EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Sean Lonergan UD691/2015
MN308/2015
against
Dunnes Stores
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. J. Revington SC
Members: Mr. D. Peakin
Mr. J. Jordan
heard this case in Dublin on 9 June 2016
Representation:
_______________
Claimant(s):
Mr. Aaron Shearer BL instructed by
Ms. Dorothy Walsh, Dorothy J Walsh & Company, Solicitors,
20 Fair Street, Drogheda, Co. Louth
Respondent(s) :
Mr. Marcus Dowling BL instructed by
Ms. Fleur O’ Shea, Byrne Wallace, Solicitors.
88 Harcourt Street, Dublin 2
The determination of the Tribunal was as follows:-
In a respondent opening statement it was said that the claimant earned €4166.00 per month as a multiple retail store manager in Drogheda. He admitted to various very serious breaches of procedure. His dismissal was within the range of reasonable responses by the respondent. The respondent was surprised that unfair dismissal had been claimed. There was baby food involved. A Chinese national had given the claimant cash to buy it whereupon the money had been used to generate a large number of vouchers. Stock went out the back door on pallets. The claimant claimed to have been powerless. The respondent would call five or more witnesses. The case would take two further days.
Giving sworn testimony, AK (goods inwards manager) said that he had been nearly thirteen years with the respondent. Drogheda had a small, old grocery store. The claimant was the store manager. JW was the security manager. AK had known the claimant as a trainee.
Asked if the claimant had really been powerless, AK disagreed saying that nothing went past the claimant. He said that the claimant and JW had been “thick as thieves” and made the decisions. They ran the store as they wanted.
AK monitored all stock coming in. Stock could get reduced by fifty per cent. A special gun was used. Stock would be reduced to clear or written off. It went “through the gun”. The respondent’s policy was to get stock sold. The claimant would oversee all. Expired stock was given a wastage percentage. The claimant said not to put it through. Produce was dealt with daily.
The claimant dealt with stock reports. Waste was not being stamped with the gun.
Alcohol was sold incorrectly. JW approached AK saying he had out-of-date stock. AK was told that none of it had gone through the gun. He questioned JW. AK had got the impression that he “was trying to be entrapped into this”.
The store got in large amounts of baby food. The claimant asked the claimant about this but the claimant said to take it in. AK saw the claimant with SKX (a Chinese national). AK reported this SKX giving nods to the claimant. He raised with head office that pallets had gone into SKX’s van. It tended to happen when AK was off. AK spoke to MC of the respondent. AK knew there was surveillance in the store.
Under cross-examination, AK said that other managers and staff saw what was happening. Minutes were taken. AK felt that he was getting entrapped. He reported the wastage problem. He was seriously concerned at the claimant’s attitude and answers on the waste but he never saw any baby food transaction. He did see a wad of notes being handed to the claimant and the claimant making use of a calculator. He knew that SKX was coming in getting baby food.
Questioned by the Tribunal, AK said that he had been concerned at the amount of baby food coming in. He felt that it needed to be reported to head office. He was interviewed after the claimant and JW were suspended. He made a statement which was not typed. JW was not still working there. AK said that “each store takes a hit for out-of-dates” and that waste should be only about two per cent.
The respondent’s representative said that there had been an effort to get multiple ten-euro vouchers by turning €3,500.00 into multiple vouchers. This was submitted to be fraud. It was contended that there had been multiple issues.
Giving sworn testimony, DC (sales assistant) said that she put through baby food when either the claimant or JW gave it to her. She had not seen the like before.
Under cross-examination, DC said that she had not been asked questions by MC. She had not discussed this subject with anyone before that hearing-day. She had since been told not to take more than four of the same item at the till at a time. She had been told about taking around ten at a time. It had been either the claimant or JW.
Giving sworn testimony, DW (sales assistant) said that he was asked to work on certain produce. He and the claimant loaded a van for SKX. He asked the claimant if this was above board. The claimant said to say this was an uplift if he was asked.
Under cross-examination, DW said that he had only made a statement the previous day. He had not given evidence before.
Giving sworn testimony, SC said that she had always been in that Drogheda store for her twenty-nine years with the respondent. She was seldom on tills. She saw the claimant and JW with SKX.
(At this point the respondent’s representative told the Tribunal that JW had also made a claim to the Tribunal but that the claim had been withdrawn.)
SC said that she had just seen the claimant with SKX once. It was put to her that the claimant had said he was only showing SKX to the toilets but SC replied that the toilets were nowhere near there and that it was definitely the stock room where she had seen the claimant. Asked if it had been normal to have multiple transactions for vouchers, she said no.
Under cross-examination, SC said that she had spoken to MC and VX at HR. FX had acted as a note-taker. On two separate occasions she had seen SKX, once with the claimant and once with JW.
The case was adjourned to 3 and 4 October 2016.
At the two-day resumed hearing the Tribunal listened to very extensive witness testimony (both substantive and procedural) adduced by the respondent. After full cross-examination and questions from the Tribunal the claimant himself gave sworn testimony on which he was very fully cross-examined with interventions by the Tribunal itself.
The respondent then furnished a closing statement in writing and the claimant’s representative made an oral closing statement.
Determination:
The Tribunal first gave thought to whether the penalty of dismissal was disproportionate. It was felt that there had been a huge breach of procedure. The Tribunal was not impressed by the respondent’s offering of an appeal in writing only.
The claimant got a payrise and a bonus. It was a huge leap to dismiss him.
However, the Tribunal did not feel that the claimant handled JW properly. It was felt that the only redress the Tribunal could award was compensation. There was no doubt that the claimant contributed to his dismissal even if he was a salesman at heart. In all the circumstances of this case the Tribunal, in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, considers it just and equitable to unanimously award the claimant compensation in the amount of €45,000.00.
In addition, the Tribunal, allowing the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, on the grounds that the claimant was not found guilty of gross misconduct, awards the claimant the sum of €3,845.54 (this amount being equivalent to four weeks’ gross pay at €961.38 per week) under the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)