EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jahir Raihan – claimant UD1218/2013
against
Ireland Roc Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O’Leary BL
Members: Mr T. O’Grady
Ms N. Greene
heard this claim at Dublin on 24th November 2014 and 26th January 2015
Representation:
Claimant: Mr Adrian Harte BL on first day
Mr Barry O’Mahony BL on second day
Instructed by Eugene Smartt Solicitor,
Newlands Cross, Clondalkin, Dublin 22
Respondent: Ms Mary Fay BL
Instructed by Ms Deborah Delahunt
Arthur Cox Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal is as follows:
Preliminary Issue
The respondent’s legal representative questioned the Tribunal’s jurisdiction to hear the case. The claimant was dismissed on 12 February 2013 and his complaint form was lodged on 29 August 2013, outside the statutory time period.
The Tribunal is satisfied that if the claimant is entitled to claim minimum notice his date of termination is the date on which such notice expires. In this case that would bring the claimant inside the statutory time period. To determine whether the claimant was fairly dismissed the Tribunal needed to hear all the evidence.
Summary of Respondent’s Case
The respondent is a subsidiary of a fuel company. The claimant was employed as a sales advisor at a West Dublin filling station that is also a convenience store. When the area manager examined the monthly reports from the West Dublin filling station he was concerned about losses of papers, soft drinks and confectionary. He arranged for the assistant manager from a south Dublin filling station, RF, to come and review the till print outs and CCTV footage for the West Dublin filling station.
RF gave evidence that he printed out the till rolls for the two Points of Sale in the filling station for each employee and checked it against the CCTV footage. There is a CCTV camera over each petrol pump and over each POS.
RF discovered a number of instances over the space of an hour where the claimant took money for papers, chocolate bars and soft drinks but failed to register the purchases on the till. At the end of the day these purchases were not reflected as an over in the claimant’s till.
The Store Manager called the claimant to a meeting while he was working on 1st February 2013. The SM showed the claimant CCTV footage of him on 18th January 2013 as he worked on the till. The claimant appeared to be failing to scan a number of items through the till and was instead using the ‘price check’ function on these items. The SM asked the claimant to explain what was happening in the footage. In the store manager’s opinion the claimant did not give satisfactory answers and he suspended him with pay pending further investigation.
The claimant was invited by letter to a disciplinary meeting by a store manager of a different store previously uninvolved in the process. The letter enclosed a copy of the disciplinary procedure and the claimant was invited to bring a colleague or a trade union representative which he declined.
At the meeting the store manager viewed the CCTV footage with the claimant and asked him about a number of individual price checks the claimant made including the following:
He issued a car wash token valued at €9 which he did not put through the till. The claimant could not remember why, sometimes if it was busy he would put car wash sales through later in the day. The claimant contended that the assistant store manager had previously told him to use money from car washes to cover ‘drive offs’, where a customer drove off without paying for their fuel, but that he should not tell the store manager about it. This was disputed by the assistant manager at the Tribunal hearing who gave evidence that the claimant had never sought advice on drive offs or cash variance. There was function on the till to record drive offs. The investigator had checked the fuel pumps against receipts and there had not been any drive offs on 18th January.
How the cash drawer opened when the claimant only used the price check for a M50 toll on the till. The claimant could not remember why.
A purchase of a chocolate bar and two cans of pepsi where the pepsi cans were price checked instead of being scanned. The claimant did not know why. The claimant said he sometimes accidentally double-scanned items and would balance the till by price checking other items. The store manager contended that there had not been any double scanning on this occasion as when this occurs an error message flashes across the screen and the CCTV footage did not show this message pop up.
The store manager took a break of seven minutes before recalling the claimant to the meeting and informing him that his employment was being terminated with immediate effect for failing to follow cash handling procedures amounting to gross misconduct and a breach of trust. He was given leave to appeal but he did not exercise this option. The store manager believed that as an employee of seven years the claimant knew well how to operate the till. In his opinion the claimant did not give a reasonable explanation for using the price check function. The respondent produced workbooks completed during his induction training. Cash handling procedures were taught onsite.
The store manager checked the claimant’s work books and he had received training in cash handling. All employees were aware what the price check function was for. Price checking items distorted the physical inventory.
The claimant had submitted two letters of resignation on 5th January 2013 and 6th February 2013 to his store manager prior to his dismissal but the store manager refused to accept them due to the seriousness of the situation. The claimant sought to have these returned on the day of the dismissal, but he only received copies.
Summary of Claimant’s Case:
The claimant gave evidence that he was called to a meeting without warning on 1st February 2013. When the CCTV was put to him his mind went blank and he did not know how to answer the questions.
Regarding the pepsi cans the claimant explained that had double scanned a can by accident. He could void the item or cash the item and be down on his till count. He had been instructed to avoid voids as much as possible so he would cash the item and balance the till by price checking items of the same value and putting the money in the till. He price checked newspapers for the same reason. Voids had to be explained so he used this system instead.
He contended that in the store they did not report drive-offs worth between €5 and €10 to the Gardaí. He contended that the assistant manager told him to use money from the car wash to cover these small value drive-offs and not to tell the store manager. He contended that there were 3 or 4 drive offs that day.
He put some fuel sales on hold to keep cash available for customers who sought change in order to avoid opening the till. He denied that he held sales so that he could open the till when he price checked an item. He did not recall the company’s cash handling policy. He completed workbooks at the start of his employment but had not received any refresher courses since. He was not aware of any physical inventory concern.
He did not receive a copy of the investigation meeting notes prior to the disciplinary hearing. He was dismissed at the meeting but did not receive the letter for two weeks. He did not appeal as he did not believe it would help him. He gave evidence of his loss.
According to the claimant his employment began in October 2006, although there was a training form signed by the claimant dated April 2006. The respondent did not have a record of the claimant’s start date. The respondent wrote to the Tribunal after the hearing in regard to the start date. It contended that the date of April 2006 was a typographical error and that this should have read April 2007 and that the claimant’s employment commenced in October 2006.
Determination:
Having considered all the evidence in this case the Tribunal finds that the respondent did not act unreasonably in summarily dismissing the claimant, therefore the minimum notice period did not apply. This being the case the Tribunal finds that the claimant’s application to the Tribunal under the Unfair Dismissals Acts, 1977 to 2007, was made outside of the 6 month statutory time limit and therefore the Tribunal does not have jurisdiction to hear the unfair dismissals claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)