EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Neil Poulter
UD1317/2012
- claimant MN565/2014
WT324/2012
Against
B & Q (Ireland) Limited
B & Q Warehouse
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1991
I certify that the Tribunal
Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Ms M. Sweeney
Mr J. Flavin
heard this claim at Cork on 30th January 2014, 9th April 2014
and 17th July 2014
Representation:
_______________
Claimant: Mr Patrick O’Riordan BL instructed by Mr Shane Healy, O’Connor
Solicitors, Quay House, Fitton Street, Off South Mall, Cork
Respondent: Mr. Damien Cahill, IBEC, Knockrea House, Douglas Road, Cork
The claim under the Organisation of Working Time Act 1997 was withdrawn.
Respondent’s Case
The respondent has a chain of large hardware stores selling to the public. The claimant, having previously held a managerial position in other stores, commenced employment with the respondent in its Cork store in March 2007 as a seasonal manager and in September 2011 he became showroom manager.
On the morning of 25 April 2012 the employee who had balanced the cash the previous evening discovered that two €20 notes were missing from the safe; all notes are numbered. CCTV footage showed the claimant at the safe in the intervening period.
The then assistant manager in charge of stock (AMS) met the claimant on 27 April to carry out a first step investigation to establish whether the matter should proceed to the formal process. AMS was not satisfied with the claimant’s explanation that he was at the safe to count vouchers for a number of reasons: he did not know the correct number of vouchers in the safe, his position at the safe had blocked CCTV coverage of what he was doing at the safe and he had a bag with him. AMS suspended the claimant on pay, pending further investigation, for alleged gross misconduct in that he had allegedly stolen €40 from the safe on 24 April.
Subsequent to the meeting, AMS did a walk-through of the claimant’s presence at the safe and found it would be physically difficult to count the vouchers. At a further investigation meeting on 30 April 2012 the claimant’s explanation was further explored. Copies of the relevant section of the safe balance control log and supporting print-outs as well as a statement from an employee, who was involved in the voucher scheme, were presented to the claimant in the course of the investigation meeting held on 3 May 2012 and the ending of voucher scheme some time prior to 24 April 2012. Throughout the process the claimant maintained that his actions were normal, that he had not consciously or deliberately blocked the CCTV coverage of what he had been doing at the safe and that he had been checking vouchers for bonus purposes. The meeting was adjourned to the next day but was ultimately not held until 11 May in order to facilitate the attendance of a representative for the claimant.
Unknown to AMS, a divisional fraud investigator (DFI), (under the aegis of the centralised department within the respondent group) had been investigating unusual financial activity within the respondent’s stores around this time and referred five refund transactions involving the claimant to AMS for further investigation. These refunds had been made by the claimant between 10 March 2012 and 13 April 2012. AMS interviewed DFI on 11 May prior to his meeting with the claimant.
At the commencement of the 11 May 2012 AMS informed the claimant that there were five new allegations against him, that he would outline these to him, ask for his recollection and following a brief recess would discuss the specifics of the allegations. The claimant had no prior notice that these transactions were to be raised with him at the meeting. The ‘€40.00’ incident was put on hold while the investigation into these new allegations took place. The claimant had no recollection of some of the incidents and felt the CCTV footage might help him to recall. The investigation continued at a meeting on 17 May 2012. Whilst all the refund transactions involved a number of breaches of various procedure (including inter alia doing a refund without the original purchase receipt or without having the customer or stock present at the till, self-authorisation of the transactions and doing a cash refund for a debit card sale.) Four of the five incidents were ultimately cleared up.
The outstanding transaction was a straight cash refund of €220 given to a customer on 13 April 2012 in respect of the sale of 20 boxes of tiles with no receipt, stock or customer present at the cash desk that the CCTV picked up. At the 11 May meeting the claimant recalled that the tiles were faulty and suggested to AMS that the CCTV coverage of the weekend prior to 13 April, would show that AE (another employee) who had been working on the returns desk, had introduced him to a customer who had returned with three or four warped tiles; the customer had SAPCO documentation with him on that occasion. There was much focus on the 13 April refund at the meeting of 17 May. AMS was dissatisfied with the claimant explanations for a number of reasons: the claimant did a refund transaction with no receipt, stock or customer present at thereturnsdesk; the claimant had obtained €250.00 in the cash office for till number 13 but on leaving the cash office he did not go to till 13 and the refund was processed for €220 some two hours later with €30 unaccounted for; no receipt of a refund was retained and there was no evidence of the twenty boxes (or thereabouts) of tiles having been purchased or having been returned to the store; he had not adhered to the normal practice of viewing the damaged stock before issuing a refund, even if this required a visit to the customer’s house and the claimant could not recall who the customer was. The claimant requested that the CCTV footage of 13 April and the weekend before be reviewed and believed it would show the customer in the store both days. At the end of 17 May meeting AMS informed the claimant that he was not satisfied with his explanations relating to the missing €40 or the refund for the tiles and that these were being forwarded to a step 2 formal meeting/disciplinary meeting for potential gross misconduct.
