EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1646/2013
MN773/2013
CLAIM(S) OF:
Laura Kruzeviciute
against
Blarney Filling Station Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. K. Buckley
Members: Ms. M. Sweeney
Mr. J. Flavin
heard this case in Cork on 24 February 2015
Representation:
_______________
Claimant(s):
Mr. Kieran McCarthy for Ms CLare Flavin, Kieran McCarthy & Co, Floor 3b, 6 Lapps Quay, Cork
Respondent(s):
Ms. Vivienne Matthews, DAS Group, Europa House, Harcourt St, Dublin 2, Instructing Mr. David Gaffney, Gaffney Solicitors, 4b Father Mathew Street, Cork
This case involves claims submitted to the Tribunal by the Claimant under Unfair Dismissal and Minimum Notice Legislation arising out of the loss of her employment with the Respondent Company. The Respondent Company operates a shop/filling station at Blarney, Co. Cork. At the relevant time the Respondent Company had 22 employees and the Claimant had been employed as a supervisor. The Claimants employment with the Respondent had commenced in September 2007 and had ended in November 2013. The Claimant had worked 25 hours per week for €10.50 per hour.
The Claimant’s case was that she felt obliged to submit her resignation from her position in November 2013 owing to the alleged bullying of the Respondent. The Respondent denied bullying and his case was that the Claimant was dismissed for the unauthorised taking of product, namely chocolate bars from the company premises. The Respondent also alleged insubordination on the part of the Claimant in failing to attend three disciplinary hearings. The Claimant’s case was that she did not take the chocolate bars.
The Respondents case was that these events, coupled with the Claimants previous disciplinary record led to her dismissal. The case was initially heard on the 24th of February 2014 when a significant proportion of time was spent on the admission or otherwise of documents which were to form part of the Respondent’s defence. The resumed hearing was fixed for two days to commence on the 21st of July 2015.
Giving sworn testimony for the Respondent, a witness (hereafter referred to as MB) said that he had started working with the Respondent Company in June 2011. He had been employed in the position of assistant manager. The business comprised of a petrol station and shop. Some twenty-two people worked in the business. MB said that he had seventeen years experience in retail. He is now working elsewhere. During his time with the Respondent Company the Claimant had been employed as a senior supervisor. He stated that there had been a history of incidents involving the Claimant and warnings had been given in line with procedures.
It was at this point, that the Claimant’s representative objected to documents being submitted to the Tribunal if there was no witness present to corroborate them. It was stated that an independent party (hereafter referred to as DH) had been brought in by the Respondent to assist with the resolution of issues between it and the Claimant. DH was not present at the Tribunal hearing. It was suggested that he might be subpoenaed to the resumed hearing when the date thereof became known. A number of pages from the Respondent’s booklet were removed given the concerns of the Claimant’s representative as to the non attendance of a material witness. It was argued that findings as to the Claimant’s conduct had been upheld in favour of the respondent. The Claimant’s representative said that DH’s findings were being put into evidence and that he (the Claimant’s representative) was reserving his position. He argued that DH’s findings had to be corroborated.
The Respondent’s legal representative told the Tribunal that the Respondent’s owner had been the decision-maker in relation to issues of a disciplinary nature. Accordingly, any appeal in relation to a disciplinary issue had to be dealt with by somebody outside the Respondent Company. In this occasion DH was selected. His decision would be final and there was no appeal beyond the decision of DH.
MB in resuming his direct testimony, gave evidence in relation to a previous disciplinary issue involving the Claimant. MB stated that it was a company rule that water only was to be consumed behind the till. This rule had been clearly displayed. (The Claimant’s representative and the Claimant herself now took a look at a laptop in the possession of the Respondent. MB stated that he had been present at a meeting on the 16 August 2013 when the Claimant was confronted about drinking something other than water at a till by the Respondent. MB had taken notes.
Under cross-examination, MB said that he had started packing bags at fifteen. He had worked while studying before he did his Leaving Certificate. He had worked for a retail multiple and had left this position of his own accord. In response to a query, he stated that the Respondent’s owner was not his brother-in-law. He was not an official note-taker but he had had disciplinary hearing experience previously. He had experience of employee’s handbooks. He now worked as site manager for two outlets of a multiple’s food distribution chain.
MB said that the claimant had been drinking some sort of juice at the till. It was put to him by the Claimant’s representative that the Claimant had not got a particular letter. MB replied that signs in relation to what was to be consumed at tills had been displayed in five or six locations in the store and had been seen by the employees.
Asked by the Claimant’s representative if there had been a system of acknowledging receipt of letters, MB responded that letters were ordinarily handed to the appropriate person.
It was put to MB by the Claimant’s representative that the Claimant was going further and would say that a particular meeting had never taken place. MB replied that the meeting had taken place.
At the end of MB’s evidence the case was adjourned and a further two days assigned to it.
At the resumed hearing SB (the Respondent’s principal) gave sworn testimony. He said that he was some eleven years in business. The claimant had started working for him in September 2007. The Claimant’s employment history up to 2013 had been largely unremarkable. There had been a couple of issues over the early years. He said that matters changed after the Claimant went to Lithuania in February 2013. At that time she had sought four weeks’ unpaid leave to go to buy a home in Lithuania. On her return from Lithuania, SB said that he saw a big change in the Claimant’s attitude. She had become difficult and disruptive. She became argumentative about instruction. She had problems with management. Her title was senior supervisor. The Claimant’s duties including opening and closing the Respondent’s premises. She worked mainly in the evenings. She would have charge of two or three staff and was responsible for locking up the premises.
