EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD54/2012,
MN25/2012
WT14/2012
against
EMPLOYER
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 K. T. O'Mahony B.L.
Members: Mr P. Casey
Mr D. McEvoy
heard this claim at Cork on 22nd July and 25th September 2013
Representation:
Claimant : Mr Donal Ryan B L instructed by
David J O Meeara and Sons, Solicitors, 130 Bank Place, Mallow, Co Cork
Respondent : Mr Marcus Dowling B L instructed by
Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent operates a large network of retail outlets selling products from groceries to household items. The events in this case centred around two of its stores in Cork city centre. On 25 October 2011 the textile regional manager for that area wrote to the claimant informing him that the respondent was terminating his employment with immediate effect. The main reason given in that letter of dismissal was that the claimant had breached the respondent’s policies and procedures for his role in certain transactions.
Those transactions involved the claimant and other employees seeking and securing refunds on goods acquired in one store and submitted to its neighbouring store for the purposes of monetary gain. However, the textile regional manager told the Tribunal that the employer in this case did not suffer a financial loss as a result of these disputed transactions. This witness attended two meetings with the claimant on 13 October to discuss a number of incidents that occurred on 9 October. Prior to those meetings this witness viewed close circuit television and receipts connected with those incidents. Their first meeting was labelled an investigatory meeting where the claimant confirmed his involvement, accepted it was wrong, apologised, and offered an explanation for his actions. The second meeting was of a disciplinary nature and concluded with the claimant being suspended.Following those meetings this witness spoke to other staff involved identified in those transactions.
Two disciplinary meetings took place on 24 October attended again by the textile regional manager and the claimant among others. Towards the end of the second meeting the witness informed the claimant that he was being dismissed with immediate effect. At that time the claimant did not object to attending those meetings within that time frame. That announcement was followed up the next day by a formal letter sent by the witness to the claimant confirming that decision. The witness justified that sanction on the grounds that the claimant breached the respondent’s procedures of which he was a custodian.
In accepting that the same personnel were involved in the investigation process and disciplinary meeting the textile manager felt that the process leading to the dismissal was fair. This was more than a foolish act .or error of judgement on the claimant’s part but had to be thought out and executed. The claimant also involved other less senior employees in those transactions. Up to this incident the claimant had an excellent unblemished record with the respondent and was “well on top of his game”
Giving sworn testimony, EOD (a regional grocery manager for the respondent) said that she had dealt with the claimant’s appeal against his dismissal. There was a thorough investigation. Three employees had been sent from the claimant’s store to another store. CCTV footage had been watched. The claimant had admitted to his behaviour. Asked at the Tribunal hearing if the penalty of dismissal could be regarded as disproportionate, EOD replied that the claimant’s actions had been wholly unacceptable and that the respondent had to have trust that its procedures would be complied with. The claimant had deliberately planned to breach respondent procedure and had instructed others to do so. It was gross misconduct in her view. It had been requested that an employee conceal their identity and get a fraudulent receipt. It was the claimant’s job to ensure that the respondent’s procedures were adhered to and to manage his team to ensure high adherence to procedures. It was the claimant’s responsibility to deal with breach of procedures through the disciplinary process. Instructing three members of staff to do wrong was serious misconduct i.e. gross misconduct. The claimant was a custodian of the respondent’s procedures and ought to lead by example.
There had been a serious breach of trust. EOD gave serious consideration to the sanctions possible but she felt that there had been gross misconduct and that the claimant’s position was untenable.
Under cross-examination, EOD conceded that she had not sought minutes of meetings with other employees. The claimant had admitted to the facts and to the behaviour in question. There was no dispute and nothing more to it. She thought the process had been fair.
EOD accepted that the claimant had had fifteen years of exemplary service. When it was put to her that refunds impacted on managers’ sales she replied that she had been twenty-eight years with the respondent and had never seen this before. She continued that all managers were asked to do was manage and they were never pressed on refunds.
