UD818/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Marc Bentley - claimant                                                                                          UD818/2012

Against

Tesco Ireland Limited - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr C. Corcoran B.L.

Members:     Mr J. Horan

                    Mr J. Maher

heard this claim at Dublin on 6 September 2013, 29 April 2014 and 30 April 2014

Representation:

Claimant(s):     Mr. Brian Morgan,

                        Morgan McManus, Solicitors, The Diamond, Clones, Co Monaghan

Respondent(s): Ms Mairead McKenna B.L.

                         instructed by John Kealy Tesco Ireland Legal Department,

                         Gresham House, Marine Road, Dun Laoghaire, Co Dublin

The determination of the Tribunal was as follows:-

Preliminary Issue:

At the commencement of the hearing the respondent’s representative raised a preliminary matter regarding the claimant’s service with the company. The claimant first worked in a support role in an Irish store and eventually transferred permanently to Ireland in January 2011. The claimant submitted a pay slip issued by the Irish employer which indicated his commencement date as 10 September 2007.

The Tribunal held it had jurisdiction to hear the case noting in particular that the claimant’s service with the company in the UK was recognised by the respondent and had transferred to the Irish company. The commencement date indicted on the pay slip submitted by the claimant was accepted by the Tribunal.

Respondent’s case:

Store director (SD) who was the claimant’s manager at the time of the dismissal gave evidence of his role in the process. The claimant worked as stock control manager with a high level of responsibility and trustworthiness required for the role. The store where the claimant was employed was one of the largest in the country and he reported to a duty manager. The claimant’s performance was satisfactory. A few months after he commenced the store manager learned of a double payment being made to the claimant. It transpired that the UK hub store where the claimant had previously worked continued to pay the claimant as well as getting paid by the Irish company. The error occurred as the hub store assumed the claimant was working in Ireland on a secondment basis. The witness met with the claimant on the 20 September 2011 for a fact finding investigation meeting. At the meeting the claimant was shocked (and he genuinely believed he was shocked) when the issue was put to him about the double payment. The first explanation was that his wife dealt with all the finances and he had no knowledge of a double payment to his UK bank account. After a short break the claimant returned to the meeting. Having contacted his wife he explained she had been aware of the payments to the UK account, that the money was spent. The claimant appeared upset.

A second meeting took place on the 22 September described as a further fact finding investigation meeting. At the meeting the claimant accepted that the money should not have been spent and that he knew nothing of the payments. It was evident the claimant was under financial strain. The claimant offered to repay the respondent following the sale of his UK home and after he cleared his UK depts. The claimant showed no remorse and continued to blame his wife for spending the money and the UK company for the error in continuing to pay him after he had transferred to Ireland. The claimant was suspended on full pay on the grounds of a breach of the trust policy. He was requested to provide any documentation to show he had no knowledge of the payments and did not spend the money.

At a further meeting the claimant supplied the witness with a letter from his wife where she took full responsibility stating the claimant had no knowledge of the payments.

At a meeting on the 18 October 2011 the claimant was accompanied by a witness. He continued to blame his wife and how his marriage was strained following the discovery. He also blamed the UK company and complained that he had worked in Ireland for seven or eight weeks before he received any payslips. The witness believed that the claimant had an issue with the company as he was not paid re-location expenses. With regard to his on-line pay slip being accessed in May 2011 the claimant stated his wife must have accessed them as she had access to all his codes. The witness was of the opinion that this explanation was not credible.

The meeting of the 8 November 2011 was a disciplinary meeting and the witness confirmed he conducted that meeting as well as the investigation meetings held prior. The final meeting on the 17 November the claimant was informed of his dismissal based on the honesty policy of the respondent. His decision to dismiss was formed solely on the honesty policy.

The witness in reaching his decision to dismiss the claimant denied that he was influenced in any way by TC the personnel manager at the store. TC assisted with the letters which issued to the claimant and attended meetings as the note taker. He confirmed that he did not have sight of the claimant’s personnel file prior to the dismissal. It was accepted that pay slips were not sent to the claimant’s home address in the UK. With regard to the witness failing to interview the claimant’s wife he said it was not company policy to interview third parties. There was a dispute over the furnishing of bank statements. The respondent witness did not check the IP address to establish where the claimant’s online pay slip was accessed as part of the investigation as this would not prove the claimant himself did not view the pay slip.

A second witness for the respondent the personnel manager (PM) explained his involvement in the claimant’s case. He arranged meetings with the claimant by text message or email. He attended meetings as a note taker and denied that there were any discrepancies in the typed notes when compared to the hand written notes. He provided both the handwritten notes and the typed notes to the SM. The witness accepted that no letter of suspension issued to the claimant and that the letter of the 1^st November 2011 inviting the claimant to a meeting did not state that it was a disciplinary meeting. He contacted the store in the UK where the claimant had worked to establish if payslips were issued to the claimant. It was as a result of this investigation he learned that payslips were sent to the claimant’s home and that the claimant’s online payslip was accessed in May 2011. The witness evidence was that the first meeting with the claimant was on the 17 September 2011 which is disputed by the claimant. He never received bank statements from the claimant during the process. He had no influence or role in the decision to dismiss the claimant.

