EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Mr Fergus Byrne T/A Gala Service Station
– appellant (employer) UD453/2013
against the recommendation of the Rights Commissioner in the case of:
Siobhan Fogarty
– respondent (employee) UD358/2013
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr P. Pierson
Mr P. Trehy
heard this appeal at Tullamore on 30th October 2014
Representation:
Appellant(s) : Mr Brian Dolan, Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Respondent(s) : Mr William Kelly B.L. instructed by Mr Richard Stapleton
Smyth Stapleton & Co, Solicitors, O'Moore Street, Tullamore, Co Offaly
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of a dual appeal by the employer and the employee of the recommendation of a Rights Commissioner under the unfair Dismissals Acts, 1977 to 2007 reference R-126329-UD-12/GC.
Summary of Evidence
The employee commenced employment in 2002 in the role of delicatessen manager. FB submitted that the employee had run the delicatessen for him. He had full trust in the employee and had relied on her during difficult times. He described the employee as being his right hand man. The employee was aware of procedures for waste disposal in the business. The employer had a policy that no food waste should be removed by employees with the exception that on Tuesday mornings the employee was permitted to take waste bread product home to feed chickens.
A separate issue arose at the business in and around June 2012 whereby the employer became aware that customers were getting food at discounted rates at the delicatessen. FB met with all staff on this issue including the employee in this case informing them that this practice was not permitted. A notice was displayed to remind staff of this policy. No disciplinary action was taken at that time. On foot of this information FB had commenced monitoring CCTV of the deli counter.
On the 5 July FB asked the employee to a meeting having observed her removing waste food from the deli area. He asked a number of questions which he had pre-prepared and wrote down the employee’s responses. The employee’s representative produced the original note signed by SF of the meeting held that day and there was conflicting evidence regarding the document which the employer opened to the Tribunal as an accurate note of that meeting. The employee confirmed that she was aware of the policy and explained that she had two new puppies and had taken waste deli products home to feed them.
In a letter dated the 10 July the employee was invited to attend a disciplinary meeting. The purpose of the meeting was to discuss two allegations including alleged theft of company property and alleged breach of trust and confidence. The meeting was arranged for the 13 July however the employee did not attend. He received a letter dated the 12 July from the employee’s solicitor. The disciplinary meeting was rescheduled for the 19 July. The employee’s union representative was delayed and it was agreed to proceed with the meeting. The employee explained that she had only taken food which would not sell and had been in the unit for a period of four to five hours. The employer submitted that it was not possible to know if the food would sell. He took the decision to dismiss the employee on the grounds that trust was broken. He could no longer trust the employee to operate the tills and handle food products.
The witness accepted that the appeal process was delayed due to his domestic situation. He had nominated his solicitor to hear the appeal as he was a sole trader with no other appeals officer available to him. The appeal of the dismissal was never held. Throughout the process the witness had taken advice from a HR consultancy company.
The employee (SF) gave evidence of her employment commencing in 2002 and ending on the 9 August 2012. She had no previous disciplinary issues or warnings on her record. She started work at 6am each morning cooking as the morning went on ensuring not to cook an oversupply of products. Any cooked food which was left over long periods she removed before finishing her shift. She never removed freshly cooked products. She never ate food from the deli and always brought her lunch to work. The employer was aware she removed products that were unsuitable to leave in the deli over long periods. Items such as rashers and eggs were removed to a scrap bucket. If the scrap bucket was full she put the products into bags. SF explained that when she started working first all waste foods were binned and she got permission from the employer to take home waste to feed her hens and dogs.
On the 5 July as she was leaving at the end of her shift FB came out after her. He said he had a few questions to ask. She was shocked and gobsmacked by his allegations. She recalled signing a note of what was discussed at that meeting. At her disciplinary meeting on the 19 July she felt that FB had already made his mind up and that she would be dismissed. SF submitted that she had done nothing wrong or different to what she had done previously and had permission to remove waste food.
Determination
The Tribunal notes that there were no specific dates of alleged breaches of company policy given to the employee in the investigative or disciplinary meetings. The employer conducted the investigation, the disciplinary hearing and made the decision to dismiss, and effectively thwarted union representation for the employee by failing to delay or reschedule the disciplinary hearing. This was in circumstances where there was no similar urgency to progress the appeal of the employee. This was further aggravated by the fact that there was no meaningful appeal offered to the employee. These factors meant that the procedure was unfair.
In addition, in all of the circumstances, the decision to dismiss was a disproportionate sanction that no reasonable employer should have come to.
The Tribunal therefore finds that the dismissal was unfair. The appeal of the Rights Commissioners recommendation by the employee is varied and the Tribunal awards the employee €19,500.00 under the Unfair Dismissals Acts, 1977 to 2007. The appeal of the Rights Commissioners recommendation by the employer fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)