It was put to EOD that the claimant had made a full admission and that the respondent had not taken this into account. She replied that it would be difficult to see the claimant in a post of trust with the respondent again given that he was to have been a custodian of company procedures. She had given consideration to the claimant’s work hitherto but there was both his behaviour and the issue of instructing three others to breach procedures.
On the subject of whether other sanctions could be used EOD said that the case was so grave and serious, that the respondent had to be able to trust managers, that the claimant had compromised the trustworthiness of employees and that the claimant had been guilty of gross misconduct.
Giving sworn testimony, the claimant said that he had started working for the respondent in May 1996 while still at school. He had worked for about five years as a sales assistant for the respondent in Mallow. After college he had gone into management with the respondent. That was November 2001. He had studied business. In Cork City he had been a trainee manager at Patrick Street for about a month before working for over a year in Blackpool and then transferring to Douglas as a manager. He subsequently worked as a manager in Clonakilty before continuing in management in Douglas and then in North Main Street before ultimately working as a manager in Merchants’ Quay. His record was exemplary. He showed great drive and initiative. Since college he had gone into management. He had been a department manager and then a store manager.
After seven years the respondent had used the claimant for store openings or promotional events. TOS (regional operations manager) had seen the claimant as a great sales manager. His annual appraisals were very good. He was promoted from store to store. He hoped that his record spoke for itself. The respondent used him as an exemplary manager. He gave what was needed.
Describing the Merchants’ Quay store, the claimant said that it had two floors one of which the respondent wanted to halve in size. His main role was to control the downsizing at Merchants’ Quay from two to 1.5 floors. Many staff were transferred (because the respondent needed their experience at Patrick Street) and the claimant was left with the rest. He was to control costs and push sales. He was in constant contact with TOS regarding things like which lines would sell more. The respondent used the top floor for stockholding. The claimant would have to control stock leaving.
Regarding sales figures, TOS would discuss them every week. TOS would have the region’s figures. The claimant would offer details of whether his figures had been better or worse than average.
Refunds would be discussed. TOS would bring up the value of refunds for Merchants’ Quay. TOS would complain about the high value of refunds for Merchants’ Quay. The claimant would reply that his store was following the respondent’s policy but that, being so close to Patrick Street, his store took back the majority of refunds from Patrick Street. In one week ninety per cent of the claimant’s refunds were external to Merchants’ Quay. The majority of them were from Patrick Street (where the respondent had a three-floor store with customer service on the top floor. Also, Merchants’ Quay had a car-park. TOS dismissed that though it was a valid reason why the claimant’s refunds were so high. TOS just told the claimant to control the refunds. The claimant’s store was following policy but could not stop the impact of refunds which were detrimental to his sales figures. The claimant was told to control refunds but only by following procedure. He was told to accept all (refund) stock of the respondent unless he was otherwise directed.
On Sunday 9 October 2011 the claimant was on duty from 11.00 to 18.30. The store was to open at 14.00. From 11.00 to 14.00 the claimant prepared the floor. To maximise sales the store opened for business. However, the early sales total was negative by refunds. This negated the effect of having opened early. The claimant now regretted it because he would have to tell TOS about the high number of refunds. The early refunds should rightly have gone to Patrick Street. The claimant decided to get the refunds from Patrick Street. This was not calculated or planned. It was just the pressure of controlling costs and refunds. The claimant was under pressure because Merchants’ Quay was so near Patrick Street. This reason was dismissed by TOS.
Regarding the three employees who had been involved in the matter, the claimant agreed the facts but said that he had not asked them to sign fraudulent names and addresses. He just sent over the refunds that would not have come to his store if he had not opened early.
On Monday (10 October 2011) a security manager from Patrick Street came into Merchants’ Quay, did not speak to the claimant and went straight into the CCTV room. The claimant did not know why he was there. He did think that it was about refunds processed on the Sunday. To the security manager the claimant said nothing but he contacted TOS to explain the Sunday’s events and did so. TOS said that it was under investigation.