The appeal’s officer (AO) who conducted the claimant’s appeal was a store manager from another store. The initial appeal’s officer was not accepted by the claimant as she had knowledge of the disciplinary process at an early stage. The AO concluded that there was a breach of the respondent’s honesty policy. He acknowledged that the process was not perfect.

Claimant’s case:

The claimant’s wife told the Tribunal how she took responsibility for the family finances. She described the claimant as lazy when it came to the family finances. The claimant had commenced working in Ireland on the 25 January 2011 so when a payment came through in February she believed it was a payment due to her husband. When she became aware of a payment in March she did not inform the claimant. The family finances were poor at the time with the additional financial strain of the claimant having to rent accommodation in Ireland and a child in a private school. The March and April payments she considered may have been the proceeds of the sale of shares in the respondent company. In May she accessed the online payslips and at that stage realised that the payments were wage payments. She decided not to tell the claimant and hoped it would go unnoticed. She moved to Ireland in July 2011. On the 20 September 2011 she received a telephone call from the claimant. He told her about the accusation of “double payments” and she immediately admitted her knowledge of the payments to the UK bank account. The witness admitted spending the money on clothes and home furnishings and was embarrassed by her actions of dishonesty. At the time she offered to meet with management of the respondent company and that offer was not acceptable to the respondent. She instead wrote a detailed letter explaining her actions to the respondent. She offered to report her actions to the police.

The claimant had worked with the respondent in the UK since 2007. He progressed to deputy manager role and was aiming to get on the senior team options. He moved to Ireland to progress his career further in January 2011. Before moving permanently to Ireland he had worked in a support or secondment role in Ireland for a period. He moved to a stock control manager role in June 2011 which he believed would be a fast track to the senior team options. During this period he had no knowledge of the double payments. On the 20 September 2011 the PM approached him on the shop floor and asked him to the office for a chat. Unaware of what the purpose of the chat was about, he was accompanied by a colleague. He was asked about the double payments and phoned his wife who admitted knowing about the payments. The SM suggested he take a few days off to talk to his wife. He was not suspended at that meeting. The next meeting was held on the 22 September 2011 at which notes were taken. He was suspended following that meeting. He offered to return the money and denied saying that he would return the money after the sale of his house and when all his other depts. were paid. He insisted that he handed copies of bank statements to the PM. The claimant denied accessing his online payslip and stated that he received his first payslip in Ireland in June 2011. He was informed of a meeting by telephone and was never told the meeting was a disciplinary meeting. The witnesses claimed if he had known it was a disciplinary meeting he would have arranged for a colleague from the UK to attend with him. He was dismissed by letter dated the 17 November 2011. The appeal was delayed due to the busy Christmas period. An appeal hearing took place on the 19 January 2012. He did not receive the outcome of his appeal until the 26 March 2012 following the intervention of his solicitor.

Determination:

The following points including other points referred to are of note pertaining to both the parties:

1/ Some of the dates and numbers of meetings were disputed.

2/ It was also disputed whether bank statements were provided during the course of the investigation.

3/ The Store Director under cross-examination in describing the Claimant’s reaction when he was informed of the “double payments” stated “I genuinely believed he was shocked”.

4/ The Respondent policy documents were not furnished to the Claimant until after the dismissal.

5/ He attended a meeting which in fact was a disciplinary meeting but he was not informed that it was a disciplinary meeting.

6/ Company policy at the relevant time was, that the same person could conduct the investigatory and disciplinary process.

7/ The exact sum of money due and owing to the Respondent was in dispute between the parties.

8/ The “double payments” incident was due to an error on the part of the Respondent.

Having carefully considered all the circumstances in this case and the evidence adduced at the hearing, both oral documentary, and having observed the demeanour of the witnesses first- hand throughout the hearing, the Tribunal finds that the Respondent has not discharged the onus of proof required, and the Claimant was unfairly dismissed, and accepts the Claimant’s version of events, even though he was somewhat easy-going and casual with regard to his family finances in general.

The Tribunal further finds that the procedures adopted by the Respondent were inadequate given the serious accusations made against the Claimant and the equally serious consequences emanating therefrom, as already outlined above.

In cases such as these where serious allegations are made attracting serious consequences to one’s reputation, career, and general prospects or allegations bordering on or amounting to criminal liability, it is essential and imperative that the corresponding procedures adopted in the investigatory and disciplinary process be carried out with the utmost vigilance, care, and fairness, especially when the onus of proof lies on the party making such allegations.

