UD1584/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1584/2013

CLAIM(S) OF:                                                                                            

Lisa Kinsella            -          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 8^th April, 27 and 28^th May 2015

                                           and 28^th, 29^th and 30^th September 2015

                                           and 1^st and 2^nd 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 (LK) and three of her colleagues (EM, EH, AD) were employed in the public café run by the respondent in its original premises in a town in Co. Wexford.

The respondent has since opened a larger store on the other side of the town. The respondent does not operate the new café that which is located within the new store but 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 18^th 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, EL 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 each of the four staff members – EH, EL, AD and the claimant 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 the claimant and he met the other three individually and each on a number of occasions. Having considered the matters independently all four staff members were dismissed and given the right to appeal the decisions. MMcM made the decision to dismiss the claimant. The letters 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 appealed the decision stating numerous grounds of appeal. Having heard and having 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 the investigation and meetings with the claimant, the Store Manager (MMcM) who carried disciplinary meeting with the claimant and who made the decision to dismiss the claimant, the Store Manager (PS) who heard the appeal of th claimant all stated 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 the 12^th November 2001 until her dismissal for gross misconduct on the grounds of breaching the respondent’s policies on honesty and staff purchases on the 19^th August 2013.

Respondent’s Position:

BK, the Store Manager at the time in question, gave evidence. He said that SG, the Security Officer, approached him and informed him that he had observed a staff member of the café (EH) obtaining products but not paying for them. BK asked SG to keep the café under surveillance using the CCTV cameras located in the store.

SG approached him again a number of days later and informed him he had observed the claimant serving herself some food from the café, consuming it and not paying for it on two occasions – the 22^nd and 23^rd May 2013. BK viewed the CCTV footage and decided he must discuss the matter with the claimant.

On the 2^nd June 2013 he requested the claimant to attend a meeting in 15 minutes time. She was told she could bring a representative with her.

The list of allegations put to the claimant was read into the Tribunal record:

“22/05/13 – Approx. 10.40 - Goes to breakfast and get 2 eggs, beans, toast, rasher, 2 sausages and a coffee. No payment made at till.

23/05/13 – Approx. 11.20 – Gets a sausage, rasher, beans, egg, toast, hash brown and A tea / coffee. No payment made at till.

23/05/13 – Approx. 14.10 – Makes a cup of coffee / tea for self, No Payment.

23/05/13 – Approx. 15.15 – Makes a cup of coffee / tea for self and walks out of shop.”

At the meeting the claimant was informed of the incidents and the fact that she had not been observed paying for the food. BK suspended the claimant with pay pending further investigation. On the 4^th June 2013 she was invited, by letter, to a further investigation meeting on the 7^th June 2013. Enclosed with this letter was a copy of the company’s policies on disciplinary procedures and serious misconduct.

The claimant attended the meeting with her Union Representative. The CCTV footage was offered to be viewed. Again the allegations of failing to pay for food consumed on the 22^nd and 23^rd May was put to the claimant. She replied that she had paid for the food at a later date. The claimant explained to BK that it had been common practice to do so when TS, the café Manager from 1998 to 2002, was in charge. BK decided further investigation into the matter was warranted.

On the 14^th June 2013 the claimant’s solicitor wrote to the respondent on her behalf regarding her suspension and her impeccable work record. They requested copies of all HR records concerning the claimant, a copy of her contract of employment, notes from the meetings of 2^nd and 7^th June and a copy of the CCTV footage. A letter dated the same day was sent to the claimant inviting her to a further meeting on the 18^th June 2013. She was advised she could have a colleague or a Union representative accompany her but not a solicitor. An investigation outcome meeting was held on the 20^th June where the two allegations were again put to the claimant. BK later wrote to the claimant informing her that due to the seriousness of the allegations the matter would be forwarded for a disciplinary hearing.

BK told the Tribunal that he came to this conclusion as no evidence could be seen or found that the claimant had paid for the food she had consumed in the public café.

On cross-examination BK accepted that he had not viewed CCTV footage for the full day of the 22^nd May or on other days that week. He agreed that there had been no previous disciplinary issues with the claimant. He had no part in the disciplinary process after his investigation was completed.

CK, the checkout Manager, gave evidence. BK had requested her to match the cash registered on the till with the CCTV footage that she viewed with SG, the Security Officer. She did so for the two dates in question – the 22^nd and 23^rd May 2013 – she could find no payment matching the food consumed by the claimant.

On cross-examination she stated that she had checked the till roll and CCTV only on certain dates and not for the full week.

TS, the café Manager from 1998 to 2002, gave evidence. BK contacted him in June 2013 to discuss company policies regarding the payment of food from the public café by employees. He explained to the Tribunal that there was no strict policy but food could be paid for by staff after consumption. It was not a “general norm”.

On cross-examination TS explained that staff working in the café were not allowed to carry cash while working but that they did have their personal belongings stored nearby.

HD, the resident staff member in the staff canteen, gave evidence. She explained that BK had discussed the issue of “running a tab” in the canteen. She explained that no such practice was in place, although there were occasions that staff would not have enough change but she would always get the payment from them later.

On cross-examination she stated that she had never been employed in the public café but had eaten there with family on occasion.

