UD630/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Alicia Akinfaye                                                                                              UD630/2012

                                    - claimant

against

Tesco Ireland Limited

                                    - respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. M. Gilvarry

Members:     Mr P. Pierson

                     Mr T. Gill

heard this claim at Roscommon on 3^rd December 2013

                                                and 14^th April 2014

                                                and 16^th April 2014

Representation:

Claimant:       Mr. Colin Jennings BL instructed by:

Hayden & Co., Solicitors, Mardyke House, The Bawn, Athlone,

Co. Westmeath

Respondent : Ms. Crionna Creagh BL instructed by:

                       John Kealy, Tesco Ireland Limited, Gresham House, Marine Road,

                        Dun Laoghaire, Co. Dublin  

The decision of the Tribunal was as follows:

Respondent’s Case:

The Manager (JR) of the store where the claimant was employed as a Line Manager in the respondent’s supermarket in Athlone.

JR explained that the incidents in question related to the use of money off coupons as payment for shopping purchased by the claimant while she was on maternity leave. The incidents came to light by the respondent’s Head Office in India that dealt with such matters. It was indicated that coupons were used on four occasions for items that either had not been purchased or for a higher value, for example a 60 cent money off coupon registered as €6.00. These incidents occurred on the 10^th, 13^th and the 19^th September 2011 and the 6^th October 2011.

It also appeared that the claimant had asked two staff members – RC and NC, to assist her with putting the self-scan checkout into “assist mode”, a system customers would not be aware of. Statements were taken from both staff.

A letter dated the 21^st October 2011 was sent to the claimant while she was on maternity leave regarding issues relating to money off coupon usage, an allegation of possible misuse of company property and a possible breach in company policies and procedures. She was invited to an investigation meeting but, as she was on maternity leave, this meeting could be scheduled for a time when she was to return to work. The claimant agreed to an early investigation meeting while she was on maternity leave.

The meeting took place on the 28^th October 2011. JR chaired the meeting with the Head Security Officer (SM) attending, the claimant attended with a Union Shop Steward. JR asked the claimant did she know the correct procedures for the use of coupons when purchasing goods in the store. She replied she did.   JR questioned her regarding a number of purchases made a various dates using her and her husband’s club card and the amount of money off coupons she had used for these purchases. She was asked and refuted that she had used photocopied money off coupons for her purchases. When put to her that a 60 cent money off coupon for a toilet tissue item had registered for a money off coupon to the value of €6.00 when she had used the self-scanning till in the store, she replied she did not know. JR put to her that two staff members had been questioned and given statements regarding her asking them to put the self-scanning till into “assist mode” on two separate occasions she replied she had as assistance was required when a large number of money off coupons were scanned. The claimant told JR that she had “very much become involved” in printing money off coupons to save money after watching a programme called Extreme Couponing.

JR sent a letter dated the 19^th November 2011 to the claimant relating to the meeting of the 28^th October 2011 informing the claimant that a disciplinary meeting would have to be held in relation to the matter.   This meeting would take place on her return from maternity leave.

Correspondence crossed between the claimant and JR regarding her health and the impending meeting. On the receipt of a certified certificate from the claimant’s Doctor, certifying her fit to attend a disciplinary meeting, the meeting was scheduled for the 12^th January 2012.

On the 12^th January 2012 the claimant, her Shop Steward, the same Security Officer and JR attended the meeting. The issues were again put to the claimant and the minutes of the last meeting were read out. The claimant was asked if she wanted to add anything else. She said that she disagreed with the contents of the statements given by the two staff members – NC and RC. She also disagreed with some of the evidence produced relating to the money off coupons used and the receipts. She questioned how these items were collated and matched together. JR told the claimant that he would look into the matter and the company policy and get back to her. The meeting was adjourned until the 19^th January 2012.

JR told the Tribunal that at the meeting on the 19^th January 2012 he informed the claimant that the respondent company was treating the matter very seriously. She was informed she was dismissed with immediate effect on the grounds of her breach of honesty and trust with the respondent company.

