UD211/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM  OF:                                                                                                   CASE NO.

Siobhan Cottingham                                                                                       UD211/2013

                                                 -    Claimant

Against

Wine Street Bakeries T/A O’Hehirs Bakery

                                                 -   Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Dr. A. Courell BL

Members:     Mr. D. Morrison

                     Mr. M. McGarry

heard this claim at Castlebar on 26^th August 2014 

                                             and 4^th December 2014

Representation:

Claimant:                    Mr. Alan Ledwith BL instructed by:

                                    Geraghty & Co., Solicitors, 1, Rosemary Avenue, Eyre Square, Galway

Respondent:                Terry McNamara, IBEC, 3^rd Floor, Pier 1, Quay Street, Donegal Town,

                                    Co. Donegal

Background

The claimant was employed firstly as a Sales Assistant and subsequently as a Manager in the respondent’s bakery / delicatessen from the 1^st March 2008 until her dismissal due to an incident that occurred on the 25^th August 2012.  The claimant was dismissed but appealed the decision.  The decision to dismiss was upheld.

Respondent’s Case

On the first day of the hearing two Sales Assistants (LA and LI) and the Assistant Manager (COC) gave evidence.  All knew the claimant well and had worked well together. 

On the morning of the 25^th August 2012 LI went to the fridge and observed a plastic bag containing two bags which had breakfast food items and cooked chicken.  Another brown bag contained 4-5 packets of cooked ham.  LI told the Tribunal that the cooked ham was ‘in date’ and was ‘usable’.  She called COC and LA and showed them the bags.  The items were all in the fridge and neatly parcelled up. The claimant’s son (T) arrived for his shift at 11.30am and called to his mother (claimant).  The claimant left the premises with the bags and returned empty handed.  She was observed by COC also.  LA commented to COC that it was “getting out of hand”.  COC reported the matter to the Operations manager (JM).

JM interviewed COC, LI, LA and a fourth member of staff that has since left the employment.  COC, LI and LA confirmed to the Tribunal that it was their statements printed in the respondent’s booklet handed to the Tribunal. 

When asked all three witnesses for the respondent said that this was not the first time the claimant had removed stock from the respondent’s premises but were unsure if this stock was in date or not.  Stock that was out of date was to be disposed of as per the company’s guidelines; as out of date stock is not fit for consumption staff are not permitted to remove it. However staff could avail of fresh cream pastries that were near their sell by date on Sunday and Monday evenings only.

The Operations manager JM outlined the respondent’s waste management policy. All waste food must be disposed of according to the policy; the respondent employs the services of an outside contractor to dispose of the waste.  The waste policy includes the stipulation that the manager is responsible for ensuring that all requirements of the policy are met.  As the responsible person the claimant met with the environmental health inspectors on numerous occasions where the manual would be referred to.  There were regular management meetings which the claimant attended, the last one being in January 2012 where waste minimising was discussed at length.  Stock control and a ‘waste book’ had also been introduced within the respondent.  The claimant never implemented the waste book as she didn’t believe there was a waste problem in her shop.

JM received a phone call from COC asking her for a meeting outside of the respondent’s premises. JM met with COC and LA. JM was told that the claimant had been removing chicken, ham and packets of beef that were in date. This had happened previously but they were not aware whether the products were in date or not. COC was aware how serious the allegation was but felt she would have been complicit in the theft if she had not reported it.

JM checked the order level of the shop and found it to be consistent with the other respondent shops. The claimant arranged to meet with the claimant.  JM informed the claimant about the allegation of food leaving the premises. The claimant admitted she had removed the items but maintained they had been out of date.  When the claimant was informed that the dates had been checked and were found to be in date she apologised, got very emotional and offered to pay for the products. The claimant admitted this had been going on for 2-3 months. JM and the claimant talked at length (2 hours) about the personal problems the claimant was having. When the claimant asked what she should do,  JM informed her that if she wished to resign she would not start the disciplinary process. JM could not see a way back for the claimant as the trust was gone and the disciplinary process would detrimentally affect her future employment prospects.  The claimant said she wanted to think about it and did not want to come in the following day so JM told her to take a sick day. The claimant wanted to meet JM again the following day.  At no point did JM raise her voice or threaten to call the Gardaí.

