EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD939/2015
APPEAL(S) OF:
Flemco Supermarket Limited
-appellant
against the recommendation of the Rights Commissioner in the case of:
Lisa Jennings
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Murphy
heard this appeal at Galway on 25th November 2016
Representation:
Appellant:
Mahon Sweeney, Solicitors, Main Street, Roscommon, Co Roscommon
Respondent:
Mr Conor Quinn, John J Quinn & Company, Solicitors, Earl Street, Longford
Background:
This appeal came before the Tribunal by way of an employer (the appellant) appealing against a Rights Commissioner Decision under the Unfair Dismissals Acts (reference: r-154227-ud-15).
The respondent employee in this case was employed as sales assistant from August 2002 to August 2014. The fact of dismissal was not in dispute between the parties.
Documents from both parties were submitted and opened to the Tribunal during the course of the hearing.
Summary of evidence:
The Manager of the premises in which the employee worked gave evidence to the Tribunal that the employee handbook was not in being at the time the employee was employed. The employee in this case was trained on the company’s tills and associated policies. She had a clean disciplinary record.
An issue was brought to his attention by the Office Manager. The issue related to a number of irregular refunds which had been transacted on the employee’s till. The number of refunds was excessive compared to that of other employees; especially considering that the employee in this case only spent the first hour of her shift and lunch breaks at the till. The main part of her duties was carried out on the shop floor.
The Office Manager provided the Manager with a report of the refunds and he investigated the matter further. He observed that some of the transactions were carried out only seconds apart and that the number of transactions was unusual. He also reviewed the CCTV footage.
The Manager outlined that the company procedure for refunds entails using a supervisor’s card. The card is held by management. In addition members of management authorise any refund by counter-signing the refund receipt.
The employee in this case was provided with letter dated 14th July 2014 which invited her to a disciplinary meeting on the 15th July 2014. The letter informed her that the meeting was regarding a breach of store policy on the issuance of refunds and that it was a very serious matter of gross misconduct which may lead to disciplinary action up to and including dismissal.
The transaction report was opened to the Tribunal. The minutes of the meeting of the 15th July 2014 were opened to the Tribunal. The Manager gave evidence of going through the receipts with the employee and putting to her that there were a number of a number of irregular cash refunds on her till which had been brought to his attention to which the employee apologised and told him that she had been “silly”. She outlined to him the circumstances that led to her returning the items to the shop. During the meeting the employee accepted that she had processed refunds to herself. This was not permitted and all staff receive training to this effect. However, it was the employee’s case that she had sought and received the permission of Supervisor K to return the items. The Manager gave evidence that he took this to mean that the employee was alleging that Supervisor K had given permission to return items from a multipack as single items. As the goods had previously been on promotion there was an upsell to the employee at the time of refund.
The employee outlined in evidence the tragic bereavement she suffered due to the death of her nephew. It was the employee’s case that she had received permission from Supervisor K to return confectionary items following his funeral. The employee stated that she had no intention of gaining financially. She did not get a manager’s authorisation for the refunds as she had received Supervisor K’s permission.
The Manager gave evidence that he met with Supervisor K prior to the disciplinary meeting. She denied ever having a conversation with the employee about returning confectionary items.
In reply to questions from the Tribunal, the employee agreed that there was casualness around the management cards in general. Staff were not often reminded of the procedures and policies. This evidence was disputed by the company and a witness gave rebuttal evidence that the Office Manager spoke regularly to all staff on till policies.
It was the employee’s case that the management card could easily be located within the store and she told the Manager at the meeting that “everyone is doing the same thing.” The Manager gave evidence that he took this to mean that other employees were carrying out refunds without a signature from management. The Manager refuted the contention that the management card was easily available in the shop but he did accept that the card could remain at a till until a manager returned to retrieve it. In addition he previously had cause to speak to staff on two occasions for processing a refund without asking a manager to authorise it. On those occasions the matter was also brought to his attention via the cash office. However, on both of those occasions the refunds were processed to customers rather than to staff members on their own behalf.
The meeting of the 15th July 2014 concluded for further investigation. The employee was suspended with pay and was asked to attend a further meeting on the 18th July 2014. It was the employee’s evidence that she had no opportunity to consider the documentation. She felt the matter was prejudged. The Manager did not provide the employee with the documentation of the transactions or statements taken prior to the meetings nor did the employee ask for it. It was her evidence that she did not know to ask for it. The Manager accepted during cross-examination that the employee was not provided with the opportunity to put questions to members of staff including Supervisor K.
