EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD695/2014
CLAIM(S) OF:
Thomas Lynch -claimant
against
Ard Services Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Ms S. Kelly
heard this claim at Carlow on 9th April 2015 and 16th June 2015
Representation:
Claimant: Mr. Simon McElwee, Joseph P. Farrell Solicitors, No. 1 Maryborough Street, Graigecullen, Carlow
Respondent: Mr. Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Summary of evidence:
The respondent operates a number of petrol stations and the claimant was employed by the company as a retail assistant initially at its Carlow petrol station and latterly in Kilkenny.
A number of witnesses gave evidence on behalf of the respondent company. GC, a Site Manager gave evidence that comprehensive on the job training is provided at induction including training on the company’s policies and procedures including its point of sale policy. The cash policy which was signed and dated by the claimant was opened to the Tribunal. The policy states disciplinary action will be taken if a shift is found to be over or under by five euro in any one week. This is an increase from an older policy which allowed for a variance of one euro.
The claimant was requested to attend a disciplinary meeting on 5 November 2012 relating to three incidents. Two of the incidents related to poor cash control. There was a till differential of €71.78 on 24 October 2012 and €15.89 on 15 October 2012. The other issue was about a complaint received from the Assistant Manager that the claimant’s behaviour had become threatening when she confronted him about the cash differences.
MS the claimant’s manager at the time stated in cross-examination that she had investigated the matter by querying the issues with the claimant. She also spoke with the Assistant Manager who had made the complaint against the claimant but she did not take witness statements. MS confirmed that she also took part in disciplinary meeting that followed. The claimant did not dispute the cash discrepancy issues. During cross-examination MS accepted that the claimant asked for a copy of the CCTV footage regarding the incidents. She recollected that the claimant had raised an issue during the disciplinary meeting that there was “a campaign by a certain sex” against him. MS confirmed that she did not investigate this issue as she not want to cause increased ill-feeling.
GC (Site Manager) was also present at the disciplinary meeting. The €71.78 figure arose as a result of the claimant failing to notice that a card transaction was declined until he was closing off his till. The €15.89 figure arose when a customer did not pay for fuel. This event was confirmed with the assistance of CCTV footage. The claimant did not dispute the incidents in this meeting.
It was the claimant’s evidence that he had a remedy in place to recover the €71.78 sum as he knew the customer in question. However, MS told him not to approach the customer about recovering the sum. The claimant stated that the petrol station had a “local’s return book” which was used by all staff to record payments outstanding from local customers. In or around the time of the €71.78 transaction this practice ceased. The claimant would have liked more information to help his recollection in relation to the €15.89 transaction. A copy of the CCTV footage would also have assisted him in this regard he believed.
The claimant was surprised that an allegation of threatening behaviour was made against him as it was untrue. He had found the Assistant Manager to be aggressive since being promoted. After the investigation into the threatening behaviour allegation was concluded, the allegation was found to be unproven and therefore no disciplinary action was taken against the claimant in relation to this issue. Both site managers gave evidence that they were in agreement that the claimant should be issued with a verbal warning in relation to the cash differences and provided with re-training. The claimant appealed this decision but the sanction was upheld by the Area Manager on appeal. The claimant had appealed as he felt he had not been given a fair chance and it bothered him that his file was tainted by the untrue allegation made by the Assistant Manager.
The Area Manager found the claimant to be upfront about the transactions and he felt the claimant’s appeal had more to do with the allegation against him for threatening behaviour. The Area Manager examined the minutes of the meetings held with the claimant and he also spoke with the claimant and the Assistant Manager who made the allegation. He concluded that both parties were annoyed with each other on the day that the issues were addressed and he concluded that the incident was a clash of personalities rather than threatening behaviour on the part of the claimant. In reaching this conclusion he viewed the CCTV footage as part of the allegation against the claimant was that he had banged the table when the assistant manager spoke to him. However, this was not on the CCTV footage. The Area Manager upheld the verbal warning regarding the cash differences as the two large discrepancies had occurred within nine days of each other.
