UD690/2012, WT211/2012, TE80/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                  CASE NO.

Claire Hayes    -claimant                                                                     UD690/2012

                                                                                                            WT211/2012

                                                                                                            TE80/2013

against

Patrick Kinsella T/A Kinsellas of Rocklands  -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Browne

                    Mr N. Dowling

heard this claim at Wexford on 25th February 2014

Representation:

Claimant:

             Cllr George Lawlor, C/O SIPTU Office, O'Leary Road,

             Coolcotts, Wexford

Respondent:

             Ensor O'Connor, Solicitors, 4 Court Street, Enniscorthy, Co

             Wexford

Summary:

The claim under the Terms of Employment (Information) Act came before the Tribunal by way of an employer (the respondent) appealing against the Rights Commissioner Recommendation (reference: r-122290-TE-12/DI)

Dismissal as a fact was not in dispute between the parties.

It was the respondent’s case that since the Rights Commissioner hearing of the Terms of Employment claim, the contract signed by the claimant was found and furnished. It was the claimant’s case that a contract was produced for which there was no original and that the date of the document appeared to be doctored.

The claimant worked in one of the respondent’s premises (Rocklands) for a number of years. During her employment she was promoted to senior supervisor. In 2011 the claimant moved to work at another premises (Killurin). It was the claimant’s evidence that DB, a consultant to the respondent, wanted her to move to Killurin as her hours at Rocklands could not be guaranteed. The claimant was assured that even if the lease in Killurin was not renewed she would be retained by the respondent. It was evident to the claimant from how little stock was put into the Killurin store that the respondent did not intend to renew the lease. A member of management with the respondent (SK) stated that the claimant was free to return to the Rocklands store if Killurin did not work out.

The claimant’s employment was largely uneventful. One issue arose in January 2011 for which the claimant received a verbal warning for not correctly completing the balancing of daily cash. The claimant stated that a bag of cash had been dropped in the corner of the office and for this reason she had missed counting it. The verbal warning was to remain on file for six months but DB stated in evidence that he still had “perfect faith” in the claimant.

DB gave evidence that SK reviewed CCTV footage from 30/09/11 due to an issue that had arisen in relation to missing Mass card monies. However, when the footage was viewed it was found that the claimant was carrying out her duties contrary to policy and using her mobile phone while working. SK consulted with DB who observed the claimant on CCTV footage taking items from the shop and not paying for them. The disciplinary procedure was not immediately invoked as nothing untoward was suspected at that time.

The claimant was asked to attend a meeting the following day. It was the claimant’s evidence that she was asked at this meeting about missing Mass card money and using her phone while at work. However, this was the only time at which missing Mass card money was discussed with the claimant. It was the claimant’s evidence that she was told at this meeting that DB had a number of questions and that if she answered them satisfactorily she would be placed back on the rota. The claimant stated that she was not informed that she could bring a representative to this meeting. The claimant explained that she used her phone that day as her daughter was ill.

The claimant subsequently was on sick leave from 4/10/11 to the following January. The claimant’s sick certificate expired on 19/01/2012 and she was asked to attend a meeting on 20/01/12 which would be a disciplinary meeting at which she would be shown CCTV and that she could bring a representative. The claimant accepted that she was offered a representative but disputed that she was informed it was a disciplinary meeting. It was the claimant’s understanding that after this meeting the CCTV footage was to be sent for independent review.

At the meeting on 20/01/12 it was put to the claimant about the lack of effort she had made in submitting medical certificates. She was shown CCTV footage of being on the phone in the shop and not carrying out tasks and it was put to her that on a number of dates and times she had taken items from the shop and not paid for them. SK of the respondent had reviewed CCTV footage for a period of ten days in light of what the footage from 30/09/2011 had shown. It was the evidence of the respondent’s witness that the claimant was informed that the matter was serious and could lead to dismissal and that the claimant had offered to pay if there was anything that she had not paid for. During cross-examination the claimant stated that she did not deny taking bottles of drinks or snacks but that she had paid for them.

