UD828/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                CASE NO.

Elton John Moran                                                                                           UD828/2013

-        Appellant

against the recommendation of the Rights Commissioner in the case of:

Keelings Logistics Solutions

                                                                                    -   Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr. J. O'Neill

                   Mr T. Brady

heard this appeal at Dublin on 2nd April 2014 and 25th September 2014

Representation:

Appellant:       Ms. Mary Duffy King, Siptu, Liberty Hall, Dublin 1

                        On 2^nd April 2014

                        Ms Bernadette Thornton, SIPTU, Liberty Hall, Dublin 1

                        On 25^th September 2014

Respondent:    Mr. Eamonn McCoy, IBEC, Confederation House, 84/86 Lower

                        Baggot Street, Dublin 2

                        On 2^nd April 2014

                        Mr. Michael McGrath, IBEC, Confederation House, 84/86 Lower

                        Baggot Street, Dubin 2

                        On 25^th September 2014.

This case came before the Tribunal where the appellant (the employee) was appealing against the Recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference r-123908-ud-12/RG.

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is a distribution company holding the contract for the supply of goods to customer T. The appellant was employed as a warehouse operative and worked in warehouse B. Warehouse B is a high risk area and is constantly monitored.

Security Manager OR is employed by customer T and is responsible for CCTV footage and also has responsibility for security guards. It is the company’s policy that no food is to be consumed on the shop floor. During the course of his normal viewing of CCTV footage on the evening of 25^th January 2012 he saw suspicious behaviour beside a cage. He believed this to be outside the norm. He saw two employees (the appellant) being one of them standing in front of an open cage and acting suspiciously. He saw the cage being moved. When the appellant stepped away from the cage the witness could see that he was eating something together with his colleague. A short time later the appellant and his colleague returned to the area and they put their hands inside the cage.  There was no reason as to why the appellant and his colleague should be standing together in front of a cage. After they left the area the witness went to the location and eventually identified the area as being lane 52.

The witness brought the incident to Warehouse Manager (PC’s) attention. DF, Warehouse Team Manager was instructed by PC to walk down to lane 52. OR and PC joined him in that area. On CCTV footage it appeared they were in lane 58 but the correct location was established to be lane 52. It was explained that the camera was pointing down the pickface at an angle and the perspective of the view could make it look like the cage was under a different number. It became apparent that a box containing jam tarts had been tampered with and two individual tarts were missing from a packet. CCTV footage was reviewed several times thereafter. Photographs were taken of the tampered box.  Both the appellant and his colleague had not been assigned to lane 52 at that time.

JD, Warehouse Team Manager carried out an investigation into the alleged incident. He met the claimant on 31^st January 2012 together with his shop steward. CCTV footage was viewed again. The claimant was asked what he was doing at a cage in lane 52. He said he was eating a mars bar and he shared it with his colleague PB. He returned a second time to the cage in lane 52 together with PB to view footage on PB’s mobile phone.

A follow up meeting was arranged for 15^th February 2012 to answer some of the queries raised by the appellant. New CCTV footage was available to be viewed. A reconstruction had been carried out on lane 52. The appellant declined to view this new footage.

KS had picked the jam tarts into lane 52 and he gave a statement that all the stock had been intact.

JD did not find the appellant’s explanation to be credible and put the matter forward for disciplinary action.

AM conducted the disciplinary hearing on 20^th March 2012. He had been furnished with JD’s report together with statements and photos of the cage in question.   He reviewed the CCTV footage.   The appellant had no reason to be in the vicinity of lane 52. It was apparent that while the appellant was in front of the cage it had moved. The appellant did not furnish an explanation for the movement of the cage.

Stock had been tampered with and this was a serious issue for the respondent. At no stage during the viewing of the footage did it become clear that the appellant in fact was eating a mars bar or viewing footage on a mobile phone. The appellant had no reason to be at lane 52.

AM concluded that it was reasonable for him to believe that the appellant tampered with a packet of jam tarts in lane 52. The product was rendered unsellable and had to be disposed of. This constituted gross misconduct and the appellant was dismissed.

The appellant was offered a right of appeal.

BM conducted the appeal hearing on 1st May 2012. He was furnished with all the relevant reports and statements furnished to the respondent. He reviewed all the issues and concerns that the appellant raised at the meeting and gave them a great deal of consideration. After the appeal hearing he viewed the CCTV footage.   On the balance of probability BM believed that the appellant had tampered with stock. He could not understand why the appellant returned to the cage a second time. It came down to a matter of trust.

BM upheld the decision to dismiss the appellant.

Appellant’s Case:

Half way through the appellant’s shift on 25^th January 2012 he met his colleague PB. The appellant had been eating a mars bar and he shared some of his bar with PB. This occurred in the vicinity of lane 52. On a second occasion during his shift PB showed him some footage on his phone. Again this was viewed in the vicinity of lane 52 close to a cage. It was not deliberate on his part to return to lane 52 a second time and it was a coincidence. Both he and his colleague were just leaning on the cage in question. The appellant was aware that he was not permitted to consume food while working but he had eaten food on many occasions during the course of his employment. He was also aware that mobile phones were not permitted in the warehouse.

He decided not to view the CCTV footage a second time as it thought it was a joke at this stage.

He knew going into the disciplinary process that there was a possibility that he could be dismissed.

The appellant has secured alternative employment.

Determination:

The appellant was dismissed from his employment on the 19^th May, 2012 having exhausted the disciplinary process. On the 25th January, 2012 the appellant was spotted on CCTV acting suspiciously. Following an investigation on the day the respondent discovered that two jam tarts were missing from a packet in a box situated in a cage in lane 52. On both occasions when the appellant was observed at a cage in lane 52 he had no reason to be there. The appellant stated that he was not eating a jam tart, he was eating a chocolate bar that he had purchased from the vending machine. The second time he was observed at the cage he said he was watching something on a mobile phone. The CCTV footage does not lend itself to that version of events.

Based on the following facts:

-        Stock at lane 52 was tampered with

-        The appellant had no authority to be at a cage in lane 52 when he was there.

-        The appellant is clearly eating something when moving from the cage.

-        His body movements are inconsistent with his version of events.

The Tribunal finds that the appellant’s evidence was not credible and on the balance of probability finds that he did in fact tamper with the stock.

The Tribunal finds that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.

The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.

The Tribunal upholds the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

               (CHAIRMAN)