Another disciplinary meeting was held on 29 January 2013 in relation to alleged breach of company procedure due to poor cash handling procedures on four occasions. Two issues related to fuel not being charged for and two related to till deficits. This meeting was attended by the Area Manager and GC (Site Manager). At the meeting the claimant admitted to the first two incidents and had no explanation for the second two issues. The claimant was issued with a first written warning and further training. This warning was in place on his file for twelve months. A manager (AON) gave evidence of providing training to the claimant in February 2013.
A further disciplinary meeting was held with the claimant on 24 May 2013 relating again to poor cash handling procedures. There were five incidents to be addressed at this meeting spanning from February 2013. This meeting was attended by GC (Site Manager) and the Area Manager. GC gave evidence that as similar issues continued to occur she and the Area Manager made the decision to issue the claimant with a final written warning.
The claimant was requested to attend another disciplinary meeting on 10 July 2013 in relation to his till being short by €34.90 on 14 June 2013 and not recording fridge temperatures on 20 May 2013 and 21 June 2013 respectively. This meeting was attended by AON as Site Manager and ND, acting Area Manager. ND gave evidence that the deficit in the till arose as a result of the claimant forgetting to charge for fuel despite the fact the customer gestured towards the petrol pumps as could be seen on CCTV footage. The claimant could not explain why this had occurred but he had subsequently added his own money to the till the following day when he realised there was a deficit the previous day. The claimant confirmed at the disciplinary meeting that he had forgotten to record the fridge temperatures as required under HACCP procedures. A decision was reached to terminate the claimant’s employment for gross misconduct due to a persistent and regular breach of cash procedures. During cross-examination it was put to ND that despite a request from the claimant he was not shown the relevant till transactions and HACCP sheets. The witness replied that the standard operating procedures were shown to the claimant at this meeting.
The claimant appealed the decision to dismiss to the Human Resources Business Partner (AL) who heard the appeal in September 2013. He satisfied himself that training was provided to the claimant on six different dates and he also reviewed the CCTV footage. He overturned the decision to dismiss the claimant to a final written warning. He stated his reasons for doing this were the claimant’s good character, his length of service, his skills at customer service and the fact that the incidents arose as a result of a mistake. In addition he was cognisant that the claimant raised the issue during the appeal that he could not always hear what customers were saying due to the presence of security glass. This second final written warning was in place for 12 months on the claimant’s file. The claimant was also transferred to the Kilkenny station to give him a new opportunity in a new environment that does not have security glass around the tills. It was the claimant’s evidence that he found the Kilkenny station to be busier and have camera complications.
AF is a retail manager with the company. He became the claimant’s direct manager when he was relocated to the Kilkenny station. He requested the claimant to attend a disciplinary meeting to discuss alleged breaches of cash procedure on four occasions during October and November 2013. This meeting was eventually scheduled for 17 January 2014.
The claimant was notified that the fourth issue was to discuss the fact that he had served himself at the till to cover a cash loss of €49.04 due to the non-charging of a customer. The customer had driven away without paying for fuel and AF expected to see a deficit of €49.04 the following day but when there was not he examined the CCTV footage and observed the claimant pay with his own card from behind the till. Staff cannot serve themselves. AF made the decision to dismiss the claimant following the disciplinary meeting as the issues amounted to consistent poor performance in the area of cash procedure and policy. During cross-examination he confirmed that the cash reconciliation documents and journals were provided to the claimant but the CCTV was only available for a certain period of time. As the disciplinary meeting was postponed on a number of occasions due to the claimant being on sick leave, the CCTV footage had elapsed by the time the meeting took place. AF admitted that he did not think to preserve the footage pending the disciplinary meeting, however the claimant did not dispute that the incident had occurred.