A letter dated the 27^th January 2012 formally confirmed her immediate dismissal “on the grounds of serious misconduct under the following heading: Breach of the Company Honesty Policy”. She was given the right to appeal the decision to the Employee Relations Manager within 5 days. She appealed the decision by letter dated the 1^st February 2012.

On cross-examination the claimant’s counsel brought all the receipts and money off coupons produced at the Tribunal hearing. When put to him regarding an amount of €37.00 worth of money off coupons used in one purchase he replied that he could not say what these items purchased these money off coupons related to. He told the Tribunal, when asked, that the claimant had not been given the opportunity to cross examine the two staff members who had given statements regarding purchases she had made.

When asked by a Tribunal member if any other sanctions instead of dismissal had been considered in this case he replied the only sanction in the circumstances was dismissal.

RC and NC gave evidence. Both were checkout operators and former colleagues of the claimant who had been their Supervisor. Both had given statements in relation to the claimant asking them to put a checkout into “assist mode”.

RC told the Tribunal she had been overseeing the self-scan area of the store when she noticed the claimant with a trolley full of goods and was scanning them through the checkout. The claimant had a large bundle of money off coupons in her hand and was scanning them through the checkout. RC explained that that if a large number of money off coupons were being scanned through the self-scan till assistance is required from a staff member. RC approached the claimant who told her that it would be better to put the till into “assist mode” as it would then be quicker to scan through all the money off coupons. RC told the Tribunal she had never seen anyone scan through so many money off coupons and receive such a large discount before. She reported the incident to her Supervisor.

On cross-examination she said, when asked, that she had not received any specific training regarding the use of coupons.

NC told the Tribunal the claimant had asked him to put the till into “assist mode”. On the day in question she had a large number of coupons to scan through. He was present on the 7^th October 2011, one of the days in question relating to the claimant’s purchases. He told the Tribunal that he had never before seen anyone purchase goods and not pay a cent for them because of the use of coupons. He had decided on that day to report the incident to his Supervisor.

When asked he said that he had had not received any specific training regarding the use of coupons.

The Manager (JM) who held the claimant’s appeal hearing gave evidence. The appeal hearing took place on the 13^th February 2012 in the store the claimant had been employed. JM questioned the claimant regarding coupons that had been used for the purchases in question. The claimant questioned how the respondent was certain that these coupons had been used by her. JM told her he would investigate the matter. The claimant informed JM that, at the time, she had not been in good health; she had not long given birth to her child and stated that she had never asked any staff to put the till into “assist mode”.

JM told the Tribunal that after the appeal hearing he spoke to JR regarding the coupons. The decision to dismiss was upheld.

On cross-examination he stated that JR had no involvement with the decision to uphold the dismissal. When asked he said that he had not interviewed RC or NC before or after the appeal hearing. When put to him he said that he had only received the copies of the coupons and the receipts in question on the day of the appeal hearing.

Claimant’s Case:

The claimant gave evidence. She told the Tribunal that she had no previous disciplinary matters with the respondent and had been employed with the respondent for over 14 years.

When she received the letter dated the 21^st October 2011 from JR she tried to contact him to discuss the matter. After a couple of calls a meeting was arranged for the 28^th October 2011 which she attended with Union Shop Steward, but she was not a member of the union at the time. When she walked in JR and the Security Officer were sitting behind a desk. JR had a number of envelopes “stuffed with paper” in front of him. She told the Tribunal that she was shown receipts and money off coupons but was given copies of all of them to take away from the meeting with her. She explained to JR why she had she had used a large number of money off coupons and, on one occasion, had swiped her husband’s club card in error. JR informed her she had been in breach of the coupon policy. She requested a copy of this policy but was not given one. At the conclusion of the meeting JR informed her that he contact her in a weeks’ time. There was no contact from the respondent until the 19^th November 2011.

The next meeting she attended with JR was on the 12^th January 2012. Since the conclusion of the previous meeting she had gone through the details on the receipts and coupons she had been given copies of and had found discrepancies. At the meeting on the 12^th January 2012 she questioned why so much time had lapsed between meetings. She also questioned JR on how the company had come to the conclusion and confirmation that the coupons matched with the receipts. JR replied that they “matched in value”. The meeting concluded.

