EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD335/2015
CLAIM(S) OF:
Marcin Swiatek
against
Lidl Gmbh
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Ms. M. Sweeney
Ms. P. Doyle
heard this claim in Cork on 18 May 2016
Representation:
_______________
Claimant(s):
Mr. David Gaffney, Gaffney Solicitors, 4b Father Matthew Street, Cork
Respondent(s):
Mr. Tom Mallon BL instructed by Mr Killian O'Reilly, McDowell Purcell, Solicitors, The Capel Building, Mary's Abbey, Capel Street, Dublin 7
The determination of the Tribunal was as follows:-
Dismissal was not in dispute. The respondent carried the onus of proof to justify the dismissal. The claimant had been a store assistant for some five years. The respondent was a supermarket multiple. The respondent’s representative opened the case.
Opening statement for the respondent
The respondent sold fruit, vegetables and other food. Dates became very important as the best before date became a couple of days away. Charities had a relevance to written-off food but not in this case.
A responsible person would make the call as to food disposal whereupon food would be warehouse material for write-off. Bar-code would be looked at and loss to the store would be recorded. Heath-and-safety, reputation and environment were all relevant. Meat and dairy products would be put in red bags. Green bags were used for fruit and vegetables. The respondent’s position was that employees had no permission to take written-off goods.
On the material day the claimant placed items for write-off. They were put in a box outside his store premises. The claimant admitted having taken them for his own consumption. It was submitted that his dismissal had been fair.
Opening statement for the claimant
The claimant’s representative said that the claimant admitted taking goods on occasion and that others did it. This was also common practice in other stores. The claimant had not been allowed to view CCTV. The respondent had said that it would investigate as to whether there had been a common practice. It was doubted that this had happened.
(At this point the respondent’s representative said that there had been technical difficulties.)
Evidence for the respondent
Giving sworn testimony, SH said that he was an area manager who had been the responsible person at the time. He got a call from a DM (deputy store manager). SH viewed CCTV the next day. He saw the claimant use a hand-held device and take food to the back door. SH acknowledged that the claimant had not seen the CCTV and that food not fit for sale would be written off but maintained that no employee had the right to take products. The claimant knew his obligations, had received training from when he started and had signed training documentation.
(The Tribunal checked and was told that there was no issue about the respondent having a valid signature.)
SH put the matter forward for a disciplinary hearing. The claimant had not denied removing products. There had been a potential loss to the respondent.
Under cross-examination SH said that the CCTV could not be got off the “C” drive but that the claimant had never asked for it.
It was put to SH that minutes showed that the claimant had said CCTV could be checked. SH maintained that the claimant had not asked for it.
Asked why he had waited a month, SH said that he and a line manager had been on holidays but that the claimant had been dealt with as speedily as possible.
It was put to SH that the claimant could have been suspended and that others had done the same thing. He replied that the respondent had not considered the matter serious enough to suspend the claimant. He had a statement from DM (the only witness). SH did not recall what the claimant had said.
Questioned by the Tribunal, SH said that no check had been done as to whether there had been a common practice. He had not said that the matter could lead to job loss but had investigated as best he could and passed it on.
DM’s statement was opened to the Tribunal. Asked if the claimant had known the consequences for him, SH said that this was in the claimant’s contract.
In re-examination SH said that he was in his sixteenth year with the respondent, that he had been twelve years in management and that the respondent had nearly five thousand employees in Ireland.
Giving sworn testimony, CG said that he had been with the respondent since 2009 and managed area sales operations for the respondent. He dealt with the disciplinary hearing.
CG said that the CCTV was not available but that the claimant had received write-off terms. Asked if there had been a common practice, he said that he would not investigate that. He decided that the claimant should be dismissed for gross misconduct for removing unpaid goods from his store. The value of fifteen euro was still a breach of trust. He considered the claimant’s replies but deemed the conduct gross misconduct.
Under cross-examination, CG said that he had not asked to see the CCTV footage. SH and DM had seen it. CG told the Tribunal that he had not needed to see it and that the claimant, who had admitted taking products, had not asked to see it.
CG was asked to comment on the claimant’s saying that everyone was taking products home. CG replied that the respondent’s procedures had not changed. He said that he had seen DM’s statement but had not met with DM.
Questioned by the Tribunal, CG said that he had said that the claimant’s job was at risk and that he, CG, had been independent in all he did.
Asked if the claimant had said that he wanted someone with him, CG said that the claimant had been told he could have a colleague. CG said that at the disciplinary meeting he had seen statements and that was why the process had taken seven days.
CG told the Tribunal that the products could have had days left subject to thirty per cent off. Food temperature measurement was also a factor. The claimant had admitted what he had done. Asked what weight he had given to the claimant’s service, CG replied that theft was a breach of trust and, therefore, gross misconduct.
In re-examination CG said that the claimant had not said that he had taken goods daily. CG said that he had worked at four stores and had never seen a case like this. He did not believe that products were going every day even if the claimant said it was a common practice.
At this point in the Tribunal hearing the respondent’s representative said that he would not call JG who had heard the appeal.
Evidence for the claimant
The claimant’s representative called JG who said that he had had an open mind and had asked the claimant for examples of when and where products had been taken but the claimant had not given them. JG dealt with twenty-four stores. JG said that he would not ask people to spend time on CCTV.
JG said that his impartiality was one hundred per cent but that the claimant had not offered information to help himself and that the claim of common practice remained unproven.
Under cross-examination by the respondent’s representative, JG said that he was one hundred per cent sure he had made the right decision. JG had been six years with the respondent and managed twenty-four stores. He had 450 operatives and had only seen two such instances.
