EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD647/2014
MN300/2014
CLAIMS OF:
Teresa Carlin
-claimant
Against
John McElhinney t/a McElhinney's of Ballybofey
-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 M. Gilvarry
Members: Mr M. Carr
Ms. R. Kerrigan
heard this claim at Letterkenny on 18th November 2015
and 3rd March 2016
and 4th March 2016
Representation:
_______________
Claimant: Mr Kevin McElhinney, Gibson & Associates, Port Road, Letterkenny, Co. Donegal
Respondent: Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street, Donegal Town, Co Donegal
Background
The respondent is a department store that employed the claimant from the 21st of August 2000, as a sales assistant/till operator. There are 200 people employed in the store. The claimant was dismissed without notice for gross misconduct on the 15th of October 2013.
Respondent’s Case
The buying and merchandising manager, (DmcM) carried out the investigation into the incident that led to the claimant’s dismissal. There is a system in place within the respondent store where you can take items out on trial and then return them if unsuitable or pay for the items, whichever is appropriate. This “appro” system is in place for customers and staff.
DmcM detailed the till procedure in place for a member of staff taking items out on appro. If a staff member is returning an item they must go to a till and hand it back (and the till operator processes the items and issues a return receipt) or pay for the item and a receipt is issued. Each ‘appro’ transaction can have a number of items on it; the full transaction can be seen on the respondent’s computer system.
A staff member (K) had a number of items out on appro. She came to the claimant’s till and asked for the items to be deleted from her account. There were a number of different items on different till transactions for K, some of the items were returned and some were paid for. There was 4 items remaining on different transactions and K asked the claimant to put the four items in question onto one ‘appro’ transaction. K was also a sales assistant with less service than the claimant. These items were not presented to the claimant at the till. The implication is that the claimant marked the appro items as returned to stock without being in receipt of the items.
DmcM became aware of the anomalies in the transaction. She investigated initially by going through all the till reports. This transaction reports were submitted to the Tribunal and detailed evidence of same was given. A stock take was also done to ensure the items missing had not been returned. The claimant and K were identified as being the parties to the transaction. There is no reason the four items would be taken out of separate transactions and put onto one transaction. The claimant should never remove items from being recorded as ‘on appro’ without the items being physically handed back. In addition, a pair of earrings were accepted for return by the claimant which is against policy for hygiene reasons.
DmcM held an investigation meeting with the claimant on Thursday the 10th of October 2013. During this investigation DmcM established that the claimant was aware of the procedure in place when returning items that were taken out on appro. Each staff member gets the policy when commencing employment. She was offered but declined representation for the meeting. The claimant was shown the transaction reports and the CCTV of the transaction; she accepted that the 4 items in question had not been returned to her physically yet she still deleted them from the system. The claimant also accepted that it is not common practice for items to be taken off separate transactions and put onto one transaction. The claimant’s only explanation for her actions was that K asked her to do it, that if she didn’t ‘k might turn on me’; she accepted that ‘she did wrong.’ The claimant never made a formal or informal complaint against k.
If the items had been returned to the office they would have deleted them from the system there; there is no explanation for the claimant deleting items from the till without the physical items being returned. If K was paying for the items from her savings account with the respondent she would have to physically take the money out and then go through the normal till procedure. Although K has taken full responsibility for the situation, the claimant has a responsibility as a till operator to follow procedure and fundamentally ensure items are actually returned when deleting the records from the till system.
In the circumstances DmcM referred the claimant for a disciplinary meeting. The claimant was suspended with pay on the 11th of October 2013.
The Disciplinary Officer (CC) gave evidence of the disciplinary meeting that took place on the 15th of October 2013. CC explained that her actions amounted to an allegation of gross misconduct and asked her if she would like representation. This was the claimant’s opportunity to give an explanation for her actions and outline any mitigating factors.
The claimant fully understood the till procedure and the procedure for appro items. She said it was an unusual request from K and she had never done anything like that before. The claimant said she would not have deleted the items without them being returned to her for another member of staff, but she did not question K because she was fearful of her ‘as she can be sharp.’ CC has worked with the claimant and believes her to be a strong person who has no problem questioning staff or management. The claimant assumed that K had paid for her items in the office through wage deduction; it is the one system so if the claimant deletes the transaction on the till they will not appear in the office. The claimant did not know what the items were; she just deleted the codes K called out to her. Trust is broken in an employee when they delete items from the system, without question and without seeing them. She admitted her actions amounted to stealing although it was unintended; ‘all she did was fail to follow proper procedure there was no dishonesty intended.’