FG is a Human Resources Business Partner with the company and she was charged with hearing the claimant’s appeal which took place on 20 February 2014. FG noted that the CCTV footage was not used as part of the disciplinary process against the claimant but rather to ascertain if the customer had left the shop without paying. One of the grounds put forward at appeal by the claimant was that all of the tills should be considered together if cash differences occur. The company provides employees with re-training throughout the year. Each member of staff is responsible for ensuring that their till is “safe” and not accessible to others. There are a number of company sites where a sole employee can be working throughout the night and can take and pay for items during their shift but they must report to the manager the next morning about any such items. The claimant openly admitted at the appeal to using his own card to pay for a customer’s transaction but he viewed it as serving a customer in absentia.
In reply to questions from the Tribunal FG stated that it was the food and beverage policy she had considered in relation to an employee not being allowed to serve themselves. It was the company’s case that it followed from this policy that staff are not allowed serve themselves in other situations. It was accepted by FG that she had incorrectly quoted the cash policy as the relevant policy in the letter to the claimant informing him that the she was upholding the decision to dismiss.
It was the claimant’s evidence that he felt he was being “hounded out” of the company and by July 2013 he knew that the termination of his employment was coming down the line. He felt singled out as other colleagues had imbalances in their shifts from time to time but no disciplinary action was taken against them. He raised this at meetings with management and he also requested evidence that no changes were made to the till accounts in the office.
The claimant submitted medical certificates in December 2013 for work stress as he felt “all eyes were on” him in the Kilkenny station. The claimant stated that it was never his intention to make mistakes. He accepted he had received the necessary training and during cross-examination he stated that he did not know what other action the Retail Manager AF could have taken. The claimant has been without employment since the dismissal.
A public representative who accompanied the claimant to meetings stated that he has a retail background. He noted a deficit in the re-training provided to the claimant in that the receipts in question were at no time used as part of the re-training to pinpoint where the claimant had made mistakes. He particularly thought this was relevant given that the company confirmed that the cash discrepancies arose through a number of transactions at times and not just a single transaction.
Determination:
The claimant was employed as a retail assistant with duties that included the operation of the till in the respondent’s shop premises in Carlow and subsequently in Kilkenny.
An integral part of the claimant’s job was the handling of and accounting for cash and payments that went through his shop till. The respondent had established cash handling policy and procedure. The respondent needed to be confident that the claimant with the benefit of proper training could comply with that policy.
The reasonableness of the tolerance level allowed by the respondent on till reconciliation was questionable in the respectful opinion of the Tribunal, however, the specific discrepancies and errors that occurred in this instance as a result of shortcoming on the part of the claimant were clearly sufficient to warrant investigation and potential disciplinary action in all of the circumstances.
The Tribunal was of the view that the repeated nature of the errors and discrepancies warranted sanction and the Tribunal is satisfied that fair procedures were adopted by the respondent in dealing with the claimant.
In so far as the claimant did not question the content or effectiveness of the training provided to him but professed himself to be essentially at a loss as to why he was making mistakes, it is not appropriate for the Tribunal to question the quality of such training.
Regrettably, given the prior history leading up to the dismissal of the claimant on the 20th January 2014, it is the Tribunal’s view that it was not unreasonable of the respondent to apply the ultimate sanction of dismissal on that occasion having already applied progressive sanctions and, having endeavoured, as it had, to assist the claimant in remedying the situation.
The claimant’s work colleagues and members of the respondent’s management team spoke highly of the claimant and he is clearly a conscientious and committed individual. However, he was failing in the performance of a fundamental aspect of his job and showed no meaningful progress in remedying the situation. The lesser sanctions applied to him made no noticeable impression on his performance and the respondent felt that the only option available to it was to dismiss the claimant.
On cross-examination the claimant recognised the difficulty faced by the respondent. In referring to AF’s decision to impose the sanction of dismissal he stated” I don’t know what he could have done other than he did.”
The Tribunal does not believe there was anything unfair in the imposition of the sanction of dismissal on this occasion. Accordingly, the claimant’s claim that he was unfairly dismissed fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)