Questioned by the Tribunal about representation, JG replied that he made sure the claimant was happy to continue with the process. The respondent had an employee relations manager who could have been a buffer and whose attendance the claimant could have requested. Neither had the claimant said that he wanted to call a witness.
Giving sworn testimony, the claimant said that he had worked at more than one store. He did not deny knowing the respondent’s procedures. He said that about ninety-five per cent of staff took products home and that a deputy manager had given products for take-out. The claimant said he thought there had been a misunderstanding. He had not seen the CCTV which he thought would be checked. He was not told about technical problems with CCTV. There had been a common practice. He felt his dismissal had been unfair.
The claimant said that he was now working for XX (another supermarket multiple).
Under cross-examination, the claimant said that he would not want the risk of dismissal for taking write-offs at XX. He said that he had not felt that with the respondent where even managers had taken goods. Pressed on this, he conceded that he had known it was against the rules even if he claimed that everyone was doing it and getting no warning. He said that XX was broadly the same but that it was not a common practice. He had wanted the respondent to check its CCTV. He told the Tribunal that he agreed he had done wrong but taking home waste was not stealing. A deputy manager had taken written-off goods.
Under re-examination the claimant said that he had been honest from day one, that dumped goods had zero value and that people had been taking goods through checkouts and CCTV although this had stopped due to his own case.
Asked by the Tribunal if he had offered to pay, the claimant said no.
Determination:
This determination consists of a dissenting opinion and a majority judgment.
Dissenting Opinion in the case of:
Marcin Swiatek against LIDL Ireland Gmbh ( Patsy Doyle)
I find that at the conclusion of the hearing and following further consideration of the written and oral submissions, I must record a dissenting opinion to my colleagues.
I do not accept that their substantial grounds justifying the dismissal in this case. I believe the dismissal to be unfair.
Close Circuit TV
The claimant repeatedly referred to a contention that the practice of redirecting the “write offs” from disposal on the premises to “Home use” was virtually universal and not confined to him alone. He contended that the Decision maker at the Disciplinary Hearing should examine this further in his defence of the allegations. The decision maker confirmed that he had actioned this up the line but no further investigation of this matter occurred. The decision maker confirmed that he believed that he understood that the admission of the practice by the claimant was sufficient on which to base his decision to dismiss. The CC TV footage was suggested by the claimant as a validation tool for his contentions. The Respondent did not examine this footage for this purpose and furthermore reported the footage as destroyed.
I don’t believe that this approach is consistent with S.I.146/2000 (Code of Practice on Disciplinary Procedures) where
“The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances”
I found that the Disciplinary procedures lacked fairness in this regard as no account was taken of the submission that this may have been universal practice. As there were no terms of reference accompanying the process, there was no opportunity to follow up on “trigger events” such as the mentioned virtual universal practice of home use of written off goods.
Company reportage of theft procedure:
The company representatives admitted in evidence that the standard procedure concerning recording and reporting of theft was compilation of V1, V2 and V3 forms. They confirmed that this practice was not complied with on this occasion and had no idea why not?
I find this departure of protocol in a clearly highly regulated business to be startling.
Request for representation
S.I. 146/2000 provides that the employee concerned is given the opportunity to be represented during the procedure. The company was clear that the complainant was offered representation and declined. The minutes from the appeal meeting confirm that his request for external representation by a Union was not permitted. He was detailed as being alone during the course of a series of meetings which led to his dismissal.
I appreciate that jurisprudence is mixed and inconclusive on the placing of legal representation at the hands of an employee in a disciplinary hearing, but the findings of Webster J in R V Secretary of State and Home [1985]1 QB 201, in relation to criteria aligned to the consideration for the need for legal representation could have been relied on, given their past application in Irish Law.
1 Seriousness of the charge and of the potential penalty.
2 Whether any points of law
3 Capacity of a particular prisoner to present own case.
4 Procedural Difficulties
5 Need for reasonable speed
6 the need for fairness between prisoners and prisoners and prison officers.
I find that a reasonable employer would have allowed for a representative to be made available to the claimant in this case, given the seriousness of the charge and the potential penalty of dismissal. It was clear that the company prepared very well for all encounters with the claimant by having two managers present during the disciplinary hearing and reciprocation should have been facilitated by a reasonable employer. The code of practice provides that “an employee representative “includes a colleague and a registered trade union, this was not adhered to.
Conclusion
I have no desire to minimise the impact of the events at the core of this case on the employer, we heard of a serious breach of trust. However, I am not convinced that sufficient weighting was given to consideration of the claimants unblemished work record in mitigation and I believe that there was a substantial departure from the principles outlined in the code of practice S.I 146/2000. I believe that the claimant was denied fair procedures in the consideration of this case and on that basis, I dissent from the conclusions of my colleagues.
Patsy Doyle EAT member
Majority Determination
The Tribunal majority felt that this was an unfortunate case involving selective claimant memory.
No co-workers were called to attest to alleged common practice which, therefore, remained unproven and was unlikely to have been as widespread as alleged.
The respondent’s evidence that the practice was very rare was preferred by the Tribunal which finds the dismissal to have been fair in the circumstances.
The claimant did not even have implied consent for his actions. He now works in similar employment and would not dream of doing the same.
The Tribunal majority does not accept the dissenting view that the dismissal of the claimant was an excessive sanction even if he had been with the respondent for some five years and had had only limited options as to representation before his dismissal was upheld.
The Tribunal does not accept that it should be unhappy with the respondent’s management of the situation.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)