Another meeting was held on the 19^th January 2012. JR read a pre-prepared letter stating she was dismissed from her employment for a breach in company policy. She was shocked.

A letter dated the 27^th January 2012 formally confirmed her immediate dismissal. She was given the right to appeal the decision to the Employee Relations Manager within 5 days. She appealed the decision by letter dated the 1^st February 2012. The appeal hearing took place on the 13^th February 2012. The decision to dismiss was upheld.

The claimant gave evidence of loss.

On cross-examination she stated she had never been given the opportunity to cross-examine RC and NC regarding the statements they had given to management. At the first meeting on the 28^th October 2012 she told the Tribunal that she had attended it “blindly” and was only given seconds to respond to any issues put to her. She did not agree that the money off coupons produced matched the coupons stated on the receipts of the days in question. She told the Tribunal that she felt JR had made up his mind from the beginning. She had had some personal issues with him in the past.

The Union Shop Steward gave evidence. She had attended three meetings between JR and the claimant – 28^th October 2011, the 12^th January 2012 and the 19^th January 2012. She told the Tribunal that at the first meeting JR had told the claimant that he would get back to her in weeks’ time, it took six weeks.

Determination:

The Tribunal have carefully considered the sworn evidence and submissions adduced over the three days of this hearing.

The claimant at the time of her dismissal and at all material times was an employee of the respondent at Managerial/Supervisory grade.   The case has some unusual factors in that the claimant at the time the matters complained of by the respondent and which ultimately led to her dismissal was on maternity leave and was interacting with the respondent company as an ordinary customer.

No legal argument was opened to the Tribunal in relation to the question of whether or not incidents which occurred during the claimants pregnancy could be taken into account in a decision to dismiss and the Tribunal was not invited to make any ruling in this regard.

The Tribunal considered it was appropriate for the respondent employer to take account of the incidents complained of as while the employee was on maternity leave, she had indicated that she would be returning to work at the end of her maternity leave period.

The Tribunal was not satisfied by the respondents evidence before the tribunal as to the incidents complained of.   Evidence was given of an number of shopping trips by the claimant which she availed of a large number of vouchers and obtained significant discounts off the cost of shopping.   No evidence was adduced to show that the respondent suffered any loss as a result of the claimant availing of coupons/vouchers and the respondents’ attitude appeared to be that it went without saying that such loss must have been incurred.   The Tribunal felt that a reasonable employer would have ascertained whether or not there was an actual loss in assessing any disciplinary action or sanction.   The Tribunal was also not convinced by the respondents’ evidence as to misuse of her Managerial/Supervisory position by the claimant in her interaction with checkout staff.  

While the Tribunal found that the respondent was unreasonable in not ascertaining whether any loss was incurred by the claimants actions and the Tribunal was not convinced that the claimants acted improperly in any way in her interaction with checkout staff, the fact of the matter remains that the evidence showed to the Tribunal’s satisfaction that there was some misuse of coupons and from the evidence adduced that coupons and vouchers for one particular product were used to obtain discount on a different product.   The claimant was not merely an ordinary employee of the respondent, she was at a Management level and it was inappropriate for her to be acting in this manner.   While no proof of financial loss was given by the respondent, there was potential for same and also for reputational damage to the respondent company.   Furthermore, such action was poor example for staff over whom she had supervisory responsibility.

While the respondent was justified in taking disciplinary action, The Tribunal was not satisfied that the claimant’s dismissal was fair either substantively or procedurally. The Tribunal therefore determines that the claimant’s dismissal was unfair.   The Tribunal however also determines that the claimant contributed substantially to her own dismissal.   In all the circumstances, the Tribunal considers that compensation is the appropriate remedy and taking into account the claimant’s substantial contribution to her own dismissal and the evidence as to loss and mitigation thereof, the Tribunal awards the claimant the sum of €10,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   28^th January 2015

(sgd.) _______________________________

             (CHAIRMAN)