EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1740/2014
CLAIM OF:
Shane McGreal
-claimant
Against
Aurivo Co-Operative Society Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A. Courell B.L.
Members: Mr T. Gill
Mr T. Gill
heard this claim at Castlebar on 13th May 2016 and 25th July 2016
Representation:
_______________
Claimant: Mr Michael McDarby, McDarby & Co., Solicitors, Glebe Street, Ballinrobe, Co. Mayo
Respondent: Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street, Donegal Town, Co Donegal
Background
The respondent is a D.I.Y. and Agriculture store which has a number of branches. The claimant worked as a member of the yard staff from October 2009. A number of incidents occurred which led to the claimant’s dismissal for serious misconduct on the 15th of September 2014.
Respondent’s Case
A number of incidents occurred that led to the claimant’s dismissal. In June 2014 the Branch Manager returned late from a meeting and found the claimant putting animal feed into his vehicle. The correct procedure is to pay for the feed and get a docket, bring the docket to the yard for the order to be filled by another staff member; the staff member that filled the order should put the purchase in the vehicle. On this occasion there was no staff member in or around the yard for the docket to be produced to or to fill the order. The Branch Manager gave the claimant the benefit of the doubt for this incident.
In August 2014 the Branch Manager was reviewing the cameras and noticed the claimant again filling his vehicle with animal feed on the 7th and 8th of August. On the 22nd of August he observed the claimant taking a saw and putting it in his vehicle without paying for it. The Branch Manager then contacted the Area Manager who directed him to HR.
The Branch Manager investigated the incidents further and invited the claimant to a meeting on the 5th of September 2014. He cannot recall if he told the claimant what the meeting was about. At the meeting the claimant’s explanation regarding the animal feed was “sure everyone else is taking it.” Regarding the saw, the claimant said “it’s in the vehicle, I’ll go get it if you want.” As part of the investigation the Branch Manager reviewed the previous 3 weeks CCTV footage and the stock; there was no other staff members taking the animal feed like the claimant. The CCTV was not shown to the claimant and he did not request to see it. The minutes were not agreed. The Branch Manager disputes saying “you better start looking for a job.” The claimant was suspended on full pay pending further investigations. A further meeting took place on the 12th of September 2014. The claimant was notified of this meeting in writing and offered representation. All the claimant’s invoices were checked and none of them were for animal feed and he never asked the Branch Manager or any of the other staff to charge any animal feed to his account. There were transactions on the claimant’s account but not for animal feed or a saw. The CCTV did show the claimant cutting timber for a customer with the saw but he went out of his way to put the saw into his vehicle instead of returning it to the store.
In the summer of 2011 contracts were issued to all the respondent staff members by HR. MH from HR attended the investigation meeting and corroborated the Branch manager’s evidence. MH conducted the disciplinary meeting held on the 15th of September 2014. The claimant was invited to this meeting by letter, which outlined the possible consequences and offered him the opportunity to bring a representative. MH offered to postpone the meeting as there was a mistake with the claimant’s address so he got short notice of the meeting; he declined.
The incidents were outlined in full to the claimant at the disciplinary meeting. His explanation for putting the animal feed in the vehicle was “that I must have forgotten to pay for them.” When asked how he could forget 3 times, the claimant did not respond. The claimant did challenge the incident with the saw; he said he intended on returning it. CCTV was available to the claimant but he did not dispute the incidents having occurred. Following an adjournment to consider the claimant’s explanations and the evidence, MH concluded that the claimant was taking stock which amounts to theft, so had no option but to dismiss the claimant. The claimant was informed of this decision at the meeting and it was confirmed in writing by letter of the 16th of September 2014.
The Chief Financial Officer for the respondent heard the claimant’s appeal of the decision to dismiss him. The claimant was offered representation for the appeal meeting but declined. When asked what he had to say about the allegations of theft, the claimant said that he asked another member of staff to charge the goods to his account but this must not have been done. The claimant could not recall who he asked but that it could have been 4 different people. The claimant said he would not have noticed the discrepancies on his account as he has ordered feed 50 times since May 2014 meaning 50 transactions on his account. The claimant said he fully intended on returning the saw as it was only in his vehicle for safe keeping.
On conclusion of the appeal meeting the CFO watched the CCTV and considered all of the evidence. In regard to the saw, the claimant was walking towards the store with the saw and veered off to put it in his vehicle. The CFO also asked the Area Manager to ask the staff members if the claimant had asked any of them to charge feed to his account. There was only two transactions on the claimant’s account not the 50 he gave as an explanation; it was not credible that he would not notice the missing feed transactions given the lack of other transactions on his account. The claimant never denied the incidents so there was no need for him to see the CCTV. The decision to dismiss the claimant was upheld and he was informed of this by letter of the 3rd of October 2014.
