EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Eleanor Preston - claimant UD517/2012
RP385/2012
MN396/2012
against
Dunnes Stores - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr D. Hegarty
Mr J. Flavin
heard this claim at Cork on 4th November 2013
Representation:
_______________
Claimant: Mr Byron Wade B.L. instructed by,
Joyce & Co., Solicitors, 9 Washington Street West, Cork
Respondent: Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Dismissal is not in dispute in this case.
The Claim under The Redundancy Payments Acts, 1967 to 2007 was withdrawn at the outset.
Respondent’s Case
The respondent is a large supermarket chain. The claimant worked as a department manager for the respondent having commenced employment in July 2002. The Store Manager (PT) of the respondent supermarket concerned gave evidence.
The supermarket allows various community groups and charities to carry out a ‘bag-pack’ to raise funds. The procedure is that the group write to the respondent requesting a bag-pack, the claimant puts all the request letters in a diary and is then in charge of scheduling the bag-packs limiting them to two a month.
PT, the store manager received a letter of complaint from a local community group. The complaint was that the claimant had opened an account in their name at a cash and carry. The community group’s letterhead was used to validate the association with the group to open the account. The wife of one of the community group leaders works for the respondent and the wife of another community group leader works for the cash and carry; hence the discovery and subsequent complaint.
As a result of this complaint PT held a meeting with the claimant on the 11th of February 2012. The claimant admitted taking the community group’s letter requesting a bag pack and doctoring it for the purposes of opening an account with the cash and carry. By way of explanation the claimant said she was in financial difficulty and was earning extra money from selling the cash and carry goods. The meeting was adjourned.
Later that day the meeting reconvened as a disciplinary meeting. The claimant was offered and declined representation. The claimant again admitted using the letter to open an account but denied selling the goods to respondent staff. The claimant then admitted to selling the goods purchased on a different cash and carry account to staff in the respondent. The claimant was suspended until the 13th of February and warned that the outcome of the disciplinary process could be dismissal.
At the disciplinary meeting on the 13th of February PT outlined the allegations as follows;
‘1.Misrepresestation of the company
2. Forgery
3. Fraud’
The claimant again explained her very difficult personal circumstances that led to her actions. PT had been aware of her difficult circumstances prior to this incident. The meeting was adjourned for PT to consider. PT sought advice from the HR department during the disciplinary process. As per the respondent’s disciplinary procedures, the claimant was dismissed for, ‘conduct, including social conduct unbecoming of an employee of the company or contrary to its best interest or which could bring the company reputation into disrepute.’
PT had “thought long and hard about it over the weekend”, so delivered his decision to dismiss the claimant when the meeting reconvened after a 15 minute break. The claimant was dismissed for gross misconduct; ‘as far as I & the company are concerned the bond of trust has been irrevocably broken’. PT outlined the appeal process to the claimant. The letter of dismissal was issued to the claimant on the same day. The claimant was a department manager and in a position of trust; no other sanction would be appropriate given the serious nature of the offence. PT did take the claimant’s long service, clean disciplinary record and family problems into consideration before making his decision.
The Grocery Regional Manager (EoD) conducted the claimant’s appeal. EoD had known and worked with the claimant for a number of years. EoD conducted the appeal by reviewing the disciplinary meeting notes and all other relevant documentation. An appeal meeting did not take place as, firstly that is not the respondent procedure and secondly, “she admitted everything so there was no point meeting.” EoD consulted with the HR department throughout the appeal process.
EoD took the claimant’s capabilities as a manager into consideration when she decided to uphold the decision to dismiss her; the claimant did not ask for her personal circumstances to be taken into consideration. EoD believes that, as the claimant was dismissed for ‘falsifying or interfacing with Company records, on your own behalf or on behalf of another employee’ in line with the respondent’s disciplinary process, the sanction to dismiss for gross misconduct was the right decision. (The company record being the letter from the community group.) Although the claimant was an excellent employee the bond of trust was broken, so any lesser sanction would not be appropriate. The appeal decision was communicated to the claimant by letter of the 2nd of March 2012.
Neither PT nor EoD were in communication with the community group after the claimant’s dismissal.
Claimant’s Case
The claimant admitted the offence that she was dismissed for. It was a serious error of judgement made during a period of great turmoil in her personal life.
The claimant believes the decision to dismiss her was made at the first meeting and that her good record was not taken into consideration.
The claimant gave evidence of her loss and her attempts to mitigate her loss.
Determination
Having carefully considered the evidence adduced, the Tribunal are of the view that as this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.
The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €14,000.00 in compensation.
The claimant is also awarded € 2,630.76 being the equivalent to 4 weeks’ 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)