The claimant was invited to a further disciplinary meeting and told that she could bring a representative and that the matter was serious. The claimant was shown footage and was told that not only did the footage show her on the phone in front of customers but also that for every day of footage there were items she had not paid for. The claimant said that she could provide laser receipts for these and the meeting concluded. The CCTV footage could not be downloaded and given to the claimant as it was an old system but the claimant was invited to view it at any stage. The claimant was suspended with full pay pending the conclusion of the investigation.

A final meeting was held with the claimant on 18/02/2012 but DB was not present at this meeting. The claimant was informed at this meeting that if she had nothing further to add then she was being dismissed for theft which comes under the heading of gross misconduct in the respondent’s policy. The claimant, as a supervisor ensured that all staff followed policy and procedures. DB and SK had presented their case to PK who made the decision to dismiss the claimant. PK was not present at the Tribunal hearing. DB confirmed that there was no appeal as the owner PK had made the decision to dismiss the claimant and there was no other management tier. In reply to questions from the Tribunal, DB said he was concerned that there was no option of appeal. He usually hears the appeal but not in this instance as he was involved in the process.

A letter of dismissal dated 17/02/2012 issued to the claimant which stated that her employment was ceasing from 6^th February, amended to 18^th February on the letter. SK, witness for the respondent was unsure as to who had typed this letter.

SK gave evidence that he examined the CCTV in detail for 23/09/2011 and found that the claimant did not pay at the till for items. Staff must pay for items and in this instance the items the claimant took from the shop during her shift were not paid for. The explanation offered by the claimant was she paid for items the following day but SK stated that he watched days of footage to confirm if this was the case. From the footage he could establish what the claimant had paid for and what she had not. The claimant also stated that she had laser receipts as proof of payment but ultimately only three receipts were produced that were relevant. There were 20/30 items not paid for over ten days of footage. SK offered for the claimant to view the footage with him. The CCTV footage was not independently assessed which would have been costly but SK stated that it was open to the claimant to view as many days of footage as she wished. There was a dispute between the parties as to the number of meetings at which CCTV footage was shown to the claimant. The claimant’s contention being that she was only shown footage once.

Anything that SK saw on CCTV was checked against the corresponding till read but the till reads were not provided to the claimant. It was the claimant’s evidence that SK offered for her to view the till receipts at his house but the claimant made a decision not to view them. She stated that she had been under the impression that for a number of months leading up to September 2011 that she was being pushed out by the respondent. SK stated that due to the fact that invoices were not put on the back office system the respondent could not carry out a stock take. In reply to questions from the Tribunal, SK stated that the initial issue with the claimant was a breach of procedures until he reviewed further footage and then he told her the matter was about non-payment of goods.

In reply to questions from the Tribunal, the claimant stated that the words “theft” and “stolen” were not used at the meetings. The claimant stated that DB and SK would have known that the claimant would have taken goods and paid later, as most employees did. When the claimant received the letter of dismissal it was the first time that she understood the issue was stolen goods as the respondent’s witnesses had stated in the meetings that she had breached staff procedures. However, in one meeting the claimant was told that An Garda Siochána would be notified and she had her suspicions from this that she was being accused of theft but it was not actually said to her. The claimant was not provided with minutes of the meetings although DH who accompanied her to some of the meetings requested them.

DH gave evidence on behalf of the claimant that he was present at the meeting on 20/01/2012 at which footage was shown of 30/09/2011 with additional footage being offered. The issue of medical certificates and phone usage was put to the claimant. In reply to questions from the Tribunal he stated that he thought the accusation against the claimant was for breach of procedures.

DETERMINATION:

In its deliberations, the Tribunal has first addressed the appeal brought by the respondent employer to the Decision of the Rights Commissioner dated 19^th March 2013 to award the claimant €1,250 for a breach of Section 3 of the Terms of Employment (Information) Act 1994.

The only fresh evidence before the Tribunal was a copy of an undated but signed document under the title letter of appointment. There was no evidence before the Tribunal as to when this document was executed and given to the claimant and, accordingly, no evidence that the document was provided to the claimant within the prescribed period.  

Accordingly, the Recommendation of the Rights Commission (reference: r-122290-TE-12/DI) is upheld by the Tribunal and the award of €1,250 confirmed.

The fact of dismissal not being in issue, the onus was on the respondent employer to satisfy the Tribunal that the dismissal was fair.