The Area Manager met all the staff individually on the 2nd of October and each denied being asked by the claimant to charge feed to his account.
Claimant’s Case
The claimant never received a Contract of Employment or the Grievance and Disciplinary procedures, so was unaware of what form any disciplinary action would take. The claimant was called to the first meeting on the 5th of September 2014 by phone with very little notice and no explanation as to what it was about. The Branch Manager and HR were in attendance. The claimant was told that there was stock missing and that they “have proof and CCTV that it’s you”. The claimant immediately asked to view the CCTV since he was being accused of stealing. He was informed that they didn’t have it with them and they needed to investigate further so would be in touch the following week. They never told the claimant what he was supposed to have stolen. The claimant asked was he “as well looking for a new job” to which the Branch Manager said “yes”. The claimant was suspended with pay.
The following Thursday the claimant received a text asking him to meet the respondent the following day. The claimant replied seeking a letter of explanation as to what was going on; the letter went to the wrong address twice. The claimant eventually received the letter at 3.15pm on Monday to meet the respondent at 4pm on the same day (the 12th of September 2014).
At this meeting the claimant was given a list of things he was being accused of taking; animal feed on three occasions and the saw. The claimant again asked to see the CCTV; they said they didn’t have it but it would be available if the decision was appealed. At the appeal meeting the claimant asked to view the CCTV but he was told they didn’t have it with them.
The claimant was cutting timber for a customer with the manager’s permission. When he had finished cutting the timber and was going to leave the saw back, the yard got busy. In order to keep the saw safe, the claimant put it into his vehicle intending to leave it back later. The claimant forgot about the saw but at all times intended on returning it; the claimant owns a number of saws and has no need for another one.
The claimant raises lambs so has an account with the respondent to buy feed. The claimant has an agreement with the manager that he pays off his account every year when he sells the lambs in September. The claimant always asks a member of staff to charge any feed he takes to his account but he doesn’t recall which staff member he asked on the occasions that led to his dismissal. The claimant never had a problem with his account or the respondent so never checked his account statements; he would not have known the charges were missing from his account. The claimant thought the situation was a misunderstanding and never expected to be dismissed. The process the claimant used to get his feed was the same way everyone did it, including some of the management. The claimant has used the “correct” procedure for getting feed before but must have forgotten to get dockets this time.
The claimant disputes saying “anything I took would have been small” and that “everyone was doing it”. The claimant was offered representation but he is not in a Union and none of the staff members wanted to come with him to the meetings.
The Tribunal offered the claimant the opportunity to view the CCTV which he accepted. On one occasion the claimant was seen speaking to a staff member after he put the feed in his vehicle and on another occasion the claimant is putting bags of feed into his vehicle. It was submitted on his behalf that this must be for a delivery as he uses bulk feed for his lambs.
Determination
The claimant was dismissed with immediate effect for serious misconduct on the 16th of September 2014. The respondent had carried out an investigation into incidents of alleged misappropriation of stock in their store over a period of time. Security camera footage shows the claimant taking bulk animal feed on four different dates, 9th June 2014, 7th & 8th of August 2014 and 18th of August 2014 and shows him placing a saw in his vehicle on the 21st of August 2014. The respondent gave evidence that the claimant had given different explanations in relation to the taking of the feed. Initially, he said he wasn’t the only one taking things and anything he had taken was small, he then said that he had forgotten to pay for the items. During the appeal hearing he said he had asked another member of staff to charge the items to his account. The claimant viewed the CCTV footage in relation to two incidents during the course of the hearing and explained that in relation to the incidents dated 18th of August the feed that was put into his vehicle must have been for a delivery. In relation to the incident dated the 9th of June 2014 he explained that he had spoken to a colleague (McD) but couldn’t recall what they had spoken about.
The claimant said that he had always maintained that he had asked another member of staff to charge the items to his account. The Tribunal has considered the oral evidence of the parties as well as the contemporaneous written notes of the meetings and prefers the evidence of the respondent. The claimant also mentioned that he had requested sight of the CCTV footage but was denied same. Considering the evidence, the Tribunal does not accept that the claimant made such a request. Applying the balance of probability, the Tribunal accepts the respondent’s evidence in relation to what transpired during the investigation and disciplinary meetings.
The Tribunals task is not to supplant it’s views of the employee’s conduct for the employers, but to consider whether the employer acted reasonably in concluding that the claimant was guilty of serious misconduct. In this regard, the Tribunal finds that the employer acted reasonably in all the circumstances. This being a case involving serious misconduct, the appropriate sanction was dismissal. Moreover, the investigation which was carried out was sufficiently thorough and the claimant was afforded fair procedures at all times, given that the claimant had only stated that he had told another member of staff to charge his account at the appeal hearing and given the fact that the claimant couldn’t recall any of the names of the staff members in question.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)