UD1139/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                           CASE NO.

Rosheen Jones                                   -claimant

                                                                                                                 UD1139/2013

against

Woodies DIY (Irl) Limited    -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr N.  Russell

Members:     Mr J.  Horan

                     Mr J.  Flannery

heard this claim at Wexford on 10th December 2014 and 25th February 2015

Representation:

Claimant:        Ms. Helen Whately B.L. instructed by Mr Sean Ormonde,

Sean Ormonde & Co, Solicitors, Suite 9,

                        The Atrium, Maritana Gate, Canada Street, Waterford

Respondent:    Mr Tiernan Doherty, IBEC, Confederation House,

84-86 Lower Baggot Street, Dublin 2

Background:

Dismissal as a fact was not in dispute between the parties.  The claimant commenced her employment with the respondent company in November 2005 and was dismissed on 22 March 2013.  The claimant reported an accident at work and the respondent company formed the view that the alleged accident did not occur and that the claimant’s actions in misleading her employer amounted to gross misconduct with the appropriate sanction being dismissal.

Summary of evidence:

On Monday, 11 February 2013 the claimant reported to the Assistant Store Manager that she had sustained an injury while at work on Thursday, 7 February 2013.  It was the claimant’s evidence that she reported that she went outside the front door of the store on 7 February to assist her colleagues RP and BG.  She picked up a sign and noticed that there was a pallet with bags of compost falling off the edge of the pallet.  The Security Guard was present at the time and she assisted him in pulling the bags of compost back onto the pallet.  The next day she was sore but did not report the injury that day as she did not realise that it would become more painful.  By Monday, 11 February she was in a lot of pain at work and at 5 pm she told the Assistant Store Manager of the injury and how she had sustained it.  The Assistant Store Manager was not a witness before the Tribunal having since emigrated.  He completed an accident report form and reported the matter to the Store Manager.

It was the Store Manager’s evidence that two male employees are usually rostered for the closing of the store given the heavy products that have to be brought in from the front of the store. 

There was a disagreement between the parties as to whether or not the claimant was contacted to meet with the Store Manager on Wednesday, 13 February 2013 but in any event they spoke when the claimant attended the store with a medical certificate.  The Store Manager described an amicable and jovial conversation they had about the fact that the claimant’s sister was coming to visit.  Following this the Store Manager informed the claimant that she would have to investigate the matter of the accident reported as the statements of the other employees did not match what the claimant had reported.  The Assistant Manager had informed the Store Manager prior to this meeting that the verbal statements he had taken from the other employees did not match what the claimant had said. The Store Manager later viewed the retail park’s external CCTV footage and saw the claimant lifting a price sign only.  She accepted that the claimant was not formally notified by her that she was under investigation.

The Store Manager was shocked to subsequently receive an email from the claimant dated 14 February 2013 as she thought they had a good working relationship.  It was the claimant’s evidence that she sent this email with the subject line “conversation 13^th February 2013” because when she outlined to the Store Manager how she had hurt herself moving or re-arranging compost, the Store Manager told her that the “stories" did not match up.  The claimant told the Store Manager at their meeting to view the store’s CCTV footage as this would show the incident.  The claimant did not know why the Store Manager was going to investigate the matter as to her mind it did not warrant that.  She felt the Store Manager thought she was “just swinging the lead.”  The claimant was very upset following this meeting and composed the email which she sent to the Store Manager as she was hurt and bewildered but she was not raising a grievance or invoking the grievance procedure by sending this email.

The claimant was on sick leave at this time and for this reason the Executive Area Manager wrote to her and informed her that he would address the matter on her return to work.  He titled this email to the claimant “grievance.”

They met on 28 February 2013 to discuss the issue the claimant had with the content of the conversation with the Store Manager.  It was the claimant’s evidence that she expected this meeting to be about the Executive Area Manager listening to her about the issue she had with the Store Manager.  On the way to the meeting she was informed that she should have a witness accompany her and the claimant asked a colleague to attend with her.  The Executive Area Manager was aware that the claimant had reported a workplace accident while moving bags of compost.  It seemed to him at this meeting that the claimant felt her integrity had been questioned by the Store Manager. 

The Executive Area Manager informed the claimant at this meeting that none of the other employees had witnessed the alleged accident and that it was not on the store’s CCTV footage. The CCTV showed the pallet of compost being moved by two male employees but not by the claimant or the Security Guard.  The CCTV footage did show the claimant picking up a price stand weighing approximately 1kg.  The claimant appeared surprised that what she had outlined was not mirrored on the CCTV footage.  The claimant was informed that the Security Guard had said she was not at the compost.  The claimant asked for the external CCTV belonging to the retail park and the Assistant Store Manager who was also present at the meeting told her that the incident was not on the external CCTV footage either.  They met with the claimant later that same day and said that having investigated her grievance, the accident at work which was the genesis of her complaint, could not be established.  The claimant was informed that she was being placed on paid leave, pending further investigation and that the matter could result in disciplinary action.

The Executive Area Manager tried to establish another reasonable explanation such as an incorrect date but he was able to satisfy himself that this was not the case from reviewing the rosters etcetera.  The Assistant Store Manager told him that no one had witnessed the incident and he later received written statements confirming that no one saw the claimant assisting with or moving compost.

