EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Craig Power (claimant) UD974/2015
Against
D C Skelton Limited T/A The Luggage Room
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr R. Murphy
Ms M. Maher
heard this claim at Dublin on 14th July 2016 and 5th October 2016
Representation:
_______________
Claimant(s) : Mr. Stuart Gilhooly, H J Ward & Company, Solicitors, 5
Greenmount House, Harold's Cross Road, Dublin 6w
Respondent(s) : Sean Moylan SC, Distillery Building, 145/151 Church
Street, Dublin 7
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the evidence adduced in the course of two days of hearing.
The claimant was summarily dismissed from his retail position in the respondent’s concession space in a large Dublin department store. The claimant had a background in sales and had initially come to the respondent in November of 2011 and was made a Supervisor in and around the summer of 2014. The staff numbers were small in the department store where the claimant worked though there were up to 22 staff spread across four or five different units in Dublin and Kildare.
There can be no doubt that the letter of the 22nd of January 2015 addressed personally to the claimant from the company Accountant was very clear in its direction. It is noted that the same letter was written to every member of the sales teams across all the relevant units, though the letter does not lose its import by reason of its having been mass produced.
The letter identifies that there has been unacceptable levels of discounts and write downs at points of sale and that the practice needs to desist hence forth. In addition the company policy was changed or re-enforced demanding the daily cash sheet be completed in full and accurately.
The respondent company accepts that there are times when the discounting of products is accepted – seasonal events, getting rid of old stock or allowable staff discount. What the respondent sought to change was the culture of cementing the deal by offering a ‘sweetener’ in the form of a 10% or 15% discount.
The Tribunal recognises the day to day reality in many retail outlets where the on the spot deduction can very often entice an otherwise wavering customer and the claimant came from a background in men’s clothing retail where the practise is commonplace.
The workplace was target driven and there was commission to be earned on all sales. The claimant conceded that the targets not being reached was not detrimental. The claimant’s commission amounted to about €150 to €200 per month.
The respondent Directors’ trusted the department Manager (GL) to re-enforce the directions as contained in the letter of the 22nd January 2015.
Subsequently on or about the 2nd July 2015 an irregularity showed up on the till transaction which warranted a closer look. The sale was traced back to the claimant and the sale shows an unauthorised 10% discount having been made in respect of a number of items sold on the 2nd July 2016. To compound the problem the sales sheet prepared by the claimant did not record the deduction which created problems with respect to reconciliation.
In evidence, the claimant accepted that the sale with discount was indeed put through the system by him. The respondent gave evidence regarding the relationship it had with the department store in which the concession unit was situated. The evidence was that the department store was very strict about compliance, book keeping, vat records and till receipts and that errors appeared to be viewed as an attempt to defraud the department store (who got a percentage of the sales) until an alternative was proven. In essence, the evidence was that the respondent was at all times answerable to the department store who could remove their concession at any time.
The Tribunal was invited therefore to consider the catastrophic knock on effect that irregularities in its sales might have had with the department store it relied on for footfall.
The claimant was accordingly summarily dismissed on the 6th July 2015 and was notified of this decision with no advanced notification by letter handed to him by one of the two Directors’ of the company on that day.
The Tribunal has been asked in the first instance to consider whether the respondent was entitled – without an investigation, without questioning the claimant, without referring to his Manager and without any form of disciplinary process – to summarily dismiss the claimant in the manner that he was.
The claimant says that had he been asked he would have explained that his Line Manager had always directed that the policy of discounts whilst frowned upon should be applied to make the sale and that this happened from time to time on the shop floor with everyone guilty of so partaking and this was indeed borne out by the evidence of a Ms. B and on certain till receipts obtained in respect of the Managers own conduct.
The respondent by way of response are saying in effect that following the obvious and clear bad example of his Manager does not exempt the claimant from himself being sanctioned in the way he was.
The Tribunal’s primary function is to examine the reasonableness and fairness of the employer in coming to a decision to terminate an employment relationship which on its face has been loyal and trouble free. The employer that moves to summarily dismiss must be sure that any objective execution of the decision must disclose behaviour so unacceptable that the decision to summarily dismiss is beyond question. Anything less will render the dismissal liable to be found unfair as an employer is bound to adopt some sort of procedural fairness when an employee’s acts are being questioned.
The Tribunal finds that there was no entitlement to summarily dismiss without any right of replying and the dismissal was therefore unfair. The Tribunal does however accept in assessing compensation that the claimant knew or ought to have known that his disregarding the company policy as explained in the letter of the 22nd January was an unacceptable action and awards €12,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)