EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Wayne Masterson MN513/2014
- claimant UD1023/2014
Against
Debenhams Retail (Ireland) Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. M. Flood
Mr. S. O'Donnell
heard this claim at Dublin on 7th September 2015, 24th November 2015 and 25th November 2015
Representation:
Claimant: Mr. Ian Montgomery, Thomas Montgomery & Son, Solicitors, 5 Anglesea Buildings, Upper Georges Street, Dun Laoghaire, Co Dublin
Respondent: Mr. David Farrell, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
On 7th September 2015
Mr. Tim O’Connell, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
On 24th November 2015 and 25th November 2015
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is a retail store and the claimant worked in Branch T as a Loss Prevention Officer. There are several security cameras throughout the store. After 30 days CCTV footage is automatically wiped. The store is monitored by a security company after closing hours.
The claimant’s estranged wife had furnished a statement to the Store on 20th March 2014 stating that she had asked the claimant to put aside a number of items of children’s wear in early February 2014. She stated that she had paid for these items in cash. She visited the Store on 20th August 2014 and retracted her statement that she had previously given in defence of her husband.
At the hearing the claimant told the Tribunal that she had not purchased any children’s items in Store T in February 2014.
RD is Loss Prevention Security Supervisor and is in that role twenty years. He worked in the respondent’s Store B for 19 years.
He was transferred to Branch T on 3rd February 2014. That day AMP, Store Manager took him on a tour of the store and introduced him to the claimant. The witness noticed a basket of faulty damaged stock and a dress which was hanging on the wall in the holding room. These items should not have been in that room. The claimant said he would remove them. RD made AMP aware of this.
When RD returned to the holding room some time later he noticed that the basket of stock had been removed but the dress was still there. The claimant told him that his wife would be collecting the dress later. After lunch that day RD noticed the dress was gone and presumed the claimant’s wife had purchased it.
The following day RD entered the cubby hole which is located just off the holding room. As there was no light in this room he used a torch. He then saw the dress rolled up in a corner in that room. He reported this to both AMP and DB. In the following days he noticed that the dress was still in the same location. On Friday 7th February he finished his shift at 5.30 pm. He asked AK to check the room later. AK called him later that evening informing him that the claimant had left the store at closing time with a bag.
RD returned to work the following Monday, 10th February 2014 and reviewed CCTV footage. He saw the claimant arriving into work with a coffee and walking to the security room on Friday without a bag. He saw the claimant in possession of a number of items of children’s wear on hangers outside the holding room at approximately 20.45 on Friday, 7th February and then entering the holding room. He then saw the claimant entering the cubby hole room. The claimant left the store with a bag over his shoulder at approximately 21.34 that evening. As RD was not fully trained on the CCTV computer he selected what he believed were the relevant images and burned them on a disk. He passed these to DB, his Line Manager.
RD subsequently passed matters to HR. RD attended an investigative meeting on 19th March 2014 and furnished the respondent with a statement.
AK is Sales Manager and has worked for the respondent for 12 years and has worked in Store T for two years.
On the evening of Friday 7th February 2014 RD spoke to him about his concerns concerning a dress which initially had been hanging in the holding room and then had been moved to the Cubby Hole and was rolled up. He saw the dress there at 8.30 pm. He put the takings in the safe. He noticed the claimant had a bag over his shoulder as he left the Store that evening and that the claimant tried to guide staff out the door ahead of him. AK left the Store around 9.35/9.40 that evening.
AK did not feel he was authorised to search the claimant. While he had carried out searches in Store H he had not been retrained in Store T. AK arrived to work around 7 am the following day. He immediately went down to the Cubby Hole and the dress was gone. He went to the computer system and keyed in the dress’s bar code number and there was no transaction for the dress. On 20th March 2014 the witness attended an investigative meeting and he furnished the respondent with a statement.
Both RD and AK were both questioned by the claimant’s representative JD during the course of the claimant’s disciplinary hearing.
AMP is Store Manager in Store T. She has worked there for two and half years and in total has worked for the company for 15 years.
She recalled a conversation with RD and the claimant regarding the issue of a basket of stock and a dress hanging on the wall in the holding room. She saw the dress hanging up in the holding room. The claimant had said the stock was faulty damaged goods. She left matters with RD as he had said he would deal with it. RD informed her later that day that the claimant had put aside the dress for his wife who would be purchasing at a later stage.
AMP took the decision to monitor the claimant in the following weeks. She believed the claimant knew that he was being watched.
A decision was taken to suspend the claimant on 6th March 2014 on full pay pending an investigation.
Following the claimant’s suspension MC, Stock Movement Manager was asked by HR to carry out an investigation. He interviewed the claimant, RD, AMP and AK over the course of three days.
During the course of the investigative meeting with the claimant the witness asked him if he recollected seeing a dress hanging in the holding room. He had not but both RD and AM had seen it. The claimant was unable to provide him with details of when his wife had purchased the children’s items. Nor could the claimant recall details of this transaction date, time and at which till the items were purchased. The claimant said his wife had lost her staff discount card or maybe she had washed it in the washing machine.