The Security Guard gave evidence that he was employed by a security company and not by the respondent company.  He recalled that he was working on 7 February 2013 and that he often helped the respondent’s employees at the time of closing by bringing in pallets of compost.  He did not see the claimant at the compost on the night in question.  When he went out to help most of the products had already been brought in by the two male employees and they were bringing in the last pallet, he helped them push it in but at no time did he see the claimant outside the front of the store or near any bags of compost.    

On Monday, 11 February 2013 the claimant mentioned to him that she had twisted her back at work the previous Thursday night while trying to stop a bag of compost falling off a pallet.  The claimant in her evidence stated that she did not recall telling the Security Guard that she had hurt herself.

RP gave evidence that as per the statement he provided at the time of the events he did not see the claimant engage in any lifting or carrying activity while he was bringing in the goods from the front of the store on 7 February 2013.

BG gave evidence that as per the statement he provided at the time of the events he recalled seeing the claimant standing outside the exit door where she appeared to be directing RP who was bringing in a pallet at the time.

It was the evidence of the Executive Area Manager that he was unable to establish the accident had occurred.  A letter dated 4 March 2013 issued to the claimant stating that he had found no evidence to support the claimant’s assertion that she had sustained a work related accident on Thursday, 7 February or otherwise.  The claimant was asked to attend a disciplinary meeting on 11 March 2013.

During cross-examination the Executive Area Manager accepted that the claimant thought the investigatory meeting pertained to the issue she had with the store manager and would not have understood the gravity of the meeting in advance but he informed her later that day that the matter warranted an investigation of the reporting of an accident he was finding it difficult to establish.  Further steps were taken after this meeting to try and establish if the accident could have occurred on another date. 

It was the claimant’s evidence that the first time she realised she could be dismissed was when she received the letter dated 4 March 2013 containing five allegations against her and inviting her to a disciplinary meeting.  The claimant sought copies of the CCTV footage, statements and notes of the meetings in advance.  The claimant was told she could not have the CCTV prior to the meeting as she was not a Garda Sergeant.  It was accepted by the company that this had been said to the claimant but this did not reflect company policy.  Both pieces of CCTV footage were shown to her during the disciplinary meeting and the documents were provided to her minutes before this meeting commenced.  The claimant accepted that she would have been allowed to question witnesses had she so wished but she was not prepared to do so having just received the statements prior to the meeting. 

An Area Manager with responsibility for human resource issues and disciplinary matters conducted this meeting on 20 March 2013.  He viewed both pieces of CCTV footage but the incident as reported was not on the CCTV footage.  This manager reviewed the witness statements, the accident report and the reports of the Executive Area Manager.  It was very clear that the incident simply did not happen, the claimant had misrepresented the incident and there was an issue of trust.  The matter constituted gross misconduct.  He was satisfied that there was no other day, by a week either side that the incident could have happened.  

The claimant received the letter of dismissal which stated that her actions in misleading the company were an extremely serious matter and amounted to gross misconduct.  The claimant appealed this decision but the decision to dismiss was upheld.  The claimant gave evidence of loss and efforts to mitigate that loss.

In reply to questions from the Tribunal the claimant stated that it did not occur to her to ask for the Security Guard to be brought to the disciplinary meeting or the appeal hearing as she thought she had answered the five allegations put to her and that the benefit of the doubt would be given to her.

Determination:

The Tribunal carefully considered all of the evidence adduced over the two day hearing, together with related documentation and CCTV footage. 

The following is a majority decision of the Tribunal:

The claimant reported an accident and this was followed by an email which the respondent dealt with as a “grievance.”  The respondent company formed the view that the alleged accident did not occur and that the claimant’s actions in misleading her employer amounted to gross misconduct and she was summarily dismissed.

The claimant believed that she had been dismissed without any reasonable grounds and without the benefit of a proper or fair procedure and refuted the charge that she had been guilty of gross misconduct.

The Tribunal noted that the respondent had carried out an investigation and following a decision to dismiss had in turn conducted an appeal process which upheld the original decision. While the Tribunal by majority was persuaded by much of the evidence presented by the respondent there were however shortcomings such as the non-availability at the hearings of some personnel involved in the process and also of the retail park’s external CCTV footage.  In addition a number of procedural flaws were identified in the disciplinary process.

In the light of the foregoing the Tribunal by majority finds that:

• The claimant’s actions contributed to an extent to the ultimate outcome;
• There were shortcomings in the respondent’s procedures;
• A lesser, more proportionate, sanction could have been considered given the previous unblemished record of the claimant over many years.

On the balance of probability and bearing in mind all the circumstances the Tribunal by majority finds that the claim under the Unfair Dismissal Acts, 1977 to 2007, succeeds and awards the Claimant compensation in the amount of €5,000.

The following is the decision of the dissenting member:

The principal reason for the dismissal of the claimant is that the respondent company concluded that the claimant had falsely reported a work related accident to an Assistant Manager in the company.

The claimant had been specific as to the date of the alleged accident, the circumstances in which it occurred and the third party (JK) accompanying her when the accident occurred.

Following investigation the respondent company had at its disposal CCTV evidence and a statement by the Security Guard (JK) neither of which supported the claimant’s version of the alleged accident. To the contrary, these effectively contradicted her version of events and were suggestive of no accident having occurred

A reasonable employer in those circumstances would have been entitled as was the respondent company to conclude that the reported accident did not occur.

The dissenting member is of the opinion that having so concluded, the respondent company was entitled to consider that there had been an irretrievable breakdown in the relationship of trust between the parties and to proceed to dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)