EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Linda O’Donoghue UD21/2014
Claimant MN7/2014
Against
Watchford Limited T/A Supermacs
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. Clancy
Members: Mr. T.L. Gill
Mr. F. Dorgan
heard this claim at Limerick on 14th May 2015 and 6th July 2015
Representation:
Claimant: St John Dundon, Dundon Callanan Solicitor,
17 The Crescent, Limerick
Respondent: Mr. Donncha Kiely BL instructed by:
Charles Daly, Charles Daly & Co Solicitors, 17 Casement square, Cobh,
Co. Cork
Background:
Dismissal as a fact was in dispute.
The respondent is a franchise operator for a fast food restaurant at two locations. The claimant was employed in a variety of positions from 1992 and had worked in both premises. For the last 10 years of her 19 year employment with the respondent she was employed as the Store Manager at the premises in Dooradoyle, Limerick. The claimant was in receipt of a contract of employment and reported to the Managing Director.
There were two incidents both involving Employee J. One occurred in July 2013 and the other in November 2013. The claimant was not on duty on either occasion.
In July 2013, Employee J had given a large meal to a customer but only charged for a regular meal resulting in a price differential of €0.75. The manager on duty informed the claimant of the incident and she addressed the matter with Employee J who said that it was a mistake on his part. She later spoke to the manager on duty to ascertain if there was any animosity between him and the claimant and was told there was not. The claimant issued Employee J with a verbal warning regarding the incident. The Managing Director was absent on holidays at the time of this incident. It was the claimant’s evidence that she spoke to the Accounts Manager about the incident but he refuted this in his evidence stating that if he had been told of the matter he would have reported it to the Managing Director. In reply to questions from the Tribunal he stated that he does not carry out random stock checks but he believes mistakes happen infrequently. He was aware that Employee J had told the claimant that the incident in July was a genuine mistake.
On the 25th November 2013 another incident occurred. Employee J’s uncle presented a voucher for a meal but the premises did not accept that particular voucher. Employee J spoke to the manager on duty who in turn spoke to Employee J’s uncle who was unhappy about the matter. Employee J decided to give his niece who accompanied his uncle a glass which was free with certain meals. As staff are not allowed to carry cash on their person while working Employee J later put €2 in the till for the glass. When he told the manager on duty what he had done, the manager took the €2 out of the till and threw it at Employee J saying it was “too late”.
The claimant was on duty on 26th November 2013. It was Employee J’s day off but he attended the premises and informed the claimant as to what had happened the previous day. The manager on duty was on leave that day and the claimant intended to speak to him about the matter. However, at 4.15pm the Managing Director contacted the claimant to come to the office.
It was the Managing Director’s evidence that he had been informed by the manager on duty on 25 November 2013 about the incident with Employee J. The manager on duty also mentioned that there was an incident in July involving Employee J. The Managing Director expected that the claimant would have reported such a matter to him. He accepted that he was abroad on holidays at the time but he would have expected a telephone call at the time or that the matter would be reported to him on his return.
On 26 November 2013 he waited to see if the incident of 25 November 2013 would be brought to his attention by the claimant given that the incident in July was not reported. When the claimant did not raise the matter with him he called her to the office and told her that he wanted to investigate the matter by asking her a number of questions. The document outlining these questions was opened to the Tribunal. He told the claimant that the manager on duty had also told him of the incident in July and that the claimant had failed to notify him of it. He asked the claimant if she was familiar with company policy regarding theft and the claimant confirmed she was. The claimant apologised and accepted that maybe she should have handled the matter differently. The claimant agreed that the incident in July should have been reported to him and that Employee J should have been dismissed for theft. During cross-examination the Managing Director confirmed that he did not consider the company procedures before conducting this meeting with the claimant nor did he provide a copy of them to the claimant. He confirmed that the company does not have a written policy in respect of differentiating between theft and mistakes.
It was outlined that section 4.8 of the employee handbook states that an employee must report theft or fraud when it comes to their attention. The claimant had failed in her responsibilities. Therefore letter dated 26 November 2013 containing a warning was issued to her. The letter stated that the Managing Director was relieving her of her duties immediately but further stated that he was “…prepared to offer you a less senior management position in our Ennis Road branch at the relevant pay structure.” The Managing Director stated this was not a letter of dismissal.
In reply to questions from the Tribunal, the Managing Director stated that store managers are aware from their induction that as per section 4.8 they have a responsibility to report to him. He accepted that store managers have discretion within the store but staff members do not.
It was the claimant’s evidence that she had never received any prior warnings or had any disciplinary issues in her nineteen years service with the respondent. She had no prior knowledge of the content of the meeting she was attending with the Managing Director. On her arrival to the meeting he told her she knew why she was there. He said morale was low in the restaurant and that staff were looking for transfers as they did not want to work with her. She asked who the members of staff were but he would not say. He told her she should have dismissed Employee J after the incident in July and that she should have brought the matter to his attention. The claimant told him that she would not let anyone give free food away and Employee J had told her it was a genuine mistake on his part.
When she received the letter dated 26 November 2013 she asked the Managing Director if she should attend the staff meeting the following day and was told no. On more than one occasion she asked was her employment finished and the Managing Director confirmed it was and the claimant left.
She told the Tribunal that she deemed herself dismissed from the respondent’s employment. Correspondence crossed between the claimant and the respondent. She then lodged a claim for unfair dismissal. The claimant gave evidence of loss.
During cross-examination she said she felt she had dealt with the matter in July 2013 and stated that she had not informed the respondent at the time as he was absent on leave but had informed his “right hand man,” the Accounts Manager. In respect of the incident in November she said she had intended to inform the Managing Director as soon as she had spoken to the manager on duty and gotten his version of events. She had already told the Accounts Manager who replied that he did not care.
The claimant requested her P45 in letter dated 29 November 2013 as she had deemed herself dismissed and she required the P45 for the Department of Social Protection. She said she was not given the right to appeal the respondent’s decision and this was accepted by the Managing Director.
Determination:
The Tribunal noted the claimant’s long and unblemished record working with the respondent. The respondent’s evidence confirmed the claimant had the authority to deal with all matters that happened in-store, and was unclear as to what the precise reporting requirements were. The Managing Director stated his concern as to how much stock or money may have been lost by the company between July 2013 and November 2013, yet no internal audits or random stock-checks were carried out to investigate this.
The claimant was called to a meeting which unbeknownst to the claimant was intended by the respondent to be a disciplinary meeting involving a disciplinary sanction, and the respondent failed to follow fair procedures, or indeed its own stated procedures, in this regard. This disciplinary meeting was premature in that it pre-empted the conclusion of the claimant’s own investigation into the company about employee J.
The Managing Director found the claimant guilty of gross misconduct, and handed her a letter of disciplinary sanction that he admitted had been prepared before the meeting commenced. This letter stated the claimant was being relieved of her duties, but also stated she was being demoted from her managerial position and moved to another store. The letter did not outline the right to appeal.
The Tribunal is satisfied that the claimant was entitled to consider herself constructively dismissed by virtue of the lack of fair procedures, the respondent’s failure to follow its own stated procedures, the defective investigation and disciplinary process and the harsh sanction applied, relative to the circumstances, and in light of the claimant’s senior position and long service.
The Tribunal finds the appropriate award to be compensation of €19,000 under the Unfair Dismissals Acts, 1977 to 2007. The claim under the Minimum Notice & Terms of Employment Acts, 1973 to 2005, fails in circumstances where the Tribunal finds that the claimant was constructively dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)