EMPLOYMENT APPEALS TRIBUNAL
CASE NO: UD16/2016, MN1415/2014
APPEAL OF:.
Krzysztof Scislowski - Appellant
against the recommendation of the Rights Commissioner in the case of:
Limerick Strand Hotel Limited T/A Strand Hotel - Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2015
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr D. McEvoy
heard this appeal at Cork on 24th January 2017
Representation:
Appellant: Mr Ger Kennedy, SIPTU, Head Office, Liberty Hall, Dublin 1
Respondent: Ms. Muireann McEnery, IBEC Mid West, Gardner House, Bank Place, Charlotte Quay, Limerick
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an appeal by the employee against the recommendation of a Rights Commissioner Ref: r-149756-ud-14.
Note: All notes, minutes of meetings, statements and letters referred to in this order were opened to the Tribunal during the course of this hearing.
Background:
The appellant was employed by the respondent as the chief kitchen steward from 20th March 2007 until his dismissal on 4th March. His dismissal was upheld on two subsequent appeals. The appellant’s duties included the supervision of staff, cleaning, maintenance of all cleaning equipment, health and safety and to control the security of company stock and property.
Summary of Evidence
On 19th February 2014 the HR Manager (HRM) was informed by the pastry chef (PC) that she had observed the appellant acting suspiciously in the dry food store, attempting to put lids on two paper cups and then putting them to one side. PC left the store but returned five minutes later to check what was in the cups but could not find them. However, she then observed the appellant in the wash-up area wrapping the paper cups and she later saw him with the wrapped cups in his pockets. On hearing this HRM instigated a bag and locker search, as permitted under the company policy. Two managers searched the appellant’s locker and bag in his presence and found two wrapped paper cups full of coffee powder and a packet of tomatoes in his bag in the locker. The appellant was asked to come to HRM’s office and bring his bag.
The appellant’s explanation was that he had purchased the coffee and tomatoes the previous evening when doing his shopping and his wife had omitted to take them out of his bag when unpacking the shopping. When he arrived for work that day he had put his bag down and heard a crack and when he checked his bag later on he found the glass jar of coffee had broken. He put the coffee powder in the paper cups and discarded the broken jar in the recycling area. At HRM’s request he guided her to where he had discarded the broken jar but could not find it. HRM suspended the appellant on pay pending further investigation.
The appellant was invited to attend an investigation meeting on 21st February 2014. He was advised he could bring a colleague with him but attended the meeting unaccompanied. He was offered and refused the services of an interpreter. At this meeting the appellant’s version of events changed slightly. HRM asked the appellant to bring a jar of coffee, identical to the one he had purchased on 18th February, to the next meeting.
The appellant was accompanied by his union representative (TU) at the second investigation meeting on 25th February 2014. The issue of the coffee was discussed at length and again the appellant’s version of events changed slightly. The appellant did not bring a jar of coffee identical to the one he had purchased to the meeting. HRM gave him a copy of PC’s written statement of the incident at the meeting.
At a third investigation meeting on 27th February 2014 the appellant admitted to taking the coffee from the dry store locker. He explained that he had not previously told the truth as he feared no one would believe him. He only wanted the coffee for his own use at work. He did not intend to take it home. The appellant attended on his own although invited to bring a representative with him.
The claimant was invited to attend a disciplinary meeting on 3rd March 2014 and in the letter of invitation he was advised that it could result in “disciplinary action up to and including dismissal”. The appellant again attended the meeting without representation although invited to bring a representative with him.
At the meeting he explained to HRM that he intended using the coffee at work when he did not like the coffee in the canteen and he had wrapped it because he did not need it at the time as they had this coffee in the canteen. In reply to questions from HRM he told her did not understand the seriousness of the incident or realise he could lose his job but he knew HRM did not trust him anymore. HRM told him he took advantage of the fact he had a master key to commit theft. HRM told the claimant that taking the coffee and lying about it constituted gross misconduct. By letter of 4th of March 2014 HRM advised the claimant he was summarily dismissed for gross misconduct. In this letter the appellant was advised of his right to appeal the decision.
