EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Michael McCrann, UD3/2013
against the recommendation of the Rights Commissioner in the case of:
Marks & Spencer Ireland Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr M. Carr
Mr M. O'Reilly
heard this appeal at Dublin on 21st February 2014
Representation:
Appellant:
Mr Michael Meegan, Mandate Trade Union, 9 Cavendish Row, Dublin 1
Respondent:
Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an appeal by the employee against the decision of the Rights Commissioner Ref: r-122438-UD-12/DI
Respondent’s case:
The respondent is a large clothing and food retail outlet and the claimant worked in one of their clothing outlets. The claimant commenced employment on 16th October 2006 and was summarily dismissed for gross breach of regulations on 17th March 2012.
There is a policy in place which states that sale items may not be reserved by customers or staff and an investigation by the respondent found that the claimant had placed sale items behind non-sale items on the shop floor so as to reduce the chances of these items being bought by customers. CCTV footage shows the claimant returning to these items once he was finished work and purchasing them. This was effectively reserving sale items and the claimant was invited to a disciplinary hearing at which it was decided to dismiss him. The claimant appealed this decision and the decision to dismiss him was upheld.
The witnesses for the respondent were satisfied that the claimant was fully aware of the policy in relation to reserving sale items and that he had wilfully breached this policy. Both the original decision maker and the person who heard the appeal felt the company had no alternative but to dismiss the claimant.
Claimant’s case:
The claimant was well aware of the policy that dictated that sale items could not be reserved behind the sales desk. However he did not accept that he had breached this policy by placing items back on the shop floor albeit perhaps on inappropriate rails.
There was originally a policy on reserving sale items which said that breach of this procedure is deemed as gross misconduct and may lead to disciplinary action up to and including dismissal. However this was superseded by a similar policy which said that failure to comply with these procedures may lead to serious action being taken.
It was the claimant’s position that the sanction of dismissal was too severe and that other sanctions ought to have been considered.
Determination
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the respondent acted unreasonably in deciding to dismiss the claimant. It is clear that it was open to the decision makers to consider sanctions other than dismissal in regard to the alleged breach of the ordering and reservation policy for all sale goods. However no other sanction was considered. The sanction of dismissal was disproportionate to the alleged actions of the claimant and was contrary to fairness and natural justice.
Therefore the Tribunal overturns the Rights Commissioners decision Ref: r-122438-UD-12/DI and determines that the claimant was unfairly dismissed. In all the circumstances the Tribunal awards the claimant €13,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)