EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD687/2012
Neville Foster, - Claimant MN509/2012
WT210/2012
against
Irish Soft Drinks Ltd., - 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 F. Crawford B.L.
Members: Mr. L. Tobin
Mr. C. Ryan
heard this claim at Dublin on 28th August 2013
and on 5th March 2014
Representation:
Claimant: Mr. C. McLoughlin BL instructed by:
Hanahoe & Hanahoe, Solicitors, 16, North Main Street, Naas, Co. Kildare
Respondent : Tiernan Doherty, IBEC, Confederation House, 84/86, Lower Baggot Street, Dublin 2
Dismissal is not in dispute in this case.
Respondent’s Case:
The respondent company manufactures and sells soft drinks and light bulbs; this includes distributing the products to retail outlets. The sales manager (DR) gave evidence. DR is responsible for key customers and the sales team. The 14 sales staff are split into two teams of seven; each team has a regional manager that reports directly to DR. At the time the claimant was employed (in 2006) the teams were smaller and consequently the claimant reported directly to DR.
The claimant’s role was to merchandise the product (lightbulbs) in the stores and to grow the business by trying to get extra shelf space or a stand for the respondent product in a store. The claimant was an excellent employee up until the issues arose that led to his dismissal.
At the start of October 2011 a sales meeting was held where it was decided to phase out a particular light bulb. In order to phase out the product (in a large supermarket chain) it was agreed not to put any new stock into the store or remove any of the existing stock. If the stock is removed from the store the respondent has great difficulties getting the credit back, so it is easier to leave it to sell. It was decided not to remove the stock but to put it on promotion instead (the claimant was not aware of the upcoming promotion).
The stock had initially been sold to the store on promotion. Two weeks after the sales meeting DR was notified that the claimant had removed all of the stock from four stores. The stock was removed from the store ‘at full price.’ The claimant instructed an admin person to process the credit notes, change the price on the respondent’s computer system and change the code on the stock from him to a generic warehouse stock code. The claimant is not authorised to change the prices. By changing the code on the stock, it transferred the possession of the stock from the claimant back to the warehouse.
All sales staff have a handheld computer devise to record transactions. The charger for this devise is in the company van. There was a fault with the cradle for the handheld devise; the claimant had wrapped the cable lead in masking tape instead of getting it fixed.
The claimant was advised by DR that he was suspended on the 10th of November 2011 pending an investigation into the following;
- Failing to notify management of your intentions to uplift stock
- Unauthorised stock uplifts of major quantities without management approval
- Bypassing all sales and accounts management to change customer pricing thus bring the company into disrepute
- Unauthorised tampering of company property causing significant damage which could have led to a health & safety risk.
When DR concluded his investigation he invited the claimant to a disciplinary meeting on the 14th of November 2011. He was advised that the result of the disciplinary meeting could be dismissal and offered the claimant the right of representation.
The claimant was represented by a colleague at the disciplinary meeting of the 14th of November. The claimant admitted uplifting the stock and to being told not to uplift the stock; he therefore accepted that the removal of the stock was unauthorised. He said that changing the stock code and prices was normal practise and he had done this on other occasions. The claimant admitted putting the masking tape on the cable.
By letter of the 14th of November 2011 the claimant was dismissed. DR upheld all of the allegations as above. DR maintains that if all of the sales staff did what the claimant did, the respondent “would have lost a fortune.” DR felt that by the claimant, “bypassing the pricing, was underhand.” As per the dismissal letter, DR felt that,
‘the above offences constitutes a breach of trust and therefore being gross misconduct, warrants summary dismissal. Trust between the company and the employee goes to the root of the relationship between the parties.’
The claimant was given the opportunity to appeal this decision within four days of the dismissal letter.
DR does not recall the conversation where the claimant reported the handheld fault and telling the claimant to get the handheld fixed, but accepts it is something he would say; the handheld had not been fixed after a week. The claimant should have reported the problem again to DR if it had not been fixed. This issue only came to light as part of the investigation into the other allegations.
At the sales meeting in October a change to the commission structure was discussed. DR did inform the sales staff that they had 7 days to sign their new contract; 2-3 of them were unhappy and lodged formal grievances. DR disputes that his relationship with the claimant deteriorated when he refused to sign the new contract. The claimant’s grievance was closed on the 27th of October 2011 as he accepted the new agreement. DR was responsible for handling the grievance process.
DR does not recall (PoD) countermanding DR’s order not to uplift stock.
The Managing Director (MC) heard the claimant’s appeal at a meeting on the 2nd of December 2011. At the appeal meeting MC went through the appeal outcome letter in detail which included his reasons for upholding the decision to dismiss the claimant.
The other two sales staff that also uplifted stock at the same time as the claimant was given final written warnings, as they had not changed the price or codes on the computer system.
Claimant’s Case:
On the second day of the hearing the claimant gave evidence. He stated there were no previous issues regarding his employment before he was dismissed in November 2011.
In November 2010 staff were told sales were down and their hours would have to include early starts and late finishing to increase sales. This was a time of very harsh wintery weather. The claimant had intermittent problems with his handheld which he temporarily fixed with some cable. He informed DR.
The claimant told the Tribunal that he had some complaints from his clients to remove old stock from their premises before ordering new stock. On the 21st October 2011 there was a staff meeting with management. The staff were informed the basis on which commission would be calculated would change. If old stock was returned from clients it would be taken out of their commission. He spoke to POD (POD} who gave him permission to “uplift” the stock one week before the new commission structure came in. He went to the stores, took the stock, filled out the stores paperwork but did not enter the details onto his handheld device. He contacted the office and a colleague (SC) changed the price of the stock. He told the Tribunal that he had been instructed to do this in the past. He uploaded the returned stock details into the storeroom quota on his return to the respondent’s premises.
A new contract of employment was given to him but he did not feel comfortable signing it and returned it to DR (Dave R) unsigned. Two other members of staff also refused to sign new contracts. The claimant told the Tribunal that two weeks after this disciplinary procedure was enacted against him.
He gave evidence of loss.
On cross-examination he again explained the pressure he was under from the respondent’s clients to remove old stock from their stores before they would order new stock. He said he believed the only reason disciplinary procedures had been taken against him was because he would sign the new contract. He had not been disciplined for the issue with temporarily repairing the handheld one year previously.
Determination:
The Tribunal have carefully considered the evidence adduced over the two days of this matter and finds the claimant was unfairly dismissed. Accordingly, the Tribunal awards the sum of
€ 21,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal also awards the sum of €1,169.24, this being two weeks gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
No evidence was adduced in respect of the claim under the Organisation of Working Time Act, 1997 and therefore it is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)