As part of the investigation the system was searched in an effort to track a sale transaction for 20 boxes of the tiles. The system is searched by keying in the bar code for the tile and all the transactions in the item come up but of the only two were found; one box was sold subsequent to 13 April and the claimant was sure that the particular customer in the other sale transaction was not the customer to whom he had given the refund on 13 April. The search was limited to the Cork store. Although the respondent has stores in Limerick and Waterford the indication was that the sale was transacted in the Cork store.
AMS again met the claimant on 21 May to inform him that his review of the CCTV footage, at the claimant’s request, did not show the claimant and AE having a conversation with each other or with a customer on or around the relevant dates. At the claimant’s further request AMS theninterviewed AE, who confirmed that the claimant had dealt with a customer, who returned a number of faulty tiles, at the returns desk. Although he had not seen this on the CCTV footage AMS accepted AE’s information. AMS admitted that it had not crossed his mind, earlier in the process, to interview AE. It was his position that had he interviewed AE earlier in the process it still would have no bearing on claimant’s subsequent procedural failures.
AMS took advice from HR throughout the process but did not discuss the matter with the Store Manager (TBM) or anyone else in the store. AMS was not clear as to when he learned about the additional allegations. AMS did not accept that he should have accepted the claimant’s explanation, for the outstanding refund, by default. As regards the other refunds whilst they all involved breaches of procedures, two were done in the interest of customer service, in some it was possible to verify the refund with the customer and AMS was satisfied that none of the four involved any benefit to the claimant but as regards the outstanding refund the claimant could not provide any information to help clear up the refund.
TBM (the store manager) was appointed to conduct the disciplinary meeting. He was provided with handover documentation generated during the earlier process including inter alia eight witness statement one of which was from the employee in the cash office confirming that €250 had been taken from the cash office for till 13 and one from AE; another statement by AE was generated during the disciplinary process. Following his review of the documentation TBM wrote to the claimant on the 22 May 2012 inviting him to a disciplinary meeting to discuss his alleged gross misconduct in that he had seriously breached company procedures in respect of customer refunds and misappropriated company monies on Tuesday 24 April 2012. The disciplinary meeting was held on the 31 May 2012. TBM had regarded the claimant as a key member of the management team and described him as a good performer with good retail experience. They went through all the facts and the claimant was given an opportunity to respond to the details of each of the allegations but no reasonable explanation was provided by the claimant over the course of the meeting. Following his meeting with the claimant TBM interviewed AE and he could not corroborate that the tiles returned were the same as those for which the refund had been made.
It is normal to get the cash for a refund from the till and not from the cash office; till 13 carries a float of over €400.00 but the claimant did not know how much was in till 13; refunds are done at the returns desk which has a camera but on exiting the cash office the claimant did not go to till 13 but instead went in a different direction towards the showroom with the cash which is very unusual; he obtained €250 from the cash office and two hours later did a refund transaction for €220; he could not remember why he got €250.00 or where the extra €30.00had gone and could not even remember visiting the cash office; he could not provide the name of the customer to whom the refund had been made or any audit trail in relation to the refund; there was no evidence from exhaustive CCTV footage of the refund being made to a customer. The claimant could not remember much about the transaction. In line with normal company procedures faulty goods must be either returned to the store or a visit made to the customer’s home to check that the goods were faulty but neither was done. This refund transaction differed from the four others in that the claimant could not provide any information at all in relation to it. As regards the misappropriation of €40 from the safe everyone who had entered the cash office, over the period in which the money went missing, had a legitimate reason for doing so and had not concealed what they were doing at the safe. On the other hand, the claimant’s reason for going to the safe did not bear out as there was a far greater number of vouchers in the safe than he had said; the position he adopted at the safe prevented CCTV coverage and he had a bag on his wrist. The claimant denied having any involvement in the theft of the €40
TBM considered the claimant’s responses over several days. The claimant’s inability to answer many questions and his multiple breaches of procedures, the lack of any documentary evidence to support the giving of a refund to a customer led him to believe that the claimant was guilty of the alleged gross misconduct. TBM felt that if you hand money back to a customer you remember it. He considered a number of sanctions but in circumstances where trust had broken down he had no option but to dismiss the claimant. At a meeting on the 5 June 2012 AE’s statement of 31May was provided to the claimant and was discussed. The claimant provided a statement to TBM refuting the two allegations. TBM informed the claimant of his decision to dismiss him. By letter dated 6 June 2012 TBM confirmed the dismissal to the claimant. He did not ask the claimant to comment on possible sanction. The dismissal was confirmed to the claimant letter dated 6 June 2012.
