UD1577/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO

UD1577/2013

CLAIM(S) OF:                                           

Emer Lawless    - Claimant       

Against

Tesco Ireland Limited    - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal (Division of Tribunal)

Chairman:    Ms. D. Donovan BL

Members:     Mr. M. Noone                     

                     Ms. S. Kelly

heard this claim at Wexford on 8th April, 27 and 28th May 2015 and 28th, 29th and 30th September 2015 and 1st and 2nd October 2015       

Representation:

Claimant:   Ms. Niamh McGowan BL instructed by: O’Doherty Warren & Associates, Charlotte Row, Gorey, Co, Wexford

Respondent:  Eamonn McCoy, IBEC, Confederation House, 84/86, Lower Baggot Street,   Dublin 2     

The determination of the Tribunal was as follows:-

Background:

The claimant (EL) and three of her colleagues (LK, EH, AD) were employed in the public café run by the respondent in it’s original premises in a town in Co. Wexford.   The claimant held the position of café Manager.  

The respondent has since opened a larger store on the other side of the town.  They do not oversee the running of the new café that which is located within the new store and which is operated by an independent coffee company.  The original store had a staff canteen onsite that was subsidised by the respondent company.  Any food consumed in the public café was charged at full price to staff members.

Of the five employees that worked in the original café four were dismissed from their employment.  The fifth employee remains working in the new store. 

In November 2012 all staff were required to sign off on a number of company policies. 

On the 18th May 2013 a Security Guard (SG) observed, on CCTV, one of the café staff (EH) handing a magazine, a bun and a drink to a child who was accompanied by a male.  These items did not appear to be paid for.  SG reported this observation to the Store Manager (BK) who in turn asked SG to monitor EH.  When carrying out this monitoring SG observed EH and three of her colleagues – AD, LK and the claimant serving themselves food in the café, consuming it but not appearing to pay for it.  He reported these incidents to BK who watched the footage in question.  An investigation was undertaken in each case by BK.  CCTV was viewed, receipts were married with the purchases on the CCTV and statements were taken from various members of staff.  BK met with the claimant and each of the other three staff members – EH, AD and LK, separately and on a number of occasions each.  All four employees were placed on paid suspension pending further investigations.  BK decided the matters should move forward for a disciplinary hearing.

A Manager from an alternative store (MMcM) was appointed to carry out the disciplinary meeting and he arranged to meet the claimant and the other three staff members individually and each on a number of occasions.  Having considered the matters independently the claimant and the other three staff members were dismissed. The claimant was given the right to appeal the decision. The letter of dismissal stated:

 “Your dismissal is on the grounds of serious misconduct under the following headings:    Theft or fraud or attempted theft or fraud if proven to the Company’s satisfaction.  This applies equally to the property of the Company, suppliers, staff members, customers and the social committee / fund.

 Staff Purchase Policy which states ”all purchases must be produced and paid for at the time of purchasing.  No credit or IOU’s are permitted” “these purchases are liable for checking by Security at any time.”  If this policy is breached in any way it will be deemed as serious misconduct and may be subject to the disciplinary process up to and including dismissal.

Furthermore, the bond of trust that needs to exist between employer and employee has been broken.”

The claimant and the other three staff members – EH, EL, AD and LK appealed the decision. The claimant set out numerous grounds of appeal.  Having had each appeal hearing heard and considered the grounds of appeal the decision to dismiss the claimant was upheld and none of the grounds of appeal were upheld.

The Store Manager (BK)  who carried out each investigation and meetings with the claimant, the Store Manager who carried out each disciplinary meeting with the claimant and made the decision to dismiss her, the Store Manager (PS) who heard the appeal of the claimant and the Store Manager (DL) who hearing the appeal of the claimant all stated that they forwarded their notes and decisions in each matter to the Human Resources Department and they, HR, in turn issued each investigation outcome, dismissal and outcome of the appeal hearing to the claimant.

The claimant was employed from April 2002 until her dismissal for gross misconduct on the grounds of breaching the respondent’s policies on honesty and staff purchases on the 19th August 2013.