On Thursday 13 October 2011 the claimant was brought into a meeting. VC (a HR manager) was taking minutes. In that meeting the claimant explained all and “put his hands up”. He had made no personal gain. He was “very apologetic about three employees putting their jobs on the line”. He “had not thought it through”. TOS was going from a disciplinary to an investigatory process.
The claimant had been put under pressure about constantly refunding. TOS had been phoning him every week because the claimant’s refunds had been so high. Three hundred euro in refunds had been given to Patrick Street (in the first part of Sunday 9 October 2011). The claimant had fifteen years’ service. His wife was pregnant with their first child. He had never thought that he could lose his job. He had never instructed employees to use false names and addresses.
Under cross-examination, the claimant spoke about the different layouts of the respondent stores at Merchants’ Quay and Patrick Street in that the presence of a car-park and different store location of customer service were factors by which the respondent knew of higher refunds at Merchants’ Quay. The claimant was questioned every Monday as to why his refunds were so high. TOS, who told him to stick to procedure, could not accept all of the claimant’s reasons and said that the refunds (between Merchants’ Quay and any other store) were “like for like”.
It was put to the claimant that TOS had accepted his reasons for there being more refunds at Merchants’ Quay, had never argued with the claimant and understood the figures better than the claimant did because TOS was looking at the trends. The claimant replied that TOS had not understood some of the facts and that TOS only understood the facts better than he in the regional context. It was not disputed that TOS had had “metrics” that the claimant had not had.
When it was put to the claimant that he had not raised this matter with the respondent he replied that he could not recall every period in his time but that there had been a refunds problem for certain periods when the two stores were open. Although the claimant had got a very high rating sales went down by half. It was put to him that the respondent had understood the situation and that TOS had just been egging him on, had been urging him to follow procedure and had never said that he could be disciplined. The claimant replied that TOS had not wanted to know about the situation and that it was undisputed that the claimant’s bonus could be affected. A high refund figure lessened the overall sales figure. The claimant had wanted to increase his sales and so had opened early on Sunday 9 October 2011.
It was put to the claimant that he had definitely had one employee baulk at being instructed to go to Patrick Street for refunds but that the claimant had persisted. This was not denied. The claimant stated that he had just told one employee to change clothes. He had not thought it through. He knew that she could say that he had told her to do it. He had only instructed for a transfer to the value of three hundred euro.
Saying that he had rung TOS on Monday 10 October 2011, the claimant disputed that his admissions had only been prompted by CCTV. When it was put to the claimant that he had known that the respondent was “on to” him the claimant did not deny this.
Asked if dismissal had been within the respondent’s range of options, the claimant argued that there were other alternatives (short of dismissal) open to the respondent and that the respondent had known the impact dismissal would have on him especially as his first child was due in a month or two.
Questioned by the Tribunal, the claimant reiterated that the refund problem on 9 October 2011 had only arisen due to his store’s early opening and that after 2.00 p.m. he thought all refunds were his anyway. Regarding the money involved in the movement of refunds, he said that it would have been a matter of minutes before the cash was back and till balanced. He had checked the till balance the following day. He had not instructed that there be concealment of identity from the first transaction. He had made a very rash judgment regarding the second transaction.
Determination:
The claim brought under the Organisation of Working Time Act, 1997, falls for want of prosecution.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fails because it was not established that the respondent had breached the said legislation.
Regarding the unfair dismissal claim, the claimant had done his best to raise his sales performance but he had done so to the point of planning his conduct and the Tribunal cannot but deny the appropriateness of telling an employee to change her clothes for the furtherance of his design. The Tribunal has to accept the respondent’s reaction if it is within the range of reasonable responses. The claimant concocted a scheme. He was the victim of his own career success. The Tribunal was not without sympathy regarding sales pressure and acknowledges that the emphasis was on sales figures. However, other employees could have lost their jobs due to the claimant’s instructions. The claimant showed excessive stubbornness. It weighed with the Tribunal that his behaviour was premeditated. He instructed three members of staff to do something totally against the procedures of the respondent and, in so doing, put their jobs in jeopardy. It was more devious to instruct another to breach procedure.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)