and CM called to the store and questioned staff about the IOU. The employees were not asked to furnish written statements. They were aware that the claimant was placing IOUs in the lodgement bag and that the claimant was removing money from the till on occasions. The claimant was not present in the store that day. CN and CM met the claimant on 19^th January 2012. Prior to this meeting the claimant was unaware of the allegations being made against her. The claimant admitted that she had removed money from the lodgement without authorisation up to the value of €200 to pay her bills but that this was always replaced some days later, that she had removed stock from the store without authorisation, that she had removed money from the tills and given to her son but had always refunded the money, but staff were unaware of this and that she had come into the store after hours to catch up on work. The meeting ended amicably. The claimant was suspended with pay pending an investigation into the matters.

A disciplinary meeting took place on 31^st January 2012. The claimant and her solicitor attended this meeting. There was no issue surrounding the claimant’s performance. All the issues were discussed again. During the course of that meeting the claimant said she had emailed CM in relation to certain issues at work.

Following that meeting CN and CM took time to consider matters. By letter dated 6^th February 2012 the claimant was dismissed from her employment. The respondent had lost trust in the claimant. They did not consider any other sanction. She did not appeal the decision to dismiss her.

Claimant’s Case:

The claimant commenced employment on 1^st November 2003 in the role of Sales Assistant.   She worked four days a week from 9.30 am to 3.00 pm. The shop manager commenced a period of sick leave in 2011 and the claimant took on extra responsibilities. She looked after wages, the rota and trained in two employees on the tills. While she was happy to help out the store she regularly enquired from CN when a new manager would be appointed. She received no extra pay for the extra work she carried out. Customer Service was a priority in the store.

Because of the additional duties the claimant returned to the store some evenings to ‘catch up’ on her work.

IOUs were common in the store since the commencement of her employment. Everyone knew about them. If the claimant needed to borrow money from the till she wrote an IOU with her name on it. On one occasion she borrowed €20.00 for a school jumper for her son, wrote an IOU and the money was subsequently repaid. At that time she made her co-worker A aware of the IOU. She never felt guilty about writing an IOU. As a result of the IOUs in the till the store’s lodgement was carried out the following day. The money was always repaid. Both CM and CN were never made aware of the IOUs during the course of the claimant’s tenure.

CM often visited the store and made suggestions for improvements. The claimant had a good working relationship with her and CM sent her a gift in August 2011 in appreciation of the extra responsibilities she had carried out during the manager’s absence from the store.

On 19^th January 2012 both CM and CN called to the store and asked to meet her. They both had a number of issues which had caused concern for management of the Group. She was questioned on IOUs, the removal of money from the tills and entering the store outside working hours without prior permission on a number of occasions. The claimant was in shock at that meeting and was told she was being suspended for two weeks pending a full enquiry. As she left the store it became apparent to her that her computer password was being changed. She knew then she was fired from her job.

Following a disciplinary meeting on 31^st January 2012, the claimant was subsequently dismissed with effect from 6^th February 2012 for gross misconduct. She chose not to appeal her dismissal to RN as she was related to CN and the claimant felt she would not get a fair hearing.

The claimant did not secure alternative employment until September 2012.

Determination:

The Tribunal has carefully considered the evidence and submissions made during the course of this two day hearing.

The Tribunal noted that the procedures carried out by the respondent and felt that the initial investigation meeting was not best practice. Nonetheless, the claimant was offered a full disciplinary hearing.

The Tribunal, by majority, accepted the evidence of the claimant that the practice of IOUs had been in place when she started employment and continued on during the course of her employment.

The Tribunal finds that the use of IOUs to be both irregular and extremely poor practice and the claimant should have realised this.

The Tribunal accepts that at all times any monies removed by the claimant from the till were returned and in the meantime documented by IOUs.  

The Tribunal, by majority, did not consider any of the other issues raised at the disciplinary hearing and these should have been dealt with internally.

Dissenting Opinion.

The following is Mr. Morrison’s dissenting opinion:

I disagree with the other two Tribunal members for the following reasons.

1. The claimant had removed money up to a value of €200.00 from the lodgement for bills.

2. The claimant had removed money from the tills to give to her son.

3. The claimant entered the store outside of working hours without prior permission on a number of occasions.

4. The claimant had removed stock from the store without paying for it on an occasion.

At the disciplinary hearing on 31^st January 2012 the claimant was asked by CN if other members of staff were using IOUs. The claimant clearly said she was not aware of this.

When making a decision to sanction an employee, an employer can only come to that decision in a fair and reasonable manner with the knowledge that is available to him/her.   At the time this is what the employer did.

I believe it was fair and reasonable for the respondent to dismiss the claimant for gross misconduct.

Majority Determination:

The Tribunal by majority feels that while the claimant contributed substantially to her dismissal the decision to dismiss was unfair in the circumstances.   Taking the claimant’s contribution to her dismissal into account together with evidence of loss and mitigation, the Tribunal considers compensation to be the appropriate remedy and awards the claimant the sum of €4,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

          (CHAIRMAN)