EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Dune Shoes Ireland Limited UD1497/2012
against the recommendation of the Rights Commissioner in the case of:
Nathalie Wosser
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr M. Carr
Mr A. Butler
heard this appeal at Dublin on 9th January and 4th March 2014
Representation:
Appellant : Mr Brian Gageby B L instructed by
William Fry, Solicitors, Fitzwilton House, Wilton Place, Dublin 2
Respondent : Mr Eamon Woods, UMTTIE, 27 South Frederick Street, Dublin 2
This case came before the Tribunal by way of an appeal by a former employer against a recommendation by a Rights’ Commissioner reference r-121679-ud-12/RG
The determination of the Tribunal was as follows:
Appellant’s Case
The appellant deals in the retailing of footwear. It does this either through its own shops or as a concession outlet in large department stores. Its policies and procedures in treating odd shoes, and faulty returns were widely circulated to its employees. Staff are allowed a company discount on its products and may also benefit from the in-store allowances. In this case the respondent was employed at a concession outlet based in a west Dublin establishment. Security personnel at that store reported to the appellant that the respondent might have misused their discount allowance in purchasing perfume. It also emerged that on 5 September 2011 the respondent was involved in a transaction that might have breached the appellant’s policies and procedures concerning the sale of odd shoes to a family member.
As a result of an investigation meeting held on 4 October 2011 the appellant placed the respondent on suspension. That action was confirmed to her the following day in the form of a letter written by the store manager of another concession shop. That letter also informed the respondent that she was facing a disciplinary hearing on 8 October. It also stated that enclosures were contained with that letter. This manager told the Tribunal he was conscious of the short notice but added that opportunities were given to the respondent to postpone the hearing. She opted not to do so as well as declining to have a witness or representative present on her behalf. The respondent also acknowledged the seriousness of the situation. While she had not received the formal letter advising her of this meeting she had got an electronic mail about it.
This manager adjourned the disciplinary hearing after twenty minutes. He then read through the notes of that meeting, considered the responses of the respondent and concluded her breaches of company policies over odd shoes and faulty goods amounted to gross misconduct. That gross misconduct extended to the respondent conducting a transaction with her mother. During that twenty-minute adjournment he also phoned and spoke to a person from the human resource department and told her of his decision in this matter. The witness then recommenced the hearing with an announcement that due to the appellant’s mistrust of her as an employee his sanction was dismissal. This manager wrote to the respondent two days later detailing the reasons for this sanction and reminded her of the right to appeal it. The dismissal took immediate effect notwithstanding an indication that the appellant would be paid in lieu of notice of it. According to the witness that notice indicator was inserted in error.
At the hearing this witness accepted that the shoe purchase was for the respondent and not for her mother. However, that did not change the fact that she had acted contrary to company policies and procedures. He did not consider imposing any other disciplinary sanction as this was a case of gross misconduct. The witness was not aware of previous breaches by the respondent and did not accept the appellant treated the respondent unfairly.
An area manager chaired appeal hearings in November 2011. The initial hearing was aborted due to an inappropriate representative on the respondent’s behalf. The second hearing took place on 20 November with the appellant having a human resource person present as a note taker only, and the respondent was represented by a trade union official. The area manager insisted that the note taker “did not run the show”. This area manager wrote a lengthy letter to the respondent dated 16 January 2012 in which he upheld the decision to dismiss.
Respondent’s Case
The trade union official present at that second appeal hearing told the Tribunal that this note taker and human resource person conducted ninety percent of its proceedings. The area manager said very little. However, this witness did not raise an objection to that scenario at the time and only added “a few words” towards the end of that meeting.
The respondent commenced employment with the appellant in May 2008. Up to the events of October 2011 she had not been the recipient of any disciplinary sanction from her employer. On 17 September 2011 the respondent emailed her area manager concerning an incident she experienced with the store manager. She complained that she found his behaviour intimidating and demeaning. She did not receive an acknowledgement from that manager but maintained he was aware of her complaint at the time. The area manager eventually acknowledged her complaint in a lengthy letter to her on 16 January 2012. The respondent told the Tribunal that due to that complaint a process started against her from the appellant that led to her dismissal.
When the respondent returned from leave in early October 2011 she was invited to an investigation meeting. That meeting was chaired by the manager of the concession outlet. Recorded transactions conducted by the respondent were the subject of that meeting. The respondent explained those transactions, how they were costed, and who the purchaser was. Following that meeting the respondent was placed on suspension and then asked to present herself at a disciplinary hearing. On the late afternoon of 7 October she took a phone call from the human resource manager who was based overseas. That manager informed the respondent that the disciplinary hearing was to take place the following morning. This was the first notice the respondent had of such a meeting. Approximately one hour later an email was sent to her confirming this meeting. She only received one of two attachments with that email. Notwithstanding the short notice and being not fully aware of the seriousness of the situation the respondent opted to attend that meeting.
That disciplinary hearing was conducted by a different store manager who more or less asked her the same questions as those put to her at the investigation meeting. She replied as before explaining her role in the transactions of 5 September. The respondent accepted that to some extent she breached company policy in handling those transactions. She cited mitigating circumstances for those breaches. The respondent did not raise the issues of her late notification of this meeting nor the non arrival of a second attachment. When the store manager resumed the hearing and following a discussion with the overseas human resource manager he then informed her that her job with the appellant was gone.
An appeal hearing eventually occurred on 20 December 2011 chaired by the area manager. Also in attendance were the human resource, the respondent, and her trade union representative. According to the respondent the human resource manger was the main spokesperson for the appellant. The respondent received a six page letter from the area manger dated 16 January 2012. He upheld the sanction of summary dismissal as relayed to her on 8 October 2011.
Determination
Having carefully considered the evidence in this case the Tribunal varies the recommendation of the Rights’ Commissioner under the Unfair Dismissals Acts, 1977 to 2007. The approach, practices, and management of the appellant’s case was flawed in some respects. The respondent’s initial complaint went unacknowledged and gave rise to the assertion that the appellant acted on it to the determent of the respondent. Notwithstanding, the respondent’s choice to proceed with a disciplinary hearing the appellant allowed that hearing to proceed. It was clear that the respondent had insufficient notice and indeed incomplete information of the situation she was facing into. There remains some doubt as to the exact role the appellant’s human resource manager played in this case. That role and the disputed input of the area manger contributed to the appellant’s flawed handling of this case.
The Tribunal noted the respondent’s acceptance that she breached company policy on transactions, albeit in a minor way. Despite her concerns about the disciplinary hearing she attended it without representation and did not object or seek an adjournment to it.
In varying the recommendation the Tribunal awards the respondent €12,000.00 as compensation for her unfair dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
this ________________________
(Sgd.) ________________________
(CHAIRMAN)