EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1133/2012
Employee - claimant
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr. D. Hegarty
Mr. O. Wills
heard this claim at Cork on 9th January 2014
Representation:
Claimant:
Mr. Richael O'Driscoll, Fachtna O'Driscoll, Solicitors, 9 South Mall, Cork
Respondent:
Ms Fleur O'Shea, Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Respondent’s case:
The respondent is a supermarket chain and the claimant was employed as a section manager in one of the respondent’s stores. He commenced employment on 1st March 2004 and was dismissed on 19th March 2012.
On 4th March 2012 the claimant arrived at work without a neck tie and it was a company requirement that he wear a tie while on duty. Before starting his shift the claimant removed a twin pack of ties from the shop floor and wore it. He later went home still wearing the tie.
On 10th March 2012 the Store Manager (RP) and the HR Manager held an investigatory meeting with the claimant. Prior to this another manager had asked the claimant if he knew anything about the remaining tie of the twin pack which was left on the desk in the claimant’s office and the claimant denied any knowledge of this. However during the meeting the claimant said that he had taken the tie with the intention of using it for the day and then returning it to the packet for sale. He never intended to buy the tie but was borrowing it for his shift. However at the end of his shift he left without returning the tie.
There is a policy regarding staff purchasing goods and the claimant was very familiar with this policy. However there is no policy with regard to borrowing goods and both RP and the person who ultimately heard the claimant’s appeal (TO’S) told the Tribunal that neither is there an accepted practice of this.
On 19th March 2012 a disciplinary meeting took place and present at this meeting were the claimant, RP and a note taker (AC). The claimant waived his right to have a colleague of his choosing attend the meeting with him. The decision taken by RP at this meeting was to dismiss the claimant for a breach of the staff purchasing policy. RP told the Tribunal that a breach of the staff purchase policy was so serious that he had no option but to dismiss the claimant. The claimant had returned the tie during the investigation but never offered to pay for it. RP’s position was that he may have taken a different view had the claimant offered to pay for the tie but this was never put to the claimant before he was dismissed. A letter of dismissal was issued to the claimant on 19th March 2012 and he subsequently appealed that decision by letter dated 21st march 2012.
On 23rd March 2012 TO’S, who had considered the claimant’s appeal without meeting with him, wrote to the claimant informing him that the decision to dismiss him was upheld due to the serious breach of procedure. TO’S reiterated that staff were not allowed to borrow goods, use them and then return them.
TO’S was of the opinion that a breach of the staff purchase policy is so serious that there is no option but to dismiss the offender. Furthermore TO’S was of the view that had the claimant offered to pay for the tie during the investigation or disciplinary process the outcome may have been different.
During the disciplinary hearing the claimant said that after he took the tie he told a staff member (NR) that he was borrowing it and would put it back at the end of his shift. However NR told the Tribunal that she could not recall the claimant telling her this and that it was unlikely that he would have said this to her.
Claimant’s case:
The claimant arrived to work 20 minutes before his shift was due to start and when he realised he had no tie with him he borrowed one from the display stand on the shop floor. He then proceeded to the manager’s office behind the customer service desk and fitted the tie to himself. On the way out he told NR who was on the customer service desk that he was borrowing the tie and would place it back for sale at the end of the day. However the claimant had other things on his mind and left that evening still wearing the tie. He realised he still had the tie after he had locked up with another manager and that manager had left. The claimant was driving his mother’s car that day and left the tie on the seat.
When asked on 8th March by another manager about the other tie left on desk the claimant denied any knowledge of it because he thought it was too late to say anything then. However when he was asked by RP about this he immediately told him that he had borrowed the tie with the intention of returning it at the end of the day. The claimant subsequently returned the tie before the next meeting with RP.
It was the claimant’s position that the decision to dismiss him was disproportionate to the incident as his intention was only to borrow the tie. The claimant cited occasions while he worked in another branch of the respondent when a manager borrowed an umbrella to go to the bank and returned it to stock afterwards. Therefore the claimant’s contention was that there was an accepted practice of staff borrowing items while at work.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed by the respondent.
The Tribunal considered the disciplinary and appeal procedure followed by the respondent and is concerned at the fact that the claimant was not given access to an oral appeal hearing as was the case with other employees. Furthermore the procedure was flawed insofar as the person who conducted the investigation also made the decision to dismiss the claimant.
Both the initial decision maker and the appeal officer indicated that the staff purchasing policy was so rigid that any breach of it would inevitably lead to dismissal and that they had no alternative but to dismiss the claimant. However both also told the Tribunal that had the claimant offered to pay for the tie at a much later stage that he may not have been dismissed and that in itself suggests that there were other options apart from dismissal. Therefore the Tribunal is not satisfied that the decision to dismiss the claimant was reasonable in all the circumstances.
The Tribunal considered the claimant’s loss and efforts to mitigate that loss and awards the claimant €25,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)