UD134/2013, UD135/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEALS OF:                                                                                         CASE NO.

Valentina Siskova,                                                                                   UD134/2013

                                                                        Appellant 1

Marian Doyle,                                                                                           UD135/2013

                                                                        Appellant 2

against the recommendation of the Rights Commissioner in the case of:

Valentina Siskova,

Marian Doyle,

                                                                       Appellants

John Pettitt Wexford T/A Pettitts Supervalue Centre,                                                                      Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey B.L.

Members:     Mr C. McHugh

                    Mr F. Keoghan

heard this appeal at Dublin on 6th May 2014

                                   and 26th August 2014

Representation:

____________

Appellants:    Mr Des Dalton, 9 Branswood, Kilkenny Road, Athy, Co Kildare

Respondent:    Juanita Brennan, IBEC, Confederation House, Waterford Bus Park, Cork Road,

                        Waterford.

This came before the Tribunal by way of both appellants appealing the recommendation of the Rights Commissioner reference r-125178 and 125186-ud12/JT

The representative for the respondent outlined that both appellants served food to each other and did not charge for it. The respondent has several policies regarding honesty, security, staff and purchase policy regarding buying food.   Both employees were familiar with the policies. There were very serious consequences and a very serious view taken by the respondent.     It was expected that employees behave in an honest way and theft contributed 100% to this.

The representative for the employees told the Tribunal that due process was not adhered to.   Both employees were placed in a situation that they were not familiar with.  No other remedy apart from dismissal was considered.  

Respondent’s Case

SF told the Tribunal she was the security officer for the respondent’s six stores. Her duties included stock loss, pilferages and money loss.  

On the 1 June 2011 she was in the canteen on her break and the second named employee MD was having her lunch.   MD had two sausage rolls and she had a receipt for one sausage roll.   MD placed the receipt in the bin and SF retrieved the receipt. SF noticed that one sausage roll and wedges were not charged for.    She telephoned SH, assistant manager and told him what she had seen. She showed SH the CCTV as well.   She left the store on Wednesday and SH was going to contact the manager PM the next day. She had no other involvement in the matter.

SH telephoned her on Wednesday and informed her that he had observed another incident between the appellants.  On the 9 June 2011 she obtained the details and time of the incident.   On Thursday she spoke to the manager PM and reviewed CCTV footage also.   Two incidents had taken place - one on the 1 June and the other on the 8 June 2011.  

On the 16 June 2011 she along with PM invited V the first named appellant to a meeting.   VS told her that there was no need for representation and that she had DP with her (a charge hand).    She asked VS if she understood the role and she said yes and she then said that she never understood the agreement.   Both the witness and PM explained to VS what they had observed.   VS told her that MD asked her to throw in a few wedges on the 8 June 2011.

PM explained to VS that she was suspended that day with pay.   A further meeting took place on the 20 June 2011; in attendance were VS, PM and the witness. The company policy was explained at the meeting. VS left the meeting and returned with DP.   At the meeting VS was adamant that it occurred on one occasion and that she had a very good memory.

At a meeting on the 23 June 2011 PM asked VS if she had anything to say and she stated that she had served MD on two occasions and she said she had a bad memory.   At the original meeting VS stated that it never happened. MD admitted that it happened on more than a few occasions.   The store manager PM issued a final written warning.  

On the 22 June 2011 PM spoke to MD the second named appellant and asked her to explain what had occurred.   Initially MD denied any knowledge of the incident. Then she admitted that it happened on a few occasions, MD stated that she received goods free of charge.   MD understood that the respondent would class this as stealing and she was suspended on full pay. MD was adamant that the incident occurred on five or six occasions over a period of time and she was not apologetic or remorseful.     Theft was very serious and the number of thefts in the deli counter was quite high.   Employees were all well aware of this.   MD admitted to taking items and not paying for them on numerous occasions over a period of time.

In cross examination SF stated that the first instance occurred on the 1^st June 2011 and the incidents occurred over a three week period.   She was not in a position to issue dismissal letters to staff.   She was not part of the decision making process. When put to the witness why not make the appellants aware on the 1 June what they had done she replied that on the 1 June PM was not there.   She did not have contact with PM in the intervening period.  

The assistant manager SH told the Tribunal that he was responsible for the day to day running of the respondent and he ensured that customers were well looked after.   He first became aware of an incident regarding the appellants on the 1 June 2011.   SF showed him footage and he spoke to PM the manager when he returned.   From CCTV footage he observed that VS served MD sausage rolls and only charged for one sausage roll. Some wedges were included.   The next thing he noticed was that MD was on her break and he knew that she had paid for one sausage roll.   He printed a report and noted that one sausage roll was paid for.   He contacted SF and she told him about the incident that took place.      

