EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
- claimant MN1796/2011
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr S. Mahon
Members: Mr P. Pierson
Mr O. Nulty
heard this claim at Longford on 22nd February 2013
and 11th June 2013
The claims under the Minimum Notice and Terms of Employment Acts 1973 to 2005 and the Organisation of Working Time Act 1997 were withdrawn by the claimant’s representative at the commencement of the hearing.
The respondent’s representative submitted that the claim under the Unfair Dismissals Acts was submitted outside of the six months time limit permitted by the legislation.
Summary of Case
The respondent is a large multi- national retail chain operating a number of retail stores throughout Ireland. The Tribunal heard evidence that the claimant was dismissed for a number of breaches of the respondent’s security rules including the removal and use of stock from the shop floor without payment, usage of her personal phone while working on the shop floor and carrying money on the shop floor whilst in the course of her duties.
The Tribunal heard evidence in relation to fact finding procedures, investigation, disciplinary and appeal hearings conducted by the respondent company. In that regard the Tribunal heard evidence from a number of witnesses for the respondent. After hearing those witnesses the Tribunal is of the view that there was a fundamental flaw in the respondent’s case. The store manager who was also the claimant’s line manager was not present to give evidence to the Tribunal. The Tribunal finds that no effort was made to interview this witness or other relevant witnesses such as the security guard and cashier as part of the investigation. In those circumstances the Tribunal is not satisfied that the respondent has established that the dismissal was fair. The Tribunal finds that the respondent has failed to rebut the presumption of unfair dismissal and accordingly proceeded to hear evidence from the claimant in relation to her loss. After hearing this evidence the Tribunal heard submissions from both parties in relation to their preferred remedies.
The Tribunal having heard the evidence of the Respondent’s witnesses was not satisfied that the person appointed by the employer investigated the matter in a fair manner in that no attempt was made to interview the security guard or more importantly the Manager regarding any local rules applying in the specific branch where the Claimant was employed. Further the Investigators did not appraise the employee of the fact that she could lose her job. Aside from the failures apparent in the investigate process the response of the Respondent was disproportionate to the matters complained about.
In this instance the appropriate remedy is reinstatement given the nature of the allegations and the attendant difficulties that the Claimant would face in the current economic climate. The Tribunal finds that the Claimant was unfairly dismissed and directs that she be reinstated to her position from the 8th of August 2011.
Decision on Preliminary Point
Division decided based on the appeal process that the claim was in time and as such a proceeded to hear the claim.
Decision on Case
Division decided that the claimant should be re-instated to her position from 8 August 2011.
Sealed with the Seal of the
Employment Appeals Tribunal