EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Jeremy Keogh -claimant UD931/2013
MN466/2013
WT166/2013
against
Ard Services Limited -respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Hennessy
Mr J. Dorney
heard this claim at Carlow on 6th May 2014 and 20th June 2014
Representation:
Claimant: Mr. John Scott B.L. instructed by Ms. Elizabeth Howard, Howard Synott Solicitors, Ballyowen Castle, Ballyowen Shopping Centre, Lucan, Co. Dublin
Respondent: Mr Tiernan Doherty, IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2
Summary of evidence:
The claimant commenced his employment as a sales assistant in one of the respondent’s petrol stations in February 2011. The claimant worked 30 hours per week. The claimant’s employment ended on 14 February 2013.
The manager of the petrol station stated that all employees receive training at the commencement of their employment. The law states that cigarettes cannot be sold to persons under a certain age. In addition to staff training on this issue they were reminded of this fact in a meeting held on 10 January 2013 at which the claimant was in attendance. The manager informed staff at this meeting that she had a concern regarding the sale of cigarettes to minors in the shop and that more vigilance was needed in relation to this issue. It was explained to staff that it was unacceptable to sell cigarettes to a minor and that to do so was against company policy as well as being illegal. The claimant signed two “sale of tobacco” policies during his employment, one on 28 March 2011 and the other on 31 January 2013.
Some months previously an employee was dismissed from the employment following a sting operation conducted by the Health Service Executive. The employee sold cigarettes to a minor who was sent in as part of the sting operation. For all of the above reasons it was considered a serious breach of procedures to sell cigarettes to a minor. While the manager could not say that all staff were formally informed of the sting operation she believed they knew of it from general conversation.
On 1 February 2013 the shop supervisor reported to the manager that she had witnessed the claimant selling cigarettes to a minor the previous evening. The claimant was suspended with pay pending the outcome of an investigation. The CCTV footage showed a jeep occupied by a woman and a young girl parking beside a petrol pump on the forecourt. The young girl had pigtails and looked about 10 years of age. She entered the shop, paid for fuel and purchased cigarettes from the claimant. The footage showed the claimant waving out the window after the transaction. The manager could only assume that he was waving at the mother of the child to whom he sold the cigarettes. It was very clear from the CCTV footage that the child was under 18.
In the claimant’s statement on this issue he said there was always an arrangement in place to sell the minor in question cigarettes as they were in fact being purchased for her mother. The child’s mother always signalled her presence in some way from the forecourt.
The supervisor wrote in her statement that she told the claimant he should not have sold the cigarettes “even though we both knew they were for her mother sitting in the car.” As part of the manager’s investigation she spoke with the supervisor and another manager who both stated this had not happened previously in their presence.
The manager reported the incident to the Area Manager. He was tasked with carrying out the disciplinary process in relation to the incident. He read through the manager’s investigation report and liaised with a Human Resources business partner on the matter. A letter issued to the claimant asking him to attend a disciplinary meeting on 11 February 2013. The claimant was informed that the meeting related to the alleged breach of company procedure in relation to the sale of tobacco to a minor. In the meeting the claimant admitted to the sale of tobacco to the minor but the Area Manager refuted in cross examination that the claimant had raised the fact in this meeting that this was the manner in which tobacco was normally sold to the child’s mother. The contract of employment states that the sale of cigarettes or alcohol to a minor is an example of gross misconduct. The Area Manager was cognisant of the recent sting operation, the tobacco legislation and the breach of procedure and reached a decision to dismiss the claimant. He did not believe that any other sanction was appropriate in the circumstances. Had the sale been the result of another sting operation both the claimant and the company could have ended up in court as result. Therefore he believed no other sanction was appropriate.
The respondent’s Human Resources business partner works to support the three area managers. He received the claimant’s letter of appeal in which the claimant stated that there were a number of false statements in the letter of dismissal. The claimant also provided a statement from the customer stating that she had an arrangement with the staff in the shop that preceded the claimant’s employment. However, there were notes from the three managers stating that there was no such arrangement.
The HR business partner considered the fact that there were two company policies signed to the effect that the claimant understood the company policies, that the issue was addressed at a recent team meeting and that it was clear-cut that the law was broken. He upheld the decision to dismiss the claimant.
The claimant gave evidence in relation to loss and efforts to mitigate that loss.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that the claimant breached the policy on the selling of cigarettes to underage personnel and that the respondent was entitled to discipline him for this breach.
The Tribunal is satisfied on the written statement of the supervisor for the respondent, opened to the Tribunal, wherein she noted “we both knew they were for her mother sitting in the car” that there had been a practice of allowing the minor in question come into the shop for the cigarettes whilst the mother sat in the car or was filling her car with petrol.
In the circumstances the Tribunal finds that although there was a breach by the claimant it was a technical breach rather than a selling of tobacco to underage persons the mischief which the section 45 of the Public Health (Tobacco) Act 2002 sought to cure. The Tribunal accepts that had an inspection or spot check been carried out under the Act of 2002 the respondent may have faced the possibility of a prosecution. However, there were strong mitigating circumstances and this possibility may therefore have been avoided. The Tribunal finds that the sanction of dismissal was disproportionate taking into account the mitigating circumstances of this particular case.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €2,400.00. In arriving at the level of award the Tribunal takes into account the contribution of the claimant in the matter and the possible consequences for the respondent.
It follows that the claim under the Minimum Notice Act 1973-2005 succeeds and the Tribunal awards the claimant the sum of €600.00 (being the equivalent of two weeks’ gross pay).
The claim under the Organisation of Working Time 1997 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)