EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Carl Meade UD892/2012
Against
Adelphi Carlton Limited T/A Cineworld Cinemas
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. F. Moloney
Mr. S. O'Donnell
heard this claim at Dublin on 2nd May 2014
Representation:
Claimant:
Mr Paul Ferris, Paul Ferris & Co., Solicitors,
Suite 227, The Capel Building,, Mary's Abbey, Capel Street, Dublin 7
Respondent:
Ms. Anne Byrne, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent’s case:
The respondent operates a multi screen cinema complex and the claimant was employed there as a Multi Functional Operator from 28th April 2009 until he was dismissed for gross misconduct on 6th April 2012.
The Operations Manager (OM) told the Tribunal that he noticed a shortfall in stock in early 2012 and having checked deliveries and other areas that might account for this shortfall he decided to examine CCTV footage of the sales desks. This CCTV footage and subsequent further investigation discovered that nine employees had received goods at the sales desks without paying the correct price for them. Staff received discount cards which entitled them to a 40% discount on items bought in the shop. There is a policy in relation to purchases made using this discount card which sets down that an employee availing of the discount must ensure that the goods received match what is on the receipt then sign a copy of the receipt and hand it back to the till operator. Any discrepancy between what is signed for by the recipient and the actual goods received is viewed as a breach of policy and it was both the original decision maker’s and the appeal decision maker’s view that the breach of policy committed by the claimant amounted to gross misconduct and merited dismissal. Other options were considered by the decision makers but they both considered that the incident was so serious that the appropriate sanction was dismissal.
The claimant had a good working record up to the incident which led to his dismissal and had never been the subject of disciplinary procedures prior to his dismissal. The incident which led to the dismissal was as follows. The claimant was observed on CCTV receiving one large hotdog and a packet of wine gums. He took the receipt away from the sales desk to get a pen at another desk, he then signed the receipt and returned it to the till operator. However when the receipt for this transaction was later examined in the course of investigation it was observed that the receipt was signed by him but recorded a hotdog and a packet of malteesers. The price recorded for the hotdog indicated that it was a regular hotdog which was cheaper than a large hotdog and the price of wine gums was greater than the price of malteesers. The total difference in price, taking account of the 40% staff discount was approximately €1:00.
A meeting had taken place in November 2011, the main topic of which was reducing staff hours but the revised Staff Discount policy was also discussed and a copy of this policy was made available for viewing by all staff.
Claimant’s case:
During the disciplinary hearing and the appeal hearing the claimant maintained that he did not deliberately defraud the respondent but that he did not read the receipt before signing it. He admitted this was a breach of the Staff Discount Policy but was unaware of the serious implications of such a breach until he was confronted with this during the disciplinary process. The claimant never received a copy of the Staff Discount Policy.
It was the claimant’s position that the breach of policy was an honest mistake and that the sanction of dismissal was disproportionate.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed by the respondent.
In reaching this decision the Tribunal considered whether the respondent applied fair procedures and was reasonable in its decision to dismiss the claimant. It was the evidence of both the original decision maker and the person who heard the appeal that the mere fact that there was a breach of the policy in relation to staff discounted purchases meant that an act of gross misconduct had occurred and that dismissal was the appropriate sanction. This suggests to the Tribunal that whether or not this was an honest mistake by the claimant could have no impact on the outcome of the disciplinary decision. Therefore the Tribunal is not satisfied it was reasonable of the respondent to conclude that this was an act of gross misconduct and that the appropriate sanction was dismissal.
In all the circumstances the Tribunal awards the claimant €20,000.00 (Twenty Thousand Euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)