Having regard to the Claimant’s unblemished and untarnished record and the fact that his integrity had not been impugned at any time before this incident and that during the appeal hearing no account or proper account was taken of his previous record, nor was his personal file available or fully available at that hearing which would have ensured that the appeal personnel would have access to that file and the fact that he had been promoted, together with a number of other matters. He received no letter informing him of his suspension. And this had led to some confusion as to the date of the actual suspension.

He was not informed in the letter notifying him of an important meeting, that in fact it was a disciplinary meeting, although it was indicated that he was informed orally at a later stage, and had he known this he would have a different representative at the meeting who would have been known to him and be more familiar with the issues involved, as he was in a situation where he did not know anyone, having come from Scotland. He did not receive a copy of the “Honesty Policy”. It was also noted by the Tribunal with some trepidation that during this whole process, both investigatory and disciplinary, that certain personnel were active and were involved in both roles rather than separately. The Tribunal also finds that when the Claimant was informed of the problem of “double payments” that he was “genuinely shocked” and this was accepted by Respondent personnel.

Having regard to the peculiar circumstances of this case where due to an error on the part of the Respondent a double payment over a period of time was paid to the Claimant’s account, and on foot of that payment discrepancy a third party, namely the Claimant’s wife had admitted her involvement and culpability in this, together with details of the amounts and the circumstances surrounding same, it is inconceivable to the Tribunal that the Respondent refused to meet her and to engage with her on this matter, on the grounds of a blanket policy namely “company processes/policy” especially when such offer to meet was made at such an early stage.

One can understand on a general basis the reason for such rule, i.e. business competition, price sensitive disclosures, strategy and future planning and such matters. However one wonders whether this policy should operate on a universal basis and that in certain exceptional cases such as this, that exceptions should be made or allowed by appropriate personnel. If this was done at such an early stage (as stated) there would be a distinct possibility that there would be less confusion over the exact amount of money due, over bank statements and other matters, and an appropriate payment plan for any money due to the Respondent could have possibly been implemented, and a proper assessment of the alleged role of the Claimant. By way of response the Respondent submitted that they received a statement from her which contained all matters and this was sufficient. The Tribunal is of the view that in matters such as this, a document as denoted (even though of certain value) can be no substitute for a one to one interview, or meaningful personal engagement and discussion that could have taken place, with a view to a possible resolution of the issues or potential issues involved.

In making its decision the Tribunal is mindful of the sentiments expressed in the Tribunal decision of Dominic Shields v Tesco Ireland Limited – Case No. UD626/2011. The Tribunal also notes , with approval, Section 6 (1) of the Unfair Dismissals Act 1977 as amended- “Subject to the provisions of this Section, the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal unless having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6 (7) of the said Act as amended states –“”Without prejudice to the generality of sub-section (1) of this Section, in determining if a dismissal is an unfair dismissal regard may be had, if the Rights Commissioner, the Tribunal, or the Circuit Court as the case may be, considers it appropriate to do so –

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent if (any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in Section 14 (1) of this Act or with the provisions of any code of practice referred to in Paragraph (d) (inserted by the Unfair Dismissals (Amendment Act 1993) of Section 7 (2) of this Act)”

The Tribunal is also mindful of and notes with approval the sentiments expressed by Mr Justice Flood in the case of Frizelle v New Ross Credit Union Ltd. High Court July 30^th 1997. The Judge stated as follows, that where a question of unfair dismissal was in issue, there were “certain premises which must be established to support the decision to terminate the employment for misconduct”.

He listed these as follows:

“1/ The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2/ Where the complainant is a person or body of intermediate authority, it should state the complaint factually, clearly, and fairly without any innuendo or hidden interference or conclusion.

3/ The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4/ The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5/ The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal on the employee”

The eminent Judge succinctly added “put very simply, principles of natural justice must be unequivocally applied”. The Tribunal are of the view that the principles of natural justice were not applied or sufficiently applied in this case.

The following excerpt is also noted with approval by the Tribunal from the case of Looney and Co. Ltd. V Looney UD 843/1984: “It is not for the EAT to establish the guilt or innocence of the Claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as he did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided, and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The following excerpt from the case of Bunyan v United Dominions Trust (Ireland) Limited -1982 ILRM: “the fairness or unfairness of a 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. 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”. In this case despite the fact that the employee had undermined the managing director’s authority, the dismissal was deemed to be unfair as the employee was not afforded fair procedures.

Finally the case of Philip Molloy v Wincanton Ireland Limited- page 286 (2013) E.L.R. – “The role of the Tribunal is not to determine whether the Claimant was guilty or innocent of the disciplinary matters. The role of the Tribunal is to determine whether a reasonable employer in similar circumstances and a similar line of business would have dismissed the employee”. This is the real test.

Having regard to all the prevailing circumstances and consistent with the findings in this case including mitigation of loss, and the relevant statutory provisions of the Unfair Dismissals Act 1977 as amended. The Tribunal awards the sum of €70,000.00 in compensation to the Claimant.                      

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)