EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1579/2013
CLAIM(S) OF:
Edel Hardiman - 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 (EH) and three of her colleagues (LK, EL, AD) were employed in the public café run by the respondent in it’s original premises in a town in Co. Wexford.
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, the claimant who was one of the café staff 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 the claimant. While carrying out this monitoring SG observed the claimant and three of her colleagues – AD, EL and LK - 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 up with the purchases on the CCTV and statements were taken from various members of staff. BK met the claimant and each of the other three – EL, 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 meet with the claimant and each of the other three staff members individually and each on a number of occasions. Having considered the matters independently the claimant was dismissed, as were the other three, and she was given the right to appeal the decision. The decision to dismiss was made by MMcM. The claimant was informed of the dismissal by letter in the following terms:-
“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 appealed the decision stating numerous grounds of appeal. The appeal hearing upheld the dismissal and did not uphold any of the claimant’s grounds of appeal.
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 who 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 they forwarded their notes and decisions in each matter to the Human Resources Department and they, HR, in turn issued the investigation outcome, dismissal and outcome of the appeal hearing to the claimant.
The claimant was employed from 1996 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 the claimant and having viewed the CCTV footage he asked SG to monitor the café.
BK decided he must discuss the matter with the claimant. On the 31st May 2013 the claimant was approached on the shopfloor and requested to attend a meeting with him and was offered to bring a representative with her. A list of allegations was put to the claimant.
The list of allegations was read into the Tribunal record:
“18/05/13 – Approx. 13.40 – Talking to a male with young daughter, takes child off males hand and brings her into the café and gives her a capri sun, a small bun and a magazine off the shelf. Walks out of shop.
20/05/13 – Approx. 13.00 – Goes down H & B isle, picks up a 3pk of platter and walks into the café with no payment, shortly after a female arrives at the café and EH gives the platter to female them walks out of store.
23/05/13 – Approx. 08.30 – Takes two cans of coke out of sandwich fridge on shopfloor, brings them into back of café. Rubbish bags checked later on and one can was in it and the other was open in the fridge.
23/05/13 – Approx. 15.10 – Makes herself a plate of chips, grabs a can of Vimto out of the fridge, then proceeds to get magazine from stand. No payment at till.
28/05/13 – Approx. 13.00 – Takes pudding and starts eating it with toast. (This has been removed as not mentioned in the first meeting)”
The claimant was asked for an explanation. A second meeting took place on the 7th June 2013. Following this meeting the claimant’s union representative advised BK that he was no longer representing the claimant as she, and her colleagues, had sought legal advice. At the third meeting with the claimant the CCTV footage was viewed. BK asked when and who the claimant had paid for the items in question. BK told the Tribunal that there was no “real substance” to her answers. BK forwarded the matter to the investigation stage.
On cross-examination BK told the Tribunal that having married the CCTV footage and receipts of the times in question there was no evidence that payments had been made for the items in question. When put to him that the claimant had given explanations that items were paid for he replied that she could not verify when and to who she had paid. When asked had he spoken to the customer regarding the drink, bun and magazine incident he replied he had not.
In respect of the platter incident BK said it later transpired the packaging and barcodes had been removed but never suggested that the claimant had done this. He never met the female who collected the platters from the claimant but it transpired it was the claimant’s sister and he didn’t ask her about the incident.
MMcM gave evidence. He met the claimant on three occasions to try and establish who to and when the items in question were paid for. The claimant replied that they had been paid for but could not recall when or to whom. There was no mention of a tip plate or monies being stored in an unused potato oven nearby.
Following the meetings he met and took statements from a number of staff including management. He found there was no common practice of eating now and paying later. Having found no evidence of payment, the company policies were breached and the bond of trust broken. MMcM made the decision to dismiss the claimant.
On cross-examination MMcM stated he had taken all the evidence and statements into account before making the decision to dismiss. When asked what issues were discussed at the meetings he replied the platters, the cans of coke, Vimto and chips. He accepted that the claimant had not left the store with the platters. When asked MMcM stated that the claimant had been dismissed for the non payment of the cans of coke, Vimto, plate of chips and platters.