At the meeting on the 18th July 2014 the employee was informed that new information had come to light following further investigation. The Manager put a number of further transactions to the employee. The transactions had occurred on the 20th March, 26th March and 27th March respectively. It was put to the employee that she had purchased multipacks on 20th and 26th March of €2 each per multipack (totalling €8) but she later provided refunds to herself on these items as singular items on the 27th March resulting in a total refund of €17 meaning that she had reimbursed a greater amount to herself. Following a recess of the meeting a further transaction was put to the employee – that she had printed a deli receipt on the 11th July for €3.95 and later refunded this sum to herself without management authorisation. The employee offered an explanation for this by stating that the deli item refund was due to her as she had been overcharged by a colleague on another occasion. It was the company’s case that this employee had no knowledge of the employee being overcharged.
It was the employee’s evidence that she had no intention of making a profit. Most of the items were multi packs that had been opened and she returned them to the store sporadically. She confirmed that she was aware of the refunds policy in operation and that she understood that staff were not to process refunds to themselves but she stated that on this occasion she thought she had secured the permission of the supervisor to do so.
A further meeting was held on the 21st July 2014. The interim period was to allow the Manager to investigate the deli transaction. The employee was informed at the meeting that her employment was being terminated due to gross misconduct on a grand scale - processing a large volume of cash refunds to herself without management’s authorisation. The letter of dismissal stated that the employment was terminated on grounds of misconduct for breach of company policy whereby cash refunds were processed by the employee to herself on multiple occasions and breach of the company’s honesty policy in carrying out these refunds without management authorisation.
The company’s honesty policy as part of the employee handbook was opened to the Tribunal. It was not signed by the employee. The employee received the handbook at the last disciplinary meeting. The Tribunal heard that an induction was in place when the employee commenced her employment but the employee handbook was not. During cross-examination it was put to the manager that the employee was dismissed for breaching the company’s honesty policy - a policy which the employee had not been given. The Manager referred to the fact that this issue is also outlined within the contract of employment which the employee did have. He confirmed that a breach of company policy regarding cash refunds was not stated in writing.
During cross-examination it was put to the Manager that he should have provided the employee with the documentation. He stated that he had offered it to the employee but she had refused it. The employee gave evidence that she had to lodge a data access request for the documentation prior to the appeal hearing.
It was put to the Manager that the sum involved was €170 and that the employee was refunding items which she had previously purchased. The Manager replied that there was no evidence that the employee had purchased them however this was not put to the employee at the time.
In reply to questions from the Tribunal, the Manager stated there was no reason for not inviting the employee to an investigation meeting. He did not provide the employee with the disciplinary procedure and he did not know if she had ever had sight of it.
The employee exercised her right of appeal to Mr. F the owner of the company. It was put to the Manager during cross-examination that he had spoken to Mr. F as part of the investigation. The Manager confirmed this but stated he had only spoken to him on one occasion about the issue of refunds.
Mr. F gave evidence that he conducted the appeal on the 5th September 2014. The minutes of this meeting were opened to the Tribunal. The employee presented a document at the appeal and there was also a letter dated 30th July 2014. He read through the document provided by the employee and proceeded to engage with each point but there was no further engagement from the employee. The employee told him that the document was her appeal. He attempted to go through the points to “thrash them out” with her but she did not engage any further.
Mr. F stated that he did not consider the contents of the employee's document sufficiently strong enough to change the decision that has been made to dismiss her from the company's employment.
During cross-examination it was put to Mr. F that he had not addressed the points raised by the employee in the appeal document including issues regarding the procedural aspects of the process. Mr. F replied that he did not know that if he had to do this and in any event the employee had not engaged sufficiently in the appeal to overturn the decision to dismiss.
It was the employee’s evidence that she had received advice to write down the grounds of her appeal and she felt that she had provided explanations for her actions.
The employee gave evidence of the financial loss as a result of the dismissal and her attempts to mitigate that loss.
Determination:
It is clear from the evidence adduced that there were a number of procedural flaws in the manner in which the company conducted the processes in this case. The dismissal of the employee must therefore be found to be unfair. However, the Tribunal can also consider the conduct of the employee and in doing so finds that she contributed significantly to the dismissal through her actions. Having regard to all the circumstances the Tribunal finds the sum of €500 to be the appropriate award under the Unfair Dismissals Acts, 1977 to 2007. Thus the Tribunal varies the Rights Commissioner Decision (reference: r-154227-ud-15).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)