In hearing this claim, it is not a matter of deciding the issue of guilt or innocence. The question for the Tribunal is whether, following a fair and transparent investigation and disciplinary process, the respondent’s decision to dismiss was one that a reasonable employer might have made.

Dismissal was for theft and this is clear from the letter of dismissal. At no time did the claimant accept that she had stolen goods from the shop at Killurin or had purposely failed to pay for items. Her position was that she might have overlooked making payment for some items. She acknowledged that there was a procedure as regards payment but that this was not adhered to by her either when working in Rocklands or Killurin and that she often paid at the end of the day or, occasionally, on the following morning. The claimant believed that there had never been an issue in this regard.

The respondent’s position was that there was ample CCTV evidence to establish a pattern of non-payment that could only be purposeful.

It is important to recognise that investigative and disciplinary procedures that might be sufficient in one instance may not be in another, particularly in a case were criminality is on the agenda. Where there is the possibility of a finding being made by an employer that an employee has stolen goods, particular care must be taken.

A significant concern for the Tribunal is that the decision to dismiss appears to have been passed principally on a subjective analysis of a vast amount of CCTV footage.  

The claimant’s view was that there was an agenda to get rid of her. While this may or may not have been the case, it is clear that the claimant may have been surplus to needs and the objectivity of SK in reviewing the CCTV footage has to be considered.  

Notwithstanding the evidence of the witnesses for the respondent that there was no difficulty in the claimant returning to work in Rocklands if Killurin did not suit her, the Tribunal cannot ignore the record of the evidence before the Rights Commissioner which indicates that the respondent advised the Rights Commissioner that the claimant would have had to be made redundant if she had not moved to Killurin. Indeed, the evidence before the Tribunal indicated that, had the claimant not moved to Killurin, she would have had to work a rota in Rocklands that did not suit her. The Tribunal cannot ignore the fact either that the Killurin operation was discontinued completely shortly after the claimant’s dismissal. The tenor of the evidence before the Tribunal was suggestive of an employer looking to find fault on the part of the claimant. While fault may well have been found, the objectivity of the respondent’s witnesses in approaching the task has to be questionable.

Having considered the totality of the evidence, the Tribunal is of the view that the investigative and disciplinary processes undertaken in this instance fall short of the appropriate standards where an employee faces potential dismissal for criminal behaviour.

The Tribunal has the following concerns:-

-       The Claimant should have received in writing details of the precise charges against her and the basis for those charges.

At no point did this occur. Indeed, the minutes of the meeting such as they are seem to indicate that the claimant was not clear that the allegation against her was of outright theft rather than as allegation that she breached procedures. The specific replies by the claimant that, she did nothing that she hadn’t done in Rocklands and the invitation issued by her at the meeting of the 18/2/2012 as to “whether they wanted to check what she did at Rocklands,” is suggestive of a lack of understanding. It bothered the Tribunal that the issue of non-payment for goods seemed to be couched in terms that suggested it to be yet another procedural issue. It was included with complaints about departure from correct procedures in completing tasks and excessive phone use in breach of policy and breach of the sick cert policy.

-       There was no clear delineation between the investigation and the disciplinary processes with both conducted by the same individuals and considerable overlap between the two processes.

It is clear from the respondent’s own minutes of meetings that those conducting the disciplinary process were still continuing with an investigation. While the division of these tasks can present problems within a small business, there was no reason why one of the respondent’s witnesses could not have confined himself to the investigative process and the other to an unbiased disciplinary process.

-       No evidence was forthcoming at the Tribunal from the decision maker who was stated to be PK. The Tribunal could not be satisfied that the latter’s deliberations were independent and without influence from those who investigated and conducted the disciplinary process.

The evidence before the Tribunal is that the two witnesses for the respondent employer who investigated and conducted the Disciplinary Process, met with PK and presented the evidence to PK. A full statement was not taken from the claimant and presented to PK for consideration. The claimant was not privy to the nature of the meeting with PK and his absence from the Tribunal deprived her of the opportunity to question him on the basis of his decision to dismiss.

-       The claimant was not provided with all of the evidence against her nor given an appropriate opportunity to consider and allowed adequate time to prepare her response.

The respondent’s witnesses explained that the CCTV came from an older system that could not be copied or burned onto a DVD or copied to a memory stick. No expert evidence was produced. The ‘till record’ which was used as part of the investigative process was not produced either to the claimant during the investigative or disciplinary processes or to the Tribunal.