The claimant appealed his dismissal. A store manager (APM) from one of the respondent’s other stores conducted the appeal hearing on 3 July 2012. APM was accompanied by a witness at the meeting but the claimant declined the offer to have a witness present. As part of his appeal the claimant provided a detailed written statement outlining the grounds of his appeal. The claimant stated inter alia that the allegations against him were wholly without foundation and the investigations had been carried out in the poorest manner, with only ever one outcome in mind. He contended that there seemed to be a disparity between the procedures adopted and those in the company handbook.
APM reviewed the CCTV footage surrounding the alleged misappropriation of €40. While he was not satisfied with the claimant’s explanation, the CCTV footage did not show the claimant putting the €40 on his person and he believed that there was an element of doubt which was sufficient for him to overturn the decision regarding this allegation. APM reviewed all the evidence relating to the €250 refund including contacting a number of customers. He could find no trace of the customer to whom the claimant stated he had made the refund to corroborate the claimant’s version of events. He could find no trace of the transaction on the company’s system. There was no evidence that the customer or the transaction existed at all. No home visit had been carried out by the claimant to check that the tiles concerned were faulty. In line with the claimant’s request APM researched all the sales of over 16 boxes of the particular type of tile from 1 February to date of refund on both till and SAPCO sales in the Cork store but was unable to locate the particular sale. He had never previously come across such a situation in the process of handling a refund. There was no audit trail or paper trail as to where the refunded money had gone. He was not satisfied with the claimant’s explanation and he provided no reason for not following the normal company procedures.
APM accepted that whilst there were certain aspects around procedures as conducted that could have been handled more professionally but he did not find anything that was prejudicial and that appeared to significantly alter the course of the investigation and subsequent disciplinary procedure.
APM was satisfied that a serious breach of company’s refund procedures had occurred and that it amounted to gross misconduct, destroying the trust that needs to exist between employer and employee. He concluded that the decision to dismiss was justified on this ground. He confirmed his decision to the claimant by letter dated 24 July 2012.
Claimant’s Case
The claimant’s position was that the refund for the tiles occurred around Easter time 2012, which is a particularly busy time in the store. On 13 April AE introduced him to a couple, at the returns desk, who were returning faulty tiles and had a few tiles in a box with them as well as the SAPCO documentation. The claimant took note of the bar code on the box. They were also seeking compensation for the extra labour that had been involved. The claimant agreed a refund figure of €220 to be paid to the customer when the work would be completed. They returned to the store one week later and he met them in the showroom department. They had a receipt from the tiler. He then went to the cash office, obtained €250 and returned to the showroom and gave the refund money to the customer.
The claimant went to the cash office for the €250 as he did not believe that there would be enough money in the till at the returns desk. He accepted that he did not process the refund until two hours later. He could not explain this two hour delay other than believing that something must have distracted him in the intervening period. He could not explain the discrepancy between the figures of €220 and €250. While he accepted that he received €250 from the cash office he believed the refund to be €220. He processed the refund by the bar code on the box of tiles. In hindsight he should have processed the refund by SAPCO the location of the customer could be traced. The claimant’s position was that he was simply attempting to deal with the situation from a customer’s perspective as well as the store’s perspective and understood his actions to be the most logical way of dealing with the matter. He believed that CCTV footage of the customers at the returns desk on the first day has to exist. He believes that the failure of the company to locate this footage is due to the fact that the company did not look for it.
