EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD481/2012
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. M. Flood
Mr F. Keoghan
heard this claim at Dublin on 20th June 2013
and 22nd January 2014
Representation:
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Claimant(s) : Mr Brian Kirwan, Plunkett Kirwan & Co, Solicitors, 175
Howth Road, Killester, Dublin 3
Respondent(s) : Ms. Michelle Ni Longain, Byrne Wallace, Solicitors, 88
Harcourt Street, Dublin 2
Respondent’s Case
The claimant worked as a sales assistant for the respondent company which operates major supermarket retail outlets countrywide. He was employed at one of the respondent’s Dublin stores situate in a large shopping centre and his duties included collecting trolleys in the car park of the shopping centre and returning them to various stations around the premises. The grocery manager at the store at the time of the claimant’s dismissal known as (RL) gave evidence that on 24 January 2012 he was informed by security in the shopping centre that a customer had reported lost property from her shopping trolley in the car park. On receipt of this information he commenced an investigation and reviewed CCTV footage as part of the investigation. He told the Tribunal that the CCTV footage showed the claimant removing goods from a trolley left in the trolley bay and bringing them to another store in the shopping centre. He then exited that store without the goods. The claimant was then invited to an investigation meeting following the review of the footage. At the meeting a number of allegations were put to the claimant that he had breached company policy in respect of the lost property insofar as the claimant had removed the goods from the shopping trolley concerned. The goods, two packets of cigarettes and a card, were in an unmarked bag. It was alleged that the claimant had brought the goods to a carpet store in the shopping centre and told the owner that he would collect them later. This was in breach of company policy on lost property, a copy of which was opened to the Tribunal.
The witness told the Tribunal that the claimant initially denied the allegations but after some probing and being informed of the existence of CCTV footage admitted to the offence. The claimant also said that he understood the company procedures in relation to lost property and was offered the opportunity of viewing the CCTV footage but declined the offer. The witness gave further evidence that the claimant stated that this was the first time it had happened and he had made a big mistake. The claimant admitted that he had subsequently removed the goods from the carpet store and placed them in his locker.
The claimant was then suspended on full pay pending the outcome of a disciplinary hearing scheduled for 26 January 2012. At the disciplinary meeting the minutes of the investigation hearing were read to the claimant and he agreed that the minutes were accurate. The disciplinary hearing proceeded and the claimant was asked why he had not followed company procedures in relation to the lost property. The witness told the Tribunal that the claimant replied that he was under a lot of stress, he was not thinking straight and he did not know why he did it.
The witness gave further evidence that he took the decision to dismiss the claimant due to the seriousness of the breaches of company policies and procedures. He did not believe that he would ever have found the answers to the lost property were it not for the existence of CCTV footage. He conveyed his decision to dismiss the claimant by way of letter dated 28 January 2012 and the claimant was given the right to appeal the decision. The claimant exercised his right of appeal by way of letter dated 1 February 2012. The regional manager known as (JO’B) conducted this appeal and upheld the decision to dismiss the claimant.
The Tribunal heard further evidence from the company’s Human Resources Manager and textiles manager. The Human Resources Manager had attended the investigation meeting and the textiles manager had attended the disciplinary hearing. Both witnesses confirmed that they believed the sanction of dismissal was proportionate and the company had followed the correct procedures in relation to the dismissal.
The security manager at the shopping centre at the time of the claimant’s dismissal also gave evidence to the Tribunal. He confirmed that he was not present at the centre on 24 January 2012. He reported for work on the following day and as part of the investigation he viewed CCTV footage and spoke with the carpet shop owner. He gave evidence that the carpet store owner thought the bags left in his store belonged to the claimant and the claimant did not mention to him (the carpet store owner) that the goods were lost property.
Following evidence given by the claimant that he cannot read or write English the respondent indicated that if this is the case, this issue was never notified to HR or any representative of the respondent formally.
It was argued on behalf of the respondent that the dismissal was fair and proportionate. Despite opportunites the claimant never offered a reasonable explanation as to why he kept the goods in question in his locker until RL showed him the CCTV footage. In response to the argument that the claimant is seeking re-instatement the respondent indicated that this is not an appropriate remedy in the circumstances as the respondent has lost ‘trust and confidence’ in the claimant.
Claimant’s Case
The claimant gave evidence that he came to Ireland in 2000 and worked for the respondent company for over 6 years. He told the Tribunal that he cannot read or write English. Initially he worked on the respondent’s meat counter and was moved to the floor area and ultimately worked in the car park area collecting trolleys and returning them to the trolley bay area. He told the Tribunal that he had made mistakes in entering dates on paperwork when he worked at the meat counter due to his inability to read English. He was not provided with any paperwork when he moved locations within the store.