SG, the Security Officer, gave evidence of the CCTV footage he had observed of the claimant, and the three other employees. He had informed BK of what he had seen. He had also viewed this footage with CK when she was matching payments with food served on certain dates.

(CCTV footage was viewed by the Tribunal)

MMcM, a Store Manager from Wicklow, gave evidence. He told the Tribunal that he was the person who had dismissed the claimant having held the three disciplinary meetings with her. At these meetings the claimant had stated that she had “paid for the food 100%” and that other staff had “run a tab”. MMcM investigated the matter by discussing the issues with senior Managers and found this to be untrue.

At the meeting of the 13^th August 2013 he answered a number of questions put by the claimant (A list of these questions and answers were read into the record).

On the 19^th August 2013 a letter of dismissal was issued the claimant. She was given the right to appeal the decision.

PS gave evidence. He received a letter dated the 21^st August 2013 from the claimant detailing sixteen grounds of appeal of the decision to dismiss her. An appeal meeting took place on the 3^rd September 2013; the claimant attended with her representative. PS told the Tribunal that prior to the meeting he had read all the notes from the meetings, the statements taken from staff members and viewed the CCTV footage in question.

The claimant informed him at the meeting that she had paid for all the items in question but could not state when and who had paid for them on her behalf. Following the meeting PS said he considered all the evidence and responses given by the claimant and found no alternative but uphold the decision to dismiss the claimant and she was informed by a letter dated the 30^th September 2013 setting out the respondent’s responses to each of her grounds of appeal none of which were upheld.

On cross-examination PS stated all stages of the company disciplinary procedures had been followed. When asked had he told the claimant the company had no “eat now pay later” policy he replied it was common knowledge. When asked if he had asked the claimant’s colleagues, and other claimants (AD, EH of EL) if the claimant had paid them for the food she had consumed he replied he had not.

Claimant’s Case:

The claimant gave evidence. She told the Tribunal that she had received training while working for the respondent but had no specific training on the Staff Purchase or Company Honesty policies. Every twelve months a pack containing company policies were handed to her, she was asked to read and sign for them and return the pack.

On the 2^nd June 2013 she was given fifteen minutes’ notice to attend the first meeting with BK. She was informed of the allegations laid against her and tried to respond. She was informed she was suspended with pay pending further investigation. She attended a further two investigation meetings with BK. The claimant told the Tribunal that all food consumed had been paid from the monies accumulated on the tip plate. It was normal practice in the café. She had told BK at the three meetings she had attended with him.

The matter was sent forward for disciplinary and she attended three meetings. A Manager, MMcM dealt with the disciplinary meetings. Again she said the items had been paid for. She told the Tribunal that she had agreed that no record had been kept of what she had consumed but she would have told the colleague who paid for it. There was not a vast variety of food on offer in the café. The claimant told the Tribunal that she felt she had done nothing wrong but felt when she was suspended she “was gone”.

The decision to dismiss was notified to her in writing and she was given the right to appeal. She submitted a very detailed letter citing her grounds for appeal, attended the appeal meeting but the decision to dismiss her was upheld and none of her grounds of appeal were upheld.

She gave detailed evidence of the mitigation of her loss of earnings and the affect the whole situation had on her.   She was undertaking a course of study but was seeking reinstatement.

On cross-examination the claimant said she did not receive any of the statements from staff members until after her dismissal. She told the Tribunal that had management informed her that what she was doing was against company policy she would have ceased, she would not have wanted to lose her job because of it.

EH (a colleague and staff member who was also dismissed) gave evidence. She stated she had not received any training on the Staff Purchase or Company Honesty policies but had been given a pack containing policies and told to read and sign for them before returning them. This procedure was carried out on a yearly basis by management.

EH told the Tribunal that no one had raised any issues prior to the time in question that what she and her colleagues were doing was against company policy. Management were aware of the tip plate in the café. The staff of the café had contributed €200 to management on one occasion for the respondent’s chosen charity and received a box of chocolates from management as a thank you.

EH told the Tribunal that she herself had witnessed BK taking an item of hot food on sale in the café, consuming it and not paying for it. HD had also eaten in the café with her children on occasions and paid for food at a later time.

When put to her had she been present in the café on the 22^nd May 2013 she replied she had not. EH told the Tribunal that there could be €30 / €40 in the tip plate on a busy day. The surplus tips were then kept in an unused potato oven and divided amongst the staff every 3 to 4 months.

A former colleague of the claimant who remains employed with the respondent gave evidence.   She told the Tribunal that two weeks before the claimant, and her colleagues, were suspended her Team Leader had told her not to be “grazing” as they were being watched. The witness said she had often observed other staff members “grazing”, SG, the Security Guard for one. In relation to company policies she said she had received company policies in a pack, asked to read and sign for them and return them.

When asked she said she often ate in the staff canteen and paid for the food she consumed at a later time. The witness told the Tribunal since the claimant and her three colleagues had been dismissed there had been changes in practices in the store – there was no more “grazing”.

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 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.  

5. 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;

• she was not given adequate 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 made 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;

6. That the conclusion reached at the disciplinary stage, that the food was not paid for at the time purchased, 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.

7. 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).  

8. 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.  

9. 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.

10. 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.

11. 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).

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 is that she didn’t pay at the time of purchase.

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 €41,000.00.

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 is 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)