EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYER – appellant UD83/2013
against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr W. Power
Mr A. Butler
heard this appeal at Dublin on 28th January 2014
Representation:
Appellant(s) : Tom Smyth & Associates, 61 St Marys Road, Midleton, Co Cork
Respondent(s) : Ms Kathleen Funchion, SIPTU, Liberty Hall, Dublin 1
The determination of the Tribunal was as follows:-
Determination
This matter comes before the Employment Appeals Tribunal on foot of an appeal by the employer of a Rights Commissioners recommendation reference – R-122134-UD-12/EH.
The Tribunal has carefully considered the evidence adduced in the course of this hearing. The employee came to work with one of the employer’s retail units in Dublin in and around September 2009. The employee was being trained up to the position of manager at a salary of €34,000.00. The employer indicated that the employee was not suitable management material but that his general interest in animals and the length of time dedicated to his training meant that he would be a valuable sales assistant. The employee was apparently happy to take on this position at a salary of €25,000.00 per annum.
The employer company made no secret of the fact that it had high expectations of its employees and to this end warned that it had engaged the services of “mystery shoppers” which would descend on a monthly basis into stores to challenge and check the knowledge, skill and demeanour of the employees.
The employer believed that this kept its employees sharp but the Tribunal would observe perhaps this didn’t allow for adverse and/or mitigating circumstances. The employee gave evidence to the effect that there was a constant sales drive on from management and that the employees were expected to have a €25.00 purchase average from the customers they dealt with. The employees were expected to promote and push own-brand products and were instructed to engage with customers so as to maximise their purchase potential.
There was no real evidence of a remunerative incentive for this type of activity it was simply part of the company policy.
The employer indicated that the mystery shopper gave marks for sales performance and if an employee achieved a 95% score then a bonus of €100 gross (or €60 net) would be paid out. However as the mystery shopper only came once a month and presumably to a different member of staff each time then the financial incentive is dubious.
The employee gave evidence which was largely not contradicted to the effect that he would very often be the only member of staff on the floor as the manager would be called into the back office to take care of matters or simply to take a lunch break.
The employee scored 31% in a mystery shopper assessment conducted on the 20 December 2010. It is clear from the report presented that the employee was the only member of staff on the floor and was otherwise engaged with another customer. The Tribunal accept that the employee should have called for another member of staff to help with a second query as being best practice. The mystery shopper was not ignored and once he was in the sight of the employee he was offered assistance.
The employee failed to push product on this occasion. Whilst the employee served the shopper in an apparently satisfactory way it would come no where near the standard expected by the employer and in which the employee was trained.
By way of demonstrating how seriously the employer took this matter the employee was given a formal written warning which brought him to stage three of a five stage disciplinary process. The warning remained on file for a period of nine months and not the stipulated six months again reflective of how seriously this matter was been taken by management. The warning was dated the 4 February 2011.
Unfortunately for the employee a second encounter with a mystery shopper in or around August 2011 yielded an assessment mark of 70% - again not up to the standard required although the mark had doubled from the previous assessment in December.
The employee was brought to a disciplinary meeting on the 7 September 2011. The Tribunal would be highly critical of the fact that this meeting proceeded in the absence of his nominated representative who had let him down at short notice.
On foot of this disciplinary meeting the employee was given a final written warning which stated that the warning would remain in place for a twelve month period commencing on the 15 September 2011.
The Tribunal accepts that the significance of this warning could not have been lost on the employee who was on notice of the fact that any further disciplinary matter would put his position within the company at risk.
The employee was given the opportunity to appeal this decision to an independent external person but this opportunity was not taken up. Had this option of appeal been taken up it might have been an opportunity to point to the obvious flaw in the proceedings which is highlighted by the lack of requested representation.
Subsequent to this event, management became aware of the fact that all the staff and management in this particular retail unit had been failing to do on-shelf stock takes to ensure that out of date stock was not being left on the shelf. This was an across the board failing on the part of the staff employed in this unit and they were all subject to a disciplinary process primarily because this daily task was not being completed.
The evidence was that the management in the retail unit accepted this practice or perhaps turned a blind eye to it as the pressure of time meant that not everything expected by head office could be completed in a reasonable and concise manner.
Unfortunately for the employee as he was on a final written warning, the employer believed it had no alternative other than to apply the next level or stage of the disciplinary process and terminated the employee’s employment.
On balance the Tribunal believes that the employee was treated most unfairly. All of his colleagues were given a much lesser disciplinary sanction at the time that the stock taking issues came to light. Whilst the employee may have been on a final written warning there was no obligation on the employer to move to termination. It was open to the employer to give a written warning. There is no question that the employee was not hard working and should never have been put on a final warning based on the one-sided evidence of a mystery shopper about whose credentials the employer knew nothing.
The Tribunal believe that the employer’s actions were heavy handed and unfair in all the circumstances. The appeal by the employer fails and the recommendation of the Rights Commissioner is upheld. The Tribunal vary the award made by the Rights Commissioner and award the employee the sum of €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)