UDD1811

This appeal is brought by Tesco Ireland Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00002970, dated 17 July 2017) under the Unfair Dismissals Act 1977 (‘the Act’). The Notice of Appeal was received by the Court on 24 August 2017. The Court heard the appeal in Dublin on 10 January 2018, along with an appeal under the Minimum Notice and Terms of Employment Act 1973. The Adjudication Officer held that the claim of unfair dismissal was well-founded and awarded Mr Cording (‘the Complainant’) compensation of €5,000.00.

The Factual Background

The Complainant was employed at all material times at the Respondent’s Express store in Enfield, Co. Meath. He was employed on a 35-hour per week contract and earned a gross annual salary of €27,761.31. His position was that of Team Leader.

In or about early October 2015, it came to the Respondent’s attention that there was a shortfall in the cash receipts from a number of its self-scan tills in the Enfield store. The Respondent carried out a number of technical checks on the tills during the week beginning 27 October 2015. No technical fault was discovered. The Respondent, therefore, decided to place additional cash into the machines in order to determine if the cash loss was ongoing. The Complainant was identified using CCTV footage recorded on 10 November 2015 accessing the notes dispensers on the tills and subsequently removing the bins besides the tills. At no stage was he pictured with cash in his hands. Nevertheless, on 13 November 2015 – and without prior notice – he was asked by Ms Ciara Doherty, Operations Manager for the Tesco Express stores to attend a meeting during which he was shown the CCTV footage recorded on 10 November 2015. The Complainant denied that he had taken any money from the tills. Ms Doherty, nevertheless, suspended him at this meeting pending a full investigation.

The Complainant was invited by letter dated 25 November to attend a formal investigation meeting to be conducted by Ms Doherty That meeting took place on 2 December 2015. The Complainant was accompanied by a Union Official. A disciplinary meeting took place on 7 January 2016. It was conducted by Mr Alan Coates, Store Manager of Tesco Express in Glasnevin. The Complainant was again represented by a Union Official. Mr Coates – by letter dated 20 February 2016 – communicated his decision to summarily dismiss the Complainant. The Complainant appealed this decision. An appeal meeting was held on 16 March 2016, chaired by Ms Tanya McGarry, Operations Manager. On 22 April 2016 Ms McGarry issued her decision in which she upheld the original sanction of summary dismissal.

Witnesses

Ms Ciara Doherty gave evidence in relation to the circumstances in which it came to the Respondent’s attention in or around October 2015 that substantial amounts of cash appeared to be going missing from the self-service tills in the Enfield store. She also gave evidence in relation to her decision to suspend the Complainant on 13 November 2015 and the subsequent investigation meeting she conducted on 2 December 2015. Mr Alan Coates gave evidence in relation to his conduct of the disciplinary meeting held on 7 January 2016 and the reasons for his findings that the Complainant should be summarily dismissed. Mr Paul Stenson, IT and Business Support Manager, gave evidence in relation to his attendance at the Enfield Store in November 2015 in order to carry out both hardware and software checks on the self-service tills. His evidence was that he concluded from those checks that there was neither a hardware nor a software problem with the self-service tills in the store at that time and that, therefore, there was no technical issue which could have explained the cash discrepancies that had come to Ms Doherty’s attention in late October/early November 2015. Mr Stenson also told the Court that he was present in the Enfield store on 10 and 11 November 2015 and that he had personally placed cash in Till 71 on 11 November 2015 and had subsequently counted the cash in it later that day.

The Complainant gave evidence of his employment history with the Respondent. He emphatically denied misappropriating any money from the Respondent. He told the Court that, in his experience, the self-service tills frequently gave trouble, sometimes on up to four occasions a day. He said this was often caused when old bank notes which tended to curl up were used in the cash dispenser. The Complainant also explained that he was quite fastidious with regard to cleanliness and operated a ‘clean as you go’ policy. This explained the frequency with which he was captured on the CCTV footage removing the bins from the area adjacent to the self-service tills. He also explained that it was not always possible to operate the Respondent’s ‘dual accountability’ policy which stated that cash dispensers should only be accessed by two members of staff simultaneously. According to the Complainant, there were often only two members of staff on duty when the self-service tills malfunctioned and it would have resulted in unnecessary delays for customers at the tills if he had to wait until the other staff member on duty was free before intervening to fix the problem with the self-service till. Finally, the Complainant gave detailed evidence in relation to his efforts to mitigate his loss.

The Respondent’s Case

The Respondent submits that it followed fair procedures at all stages of the investigative and disciplinary process; that the Complainant was fully aware, from the outset, of the allegations levelled against him; and that he had been afforded ample opportunity to both review and consider the evidence relied on by the Respondent and to respond to and challenge that evidence. The Respondent further submits that in the course of the investigation meeting on 2 December 2015 Ms Doherty replayed the CCTV footage from 10 November 2015 and 11 November 2015. The footage showed the Complainant accessing the notes dispensers on Till number 71 on a number of occasions although on each occasion he did so, the light beside the till was flashing green. This, according to the Respondent, indicated that there was no problem with the till and that, therefore, the Complainant did not have any reason to access the notes dispenser.