The claimant set out the grounds of his appeal to the company in detail. He believed that the first step investigation had been very lax. He did not choose to have a witness to accompany him at the meetings as there was no need to do so. He had not done anything wrong and there was no evidence that he had taken money. He assumed that the company would have interviewed AE as part of their investigation but this was only done after he had reminded them of their failure to interview him. He did not believe it was a fair process. As part of the appeal process he highlighted many breaches of procedures by other senior managers inthe company, in particular where refunds had been made without paperwork. He had carried out refunds previously in a similar manner without issue. He made the refund on 13 April to the customer and believed that to be the end of the matter and he made no financial gain from it. Refunding in the store is a decision taken by management on a daily basis. He was quite satisfied from the conversation he had with the customers on the day in question to make the refund and did not feel it necessary to make a home visit to view the remaining faulty tiles. He made the refund in the manner he did so as not exposed the respondent to a greater risk of cost. He accepted that he received training by the company in relation to cash handling and refunds procedures and accepted that he had breached those procedures. Following one of the meetings with ASM he heard him discussing it on the phone and assumed that the conversation was with TBM. If he had processed the refund by the SAPCO rather that the barcode the customer would have been traceable.
The claimant had no knowledge of the misappropriation of €40 from the cash office. He accepted that he visited the cash office but it was not to count vouchers but rather to check that they were in the same order in which he had originally placed them. The allegation against him surrounding this matter was initially upheld by the company but was subsequently withdrawn on appeal.
Determination
Of the six allegations levelled against the claimant only two were carried forward to the disciplinary stage and formed the basis for his dismissal. On appeal only the allegation relating to the €250 refund was upheld. APM considered that this constituted gross misconduct warranting dismissal. Detailed notes of all the meetings in the process were before the Tribunal.
The function of the Tribunal in cases of alleged misconduct is and well established and is set out in Looney & Co. Ltd. v. Looney (UD 843/1984), where the Tribunal stated:
“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as (the respondent) did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in (the respondent’s) position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”
Thus, the Tribunal neither seeks to establish nor does it establish that the employee is guilty or innocent of the alleged wrongdoing. And further, the Tribunal must not substitute its decision for that of the employer but must ask itself if a reasonable employer in the similar circumstances to those facing the respondent would have dismissed the employee. The reasonable employer test is satisfied if the employer had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and the sanction of dismissal must not be disproportionate (Noritake (Irl.) Ltd v Kenna (UD 88/1983) and Martin v Audio Video Services Centre Ltd (UD617/1991).
Having considered the numerous breaches of procedures resulting in the inability to track the customer and his inability to remember important details relating to it as outlined in the evidence the Tribunal is satisfied that the respondent had reasonable grounds for believing that the employee was guilty of the outstanding allegation.
Being mindful that the sanction must be proportionate to the wrongdoing, that the Tribunal must not substitute its decision for that of the employer and that only one of the six allegations was upheld, the Tribunal felt it appropriate in this case to apply “the band of reasonable responses” test illustrated by Browne-Wilkinson J in Iceland Frozen Foods v Jones [1983] 1 ICR 17, where he stated:
“[I]n many, though not all cases there is band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; (5) the function of the industrial as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair. If the dismissal falls outside the band it is unfair.”
The Tribunal finds that the dismissal comes within the band of reasonable responses of the reasonable employer.
The Tribunal rejects the argument on behalf of the claimant that the nature of the investigation was such that it required the application of the principles of natural justice. The purpose of the investigation was to decide whether the matters alleged should proceed to the formal disciplinary process. However, it would have been best practice in the instant case to give the claimant prior notice of the additional allegations that were to become part of the investigation on 11 May and thereafter and this may have helped to avoid much repetition and shorten the period of time over which the investigation was conducted. ASM’s failure to examine the CCTV footage or interview AE may have proved fatal but having done so later at the claimant’s request afforded ASM the opportunity to mend his hand. There were no inconsistencies between ASM’s and TBM’s understanding of what AE had told them respectively on 21 May and 31 May in that he had confirmed to ASM that the claimant had dealt with a customer, who returned a number of faulty tiles, at the returns desk and he had told TBM that he could not corroborate that the tiles returned were the same as those for which the refund had been made on 13 April. Having considered these and other issues raised on behalf of the claimant, the Tribunal is satisfied that there was a full and fair investigation albeit protracted and piecemeal. The outcome of the disciplinary process was not predetermined. The allegation of bias was not substantiated. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
In the circumstances of the case the respondent was justified in summarily dismissing the claimant. Accordingly the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)