He reported for work at 12.30 on 24 January 2012 and began collecting trolleys. He discovered a bag left in one of the trolleys and took it to a carpet store in the shopping centre. He told the owner that somebody had left it in the trolley and somebody may call for it. He continued to carry out his duties and returned to the carpet store approximately 4 hours later and was informed by the carpet store owner that nobody had called to collect the goods. He then removed the goods and stored them in his locker and requested the carpet store owner to make any caller for the goods aware that he had them in his locker. He told the Tribunal that the bags were unmarked and therefore he could not identify what shop in the shopping centre in which they had been purchased. If that had been the case he would have returned the goods to the particular shop as he had done so on many previous occasions. In that regard he had also returned lost property to the respondent supermarket in the past when the property could be identified as having been purchased in the respondent supermarket. He had never given lost property goods to the shopping centre security.
He was subsequently called to an investigation meeting on 24 January 2012 and a disciplinary meeting on 26 January 2012 and was dismissed with immediate effect by way of letter dated 28 January 2012 due to the seriousness of breaches of company policies and procedures involved. He appealed the decision but the decision was subsequently upheld following an appeal hearing. He accepted that the minutes of the investigation meeting were read to him at the disciplinary meeting on 26 January 2012. He told the Tribunal that he did not understand some of the content of the minutes but accepted that he did not make the respondent aware of this at the time. He gave evidence that he did not deny to the respondent that the bag contained cigarettes which he continually referred to as ‘smokes’. He denied that he was given the opportunity to view CCTV footage. He accepted that he said “You got me there” when it was put to him that he had the goods in his locker but he was very nervous. He had found the goods in a trolley in the car park and was unsure as to whom he should return the goods as he was not aware of the respondent’s policy on lost property. He told the Tribunal that he had never been given a given a copy of the respondent’s policy on lost property. He gave evidence that he never saw this document until the first day of the Tribunal hearing.
It was argued on behalf of the claimant that the respondent’s booklet on policies and procedures does not cover the issue of lost property and in particular lost property that is not identifiable as the respondent’s produce or products bought in the respondent’s prmises. The document entitled ‘Policy on Lost Property’ was not signed by the claimant whereas every other piece of paper presented to the Tribunal in relation to procedures and policies was. Furthermore, it was argued that this document was only presented to the claimant for the first time on the first day of this hearing despite requests for all documents relating to policies and procedures in advance of the hearing.
He told the Tribunal that he has been unemployed since the termination of his employment and outlined to the Tribunal the efforts he has made to gain alternative employment. He has worked as a school caretaker under a Job bridge internship programme for 8 months since the termination of his employment. He is seeking reinstatement to his position in the respondent.
Determination
The Tribunal considered the evidence of both parties carefully. Ultimately, this is a case where the policies and procedures of the respondent and the proportionality of sanction imposed by the respondent have to be examined. The Tribunal must decide whether the respondent acted reasonably in all of the circumstances.
The respondent is relying on the document entitled ‘Policy on Lost Property’ which it says forms part of the general procedures and is an addendum to the booklet issued to staff. The claimant states that he never saw the document before the first day of the hearing. The document presented to the Tribunal is not signed by the claimant whereas all other procedure related documents were. The Tribunal believes that the circumstances of this particulars case i.e. lost property that is not identifiable as the respondent’s produce or product, is not covered by the booklet on policies and procedures. In all of the circumstances the Tribunal believes that on the balance of probabilities the claimant was not appraised of the document in question and the content thereof.
While the claimant outlined what he believed to be the appropriate action in relation to lost property in the initial meeting with RL he also believes that if he found goods with an identifiable store bag, he would just return it to that store rather than bring it to the respondent’s security or the shopping centre security, as he had done in the past. The Tribunal believes therefore that there was no hard and fast rule set out by the respondent in relation to lost property of goods not identifiable as goods bought in the respondent’s premises.
In terms of the assertion that the claimant cannot read, the Tribunal cannot look behind this evidence but the respondent cannot be criticised for the fact that the claimant cannot read English as they were unaware of that. However the respondent placed significant reliance on minutes of meetings that were presented to the claimant and his evidence was that he did not understand some of the minutes of the meeting of 24 January 2012.
However, the Tribunal cannot condone the behaviour of the claimant in the circumstances. It is unusual that one would find goods and put them in ones own locker. The goods were not his property. He contributed significantly to his own dismissal by his actions and a certain amount of evasiveness. The relief of re-instatement is not appropriate in the circumstances as the Tribunal accepts that the ‘trust and confidence’ between the parties is now gone.
The onus is on the employer to show that the dismissal was fair. There is a grey area in terms of lost property that does not belong to the respondent. The respondent is relying on flawed lost property procedures and this forms the basis of the Tribunal’s decision. The bag was unmarked and the goods were not identifiable as those bought in the respondent’s premises and the claimant’s evidence before the Tribunal was that he was unsure how to deal with the situation. The Tribunal believes that in the circumstances the sanction was disproportionate and that the respondent could have considered alternative sanctions at the time of the incident such as suspension without pay. In the circumstances the claimant was unfairly dismissed however the Tribunal believes that the claimant contributed to the situation he found himself in which lead to the dismissal, therefore the Tribunal awards a reduced amount of €25,000 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)