INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TESCO IRELAND LTD
- AND -
REPRESENTED BY MANDATE
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR289/99GF.
2. The worker commenced employment with the Company as a part-time assistant on the 15th June, 1998, and was dismissed on the 7th of April, 1999, for a serious breach of duty.
The Company claims, that on the 5th of February, 1999, the worker completed her shift and commenced her shopping in the store with a relative who also worked in the store. The relative was on her lunch break at the time.
The Company claims that when the worker completed her shopping that she went to the checkout where her relative was working. It is Company policy that staff should not serve or carry out transactions with relatives or friends.
Following a security check it was found that some items had not been scanned through the system. Also, it had been observed that a "Privilege-Card" had been accepted by the check-out operator, which should not have been accepted.
The Union claims that the worker was unaware that some items had not been scanned. It also states that the Company failed to provide the worker with the staff hand-book which would have outlined her conditions of employment.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 18th of October, 1999. The following is the Rights Commissioner's Recommendation:
"I am satisfied that the claimant was not disadvantaged in the manner in which the investigation took place. The Company followed a fair procedure and on balance, I have concluded that the decision to dismiss in the circumstances was not unfair"
The Union appealed the Recommendation to the Labour Court on the 16th of November, 1999, in accordance with Section 13 (9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th of February, 2000, A further hearing took place on the 31st May, 2000.
3. 1. The Company is in breach of its own procedures in relation to the manner in which the investigation was conducted.
2. The worker denies that she was aware that there were items in her basket which were not scanned.
3. The Company failed to provide the worker with a copy of her contract of employment or a copy of the staff hand-book.
4. It is the Union's contention that the Company failed to discharge its legal obligations and also its standard employment practices in this case.
5. There are no provisions in the Company's hand-book covering the rules in relation to the use of the "Privilege-Card".
4. 1. The worker was in breach of the Company's honesty policy by using a "Privilege-Card" to which she was not entitled. This constituted gross misconduct and warranted her dismissal.
2. The worker's actions were pre-mediated. Her actions to defraud the Company were planned.
3. The worker was aware that breaches of the Company's "honesty policy" carry the penalty of dismissal and that there was precedent in the Company for this.
4. The worker has not provided any satisfactory explanation as to how products to the value of £42.20 were not included on her bill.
5. The Company carried out a fair and impartial investigation into this case and found the worker to be in breach of Company policy.
The Court accepts that any breach of the Company's honesty policy, and in particular, the abuse of the privilege card arrangements, is regarded as gross misconduct which can warrant dismissal. This is not disputed by the Union.
While the need for dismissal may not have arisen in other similar cases, no extenuating circumstances in relation to this incident have been suggested to the Court which would lead to the conclusion that the employer had acted unfairly in this particular case.
The Court upholds the Recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
2nd June, 2000______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.