After carefully considering the claimant’s explanations CC concluded that as trust and confidence was gone in the claimant he had no option but to dismiss her. Six months earlier two people had been dismissed for similar breaches of the appro policy so the claimant ‘should have known better.’ Her actions amounted to gross misconduct so no lesser sanction could be considered. Although the claimant had 15 years of unblemished service the breach was so severe dismissal was the only option. The claimant was given the dismissal letter which outlined the process to appeal the decision to dismiss her.
The Appeal Officer (MmcE) gave evidence of the appeal meeting on the 22nd of October 2013. The claimant was accompanied to the meeting by a family member. The core issue is that the claimant deleted 4 items off the system without receiving payment or getting the items returned. MmcE is satisfied that the claimant fully understood the correct procedure she should have used. The claimant admitted that deleting the items was a mistake but there was no collusion or dishonesty on her behalf. The “mistake” was a serious and blasé disregard for the company’s policy; it’s a cash business so a lot of trust is placed in the employees. There are no hard copies of the appro transactions so once the claimant deleted them from the system there is no other record in the office and the till copies were destroyed when the transactions were amalgamated. Items can be deleted by a manager or with authorisation from a manager; the claimant never sought authorisation.
The claimant never put forward an ‘informal practice’ as a defence or that she did not understand the appro policy in place. There was no new facts or explanations proffered at the appeal and as there is a zero tolerance policy for gross misconduct MmcE upheld the decision to dismiss the claimant. There was a complete breakdown of trust in the employee; she facilitated a fraud by breaching the procedure.
Claimant’s Case
The claimant commenced employment as a sales assistant in August 2000. The morning of the incident K came to the claimant’s till and told her that the office said she was behind on her bills and would have to sort it out. K asked the claimant to put all of her transactions on one bill so she could see exactly how much she owed and then she would go directly to the office and sort it out with her savings. K got the folder with the hard copy of the bills (4-5) out of the drawer and scanned the first one in. The claimant asked if this was ok to do; to which K said she always puts all the transactions onto one bill. K called out the codes to the claimant that needed to go onto the new bill and told the claimant to delete the 4 items in question as she had already returned them. If the office had called the claimant she would have told them she didn’t get the 4 items back; this happens sometimes if it’s busy staff leave the returned items behind the till until it’s quieter and then someone hangs them up without processing the transaction on the till. The claimant put the amalgamated bill back into the folder and K held onto the originals. The claimant had no reason not to believe K when she said the items had been returned; she was well thought of within the respondent, there was no reason to think she would deliberately instruct her to delete items that were not returned. K could be ‘sharp and intimidating’ so the claimant did not question her. Whenever the claimant paid for her own items in the office they always gave her a paper bill. On a previous occasion the claimant had checked if the stock was returned as the staff member was paying her but all she was doing for K was amalgamating her transactions into one bill.
During all stages of the disciplinary process the claimant outlined exactly what had happened and told the respondent categorically that there was no collusion. The claimant did not think she needed a representation as she hadn’t done anything dishonest and therefore did not think she would be dismissed. The claimant accepts that some sanction would be appropriate but not dismissal. K took full responsibility for the incident. The claimant does not recall getting a memo in February 2013 about changes to the appro process.
The claimant gave evidence of her loss and attempts to mitigate her loss. She requested a reference from the respondent but it was not forthcoming.
Determination
In making this decision the Tribunal took a number of things into consideration. There was no written appro policy and as two people had been dismissed six months earlier for breaching this policy the respondent, at the very least, must have been aware that there was confusion over it. Although the appro rules are unclear there is an element of common sense that the claimant should have employed. The claimant was not contradicted in her evidence when she said it was common for items to be left behind the tills in busy periods and hung up later without any transaction being processed. The claimant was negligent in deleting transactions on the word of another; she was careless rather than dishonest. This carelessness does not amount to Gross Misconduct and warranted a lesser penalty than dismissal, summary or otherwise. For that reason the Tribunal find that the claimant was unfairly dismissed but that she substantially contributed to her dismissal.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €10,000 in compensation.
As the claimant was unfairly dismissed she is entitled to €2,246.82 which is the equivalent to 6 weeks’ pay in lieu of notice under the Minimum Notice and Terms of Employment 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)