The Respondent accepts that at no stage does the CCTV footage show the Complainant with cash in his hand but submits that it was, nevertheless, reasonable for it, in all the circumstances, to conclude that, on the balance of probabilities, the Complainant had misappropriated the monies that went missing from Till 71 in the period 10 to 11 November 2015. The Respondent had taken considerable steps to ensure that there was no IT fault with the self-service tills in the Enfield store that could have accounted for the discrepancies in the cash returns. Therefore, in its view, the only explanation was that the Complainant had removed the cash from Till 71 on the occasions that he had accessed the notes dispenser and had concealed it in the waste paper bin which he then removed from the area.

The Respondent cites a number of authorities in support of its submission, includingHestor v Dunnes Stores[1990] ELR 12;Mooney v An Post[1988] 4 IR 288; andMaher v Irish Permanent plc[1998] 1998 E.L.R 77.

The Complainant’s Case

The Union made submissions in relation to what it believes were flaws in the investigatory and disciplinary procedures followed by the Respondent in this case. Firstly, the Union takes issue with the meeting that occurred on 13 November 2015 at which the allegations of misappropriation of cash were first put to the Complainant and following which he was suspended. The Union submits the Complainant should have been given advance notice in writing of the purpose and nature of this meeting.

Secondly, the Union takes issue with the outcome letter issued by Ms Doherty following the formal investigation meeting that took place on 2 December 2015. The Union alleges that Ms Doherty exceeded her remit in recommending that the Complaint should be subject to the disciplinary stage of the process given that the only basis for doing so was that he appeared to be the only person who had access to the self-service tills on 10 and 11 November 2015 in circumstances where the CCTV footage did not show the Complainant holding cash in his hand.

Thirdly, the Union expresses some concern about the date on which Mr Stenson confirmed in writing to Ms Doherty the outcome of his review of the software and hardware systems in the Enfield store. Mr Stenson formally outlined his findings in an email to Ms Doherty on 13 January 2016 i.e. after she had issued the outcome of her investigation.

The Union also raised concerns about the Respondent’s failure to permit the Complainant cross-examine witnesses in the course of the disciplinary hearing and its alleged failure to supply the Complainant with a copy of its Honesty Policy prior to that hearing.

Discussion and Decision

The issue before the Court on the appeal is not whether the Complainant had actually misappropriated the cash that went missing from the Enfield store in November 2015. The issue is whether or not in all circumstances the Respondent was justified in dismissing the Complainant having regard to his conduct on the dates in question, his explanation for his conduct and the surrounding facts established by the Respondent subsequent to its first becoming aware in October 2015 that there was a discrepancy in the cash receipts in the self-service machines in the Enfield store.

The Court, having considered the totality of the evidence adduced in the course of the appeal, is satisfied that the Respondent afforded the Complainant the full benefits of fair procedures and in doing so had due regard to the serious nature of the allegations levelled against him. The Court accepts that Ms Doherty should have given the Complainant advance notice of the nature of the meeting to which she called him on 13 November 2015 and the reasons for that meeting. However, taken in the round, it does not appear to the Court that an injustice was visited on the Complainant in so far as Ms Doherty subsequently conducted a full investigation meeting at which the Complainant was afforded ample opportunity to set out his version of events. It is not the Court’s role to second-guess an investigator’s decision to recommend that a process should move to the disciplinary stage. It is clear to the Court from the evidence it heard that that recommendation was one which a reasonable person could reasonably have made having regard to what she had seen on the CCTV footage recorded on 10 and 11 November 2015. The issue of the date of Mr Stenson’s email to Ms Doherty appears to the Court to be of little or no significance. The fact - as is clear from Mr Stenson’s direct evidence to the Court - is that he had ruled out any technical explanation for the missing cash prior to 10 November 2011; he merely formally confirmed this finding in a subsequent email. The Respondent’s decision to dismiss the Complainant was not based on witness evidence but on the Complainant’s own behaviour on the dates in question and his inability to proffer a credible and convincing explanation for accessing the cash-dispenser, alone, on Till 71 on a number of occasions when the till appeared to be functioning perfectly well.

In all the circumstances, and having regard to the foregoing, the Court finds that the Respondent had reasonable grounds to summarily dismiss the Complainant. The appeals under both the Act and the Minimum Notice and Terms of Employment Act 1973, therefore, succeed and the decision of the Adjudication Officer is overturned.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
14 February 2018______________________
JDDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.