UD1623/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                        CASE NO.

Quinton Masawi

- claimant                                                                                                          UD1623/2012

against

Garryowen Supersave Limited T/A Garryowen Stores

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. P. Wallace

Members:     Mr. L. Tobin

                    Ms H. Kelleher

heard this claim at Limerick on 1st August 2014

Representation:

_______________

Claimant(s) :       In Person

Respondent(s) : Ms Fiona O'Connor, Tom Smyth & Associates, 61 St Marys

                          Road, Midleton, Co Cork

Summary of Case

The respondent company trades as a convenience store employing full and part time employees. The claimant was employed since 2003 as a general assistant serving customers in the store. The current proprietor of the store gave evidence that he took over the operation of the store in December 2010. All employees were provided with a copy of an employee handbook and ‘prompt list’ which provides day to day guidelines on how the store should be run. The employee handbook, inter alia detailed the guidelines to be followed in relation to staff purchases. Employees were also provided with a copy of the respondent’s policy on disciplinary procedures.

The proprietor gave evidence that in February 2012 a number of till irregularities involving the claimant came to his attention. An initial investigation meeting was held with the claimant and CCTV footage was viewed with the claimant as part of the investigation. The proprietor then reviewed further CCTV footage from a number of random days where he discovered further till irregularities. He provided the claimant with further CCTV images from a number of days and a further meeting was arranged for 3 April 2012. The claimant was offered the opportunity of having a colleague or a person of his choice at this meeting but declined the offer. At the meeting on 3 April 2012 the claimant was shown the CCTV images and replied “it is what it is”. The claimant was then suspended on full pay until the outstanding investigation and disciplinary matter was resolved.

A further disciplinary meeting then took place on 12 April 2012. The claimant was again offered the opportunity of representation at this meeting and provided with all of the relevant CCTV footage prior to the meeting. The claimant attended the meeting but refused to make any comment on the allegations. He was not represented at the meeting but informed the proprietor that his legal representative had advised him not to comment on the matter any further. A number of further attempts were made to arrange a disciplinary meeting without success. The proprietor then received a letter dated 17 April 2012 from the claimant’s legal representative. He replied to this letter by way of letter dated 26 April 2012 informing the claimant’s legal representative of all the allegations against the claimant to date. He again provided a copy of the CCTV footage for review. He also stated that he was continuing to review all available CCTV footage and was reserving the right to seek explanations for any other incidents that he found.

Eventually a disciplinary meeting was arranged for 16 May 2012 and the claimant was represented at this meeting by his legal representative. A total of six allegations were put to the claimant and the claimant responded to each allegation. The claimant responded to the allegations stating that re-paid the money which he had removed from the till from tips that he received from his customers. He also stated that operated a “paid out” system for re-paying the monies but the Tribunal were told that no such system operated in the store. The store did operate a book system where credit is allowed for good customers. These purchases are recorded in a book and are marked off the book when payment is received for the goods. That was the only credit system in operation in the store and the claimant was aware of this.

Subsequent to this meeting further irregular till activity came to attention. The proprietor wrote to the claimant’s legal representative by way of letter dated 21 May 2012 outlining these instances, enclosing the relevant CCTV images and seeking a response on the matters so as to move forward from the disciplinary process. In particular these irregularities concentrated on 17 March 2012 where the claimant had failed to scan a number of purchases made by customers. The claimant’s legal representative then wrote to the proprietor by way of a detailed letter dated 31 May 2012 confirming that they had viewed all footage supplied. This letter inter alia stated that the claimant acknowledged that he did not scan some items but he did not deliberately set out to deprive the respondent of the cost of the property. There were various reasons for his actions including nervousness on his part regarding certain customers and his desire to have some customers leave the store as quickly as possible on the basis of them shoplifting more items than they would actually pay for. On occasions also he would have to deal with a number of customers or difficult customers. He regretted that he did not approach the proprietor in relation to difficult customers or errors made in relation to deficiencies in his ability. He did not set out to deprive the respondent of any property or deliberately breach the trust placed in him and asked that all circumstances be taken into consideration including his long work record in the shop.

The proprietor considered all the information collected during the investigation and disciplinary process and reviewed the CCTV footage and by way of letter dated 8 June 2012 confirmed his decision to terminate the claimant’s employment on the grounds of gross misconduct. He did not accept the claimant’s explanations and excuses as credible or reasonable. He was of the view that the claimant knowingly conducted completely unacceptable and irregular till transactions while working at the store. The claimant was given the opportunity to appeal this decision to an independent point of appeal. The claimant initially through his legal advisor informed the respondent of his intention to appeal the decision and a date was arranged for an appeal hearing. Ultimately after an exchange of a number of e-mails and correspondence between the parties the claimant did not pursue his right of appeal.

The claimant confirmed that he did not do so because his legal representative came off record and because of Gardai involvement in the case. He told the Tribunal that any monies he took from the till were always repaid and he had been doing this for a number of years without a problem. He gave evidence that he had received authorization to do this from the previous proprietor. He accepted that he would not have run a business in such a manner if he was the proprietor. He gave evidence that he was not given the opportunity to view all of the CCTV footage and was only provided with snippets of CCTV footage. At the hearing the respondent had available the CCTV Footage which could be viewed if the Tribunal thought necessary and the claimant did not at any stage state that he required to see the CCTV footage. The respondent did confirm through his representative that the full CCTV recordings had been given to the claimant’s representative at an earlier date and during the disciplinary proceedings.

Determination

The Tribunal carefully considered the oral and documentary evidence adduced by both parties at the hearing. The claimant accepted that he removed monies from the till and gave evidence that he always returned these monies and that he had various transactions with a third party which resulted in a loss to the respondent. The Tribunal was not provided with any evidence that such monies were ever returned to the till. The Tribunal notes the claimant’s evidence that he would not run a business in such a manner as he conducted himself if he was the proprietor of such a business. The claimant failed to scan a number of purchases made on 17 March 2012 and could not provide any satisfactory response for his actions. The Tribunal notes that no receipts were provided to the customers for these goods.

In the view of the Tribunal the above circumstances amounted to gross misconduct in accordance with the respondent company’s policies and procedures and normal business practices. The Tribunal is satisfied that the respondent applied fair and adequate procedures and accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)