It was accepted that the Claimant had been given a contract. She was also sent on a supervisor’s course on training on how to deal with people. Her duties included supervising shifts, looking after breaks, lunch times and closing up. She was to ensure that the shelves were tidied, unsold newspapers taken away, tills signed off and to ensure that the shop would be in a good position to open on the following day.
The Respondent gave evidence in relation to previous disciplinary incidents involving the Claimant. He referred to a letter of the 28th of January 2013 which he had sent to the Claimant which involved an altercation with a fellow employee on the shop floor. This letter was exhibited in the Respondent booklet and was stated to be a final warning regarding the Claimant’s behaviour towards staff and customers.
The Respondent referred to another letter of the 26th of July 2013 sent to the Claimant involving other employees. These incidents apparently occurred while SB was on holidays. A subsequent investigation took place and a written warning followed dated the 2nd of August 2013. This decision was appealed and a independent person from outside the Respondent company appointed to deal with the appeal (DH).
SB stated that there was a rule in the shop that employees were to drink water only behind the tills. On the first occasion the Claimant had been drinking juice behind the till, SB spoke to her. A week or two later the Claimant was again seen drinking juice. On this second occasion SB said that he warned the Claimant. On a third occasion, SB again found the Claimant drinking juice. SB called the Claimant upstairs to a meeting in the presence of two witnesses and a written warning was subsequently issued to the Claimant which clearly indicated that any future incidents of a refusal to obey instructions would result in the Claimant’s employment being terminated without further notice.
SB gave evidence that a further letter was issued to the Claimant on the 7th of November 2013. Apparently the procedure in the shop in relation to unsold copies of newspapers was that the Respondent would be given credit for unsold newspapers. These are known as returns. There was a promotion with a particular Sunday newspaper where a free chocolate bar was included in a particular Sunday issue. SB stated that in October 2013 the Claimant took the unsold newspapers from the newspapers stand to be put away as returns. Free chocolate bars included with the unsold newspapers were taken. SB said that the Claimant admitted to having taken three or four of the chocolate bars because they were free. SB did not have CCTV footage for the Tribunal. According to SB the Claimant subsequently denied taking chocolate bars. SB’s position was that the Claimant was ultimately dismissed because he believed that the Claimant had settled on a position which equated to calling SB a liar and lying herself. SB believed that there had been a breakdown of trust. The Claimant had denied what she had said. According to SB some twenty-five chocolate bars had been taken. According to SB the Claimant had initially admitted to taking three or four of these.
SB also stated that the Claimant had previously received a number of warnings. The Respondent stated that he had made various efforts with the Claimant in relation to the chocolate bars and other issues up to and including the intervention of outside expertise to deal with a disciplinary appeal.
In cross examination SB accepted that he had promoted the Claimant rapidly. He also admitted that he had a number of informal meetings with the Claimant which were not recorded. In relation to the issue of the chocolate bars, SB stated that he had checked the CCTV which showed the Claimant removing the newspapers from the stand. He accepted that the CCTV was not held and it (the CCTV) runs out after three to four weeks. He agreed that the unsold newspapers were stored for 24 hours and that approximately 15 people had access to the papers. SB stated that the Claimant stated that she took three to four bars as they were free. When SB asked the Claimant about the other bars she said that she hadn’t taken them.
Giving sworn testimony, the Claimant said that she had bought land in Lithuania in 2008 and that her attitude had not changed on her return to Ireland. She acknowledged having been sent on courses. The Claimant said that she had completed a degree course in 2007 in Lithuania in banking and economics. The Claimant denied having conversed with SB about the missing chocolate bars although he had claimed to have spoken to her about this on nearly a dozen occasions. She denied having received a letter of the 7 November 2013 from the Respondent and denied that she had refused to take it. She read to the Tribunal a resignation letter that she had drafted for the Respondent.
The Claimant denied to the Tribunal that she had admitted to having taken three or four bars of chocolate. She also denied that the taking of some twenty-five bars had been discussed with her. She explained the procedure whereby unsold papers would go to the back store. She had put them under the stairs. MB would have counted them the next day. She denied having had any meeting with the Respondent whether formal or informal. She had been working some six years with the Respondent. She knew that it was a breach of her employment contract to take something but she denied to the Tribunal that she had done so or that she had even had a related conversation with SB who had been cutting her pay. She had been getting letters on this subject but could not recall correspondence about chocolate bars.
The Tribunal was told that a reduction from €11.50 to €10.50 per hour had taken place and that this matter had been resolved between the parties. The Respondent’s position was that the Claimant’s duties had been reduced at the Claimant’s own request.
Determination:
The Tribunal considered the evidence of the parties at some length. This was a complex and difficult case. There was a complete conflict of evidence between the parties. Much documentary evidence had been submitted and excellent presentations were made by both Claimant and Respondent’s representatives.
On balance, the Tribunal preferred the evidence of the Respondent. The Tribunal felt that the Claimant had not made a sufficiently strong case for herself and that the evidence of the Respondent seemed more credible.
There had been no loss to the Respondent arising from the disappearance of the chocolate bars. The Tribunal was of the view that the Claimant had been uncooperative in relation to the investigation of previous disciplinary issues. The Tribunal also formed the view that the Claimant’s attitude in relation to the investigation of the missing chocolate bars was similarly uncooperative. The Tribunal did not accept that the Claimant had no knowledge of related meetings. Neither was it accepted by the Tribunal that the Claimant had not received the letter of the 7 November 2013.
Having carefully considered the evidence, the Tribunal is unanimous in finding that the Claimant was not unfairly dismissed and that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, also fails because the Tribunal did not find the Respondent to have breached the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)