Every effort to place this information in an accessible manner before the claimant should have been made. The Tribunal is of the opinion that this was not done.

The Tribunal is not satisfied that the respondent discharged the onus upon it in this regard by inviting the claimant to attend in person at her workplace while suspended to view long hours of CCTV footage or to attend at SK’s house to go through ‘till records’.

In all of the circumstances this information should have been independently analysed and presented to the claimant in a format that could be properly considered by her. She was not offered the option of having her own expert view the information. The Tribunal is satisfied that there is an issue around the opportunity given to the claimant to ‘test’ the evidence against her.

Of particular concern is that the respondent’s own minutes of the meeting of the 20/1/2012 indicated a proposal to send the CCTV for independent assessment “on foot of (the claimant’s) explanation that they were paid for.” The evidence of the claimant before the Tribunal was that she left that meeting believing that this would be done.   When questioned before the Tribunal, SK’s initial response was that this was not done because of the “Cost.”

-       No clear agenda was set out for meetings between the parties.

The Tribunal is concerned that there was a certain lack of transparency about the process. This was evident when the claimant was asked to attend a meeting on the first day of her return from sick leave to address certain “concerns” that the respondent had.   How difficult would it have been to produce an agenda of the issues to be addressed and give the claimant adequate time to prepare?

-       The minutes of the meeting were not agreed and signed by the claimant. In addition, her request for copies of the minutes was ignored. These minutes should have been circulated after each meeting.

The minutes before the Tribunal were not an agreed record of the meetings. The Tribunal is particularly concerned by the respondent’s failure to make minutes available to the claimant. These were asked for on the 23/1/12 and again on the 3/2/12.   Despite promises that they would be produced, this did not occur. By letter dated 20/2/12 the minutes and other data were sought and, once again, the minutes were not produced.

-       Notwithstanding the terms of her contract, the claimant was given no right of appeal against the decision to dismiss her.

It was clear from the evidence before the Tribunal that the respondent was aware of this right but did not offer it to the claimant (no reference to a possibility to appeal in the letter of dismissal) and did not propose to entertain an appeal. The reason given for this by the respondent before the Tribunal was not acceptable. There was nothing to prevent the respondent appointing an independent party to hear such an appeal.

-       Right to be accompanied to meetings:

The Tribunal believes that the claimant should have been offered the option of being accompanied to the meeting of 4^th October 2011. The Tribunal believes that serious issues were being raised with the claimant at that meeting. The submission to the Tribunal by the respondent included a statement to the effect that the meeting was to give the claimant the opportunity to explain matters though the respondent “could not possibly understand what the explanation might be.” The evidence of the claimant’s witness, before the Tribunal was to the effect that the claimant came out of that meeting distraught that she had been accused of stealing mass card money (this was her perspective).

-       The Claimant’s position is that the only evidence put to her was CCTV. No till receipt etc. were produced.

This evidence was supported by the claimant’s witness. SK for the respondent company accepted this but advised that he had offered the claimant the opportunity to attend at his house to look at the computerised till records. This was not disputed. This is not satisfactory. Any records or documentation used by the respondent in its investigation should have been presented to the claimant at the disciplinary meetings.

The Tribunal would have expected not only CCTV but also corresponding ‘till receipts’ and stock figures to be put to the claimant.

-       Letter of termination:

An explanation acceptable to the Tribunal was not forthcoming as regards the penned amendment to the body of the brief letter of dismissal which appears to have resulted in the date of dismissal being changed from the 6^th of February to the 18^th of February.

The Tribunal has concerns where evidence which the respondent claims to be available is not presented to a claimant nor, indeed, before the Tribunal. There is an inherent danger in relying on a subjective review of CCTV footage.

The Tribunal finds that the investigative and disciplinary Processes did not meet the standard that could be expected where an employee is accused of being a thief. For this reason, the Tribunal finds that the claimant was unfairly dismissed and awards compensation of €11,000 under the Unfair Dismissals Acts, 1977 to 2007.

The Tribunal was informed that the claim under the Organisation of Working Time, 1997 was heard elsewhere and accordingly dismisses the claim.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)