EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Myles Cummins
UD2000/2011
RP2580/2011
MN2032/2011
against
Bernard Keane Limited
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney
Members: Mr. W. O'Carroll
Ms. H. Murphy
heard this claim at Ennis on 8th April 2014
Representation:
Claimant:
Mr. James M Nash, James M Nash & Co, Solicitors, Scariff, Co Clare
Respondent:
Patrick F. Molony & Co, Solicitors, 5 Bindon Street, Ennis, Co Clare
Respondent’s case:
The respondent is a Butcher’s Shop and the claimant was employed there as a butcher from November 1995 until he was dismissed on 16th April 2011.
It was alleged that the claimant had been stealing meat and possibly money from the respondent. The owner and his wife had set up surveillance on the claimant via CCTV in the shop. However it was difficult to observe him constantly and therefore the owner placed the claimant on a three day week. During this surveillance the respondent observed the claimant opening the till when nobody else was in the shop for no apparent reason. However it was not clear from the CCTV footage whether he took money out of the till.
It was common practice by the claimant to take waste meat and bones home with him for his dogs but the owner instructed him not to do this anymore. The owner gave this instruction because of concerns he had over other saleable meat being discovered in these waste meat bags.
The claimant did cease bringing home waste meat for a short time but then began to do it again. The owner had accused the claimant of stealing on a number of occasions and on 16th April 2011 the owner felt that he had enough of the claimant and dismissed him on the grounds that he was stealing from him. The owner told the claimant to leave or he would get the Gardai and the claimant left.
Claimant’s case:
The claimant denied ever stealing from the respondent and told the Tribunal that the first time he was accused of stealing was when the owner dismissed him on 16th April 2011. He confirmed that the owner had instructed him not to take waste meat and bones home. The claimant adhered to this instruction for a period of time but then began to take it again.
It was the claimant’s contention that he was unfairly dismissed without fair procedures or natural justice.
Determination:
The Tribunal listened carefully to all the evidence adduced and finds as follows.
That there was a total absence of fair process, in circumstances where no evidence was adduced of any fair or reasonable procedures to deal with disciplinary issues leading up to and including the dismissal of the claimant.
Therefore the Tribunal finds the dismissal unfair but considering the evidence adduced in relation to the conduct of the claimant in relation to taking meat, bone, trimming and fat against the direct instruction of the employer the Tribunal also finds that the claimant substantially contributed to his own dismissal.
In all the circumstances the Tribunal awards the claimant €12,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal also finds that the claimant was not paid in respect of minimum notice and based on his earnings detailed on his P60 for 2010 awards the claimant €4,850.00 (being 8 weeks pay)
Under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
It is noted that the claim under the Redundancy Payments Acts, 1967 to 2007 was withdrawn by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)