EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Edson Simoa De Morais UD1708/2014
Claimant
against
TJN Limited And C-Town Limited T/A Nestors Supervalu
Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. D. Morrison
Ms H. Henry
heard this claim at Galway on 6th April 2016
Representation:
Claimant: Mr. John Nash, John Nash Solicitor, Abbey Street, Loughrea,
Co. Galway
Respondent(s): Mr. Ronnie Lawless, IBEC, West Regional Office, Ross House,
Victoria Place, Galway
The determination of the Tribunal was as follows:-
Background:
The claimant was employed as a General Assistant from the 7th August 2013 in the respondent’s supermarket until his dismissal for gross misconduct on the 17th October 2014. An incident occurred on Saturday the 11th October 2014 when the claimant took a discarded product destined for waste without following company procedure regarding the payment for same. The value of the product in question was €2-€3. The claimant removed the product from a “combi” in the back yard, asked a colleague in the deli to cook it for him and proceeded, half an hour later, to leave the store with the unpaid item to consume it outside.
On Monday the 13th October 2014 the claimant was called to a meeting and suspended with pay pending investigation. A second meeting took place on the 15th October 2014. At a third meeting held on the 17th October 2014 the claimant was dismissed for gross misconduct. He was given the right to appeal the decision to the General Manager (GO).
On the 18th October 2014 the claimant wrote to GO outlining his reasons for appealing the decision to dismiss him. The appeal hearing was held on the 22nd October 2014. A second appeal hearing was held on the 24th October 2014. The decision to dismiss the claimant was upheld.
Note: It should be noted the General Manager (GO) was the only witness present to give sworn evidence on behalf of the respondent. The two Managers (LC and COB) and the note taker at the meetings (LF) were unavailable on the day of the hearing to give sworn evidence.
Respondent’s Case:
The General Manager (GO) who chaired the appeal hearing into this matter gave evidence. He received the claimant’s letter to appeal the decision to dismiss him for gross misconduct. The staff handbook relating to the company purchasing policy was opened to the claimant which he, the claimant, had received and signed for on the 7th August 2013.
GO told the Tribunal that the claimant did attend the appeal hearing alone, albeit he had been offered representation to attend at this and all previous meetings. The minutes of this meeting on the 22nd October 2014 were read into the record. The witness told the Tribunal that the claimant raised the issue of his citizenship at this meeting and the fact that he had been dismissed. GO told the claimant at the end of the meeting that he would consider all aspects raised and would refer back to him.
A second appeal hearing was held on the 24th October 2014. GO told the Tribunal that at this meeting he offered the claimant the option to resign his position on compassionate grounds as opposed to being dismissed, considering the issue of his citizenship. He told the claimant to consider the offer and to contact him. The claimant never contacted him. GO attempted to telephone the claimant, but to no avail. He wrote to the claimant inviting him to a meeting on the 31st October 2014 which the claimant never attended. The decision to dismiss the claimant was upheld.
In cross-examination GO agreed there had been no previous issues with the claimant and that he had been a good worker. When asked why GO had been trying to contact the claimant, he replied that he wanted to ascertain whether the claimant was going to take up the offer to resign, but stated if he had not, the decision to dismiss him was to be upheld.
Claimant’s Case:
The claimant gave evidence. He explained that on the day in question he had arrived to work without his wallet. At lunchtime he noticed a “combi” left in the back yard containing waste products. A plastic wrapped pizza in a damaged box was inside. One of the claimant’s Manager’s (COB) was present and he asked COB could he have the pizza. COB replied “whatever”. The claimant took the pizza, brought it to the deli and asked a colleague to cook it. A half hour later he took the cooked wrapped pizza passed the security guard and outside the premises to consume it. He agreed he had not paid for it, but had asked permission to take it and had not concealed it when removing it from the respondent’s premises.
The following Monday the claimant was called to a meeting with the Manager (LC) and a note taker (LF). He was questioned about what had occurred the previous Saturday and told he was suspended with pay pending further investigation. A second meeting was held on the 15th and a third on the 17th October 2014 when he was informed he was dismissed for gross misconduct. He was given the right to appeal the decision to the General Manager (GO), which he did.
The claimant told the Tribunal that two months previous to his dismissal an issue had arisen between LC and himself and since that time LC had not spoken to him.
The claimant attended the appeal hearing, as other meetings, alone. He explained that he had been offered representation to attend with him but the person he had asked did not want to attend any meetings with LC present.
The claimant gave evidence of the mitigation of the loss of his earnings.
In cross-examination the claimant stated that he had always followed company procedure when purchasing company products, but in this case it had been a waste product of no value and he had asked permission to take it. He said, in hindsight, he should have sought permission from “a higher person”.
When asked why he had not answered GO’s calls to him or the invitation to attend the meeting on the 31st October 2014, he replied that he had been advised not to.
When asked by the Tribunal if his immediate Line Manager had spoken to him about the matter, as per company procedure, he replied no.
Determination:
The Tribunal has carefully considered the sworn evidence adduced in this matter. The Tribunal finds the sanction implemented by the respondent in this instance to be disproportionate and unfair.
Having taken the mitigation of the claimant’s loss of earnings into account, the Tribunal awards the sum of €6,400.00 (six thousand four hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)