PM told the Tribunal that he was the store manager with the respondent company since August 2008.   SH told him what happened on the 2 June 2011.   At that point it was the June bank holiday weekend and the store was very busy.   He became aware of another incident that occurred on the 8 June 2011. SF called VS to a meeting and offered her representation which she declined.   He asked VS if she understood his role and she said she did.     VS denied that she did anything wrong, she said she understood that the respondent had some CCTV footage.   As far as he could recall MD was informed about a second incident.   On the 21 June VS had nothing further to say and the decision was made to dismiss VS.   He was in touch with HR during the process but he was not in touch with the owner.

He had a meeting with MD on the 22 June 2011. MD denied that she had done anything wrong.    The respondent had zero tolerance in relation to theft.

In cross examination he stated that DP was a charge hand and he did not know if she said anything at the meeting.   Prior to the meeting on the 24 June 2011 the dismissal letter was typed. If something had come up in the interim he would not have issued the letter.    The appellants would have been told about the company’s policy at the first meeting.   If the appellants had any further evidence they could have reverted to him.   Both appellants lied about the incidents and the trust with both the appellants was gone.    

The Managing Director of the respondent company, CP told the Tribunal that he was employed with the respondent all his life. He has been MD since early 2008. The respondent has six stores and 450 staff.   He heard the appellants’ appeals on the 18 July 2011. Both appellants were represented. He went through the appeal letters and issues that were flagged.   He asked VS if she wanted to add anything at that point. VS said that there was a language barrier and it was not clarified in the letter. If VS required a union representative she could have had one.  

He looked at the minutes of the meeting and he felt that VS was offered representation.     His view was that VS was not forthright at the initial meeting and there was a definite breach of trust. He did not recall VS saying anything on the day regarding a lesser sanction.   There was a lack of honesty and the fact was that it happened on multiple occasions.   His job was to ensure that the respondent’s margins were productive which allowed it to pay the bills.   At the time he spoke to one part time and two full time security staff.   There were big issues with customers and staff theft and this had an impact on a large group of staff and it has to be controlled.   He had to establish if the respondent was fair to the appellants.  

A lesser sanction could not be considered as there was a lack of honesty on both appellants’ behalf and the incidents occurred more than once. Although the value of the goods taken is small the theft of the goods still occurred.

Evidence continued on Day 2

CP had no involvement in the disciplinary process until the appeal. The delay in the initial stages of the process was due to the manager’s leave and MD was on sick leave; CP did not consider the delay unfair. If the appellant’s had admitted the truth initially, combined with the low value of goods CP might have considered a final written warning as a sanction. The fact that the truth only came out in stages goes to their honesty.

CP did not consider the lack of notice to get a representative as unfair as there are lots of employees readily available in the store to act as a representative. The meetings could have been adjourned if more notice was required.

CP did investigate as to whether there was a culture of this behaviour in the deli counter; he discovered that there was not. There isn’t a zero tolerance policy in place but all the staff know that theft is unacceptable.

Appellant’s Case

MD gave evidence that on the 23^rd of June 2011, after completing a 10 hour shift she was called to a meeting and instructed to bring a colleague from the shop floor with her. MD was not informed that it was part of a disciplinary process or that this process could lead to her dismissal. MD was informed she was seen eating sausage rolls and cubes with a label only for a sausage roll and she was therefore suspended with pay.

MD was given a letter on Thursday evening inviting her to a meeting on Friday evening. At this meeting on the 24^th of June with the store manager PM, the dismissal letter was read out. No other sanction was discussed; MD does not believe that anything she said during the process would have made a difference to the outcome.

It is normal practise to charge for all food from the deli; MD did not realise that a forkful of cubes would lead to her dismissal. MD accepts she was wrong for not paying for the cubes. The shock and short notice of the initial meeting meant MD was not in a position to think straight or defend herself. MD is aware of the honesty policy.

MD gave evidence of her loss and her attempts to mitigate her loss.

VS was called to a meeting with the security officer and the store manager. She was offered a representative in the form of a work colleague. VS was informed that the meeting would concern the charging for potato cubes but not warned that the process could lead to her dismissal. VS then received a letter on the 19^th of June asking her to a meeting on the 20^th of June 2011. At the meeting on the 20^th of June there was no discussion, she was just handed the dismissal letter. VS accepts that she did not charge MD for the cubes and that this was wrong. VS denied the allegation initially as she was scared because PM had instructed her that the Gardaí would be called.

VS gave evidence of her loss and her attempts to mitigate her loss.

Determination

The appellants admitted to theft. The sanction of dismissal is not disproportionate given the ongoing nature of the offences and the admission of same.   The Tribunal is satisfied that the procedures used by the respondent in effecting the appellants’ dismissal were fair.

The employee’s appeal of the Rights Commission Recommendation ref:r-125178-ud-12/JT and r-125186-ud-12/JT under the Unfair Dismissals Acts, 1977 to 2007 fail and the Tribunal therefore affirms the Rights Commissioner Recommendations.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)