After a thorough investigation MC came to the conclusion that the claimant was unable to explain the allegations made against him regarding the unauthorised possession and removal of company stock. MC recommended that the claimant be invited to a disciplinary hearing.
AM conducted the disciplinary hearing on 1st April 2014. She reviewed the CCTV footage and read all the documents presented to her in advance of the hearing. The claimant attended with his union representative.
The claimant was unable to provide proof of purchase of the children’s items of clothing or the date, time or till point. The claimant had no recollection of having a conversation with RD about a dress hanging up in the holding room. He said he did not trust management. He wanted the opportunity to cross examine both RD and AK. Management acceded to this request and both staff members duly attended and answered questions put to them by JD, the claimant’s representative.
Every transaction was reviewed by the respondent on the day the claimant said his wife had purchased the items. No record was found on either the electronic point of sale or in the electronic journal report.
By letter dated 2nd May 2014 the claimant was summarily dismissed for gross misconduct.
Claimant’s Case:
Following the claimant’s suspension from work on 6th March 2014 he contacted his union representative JD. JD represented the claimant at various meetings. It was several weeks after the event of the missing stock before the initial investigation commenced and JD had concerns in this regard. He was presented with clips of CCTV footage. He wanted to see all the CCTV footage but that was not possible as thirty days had elapsed and the rest of the footage had been wiped. He did not see footage of the missing dress. JD was afforded the opportunity to cross examine both AK and RD on 17th April 2014. It was obvious to him that both of these witnesses had seen a copy of the investigation meeting minutes and that the images of the event had been shown to both AK and RD in advance of that meeting.
The claimant gave evidence. He commenced employment on 30th October 2008 in the role of Loss Prevention Assistant. His duties entailed till checks, stock tagging checks, goods in and making arrests on the shop floor.
A year later he was given the keys to the store and the security/alarm codes. His duties expanded. He counted the Store’s daily takings together with an administrative staff member, and he arranged the change for the tills. He had full access to all the tills.
A company (ID) had full responsibility for installing the CCTV footage throughout the store. That company visits the store once a week and also brings in security tags for stock items.
The CCTV cameras are constantly recording and the Security Supervisor trained the claimant in on viewing CCTV footage. Footage can be selected and burnt off.
The claimant did not know anything about a missing dress. On 3rd February 2014 he had put aside a number of children’s clothing items in the holding room. He did not know anything about a dress. He gave the children’s clothing to his wife on the shop floor for her to purchase. His wife purchased several items of children’s clothing. No receipts were kept. The claimant told the Tribunal that he did not steal the children’s clothes.
On 6th March 2014 he was handed a letter by DB which confirmed that he was being suspended on full pay pending an investigation into the alleged act of gross misconduct regarding the unauthorised possession, concealment and removal of company stock.
During the investigative and disciplinary process the claimant’s union representative attended with him. He believed both AK and RD had given false answers when questioned during the disciplinary meeting.
Prior to his dismissal the claimant was awarded employee of the month.
Since the termination of his employment he has secured some part time work.
Determination:
The Tribunal heard substantive evidence regarding the movement of stock within the Store and was presented with elaborate documents.
Objection was taken to the admissibility of the evidence of one of the respondent’s witnesses, who was the estranged wife of the claimant. She had originally written a letter to the management supporting what he had said about putting the garments aside for his wife to select. In that letter she said that she later purchased those garments using cash.
The respondent sought to adduce evidence from that witness that she later wrote to the management withdrawing that letter as false. The claimant’s solicitor objected to this evidence as she made that withdrawal after the dismissal, and could not therefore have formed part of the basis of dismissal. The Tribunal ruled that the evidence was admissible.
When evidence was concluded the claimant’s solicitor made a further submission that her evidence should be excluded from consideration, as its prejudicial effect outweighed its probative value. The Tribunal does not accept this submission.
There was a clear conflict of evidence not only between the claimant and his wife but also between the claimant and two other witnesses. The Tribunal must resolve this conflict and decide which version to accept.
The Tribunal does not accept the evidence of the claimant and prefers to accept the version given by the other witnesses.
Section 6(1) of the Unfair Dismissals Act, 1977 provides:
“Subject to the provision of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
The Tribunal finds that a substantial ground has been shown.
On behalf of the claimant it was argued that the respondent had failed to retain full CCTV footage for the relevant time and that the respondent behaved unreasonably in the circumstances. The Tribunal accepts that this was a flaw in the investigation.
Section 6 of the Unfair Dismissals Act, 1977 as amended provides:
(7) “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Tribunal as the case may be, considers it appropriate to do so –
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment Act, 1993) of section 7(2) of this Act”.
Since the substantial ground has been shown the Tribunal ‘does not consider it appropriate’ that this failure would outweigh the “substantial grounds” which have been shown to the Tribunal, all the more so, as the Tribunal did not accept the claimant’s evidence.
The Tribunal finds that the dismissal of the claimant was not unfair. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)