UD31/2013, MN38/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                        CASE NO.

Employee        -           claimant                                                                                  UD31/2013

        MN38/2013

against

Employer         -           respondent

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms M. McAveety

Members:        Mr M. Carr

                        Mr O. Nulty

heard this claim at Monaghan on 15th January 2014

Representation:

_______________

Claimant:         Dermot Lavery & Company, Solicitors, Roden Place, Dundalk, Co Louth

Respondent:    Ms Caroline Latham B.L. instructed by,

                        Wells & O'Carroll, Solicitors, Main Street, Carrickmacross, Co Monaghan

Dismissal is in dispute in this case.

Claimant’s Case

The claimant was employed as a fitness instructor with the respondent from April 2011. The respondent is a hotel with a leisure centre. The claimant’s employment proceeded as normal until Thursday the 18^th of October 2012 when she was called to a meeting by the respondent Financial Controller (PJD). The Financial Controller is also involved in the general management of the respondent.

The claimant had no notice of the meeting or any forewarning as to the content of the meeting. PJD asked the claimant to ‘think strongly about what you have to say because it could have a serious effect.’ The previous Monday week the claimant had accepted €10.00 guest fees at the leisure centre reception, she failed to issue a receipt and the cash could not be accounted for. The claimant accepts that she failed to issue a receipt as she was so busy. She has no knowledge of where the €10.00 could be or any recollection of doing anything with the €10.00 other than what is normal cash procedure. As per a meeting in August 2012 the claimant was aware of the correct cash handling procedures but she was so busy she failed to follow them completely on this occasion.

After PJD questioned the claimant she was then given the opportunity to speak to her colleague (CmcM) that was also at reception at that time to see if that would jog her memory as to the whereabouts of the €10.00. The claimant’s colleague could not be of assistance so the claimant returned to PJD’s office.

The claimant returned to the office and told PJD that she had no explanation as to the whereabouts of the €10.00. He responded, ‘my hands are tied; I’ve no other option but to let you go.’ PJD told the claimant she could leave immediately or finish out the week and leave. The claimant considered and decided to leave immediately. There was no further contact or any correspondence from the respondent. The claimant does not fully accept the minutes of that meeting provided to her for the first time at this hearing; the claimant was in no doubt that she was dismissed and that she did not resign.

The claimant’s solicitor wrote to the respondent on the 2^nd of November 2012. The letter stated,

‘From our instructions it is clear that no specific reason was given to (the claimant) as to why she was being sacked but it is clear…that she was sacked because of your belief that she had stolen €10.00.’

The respondent did not reply to this letter or dispute the assertion by any other means.

Following the claimant’s dismissal she contacted her colleague and asked her to destroy her personal training notes that she had left on the premises. These notes were the claimant’s private notes on lesson plans and were not required or requested to be completed by the respondent at any time.

Respondent’s Case

PJD is employed by the respondent as a Financial Controller but is also heavily involved in the general management of the respondent.

CmcC (the claimant’s colleague) alerted PJD that it appeared €10.00 guest fees had been taken in but had not been recorded in the appropriate book. On foot of this PDJ investigated the whereabouts of the cash. He viewed the CCTV to see who had taken in the €10.00 guest fee. There was no receipt for the €10.00. The delay in approaching the claimant was to wait for the safe to come off time-lock and allow it to be checked for the un-receipted €10.00.

On Thursday the 18^th of October PJD called the claimant to his office to get an explanation for the missing €10.00. PJD did not suggest or accuse the claimant of stealing the €10.00. There is no till or ‘cash-point’ at the leisure centre reception so it has happened before that money has been misplaced or receipts not issued.

PJD asked the claimant for an explanation; when she could not provide one he suggested she speak to her colleague (CmcC) who had been working alongside her on the day in question. When the claimant returned to the meeting she still had no explanation as to where the €10.00 was. The claimant admitted that she was so busy she had not issued a receipt. PJD did not dismiss the claimant or suggest that her contract would be terminated. PJD informed her that it was a serious situation and that he needed to think about it and decide what to do. The claimant then said, ‘I’ve told you what happened and I may as well just leave.’ PJD responded by saying she could work out her shift and leave. PJD did not request a resignation letter.

The following day CmcC informed PJD that she had received a text from the claimant requesting she destroy her records. PJD took this request as “nasty and there was no going back...things had gone too far.” The claimant’s position was replaced.

PJD maintains that this was not a disciplinary meeting so the respondent’s disciplinary procedures did not apply. PJD did not reply to the claimant’s solicitor’s letter as “she was gone and the text sent by her, there was no going back.”

CmcC gave evidence of her part in the events. The last place CmcC saw the €10.00 was when it was left sitting on the desk. The claimant returned the second time from the meeting with PJD and said ‘I’m gone.’ The claimant sent CmcC a text asking her to destroy her personal notes; CmcC informed PJD of the claimant’s request.

Determination

The respondent defacto dismissed the claimant by giving her the impression that she was dismissed and knowingly allowed her to continue in this belief. At no point before the hearing did the respondent dispute the claimant’s dismissal. The respondent further failed to respond to the claimant’s solicitor’s letter to dispute the claimant’s dismissal, thus allowing the perception of dismissal to prevail. The procedures in all the circumstances were unfair although the claimant’s hasty actions contributed to the situation.

The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €15,000 in compensation.

The Tribunal award the claimant €380.00 being the equivalent to one week’s notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)