Respondent’s Case:

BK gave evidence.  SG, the Security Guard, had made him aware of an incident regarding EH, a colleague of the claimant, and having viewed the CCTV footage he asked SG to monitor the café.  Some incidents were then observed with the claimant of which he was informed. Having viewed the CCTV footage in question BK decided he must discuss the matter with the claimant.   On the 31st May 2013 the claimant was approached and requested to attend a meeting with him and she was informed that she could bring a representative with her.  A list of allegations was put to the claimant. 

The list of allegations was read into the Tribunal record:

 “22/05/13 – Approx. 08.50 – Gets 2 capri suns, bag of fruit, special K bar and 3  rashers, wraps in tinfoil and then seen leaving with items in a lunchbox.  

 22/05/13 – Approx. 09.15 – Returns out of store, goes in behind counter and  picks up an item of food from the serving area and eats it.

 22/05/13 – Approx. 09.35 – Serves (staff named) 2 toast, 2 rashers, 1 egg  and a coffee, charges €2.20.

 22/05/13 – Approx. 09.45 – Takes a bottle of Riverrock from shelf, walks into the back with no payment.

 22/05/13 – Approx. 09.55 – Goes to breakfast with (AD), gets 2 eggs,  2 rashers and pudding.  No payment at till.  After finishing seen bottle of riverrock in back.

 23/05/13 – Approx. 15.25 – Makes large bowl of scrambled egg, puts on a plate with rashers and beans.  No payment at till.”

The claimant said all items were paid for.  BK suspended the claimant with pay pending further investigation.  The claimant was notified by letter dated the 4th June 2013.  They met again on the 7th June 2013 and the claimant was asked to explain when and who she paid for the items in question.  The claimant replied they were paid for at a later time.  The claimant’s union representative raised the issue of other staff members “grazing”.  A third meeting took place on the 18th June 2013 and again the claimant said the items in question were paid for.  The matter was sent forward for a disciplinary meeting and of which the claimant was notified.

On cross-examination BK said he had followed company policy when carrying out his investigation.  When asked had he investigated the matter raised of other staff “grazing” he replied that he could not remember asking other Managers about it.  When asked if he had spoken to the café Manager before investigating the claimant he replied that he could not recall.  When asked had he not believed the claimant when she said the items had been paid for he replied that there had been no evidence of payment.   It was put to BK that two of the allegations in the outcome of the investigation letter dated 20th June 2013  did not relate to the claimant and that a decision had been reached taking these allegations into account. 

BK told the Tribunal that the café staff had been informed some time previously that the respondent was considering getting a third party to run the café in the future. 

MMcM gave evidence.  He held three investigation meetings with the claimant.  At all times the claimant said the items had been paid for but could not say when or by whom.  Neither a tip plate nor the potato oven were mentioned at the meetings.  MMcM found the claimant had breached company policies and had not given satisfactory answers to questions put to her. MMcM told the Tribunal that he found he had no alternative but to dismiss the claimant.  She was given the right to appeal his decision.

On cross-examination MMcM said he was not sure if he had the investigation report with him when he met with the claimant.  He had not asked other café staff members if the claimant had asked them to pay for the items she had consumed but he could find no proof of payment.  He felt due to the breach of company policy and the claimant’s unsatisfactory answers there was no alternative but to dismiss her.  When asked if he had viewed the whole day of CCTV footage he replied that he could not recall how much  he had viewed.

PS gave evidence.  He received the claimant’s letter of appeal citing seventeen grounds of appeal.  The appeal hearing was held on the 3rd September 2013 where each point was discussed.  The claimant could not say when or to whom the payments had been made.  PS told the Tribunal that the issue of the tip plate was not raised at the meeting.  The decision to dismiss was upheld and EL was notified by letter dated the 30th September 2013. None of the seventeen grounds of appeal were upheld.

On cross-examination PS said there was no alternative but to dismiss the claimant due to the breach in company policies.  When asked PS said he had not had the letter of dismissal with him at the appeal hearing but had read it prior to the meeting.

Counsel for the claimant put it to the respondent that it is difficult to recollect some 8 days or so after the event who and when you paid for items such as food items or grocery shopping.

Claimant’s Case:

The claimant gave evidence.  She told the Tribunal that at all meetings she attended she had stated all items consumed had been paid for.  She felt she, and her colleagues, had done nothing wrong.  No one had ever told her she was in breach of company policy and had she been informed she would have ceased the practice.  They were not permitted to carry money on their person while working and when the café was busy it was easier to eat there and assist her colleagues if needed.  The staff canteen was some distance away and she only had a 15 minute break.