HRM told the Tribunal that her remit was to ascertain if the coffee in the appellant’s possession was company property. At the third meeting he admitted it was company property. Trust had been lost and the incident warranted dismissal. As the claimant was guilty of gross misconduct other alternative sanctions were not considered.
The claimant appealed on the grounds that his wrongdoing did not warrant dismissal and that the procedures adopted by the respondent were unfair. The appeal meeting was heard by the General Manager (GM) and the appellant was represented by his trade union official (TU) at the appeal meeting on 19th March 2014. TU relied on the appellant’s unblemished seven year record with the respondent and on the fact that the appellant had not intended stealing the coffee and only intended using it at work. He also argued that the appellant had panicked initially and made up the story about buying the coffee. TU pleaded for a more lenient sanction. The other ground of appeal was that the same person had carried out the investigation and the disciplinary meeting. However, GM upheld the dismissal on the grounds that the respondent has zero tolerance of theft and that the value of the item taken is not a factor. GM also rejected the procedural argument on the basis that the claimant had been informed prior to the disciplinary meeting that HRM would be conducting the meeting and he had not objected to her. Finally, GM rejected the appeal on the ground that in fabricating a story in the initial stages of the investigation was dishonest and compounded the wrong done by him. The decision was communicated to the appellant by letter of 21st March 2014.
On 28th of March 2014 TU submitted a further a letter of appeal setting out the grounds of appeal, which as well as the two original grounds relied on in the earlier appeal, there was the additional ground that a sanction short of dismissal should have been applied.
The appeal hearing was conducted by the Group HR Manager (GHR). The appellant was represented by TU at the appeal hearing on 3rd April 2014. The decision to dismiss the appellant was upheld. GHR’s position was that the claimant initially misled the investigation, he ought to have “come clean” earlier in the investigation process, dismissal was the prescribed sanction for gross misconduct and the respondent had followed its own procedures. The decision was communicated to the appellant by letter of 9th April 2014.
The appellant told the Tribunal that he had taken the coffee from the dry store for his personal use at work. He was not going to take it home. He explained that he had not told the truth at first because he thought no one would believe him and he was nervous. He agreed that he had kept up the story but after the second meeting he knew he had to tell the truth. He liked the particular coffee and it was not always readily available in the canteen. He was not aware how serious his act was. He never thought he would be dismissed. He felt that because of his unblemished record, he would only receive a warning. He had wrapped the cups with grease proof paper and cling film. Under cross-examination he agreed that he had had a position of responsibility and was aware of company policies and procedures. He denied that he intended to take the coffee home; it was to use at work.
Determination
The test to be applied in cases of misconduct is whether the employer had a genuine/reasonable belief following a fair investigation that the employee was guilty of the wrongdoing of which he is accused and that dismissal was a proportionate sanction. In this case the appellant admitted, although late in the investigation process, that the coffee was the respondent’s. Having considered the evidence the Tribunal is satisfied that it was reasonable for HRM to believe that the appellant took the coffee for use at home. The appellant was the chief kitchen steward and his duties included controlling the security of company stock and property. His action breached the trust reposed in him by the respondent and particularly so in light of his responsibility for the security of company stock. The appellant’s failure, during the initial stages of the investigation, admit to the fact that the coffee was company property compounded his wrongdoing. Finally, on the substantive issue the Employee Handbook provides that theft is an act of gross misconduct and the prescribed sanction is summary dismissal.
While it is better practice for an employer to ensure that the disciplinary hearing is conducted by someone other than the person who conducted the investigation the failure to do so does not necessarily render the procedures unfair. The Tribunal is satisfied that the procedures in this case were not unfair. The Tribunal notes that the claimant was afforded a second appeal.
For the above reasons the Tribunal finds that the dismissal was fair and the appeal against the Rights Commissioner’s recommendation under the Unfair Dismissals Acts, 1977 to 2007 fails.
As the dismissal was for misconduct the claim under the Minimum Notice and Term of Employment Acts 1973 to 2005 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)