EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD104/2015
MN60/2015
CLAIM OF:
Employee
-claimant
Against
Employer
-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: Mr. P. O'Leary B L
Members: Mr. N. Ormond
Mr. J. Dorney
heard this claim at Dublin on 27th April 2016
Representation:
Claimant: Ms Sarah Jane Judge B.L. instructed by, Tiernans Solicitors, 15 Church St, Dundalk, Co Louth
Respondent: Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Background
The respondent is a large DIY and home store. The claimant worked in one of the stores as a manager. On the 30th of July 2014 he was summarily dismissed for breaching the respondent’s refund and exchange policy and for breach of confidence and trust.
Respondent’s Case
A sales assistant (SG) gave evidence of and incident that occurred on Friday the 14th of July 2014. A customer came in late to exchange a sliding door but SG’s till at customer service had been closed by the claimant. The customer wanted a more expensive door so had to pay an extra €35.00. The claimant instructed SG to put the €35.00 into a bag in the till with the items code numbers and the transaction would be processed when the till opened in the morning. No receipt could be issued as the till was closed. SG was in work at 9am the following morning, when she opened her till the money bag with the €35.00 was still in the till and remained there until 12.30pm. SG reminded the claimant he had to do the exchange and he instructed her to return wallpaper to the back of the store, this meant she had to leave her till (this was not her job when she was on the customer service desk). When SG returned the claimant was at her till and the money bag with the €35 was gone but there was no exchange receipt in the till. Normally both a manager and SG have to sign the exchange receipt and it would be at the top of the pile. SG found a ‘00’ receipt at the bottom of the pile which means it was a straight like for like exchange money wise. SG was concerned so informed AS in the cash office that the €35.00 was missing. SG was upset about the incident so called in sick on Sunday. She spoke to the store manager KR about the incident and made a statement at the next available time which was the following Friday. SG had a normal working relationship with the claimant.
AS from the cash office gave evidence of what SG had told her of the incident that day. AS saw the €35.00 in the till that morning when she was putting in the float and queried it, she was told by the claimant and SG that it was for an exchange that had to be processed. AS gave a statement to KR the following Friday.
KR, the store manager was informed if the incident by SG. She explained the details of the transaction. KR then spoke to AS and asked both AS and SG for written statements. It was agreed with HR that KR would have to investigate the incident. KR gave the claimant the invitation letter to the investigation meeting on the 22nd of July for the meeting on the 23rd of July, he was informed that he could bring a companion. HR constructed the investigation invitation letter so KR is not aware as to why the allegations were not outlined in more detail.
The claimant declined to have anyone with him for this meeting. The claimant accepted the way the transaction had occurred but said he removed the €35 as other people might be using the till. SG would be on the till all day and the receipt for the exchange was for a straight exchange instead of +€35.00. The claimant said he put the money bag into his pocket and then misplaced it during the day. It is not normal for staff to put money in their pockets or carry around money bags. The claimant never told KR he had lost the money until the investigation meeting, prior to this the claimant would have often rang KR to tell him if something happened. KR was disappointed the claimant had not come to him and accepts this view is not impartial. The claimant accepted he sent SG to the back of the store to return wallpaper; it is very unorthodox to send the customer service sales assistant away from her position. KR concluded the investigation and reverted back to HR. HR made the decision to take the disciplinary action further in consultation with KR. The delay between the incident and the investigation was because SG was off on the Sunday and Monday, KR’s area manager was there on Tuesday and KR was not in store on Wednesday or Thursday. The outcome of the investigation was that the claimant was suspended with pay. The claimant put the money in his pocket and did a receipt balance of zero to cover the missing €35.00. HR wrote the letter for KR to sign, it stated;
‘Following our investigation meeting on the 23rd May 2014 in relation to the allegation of Gross Misconduct namely a breach of company policy and procedures, this letter is to confirm your suspension from the business with pay pending the outcome of the investigation.’
KR only investigated the breach of till and exchange policy. The till and exchange policy does not state that any breach of same could lead to dismissal. He did look at the claimant’s personnel file, there was no contract of employment or anything to say that the claimant received the grievance and disciplinary procedures but he was experienced and well aware of the procedures. The claimant was not given the opportunity to cross examine the two witnesses. KR does not recall making a number of phone calls during the investigation meeting. KR disputes that at the end of the week if the tills don’t balance the loss is entered onto the system as an exchange, the tills are balanced every day.
KR was leaving the claimant’s store to cover maternity leave in another store, ML took over as store manager. KR told ML about the situation when they were doing the management handover. ML then conducted the disciplinary meeting on instruction from HR. He invited the claimant to the meeting on the 28th of July by letter of the 24th of July which outlined the allegations of breach of company refund and exchange policy and breach of confidence and trust which amounts to gross misconduct. The right to be accompanied was also stated; the claimant was accompanied by his brother.
