EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1441/2013
CLAIM OF:
Anna Perenc -Claimant
against
Dunnes Stores -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. W. Power
Mr. P. Trehy
heard this claim at Dublin on 15th April 2015 and 20th May 2015
Representation:
Claimant: Mr. Dave Moran, Mandate Trade Union, O'Lehane House, 9 Cavendish Row, Dublin 1
Respondent: Mr. Conor Power SC instructed by Ms Fleur O'Shea, Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Determination:
The Tribunal has carefully considered the evidence adduced across the two days of oral evidence together with the submissions made by the parties.
On 10th June 2013 the claimant was dismissed from her employment with the retail company (DS) following an investigation and disciplinary process which had been initiated by reason of the claimant’s breach of the employer’s policy on the sale of alcohol to persons under the age of 18.
A number of witnesses from the respondent company gave detailed and comprehensive evidence regarding their training in the policy and procedure for the sale and service of alcohol and the very strict implementation of the policy within the workplace. It is accepted that the claimant along with all members of staff was trained up in the policy at least once and sometimes twice a year. The workplace was filled with reminders of the existence of the policy by way of posters and the tills were programmed to force cashiers to do a double take whenever any member of the public was buying alcohol. The Tribunal is in no doubt that the sale of alcohol policy was taken very seriously in this workplace and that the respondent company made all reasonable efforts to instil in the workforce the seriousness with which they were expected to take this issue. It is further noted by the Tribunal that the employer had made it clear that the sale of alcohol to a person under 18 is a breach of the law which could result in a prosecution and the termination of employment.
On 30th May 2013 the claimant sold alcohol to an underage purchaser which set in train the events that ultimately brought the parties before this Tribunal. The Tribunal asked for and has seen sight of the CCTV footage which shows the transaction in question. It is clear that the purchase was made without any hesitation on the part of the claimant. The Tribunal could see that there was nothing exceptional about the transaction and the claimant had nothing to gain by its completion. The claimant quite simply did not register the youth of the purchasing person and it was only after the sale had been completed that the full import of the calamitous transaction became apparent. Within seconds a member of An Garda Siochana made herself known to the claimant revealing that the purchase operation had been set up by the Gardai and the claimant’s action had brought the possibility of a prosecution on her own head as well as that of her employer.
The Tribunal must note that up to this point in time the claimant had served the respondent company for six and half years and had an excellent record for punctuality, ability and overall performance. It is also agreed that there was no mala fides on the claimant’s part and that her action in selling a single bottle of wine to a person aged 16 was borne out of carelessness and was in no way a wilful or deliberate act.
The member of An Garda Siochana who implemented the operation gave evidence to the effect that the claimant was “shocked” when she was formally cautioned and realised the seriousness of the mistake that she had made.
The Tribunal accepts that the respondent company must treat a transgression of this sort with the utmost gravity and their entitlement to make it the subject of a disciplinary process is without doubt. Whilst there is no suggestion that a termination of employment must be inevitable, the seriousness of the transgression (in particular given the possibility of a corporate prosecution) meant the sanction was always going to be severe.
The Tribunal must find that the respondent knew that, on the face of it, the claimant’s situation was extremely serious if not utterly precarious.
Within an hour and a half of being cautioned by the Garda the claimant was brought to a meeting which lasted 25 minutes and a further meeting of 15 minutes took place on that same first day. These meetings were investigatory in nature as were two more meetings conducted the next day, 31st May 2013.
The minutes of these four meetings were opened to the Tribunal during the course of the hearing. The investigation meetings were overseen by the Store Manager DS in the company of the HR Manager LR. As per the company’s disciplinary and dismissal procedures a third party also attended these meetings thereby satisfying the entitlement to have a work colleague “accompany” the employee. SM attended the 30th May meetings and MR attended the 31st May meetings. It is worth noting that although these persons were described as attending these meetings on the claimant’s “behalf” this was not in fact the case. They simply accompanied the claimant and for the most part they remained mute in the course of these meetings.
The Tribunal must find that there is a significant difference between an employee being accompanied to a disciplinary meeting and an employee having someone attending on their behalf at a disciplinary meeting. Having someone attending on behalf of another suggests an element of protection guidance and advice. At no point in the course of these investigatory meetings is there a sense that the claimant was acting or speaking in a fully advised way.
In fact any read through of the notes taken demonstrates that this claimant says very little and she was neither confident nor articulate. The claimant, in effect, simply agreed in a halting way with everything that was put to her. It is worth noting that the claimant says things like “I don’t know how to say them” and “I do not know the question, can you say it again” and the Tribunal finds as a fact that this claimant’s understanding was limited by reason of her being a native of Poland and English therefore not being her native tongue. In reaching this conclusion, the Tribunal has also had the benefit of hearing, seeing and listening to the claimant giving her evidence both directly and under the pressure of cross-examination.
The significance of this finding is important against the backdrop of two letters being given to the investigator and the HR Manager on 31st May – one from the claimant and one from Mandate on the claimant’s behalf wherein the claimant quite clearly expresses a lack of confidence in her own abilities in the English language. The letters seek professional representation, meaning in this context Mandate official which is absolutely refused as being contrary to the company policy and this mantra was repeated again and again almost by rote by each of the witnesses giving evidence on behalf of the company.
Given the fact that the claimant’s position was clearly very serious involving as it did Garda intervention and the potential for prosecutions and the investigator knew the seriousness of the situation, it is incomprehensible that the claimant would be placed at the further disadvantage of not necessarily understanding what was being said to her, not understanding the full implication for herself and not having anyone to explain to her, help her or advise her in all that was going on. The Tribunal finds, as a fact, that the meetings conducted were done so contrary to the claimant’s entitlement to a fair hearing.
By 5th June the matter had entered the disciplinary stage and JH ultimately made the decision to terminate the employment by reason of gross misconduct. Again, nothing in the notes taken at those meetings tends to suggest that the claimant was fully grasping the direction that this meeting was moving in and was simply agreeing with everything being put to her. The Tribunal notes the HR Manager’s input which in the circumstances was hugely inappropriate as the HR Manager seems to have been simply intent on protecting herself by ensuring that the claimant confirmed that she had her training (regardless of whether she fully understood it) as the provision of training fell within the HR Manager’s role.
The Tribunal does not doubt that the breach of the policy for the sale of alcohol was of such a serious nature that the likelihood of the claimant retaining her job was slim. However, for the reasons outlined, the Tribunal cannot countenance the way in which the claimant was treated as being anything other than hugely unfair. It is sad to note that the claimant could not even articulate her own plea in mitigation and whilst MR (acting as a colleague to the claimant) said a few words the whole thing had a sense of being utterly futile that point in time.
The employer provided the opportunity to appeal the decision but the appeal on offer was extremely unsatisfactory amounting as it did to a one line reading “having considered all the matters, I find the sanction to be fair and I uphold the appeal”. The Tribunal cannot accept that any consideration was given as any reasonable examination of this case would have concluded that the lack of understanding on the claimant’s part had to be potentially detrimental to the finding. The appeal was cursory and to this Tribunal seemed to be a rubber stamping exercise.
On balance, the Tribunal finds that there was an unfairness attaching to this termination of employment. The Tribunal accepts the situation was serious but the employer cannot be allowed to refuse to observe fair procedures in its investigation and disciplinary processes.
The Tribunal awards the claimant €16,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)