EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD116/2015
CLAIM(S) OF:
Sabina Wynne – claimant
Against
Blennium Limited T/A Ryans Photo Centre – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr N. Ormond
Ms E. Brezina
heard this claim at Dublin on 17th February 2016 and 8th April 2016
Representation:
_______________
Claimant: Mr Willie Fawsitt BL, instructed by: Bowman McCabe, Solicitors, 5/6 The Mall, Lucan, Co Dublin
Respondent: Mr Fran Rooney BL, instructed by: B & P Byrne, Solicitors, 5 Tyrconnell Road, Inchicore, Dublin 8
Summary of Evidence
The claimant was employed as a shop assistant by the respondent company which operates a small photo processing shop in a busy shopping centre. Originally employed by the respondent in 2001 she was rehired in 2004 and remained in the employment until her dismissal in 2014. Two incidents led to the dismissal of the claimant for gross misconduct.
The claimant did not have a written contract of employment nor was there a company handbook. The MD of the respondent company contended that since 2009 he had an annual conversation concerning the procedure to be followed in the sale of passport photos. In 2009 two employees were dismissed for theft of passport photo sales. He expected employees to take the photo, ask the customer to return in ten minutes, charge the customer €10 for the photos and issue receipt. He was satisfied that everyone knew the rules and that if broken would lead to grave consequences. The claimant had asked for CCTV to be installed in 2009, but the MD felt their introduction would be too intrusive. The sale of passport photos generated approximately €30k per annum.
On the 10th of September 2014 the MD received a phone call from his wife (RD) informing him that an incident had occurred where the claimant completed two passport photo transactions but only one transaction was put through the till. The passport machine had completed four transactions but the till only recorded three for the day. In order to investigate the claimant a test purchaser (evidence below) was engaged to purchase a passport photo on the 17th of September. The test purchaser reported that the claimant did not instruct him to return in 10 minutes and, after accepting the €10.00 charge, placed the money on the till without inputting the transaction. As he left, the money remained on the till. A second test purchaser found that the passport transaction had been completed as per procedure.
The till was checked on the 17th of September and it was discovered that €80.00 had been recorded as passport photo sales but nine had been issued. The MD decided to hold an investigation meeting with the claimant on the 18th of September. At this meeting the claimant outlined what the correct cash handling procedure is and accepted that failure to follow this procedure amounts to Gross Misconduct.
The claimant’s explanation is that she records the passport transactions on the till later in the day and it is witnessed by other staff. She could not explain why she does this or why she failed to issue receipts. The other staff dispute seeing the claimant record transactions at a later time or without the customer present. The claimant then said she must have put the €10.00 passport transaction in as a different sale; the till record does not show any other sales for €10.00. The MD instructed the claimant to reflect on the situation and return the following day.
The claimant brought her brother to the meeting on the 19th of September. The claimant had no credible explanation for her actions. She was not accused of stealing and the meeting was not rushed. The MD wanted to give the claimant every opportunity to explain the situation so again the meeting was adjourned to the following day. The claimant requested written cash handling policy and a suspension letter.
The MD held a disciplinary meeting with the claimant on the 22nd of September and again went through every detail of what occurred. The claimant had no explanation as to why she did not follow procedure by recording the transaction, putting the money in the till and issuing a receipt. The MD dismissed the claimant for Gross Misconduct. The claimant was given the dismissal letter which offered her the right to appeal this decision within 7 days. Although the dismissal letter stated the appeal was to RD, the MD maintains that his accountant would have undertaken the appeal.
On 10th September 2014 the claimant was working in the shop with the MD’s wife (RD), also a director. Prior to the claimant starting at 12 noon RD made two sales for passport photo; two sets for €20 and one set for €10. As RD was preparing to leave for her lunch break a customer came in to enquire about passport photos. The claimant explained the price and procedure to which the customer agreed. Meanwhile some customers enquired about using the automatic machines outside the shop and RD showed them how to use these. The customer collected the photos while RD was still at the machines. RD saw the customer hand the claimant €10. RD heard the till operated. When she went behind the till she saw a sale of €21.90 had been entered for prints which a different customer had just purchased. There was no €10 passport photo sale before it. She was concerned so she performed an ‘x’ read on the till while the claimant was at lunch. She could not see the €10 sale and the number of passport photo sales remained at three. The claimant did not report the till being over that evening when she balanced the till nor that she had failed to register a sale. RD discussed the situation with her husband and it was decided to bring in a test purchaser.
On 17th September 2014 RD left the shop at approximately 3.50pm and the test purchaser came in. He gave evidence that the claimant was there and he asked for passport photos to be taken. He was the only customer in the shop at the time. The claimant told him to wait rather than telling him to come back in ten minutes. He gave her a €10 note which she put on top of the till. He took a phone call while he was waiting. She showed him the pictures which he took, but she did not put the sale through the till and did not give him a receipt. Another customer came in to enquire about frames but no transaction was made. Before he left he observed that the €10 was still on top of the till. He went to meet RD and report what had occurred. His sister made a test purchase 30 minutes later and this was carried out as per the procedure. RD returned and checked the till report at 16.26. There was no €10 passport sale recorded and the till was not over. At the end of the day seven passport photo sales were recorded but 8 sheet of that photographic paper had been used. She consulted her husband and they decided to meet the claimant the following day to ask her what had happened.
The claimant was informed of the meeting when she arrived at the workplace on 18th September 2014. The claimant said she remembered the customer but could not remember not registering the sale on 10th September 2014. She recalled the test purchase and said she was busy and put it on the till. She said she put it in the till later but did not record the sale. She had no explanation as to why the till was not over that evening. She claimed that she did this on occasion and that other employees had seen her do this, but an employee who gave evidence denied that she had witnessed such a thing. Sometimes photographic paper was discarded and she normally put these sheets aside. She was told to attend the following day for a further meeting and that she could bring someone with her.
Further meetings were held on 19th 21st and 22nd September 2014. She was suspended on 19th September 2014. The claimant’s brother attended with her on the 19th and her husband accompanied her on the 21st and 22nd. The MD dismissed her on grounds of gross misconduct on 22nd September 2014. An appeal was offered in the letter of dismissal. This was to be sent to RD. The appeal was to be heard by the company’s accountant, but this was not communicated to the claimant. The claimant did not appeal.
The claimant gave evidence that the MD showed her a picture of the lady who had allegedly paid her for photos on the 10th September. She said she would come back but she did not return and her photo was beside the till for two weeks. She denied taking any money from her. She agreed that she had put the test purchaser’s sale into the till without ringing it in. She was paranoid after her two colleagues were dismissed and she left discarded prints on the side. She agreed that she understood the sale procedure and that she had not followed it on this occasion. She denied that she had taken the money. She believed that she was a good employee and admitted that she had made a mistake. She felt she was being bullied into leaving and that was why she came to the Tribunal. She had not been successful in obtaining other work as she did not have a reference.
It was common for the till to be over or under. The MD made up rules as he went along which were always verbal. She did not know what the first meeting was about and was not offered representation.
Determination:
The Tribunal have carefully considered the sworn evidence adduced in this two day case and find the claimant was unfairly dismissed.
There were severe deficiencies in procedures used by the respondent, not limited to the proposed appeal procedure which would have required the claimant to return back to the same person who had dealt with her dismissal.
However, the Tribunal finds the claimant contributed significantly to her dismissal. She was continually in breach of till procedures notwithstanding the fact that she was aware and stated in evidence that she was aware of same.
Taking these circumstances into account the Tribunal awards the claimant €1,000 (one thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)