At the meeting ML asked the claimant to take him through what happened again. The claimant said in hindsight he should have told SG he lost the money but he was embarrassed. The claimant had nothing further to add. The claimant was not given a copy of the till and refund policy. ML decided that missing money equates to a breach of trust and a breach of procedure which is gross misconduct. The claimant would have been the number 2 manager in the store so there could be no doubt about his trustworthiness around money, he was in a position of responsibility. No lesser sanction was appropriate when trust was gone in the claimant. ML adjourned to consider for 15 minutes, then the decision to summarily dismiss the claimant was communicated to him and confirmed by letter of the 30th of July 2014.
ML was aware that the claimant had no previous disciplinary issues. The claimant’s brother was concerned for his mental health and asked the respondent on instruction from the claimant to make the disciplinary decision as quickly as possible. The respondent did have the wrong address on file for the claimant. HR were present to advise on the process but did not advise on the sanction. The allegation of breach of trust was added to the process after the investigation even though the disciplinary procedures state,
‘Do not introduce new matters to the hearing, should new evidence arise, adjourn, investigate and include this new information/allegation in another invitation to hearing letter.’
A former area manager (AT) gave evidence of the appeal hearing. The claimant appealed the decision to dismiss him by letter of 1st of August 2014. The grounds of appeal were that he was not guilty of gross misconduct, breach of procedures or breach of confidence and trust. AT does not recall who instructed him to undertake the appeal but he was aware that there was an ongoing disciplinary process with the claimant.
At the appeal meeting the claimant said KR instructed him that he did not need a representative and did not outline the possible consequences of the disciplinary process. AT spoke to KR and he disputed both of these points. The claimant also said he was not familiar with the till and refund policy, as duty manager the claimant had detailed knowledge with the till and refund policy. AT had to decide whether the claimant’s actions amounted to gross misconduct to warrant summary dismissal. The duty manager is in a position of trust and the grounds of appeal did not overturn the facts of the incident. There were no answers as to why it happened, why the money was in his pocket and why he did not report it.
The claimant had been trained in the disciplinary process and it was on instruction from his brother that the process proceeded so quickly. The breach of trust and confidence was not investigated as it is an outcome not an allegation. HR provided the information to AT, wrote the outcome letter and acted as note-taker.
Claimant’s Case
The claimant commenced employment in 2005 as a trainee manager and was the assistant manager at the time of his dismissal. The claimant was never provided till and refund training, he was aware of the implications of the policy but not the consequences of breaching it. The claimant did get disciplinary procedures training.
The customer came in late to exchange a sliding door. The doors were exchanged and the additional €35.00 was left in the till to be processed in the morning. He was concerned that the money would get lost when SG went on her tea break so removed it for safe keeping. He put it into his pocket but lost it. The claimant panicked so processed the transaction as a straight exchange instead of recording the additional €35.00. It was a one off mistake. The wallpaper was a trip hazard that’s why the claimant asked SG to put it back. The claimant has witnessed store managers processing a refund to make up the difference if a till didn’t balance; no one has ever been disciplined. The claimant had cause to speak to SG about her attitude a few weeks before so this was SG “getting her own back.”
The claimant was instructed to meet with KR who gave him the investigation letter. The claimant asked what it was about and KR just said he was only instructed to give him the letter. KR said he didn’t need a representative as it wasn’t that serious. Only later was the claimant told what the process was about and offered a representative. There was no opportunity to cross-examine the witnesses and the claimant was not given a copy of the procedures. A breach of trust or that it could lead to his dismissal was not communicated to the claimant. The claimant heard KR on the phone after he requested an adjournment; the claimant did not request these breaks. The claimant was suspended with pay. He never got an investigation report.
The claimant attended his GP and told his brother about the situation. His brother contacted the respondent and attended the disciplinary hearing with him. At the meeting there was no mention of a breach in trust and confidence only a breach of the till and exchange policy. Only after ML spoke to someone during an adjournment did he inform the claimant how serious the situation was.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Determination:
The Tribunal have carefully considered the sworn evidence and submission adduced in this matter.
The claimant was employed as a Manager for the respondent company and held in a position of trust. An incident occurred regarding an amount of money which had been tendered by a customer when exchanging goods. An investigation was held and the claimant was dismissed for gross misconduct. The claimant appealed this decision but the decision to dismiss the claimant was upheld.
The position of Manager of a store is one of leadership, responsibility and trust. The claimant in his actions broke that bond of trust and confidence in the eyes of the respondent company. The Tribunal finds the respondent company was fair in the procedures they carried out to investigate and carry through the disciplinary process with the claimant.
In the circumstances the Tribunal finds the claimant was not unfair dismissed. Accordingly, the claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)