EMPLOYMENT APPEALS TRIBUNAL
CASE NOS.
UD604/2015
MN295/2015
CLAIMS OF:
Charles Sukore
(claimant)
against
The Carphone Warehouse Limited
(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 D. Hayes B.L.
Members: Mr. L. Tobin
Mr P. Trehy
heard this claim at Dublin on 24th May 2016 and 25th July 2016
Representation:
_______________
Claimant(s) : Einde O Donnell, Purdy Fitzgerald Solicitors, Unit 1 Gfsc,
Moneenageisha Road, Galway
Respondent(s) : Mr Emmet Whelan, Byrne Wallace, Solicitors, 2 Grand Canal
Square, Dublin 2
The determination of the Tribunal was as follows:
Preliminary Issue
A preliminary issue was raised by the respondent’s representative as to incorrect respondent being named on the complaint form. The word ‘Limited’ was omitted from the name of the company. After hearing submissions from both sides, the Tribunal allowed the name of the respondent to be amended under Section (39) (4) (b) of the Organisation of Working Time Act. The Tribunal was satisfied that the omission of the word “limited” when all other particulars were correct was but a minor slip and was due to inadvertence. Further, the Tribunal was satisfied that there would be no prejudice to the respondent in allowing the name to be corrected.
Summary of evidence
Respondent’s case
The claimant was employed as a Sales Consultant with the respondent from November 2013 until his dismissal in February 2015. The claimant was issued with a final written warning in October 2014 in respect of failure to follow company procedures. That warning remained on file for 12 months. Giving evidence, the Regional Manager (NO’B) told the Tribunal that serious issues of concern arose in February 2015 relating to the purchase by the claimant of two smartphone handsets at a discounted price and the subsequent sale of one of the handsets at a price that undercut the respondent’s price on a website. An investigation was carried out and following a disciplinary process the claimant was dismissed by letter on 12th February 2015.
An investigation was carried out by the claimant’s store manager and the matter was referred to NO’B to conduct a disciplinary hearing. The disciplinary meeting was held on 10th February 2015. The claimant declined to be accompanied.
A phone that should have cost €499 was mistakenly priced at €99 on one of the respondent’s systems. The claimant purchased 2 phones. His colleague purchased one. One of the phones purchased by the claimant was advertised online for €450. This phone was sold. The claimant did not check the price of the phone on the respondent’s homepage and neither did he check with the regional manager. He thought it was just a good offer. He bought one phone for himself and one for his partner. She sold her phone and made a profit from the sale. The instore price tiles showed a price of €499. Also the phone was sold sim free when it should have been linked to a particular network. The respondent lost money as a result of the transaction. NO’B decided to dismiss the claimant as his action undermined the business of the respondent and his action was not down to human error.
A commercial representative RM gave evidence. On 1st or 2nd February 2015 he saw 2 phones for sale on a website. He looked on another website on that occasion. One of the phones for sale had been purchased by the claimant. The price €99 was an error. No pay as you go phone would be discounted by that amount.
Claimant’s Case
The claimant worked as a sales assistant. He said that he was not given a final written warning in October 2014. He first heard of it when it was included with the request that he attend a disciplinary meeting. At the time he was told it was a verbal warning and he would have appealed it if he had known it was a final written warning.
He thought the price of the phones was a good deal. He believed that if there was an error in the system that the sale would not go through. He did not receive training in dealing with errors. He kept one phone and gave the other to his partner. She took it out of the box and said she did not like it and he told her to do what she liked with it. She did not tell him she offered it for sale.
The claimant did not appeal the decision to dismiss him because he believed that NO’B would hear the appeal and he had no confidence in the process.
The claimant’s partner gave evidence. She had been feeling down and he gave her the phone to cheer her up. Her reaction was to ask him what would she be doing with the phone. They had an argument. She put it up for sale online.
Determination
The claimant had been disciplined in October 2014 for a failure to follow company procedures in relation to the registration of a phone for a customer. Most notably he had ignored three requests from a service provider to forward certain details to the service provider’s security department. The outcome was that he was given a final written warning, which was to stay on his file for twelve months. This sanction was not appealed. The claimant told the Tribunal that he had not been given notice of a final written warning. The Tribunal accepts that, as well as being informed in writing, he was told in person by NO’B that he had received a final written warning. That he had been told of a final written warning by NO’B was acknowledged by the claimant in the course of his February 2015 disciplinary meeting. This acknowledgement was recorded in the note of that meeting, which note was signed by the claimant. The claimant says that he was told that he was receiving a first verbal warning. The Tribunal does not accept this.
In February 2015 an investigation opened in respect of a telephone advertised for sale on a classified ads website. The phone had been sold to the claimant for €99 and was advertised for sale for €450. Its normal price was €499. The seller on the classified ad was listed as “Karen” and the contact number was one connected to the claimant.
In the course of an investigation meeting and a disciplinary meeting the claimant said that he had checked the price on the system for a customer and had noticed that it was significantly cheaper in respect of one particular service provider. In respect of this one service provider it was listed as €99 as opposed to the €499 price for the other service providers. He said that he thought that it was an offer and just a good deal. He bought one phone for himself and another for his partner. He asked a colleague to process the sale and that other colleague used the claimant’s sign-in details on the sales system. The claimant then sold a third phone to the colleague for the same price of €99. No effort was made to ascertain whether this price discrepancy was an error or a genuine offer. The Tribunal was told that it had been an error in the respondent’s system. Even if it had been a genuine offer, it would have been for a customer connecting to the particular service provider’s system, which the claimant was not doing.
He told the respondent that his partner had not liked the phone and so he told her that she could do what she liked with it. It does not appear that he considered, in that circumstance, returning it to the shop for a refund. He said that he did not know that she was going to advertise it for sale at five times the price that he had paid for it.
It was determined that the claimant’s actions in relation to the purchase of the telephone and its subsequent sale had caused a breakdown in trust between the respondent and the claimant and that his actions constituted gross misconduct. He was therefore dismissed. He did not appeal this decision within the respondent’s disciplinary process.
His colleague was also disciplined for his role in the sale and received a final written warning. He had approached a manager and told him what he had done and had offered to pay the full price. His situation was also different in that his telephone had not ended up for sale and he did not have a previous disciplinary warning.
The role of the Tribunal is to determine whether, in all of the circumstances, the dismissal was unfair or otherwise. In doing so, the Tribunal must be satisfied, not that it would have come to the same conclusion but, that the decision taken was one that was open to a reasonable employer to take.
The Tribunal is satisfied that there was no procedural unfairness involved in this dismissal. There was a thorough and fair investigation and disciplinary meeting.
The claimant arranged for a colleague to sell him two telephones at a substantially reduced price. The discount was approximately 80%. He was at the very least careless in not making any check to see if this substantial deduction was an error. Nor should it have been sold as “SIM-free”. The Tribunal does not accept his explanation that, because he had given the phone to his partner as a gift, it was for her to do what she wanted with it rather than for him to return it for a refund. The phone was then sold for a substantial profit. It was an understandable concern on the respondent’s part that its own stock was being used to undercut its prices.
The Tribunal is satisfied that the decision to summarily dismiss the claimant was a reasonable one in the circumstances. Accordingly, the claims under the Unfair Dismissals Acts 1977 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005 both fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)