EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Kieran Gethins - appellant UD1129/2014
TE92/2014
against the recommendation of the Rights Commissioner in the case of:
McCormack Garages (Sligo) Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this appeal at Sligo on 17th September 2015.
Representation:
Appellant: Mr John McShane, Johnson & Johnson, Solicitors,
Ballymote, Co. Sligo
Respondent: Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street,
Donegal Town, Co Donegal
These appeals came by way of the appellant (employee) appealing against the recommendation of the Rights Commissioner ref. r-141662-ud-14, r-141124-te-14 under the Unfair Dismissals Acts, 1977 to 1997 and the Terms of Employment (Information) Act 1994 to 2012.
The determination of the Tribunal was as follows:-
Preliminary Issue:
At the outset of the hearing there was a preliminary issue as to the Tribunal’s jurisdiction in this matter.
It was submitted on behalf of the respondent, that the Tribunal did not have jurisdiction to hear the appeals as the relevant notice was not lodged within the prescribed six week period.
It was submitted on behalf of the appellant, that the Tribunal did have jurisdiction in this matter as a letter of appeal together with a copy of the Rights Commissioner hearing was received in the Tribunal on 9 July 2014 which was within the requisite period.
The Tribunal did not making a ruling on the preliminary point at the commencement of the hearing and both parties were happy to proceed and give evidence to the Tribunal.
Respondent’s Case:
The respondent operates a number of petrol stations involving forecourts and convenience stores. The Head Office is located in Sligo. The stores are extremely busy. JF is Operations Manager.
The appellant was employed as a shop assistant and commenced employment on 22 March 2012 in Store C in the North West of the country.
It was the respondent’s case that the employees’ contracts of employment were left in Store C with the Store Manager towards the end of March 2012. The appellant was furnished with a contract of employment on 29 March 2012. In June 2013 following a review of staff files it became apparent that some staff had not returned their signed contracts of employment. As the appellant never returned his contract of employment it was re-issued to him for signature in June 2013.
It was the company’s policy that all goods purchased by members of staff must be paid for in full immediately. Staff purchasing goods for removal from the premises must make the purchase from another member of staff. In the case of purchasing goods for consumption on the premises the purchase must be made from another member of staff, a receipt must be asked for, and received and retained until leaving the premises. If purchasing goods for consumption or use on the premises the purchase must be made before consumption or use from another member of staff, a receipt must be given and retained in respect of the purchase for the duration of the current work period.
JF was made aware in June 2013 that a number of staff were participating in the practice of not paying for food in Store C. He spoke to the Store Manager and over a number of days he spoke to all staff on a one to one basis. This practice was viewed very seriously by the company. Staff were told immediately that all food purchased must be paid for per the terms of the contract of employment. If this practice was to continue it would be treated as theft. The appellant was made aware of this.
Some weeks later JF became aware that the practice of staff not paying for food continued in store C. He reviewed the Store’s CCTV footage and saw that the practice was taking place.
JF invited the appellant to an investigation meeting on 15th July 2013. The appellant had been seen using the computer when the store had been busy. His response was that he knew he should not have been accessing the computer at busy times. The appellant had also been seen on a number of occasions consuming sandwiches without paying for them. He apologised, said it was out of order and offered to pay for everything. At the conclusion of the meeting the appellant said he was very sorry, knew he should have paid for the items, offered no defence other than he was sorry.
The appellant was invited to a disciplinary meeting the next day, 16th July 2013. The appellant declined representation at that meeting. JF again put the allegations to the appellant. The appellant fully accepted his wrongdoings. He was genuinely sorry and offered to reimburse the respondent. He knew he should have paid for the goods he had consumed on the premises. Again the appellant offered no defence but said it was out of order.
The respondent had a zero tolerance for theft from the stores. By letter dated 17th July 2013 the appellant’s employment was terminated. He was offered a right of appeal but chose not to appeal the decision to dismiss him.
Appellant’s Case:
The appellant commenced employment on 22 March 2012 as a shop assistant in Store C. He could not recall having received a contract of employment shortly after he commenced employment. He signed a second copy of the contract of employment on 2nd July 2013. He briefly went through the contract.
In June 2013 while the appellant was having his lunch JF asked him if he had paid for a roll he was consuming. The appellant replied that he had.
He was invited to an investigatory meeting on 15th July 2013 and a disciplinary meeting the following day. He was questioned on food he had consumed on the premises. He was aware that his actions could lead to dismissal. His employment was terminated on 17th July 2013.
The termination of his employment was a huge financial loss to him. He lives in a small community and he was embarrassed and ashamed as he was well known in the community. For these reasons he chose not to appeal the decision to dismiss him. He did not want to lose his job and had offered to repay the store. On occasion if he had been stuck for money he had taken sandwiches without paying for them. He never thought he would lose his job.
Following the termination of his employment the appellant was in receipt of a job seekers benefit. He secured full time employment eights months later.
Determination:
The Tribunal carefully considered the submissions of both parties on the preliminary issue. Quite clearly the letter dated 8th July 2014 and received in the Tribunal on 9th July 2014 is a notice in writing which states that the intention of the appellant is to appeal against the recommendation of the Rights Commissioner. This letter cited the reference number of the case in question, and was furnished to the Tribunal within the six-week time limit.
The Tribunal was satisfied that it had jurisdiction to hear the appeal and that no prejudice was caused to the respondent.
The Tribunal accepts that the respondent had a strict policy in relation to personal purchases in the Store and that staff had been reminded of the adherence to this policy at all times. JF had met the staff in June 2013 on a one to one basis and explained the importance the respondent attached to this policy.
While the Tribunal was satisfied that the appellant did not appreciate his actions were in breach of policy, and had no dishonest intention whatsoever, nonetheless the policy was clearly breached by him. The appellant apologised and was remorseful, but the respondent felt they had no option but to dismiss him. The Tribunal therefore finds that the appellant’s appeal under the Unfair Dismissals Acts, 1977 to 2007 fails.
The Tribunal was also satisfied on the evidence that the respondent complied with the Terms of Employment (Information) Acts, 1994 to 2012.
The Tribunal therefore upholds the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 and the Terms of Employment (Information) Acts, 1994 to 2012.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)