The claimant told the Tribunal that on the 31st May 2013 she was not given a lot of time before attending the initial meeting with BK.  She was suspended with pay and told to leave the store, not even having time to clock out.  The claimant said she felt that as the café was going the respondent just wanted her out.  She thought that she, and her colleagues, would have been offered redundancy and move to the new café owners. 

The claimant attended the appeal hearing with PS again stating the items in question had been paid for.  The decision to dismiss her was upheld.   None of her grounds of appeal were upheld.

The claimant gave evidence of mitigation of her loss of earnings and how the dismissals had affected her.

On cross-examination the claimant explained she had received basic training in company policies but had not received any training in Staff Purchase and Company Honesty policies when she became café Manager.  However she was aware you could not serve yourself. 

When asked why she had not mentioned the tip plate at the meetings she replied that she had not been asked.  She stated that she had often paid for items from her own wallet.  The issue of the unused potato oven had not been raised either. 

The claimant told the Tribunal that she and her colleagues were left to run the café on their own.  Management did not want to know if there were any issues arising and at one point she had not spoken to BK, the Store Manager, for three months.

Legal Submissions:

Detailed legal submissions, supported by relevant authorities, were made by the representatives for both parties.  

Determination:

Having considered the evidence adduced at the hearing, the submissions and the authorities relied on the Tribunal finds as follows:-

1. That the claimant was investigated in respect of whether or not she had paid for food consumed by her in the public café.

2. That an allegation of theft or fraud was never put to the claimant at the investigation and accordingly she was dismissed for a charge that was never put to her.

3. That the investigation concluded that she had consumed food items but had not paid for them and had accordingly breached the honesty and staff purchase policy of the respondent company.

4. That the claimant had been investigated in respect of two allegations which did not relate to her and that a decision had been reached taking these two erroneous allegations into account.  

5. That the evidence of MMcM who carried out the disciplinary stage was that the claimant was dismissed because the food was not paid for at the time of purchase.   Notwithstanding the letter of dismissal stated that the claimant had been dismissed for theft and fraud.   Accordingly, the claimant was dismissed for misconduct not found against her.   

6. That even if the claimant had been guilty of theft and fraud the investigation to determine same was inadequate because, inter alia:-

• the claimant was prejudiced by the delay in commencing the investigation because it can be difficult remembering who and when you paid for specific items of the type in question at even a number of days remove;

• the claimant was not given sufficient notice of the investigation.

• insufficient CCTV footage was viewed and that viewed could only show that the food items were not paid for at the time of consumption or on the day of consumption and accordingly the investigator reached a conclusion without any or any adequate evidence - (see Levi Curran v Tesco [UD560/2008];

• not only did the investigator make findings of fact, two of which findings could not be correct,  that the matters alleged had happened but deemed that there was a  breach of company policies (see Gallagher v Certus [2013] IEHC 621);

• no or no adequate weight was given to the he claimant’s own oral testimony that she did pay for the food consumed but not at the time of purchase and which evidence the claimant gave to the Tribunal under oath;

• failed to test the evidence of the claimant by way of viewing CCTV footage for the following days and failed to ask the claimant’s colleagues had she paid them;

7. That the conclusion reached at the disciplinary stage, that the food was not paid for at the time purchase mutated into a breach of the respondent company theft and fraud policy and which mutation remained through to the end of the final appellate stage.

8. That there was conduct by the claimant such that required an explanation but the claimant did give an explanation being that she always paid even if not at time of consumption and that this practice of paying later was custom and practice. (See Martina Hestor v Dunnes Stores Ltd (No. 22/87, Appeal UF 38/87 M134 and [1990] E.L.R.12).  

9. That the value of the goods is not relevant (See, for example, Looney & Co.; Patience Ugwomaju; Valerie Byrne; Martina Hestor – noted above) and an employer is entitled to have a zero tolerance policy when it comes to theft or fraud.  

10. That it would, however,  be reasonable for the respondent to consider factors such as the claimant’s long service record, her exemplary record up to the incident complained of and the explanation for the impugned conduct that could not be discounted on the evidence.

