EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Marvin Moore -claimant
UD2423/2011
against
Tesco Ireland Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr D. Peakin
Mr S. O'Donnell
heard this claim at Dublin on 22nd July 2013 and 12th February 2014
Representation:
Claimant: Ms. Audrey Cohen B.L. instructed by Patrick O'Toole, Solicitors,
5 Church Street, Wicklow Town, Co Wicklow
Respondent: Mr. Eamonn McCoy, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Summary of evidence:
The claimant was employed by the respondent company from 1996. The claimant held a number of positions during his employment. At the time he was dismissed he was working as a charge hand in one of the respondent’s stores. The role of charge hand involved working in the back store and handling deliveries of a variety of goods. Other than the issue for which he was dismissed, the claimant had a clean disciplinary record with the company.
During 2009 the claimant was charged with a criminal offence in relation to a supply of drugs with intent to sell. When charged with this offence he informed the then Store Manager in August 2009 and continued in his employment thereafter.
It was the claimant’s case that he informed the Store Manager’s successor and the Personnel Manager in April 2011 that he would require time off to attend court in July 2011. It was accepted that the claimant had informed the Store Manager that he required this but the company’s evidence was that he did not inform them until July 2011. The claimant was absent due to an injury from the beginning of July to the beginning of August. In the intervening period the claimant attended court for a sentencing hearing in light of his guilty plea. The claimant received an eight-month suspended sentence.
The Store Manager held a meeting on the 2nd August 2011 at which the claimant confirmed that he had received a conviction. It was explained to the claimant that this fact could have repercussions for his employment, leading up to and including dismissal. The claimant was placed on suspension with pay pending further investigation.
A series of investigation meetings were held with the claimant in the presence of a union representative. A number of issues were addressed during the course of those meetings. One such issue was the fact that the store’s Personnel Manager provided the claimant with a character reference on non-headed paper prior to the trial as well as the company’s standard reference. It was initially stated by the company that the reference provided by the Personnel Manager on non-headed paper was unofficial but the union raised the issue that a number of letters regarding the meetings were sent on non-headed paper but were still considered official. On the second day of hearing the company confirmed to the Tribunal that it stood over both references provided by the Personnel Manager.
Another issue raised during the investigation meetings was whether or not the claimant’s conviction had or would bring the company into disrepute. The union representative enquired as to how the company’s name was in disrepute given that the conviction was not reported by the newspapers. The Store Manager outlined that the concern was that the conviction could bring the company into disrepute. The union representative also enquired as to whether or not other employees with convictions were disciplined and to what extent.
Having concluded the investigation the Store Manager made a decision to invoke the disciplinary procedure due to the seriousness of the conviction, the matter to which it related and the impact on customers entering the store if the conviction became known about. A meeting under this procedure was held on the 20th September 2011 with a subsequent meeting on the 26th September 2011 at which the claimant was informed that he was dismissed. The company policy was opened to the Tribunal. The letter of dismissal informed the claimant that he was dismissed on grounds of serious misconduct under the following headings:
- Conviction by a Court of law for any serious criminal offence considered damaging to the company or its employees.
- Conduct which brings the company’s good name into disrepute.
The claimant’s representative wrote a letter detailing the grounds of appeal. The Appeal Officer was the manager of another store and was asked by the Group Personnel Manager to hear the appeal but he was not provided with the letter setting out the grounds of appeal. At the appeal meeting he listened as the claimant set out each point of appeal and he investigated each one afterwards. He travelled to the store where the claimant worked to review his personnel file but did not speak to the Store Manager, the Personnel Manager or anyone else working at that store in relation to this matter. He considered the issues raised by the claimant including the fact that he had kept the company appraised, the fact that he was provided with a character reference from the Personnel Manager for court and thirdly that the conviction was not in the public domain. The appeal officer utilised the notes from the meetings held with the claimant when considering the appeal. Given the grounds of appeal he did not deem it necessary to speak to anyone other than the claimant. In concluding his consideration of the appeal he upheld the decision to dismiss as he found that the claimant’s conviction could easily bring the company into disrepute. During cross-examination he confirmed that he did not find evidence that customers or members of the public were aware of the claimant’s conviction but he considered how it would be viewed if it came into public domain.
A further issue between the parties was that the claimant (prior to the disciplinary process and conviction but after he was charged) applied for voluntary redundancy. It was the company’s position that some charge hand positions across a variety of stores were to be made redundant over a phased period of time and on the basis of seniority. A shop steward at the store gave evidence that to her knowledge it was not known by staff about the claimant’s conviction
Determination:
In all of the circumstances the Tribunal does not find that the dismissal in this instance was fair. The company’s procedures particularly in relation to the appeal were insufficient in considering sanctions other than dismissal in light of the claimant’s previous good record and his efforts to keep the company appraised of the situation. Although it was the right of the company to consider dismissal as a remedy open to them under their procedures, the company did not demonstrate that it genuinely considered the alternative sanctions that could have been applied.
The dismissal in this instance was procedurally unfair. The Tribunal finds that the evidence of the Appeal Officer regarding the appeal procedures fell well short of what is normally accepted as being fair. While the nature of the complaint against the employee was serious, not enough regard was given by the company to the fifteen years unblemished employment record the claimant held with the company. Notwithstanding the company’s right to dismiss as one of the remedies, in these circumstances the company could have considered lesser alternative sanctions. In considering all of the circumstances of the case the Tribunal finds the appropriate sum of compensation to be €11,500 and awards this sum to the claimant under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)