The following day JM met the claimant. The claimant asked again what she should do; JM told her that she had to decide. The claimant’s husband then demanded “statements, facts and figures or else” from JM.  At this point JM felt threatened and left.  

The claimant never mentioned using the products to feed the dogs or that her husband was disposing of the waste.  This was contrary to the respondent’s waste policy. As the shop manager the claimant was well aware of the food safety policy and was responsible for it on the premises. Neither the claimant nor any manager should be removing any stock from the premises or offering it to other staff members. JM expected a simple explanation to the allegation and was shocked by the claimant’s admission and the length of time she had been removing items from the shop. 

After the initial meeting with the claimant, JM conducted a full investigation.  JM then gave her full report to the Managing Director to make a decision.  At no point did JM tell the claimant she was dismissed.   

The Managing Director MoH invited the claimant to a disciplinary meeting on the 18^th of September.  The claimant was offered a representative and informed of the seriousness of the situation.  A statement was read out on the claimant’s behalf by her representative. The claimant’s defence to the allegation was that the products she removed were out of date and it was permissible to remove out of date stock.

Staff found to be removing out of date stock would get a warning but removing stock that was in date and could have been sold equates to theft.  As per the disciplinary procedures the consequence of theft is summary dismissal.

To make his decision MoH considered the disciplinary meeting and all of the staff statements.  MoH considered the fact that the items were all neatly packaged and left in the fridge to be removed; if it was out of date stock it would contaminate the other food in the fridge. The claimant’s admission to JM is also important.  MoH considered the claimant’s actions as theft which is compounded by the fact that she was the shop manager and therefore in a role of responsibility.  MoH had no option but to dismiss the claimant and informed her of this by letter dated the 27^th of September 2012.

The claimant appealed the decision to dismiss her. TC, the Financial Controller of the respondent heard the appeal.  The appeal hearing took place on the 18^th of October 2012. The claimant outlined four grounds of appeal in her letter.  The claimant declined to add anything in addition to her appeal letter and declined to answer questions TC put to her regarding the allegation; her representative spoke on her behalf only re-iterating that the stock removed was out of date.    By letter of the 24^th of October 2012 the claimant was informed that the decision to dismiss her was upheld.

Claimant’s Case

A previous sales assistant with the respondent gave evidence that she witnessed a previous manager offering the claimant leftover hot food from the deli.  The witness also saw the previous manager offer the claimant ‘obsolete’ stock to feed her dogs.

The claimant commenced employment in April 2008 as a sales assistant.  After completing her training she worked in the deli.  The food safety manager and another manager told the claimant she could take out of date stock home for her dogs. Other staff also took out of date stock home.  The claimant does not recall seeing a food safety manual or a waste management policy. 

The claimant had no warning of the initial meeting with JM on the 29^th of August 2012. After JM informed her that she had been ‘seen’ leaving the premises with stock, the claimant immediately told JM that it was all waste stock.  The claimant sometimes took out of date stock home but not often; she had packed the bags in the bottom of the fridge so ‘it was out of the way and the customers could not see it.’ The claimant did not ask permission from JM to remove stock.  The claimant felt intimidated and threatened by JM’s accusations and manner.  JM told the claimant that she would be calling the Gardaí.

The following day the claimant and her husband met with JM.  JM told the claimant that it was her decision how to move forward. The claimant’s husband then asked for the statements so the disciplinary procedure was started.

The claimant gave evidence of her loss and her attempts to mitigate her loss.

The claimant accepts that it was the waste policy to put all waste in bags, label and tie them up and leave them for the contactor to collect. The claimant does not recall any conversations about a waste book.  The claimant accepts that she received all the witness statements with the disciplinary meeting invitation and was aware of what the allegations against her were.

The claimant’s son who also worked for the respondent gave evidence that if stock was out of date it was free for the staff to take home.

Determination

The Tribunal is satisfied that in dismissing the claimant, the respondent acted reasonably given the circumstances. Furthermore the Tribunal is satisfied that the procedures used in effecting the claimant’s dismissal were fair and reasonable.  The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)