11. That there was a practice of paying later in respect of food consumed in the café.   Accordingly, there was implied authority granted to the claimant.  The mere fact that all of the staff of the café engaged in such a practice, that PO’B did not dispute that it was practice and a manager confirmed its existence is sufficient evidence of the practice and if the store manager was not aware of the practice he ought to have been particularly taking into account the security arrangements in an undertaking such as the respondent.   The Tribunal finds that this practice arose out of necessity in that the claimant could not have her purse with her whilst on duty in the café and the staff canteen and lockers were a distance away in the context of a 15 minute break.

12. That the practice could have been discontinued by simply informing the claimant that it was not an approved practice, that it was to cease forthwith and that continuance of it could led to dismissal.   (See Coady & Power v Oxigen – UD1047/2013).

13. That the respondent Purchase Policy provides that purchases must be produced and paid for at the time of purchase and that no credit or IOUs are permitted.   However, there is ambiguity as to whether food consumed in the public café or indeed in the staff canteen is purchases for the purposes of this policy in circumstances where the policy states that the goods “must then be placed into the employee’s locker or car” and which clearly could not apply to food to be consumed in the café.  The policy also requires that “receipts for purchases bought within the store must be checked and the receipt signed by a member of security or management and attached to the purchases”.   It appears that this procedure was not operated in respect of food consumed in the café which further indicates that consumption of food in the café was treated otherwise than according to the Purchase Policy.

14. That the respondent’s Honesty Policy and Purchase Policy are not sufficiently clear when it comes to the consumption of food and are overridden by the existence of the practice of paying later for food consumer.

15. That there is no evidence that the claimant breached the Honesty Policy.   The evidence is that she didn’t pay at the time of purchase.

16. That the respondent is entitled to rely on its policy regarding its procedures.   However, the investigator failed to realise that under the policy he had a discretion as to whether to put the matter to the next stage, being the disciplinary stage, or not and the evidence of MMcM was that he did not comply with the tick-box procedure at the disciplinary stage.

17. That the disciplinary stage and the appellate stage were unsatisfactory not least because the report of the investigator was accepted at face value and the failure to uphold certain grounds of appeal which clearly as a matter of fact should have been upheld and which failure is in the circumstances irrational.

18. That it is common practice for Unions to stand down once an employee engages legal representation and accordingly the respondent is not liable for any lack of Union representation for the claimant.

19. That it is part of the claimant’s contract that she may not have legal representation at the various disciplinary stages and the respondent is entitled to rely on this.   However, if an employee requests to have legal representation particularly where the allegation relates to theft or fraud an employer should at least consider the request notwithstanding company policy. (See Alan Burns & John Hartigan v The Governor of Castlerea Prison [2005] IEHC76.   In the within case the presence of the claimant’s solicitor clearly may have been beneficial to both sides in that for example CCTV footage for a later period may have been advised and he may have ensured that the respondent procedures policy were followed.  

20. That “suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question” and it “will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct”(see The Governor and Company of Bank of Ireland v James Reilly).  That none of these justifications existed but rather the claimant was suspended because it was part of the policy of the respondent.

21. That if an employer intends to use CCTV to identify disciplinary or other issue relating to staff in order to comply with the provisions of the Data Protection Act 1988 staff should be informed of this before the CCTV is used for such purposes

22. The fact that the dismissal of the claimant may make it easier for the respondent to close the café or transfer it to another undertaking does not necessarily prohibit the respondent from dismissing the claimant if she had engaged in conduct such that warranted a dismissal.

23. Taking into account the nature of the misconduct, paying later for food consumed, the justification for same and the claimant’s long and exemplary  service record the sanction of dismissal was disproportionate.

Accordingly, the Tribunal finds that the claimant was unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €61,918.00

The claimant sought the remedy of reinstatement. It is a matter for the Tribunal as to which of the three remedies of reinstatement, re-engagement or compensation to award. The Tribunal being cognisant of the fact that the claimant is still unemployed and the difficulty she may have in getting equivalent alternative employment is, nonetheless, of the opinion that reinstatement would not be in the best interests of either party and accordingly the Tribunal awards the remedy of compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________       (CHAIRMAN)