DL gave evidence. He received the letter of appeal dated the 6th September 2013 setting out twenty-two grounds of appeal. The appeal meeting took place on the 1st October 2013 and each point of appeal was discussed. DL told the Tribunal the claimant told him the items in question had been paid for but could not state when or to whom. DL also interviewed a number of staff and found there was no eat now pay later policy in place. The decision to dismiss was upheld. None of the twenty-two grounds of appeal were upheld. A detailed response to the meeting was issued to the claimant.
On cross-examination DL stated that he took no regard for the statement from a colleague of the claimant’s stating there was an eat now pay later system in place.
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 explained that on the 18th May 2013 she came upon a father and daughter she knew. She was aware they were suffering personal difficulties at the time and the child seemed to be in distress. She offered to watch over the child while he did the shopping. She gave the child a bun, drink and magazine to read. On the father’s return she told him the magazine was not paid for but she would pay for the food from the tip plate.
In respect of the platter issue the claimant explained that she had received a phone call from her sister looking for platters and she had retrieved the platters from the shopfloor and placed them in the café. When her sister arrived to pick them up the claimant advised her sister they were not paid for.
In respect of the cans of coke she explained that she had taken them from the shopfloor when she was doing the shopping for the café. Items sold in the café were taken from the shopfloor and transferred on the stock guns. It was normal practice.
In respect of the Vimto and plate of chips she stated she had consumed them for lunch and they had been paid for later from the tip plate.
The claimant told the Tribunal that she had explained this to BK at their meetings. All items consumed had been paid for from the tip plate. The claimant raised the issue of other staff members “grazing” and not paying for food they consumed.
The claimant attended the disciplinary meetings with MMcM and informed him on numerous occasions the items consumed had been paid for. The decision was made to dismiss her by MMcM and she was given a right to appeal. The claimant submitted a detailed letter of appeal to DL. Having attended the appeal meeting the decision to dismiss was upheld and none of the claimant’s grounds of appeal were upheld.
The claimant gave detailed evidence of her loss of earnings, efforts to mitigate her losses and the effect the dismissal had on her. She secured a job in September 2014.
On cross-examination the claimant explained that she and her colleagues had sought legal advice and had received a letter from their union representative informing them he was stepping down from representing them.
The claimant again said that all items consumed had been paid for but it had not been up to her to ensure the magazine and platters had been paid for. She had told the people involved that they had not been paid for and she did not accept that because she handed the items over that she was responsible for seeing they got paid for.
When asked the claimant said she could not recall payments she would have made on behalf of her colleagues for food they had consumed.
When put to her the claimant said she had mentioned the tip plate to BK but had not mentioned the potato plate where there accumulated tips were kept.
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, the giving of a bun, a drink and magazine to a gentleman with his child and the giving of platters to her sister.
2. That the investigation concluded that she had consumed food items but had not paid for them, had handed over items to her sister and another person without then being paid for and had accordingly breached the honesty and staff purchase policy of the respondent company.
3. 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. It appears the issue of the other items was not pursued in the context of the disciplinary process. 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.
4. 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;
- she was not given adequate notice of the investigation meeting;
- insufficient CCTV footage was viewed and the CCTV viewed could only show that the food items were not paid for at the time of consumption or on the day of consumption - (see Levi Curran v Tesco [UD560/2008];
- not only make findings of fact 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;
5. 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.
6. 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. An explanation was also given regarding the bun, drink and magazine and the platters. (See Martina Hestor v Dunnes Stores Ltd (No. 22/87, Appeal UF 38/87 M134 and [1990] E.L.R.12).
7. 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.
8. 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.
9. 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.
10. That the practice of paying later 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).
11. That the correct procedure regarding the bun, drink and magazine was for the security guard to either raise the matter with the claimant there and then or to intercept the man and question him about the items and regarding the platters the security guard should have intercepted the lady outside the store as is the norm if a security guard suspects items are leaving the store without having been paid for.
12. 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.
13. 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.
14. That there is no evidence that the claimant breached the Honesty Policy. The evidence regarding the consumption of food, the bun and drink is that she didn’t pay at the time of purchase and it appears the magazine was not taken away by the child or man.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. That if 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
21. 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.
22. 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 €15,103.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)