EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Ali Usman – appellant UD1568/2012
Tesco Ireland Limited – respondent
against the recommendation of the Rights Commissioner (refs: r-122401-ud-12/EH & r-122406-pw-12/EH) in the case of:
Tesco Ireland Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr D. Moore
Mr P. Trehy
heard this appeal at Dublin on 14th January 2014 and 28th February 2014
Appellant(s) : Mr Kevin Healy BL, instructed by:
Ms Mary Minchin
Butler Monk, Solicitors
Dmg Business Centre, 12 Camden Row, Dublin 8
Respondent(s) : Mr Eamonn McCoy
Confederation House, 84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref: r-122401-ud-12/EH) and a decision under the Payment of Wages Act, 1991 (ref: r-122406-pw-12/EH).
The determination of the Tribunal was as follows:-
The appeal under the Payment of Wages Act, 1991, was withdrawn at the outset of the hearing. Both parties made extensive written (filed) and oral (noted) submissions to the hearing.
The respondent is a large supermarket group. The appellant was an Ambient Foods Manager at the time of his dismissal. He was summarily dismissed on 29th December 2011 for removing “reduced to clear” items from a fridge on the stock floor and putting it aside for himself in the chilled storeroom and then later compelling a junior staff member to apply the final reduction price to the products prior to purchasing them. The appellant admitted to this but contended that this practice was widespread among the staff, he did not realise he was doing anything wrong and had not been trained on this subject.
Summary of Respondent’s Case:
The then store manager explained the price reduction system on fresh items reduced to clear. Items due to go out of date are scanned using a handheld PDA in the evenings. Reductions are calculated by the handheld scanner. The first reduction is made the following morning; usually 25% depending on the number of items. In the afternoon items not yet cleared are reduced by 50%. At 7pm remaining items are reduced by 75%. After that time the stock control staff may decide on further discretionary reduction up to 90%. The aim is to clear the stock at the highest possible price in order to reduce loss. All reduced products are placed in a particular bay. Staff purchase policy is that items are purchased in the employee’s own time. Items from the “reduced to clear” bay are to be purchased directly. The Store Manager was unaware of any significant non-compliance with purchasing reduced to clear items. This was the first time it was brought to his attention since joining the store 18 months previously.
Both the Store Manager and the appellant had worked in different stores previously. The appellant was employed as Ambient Foods Manager at the store, but his previous position was Shrink and Security Manager. ‘Shrink’ describes all types of stock loss. The Chilled Foods Manager alerted the Store Manager that on 18th December 2011 the appellant had removed items with 50% off and put them in stores and later had requested that an 85% reduction be applied before purchasing the items. The Store Manager instigated an investigation. He met with the appellant on 20th December 2011 in the presence of the Personnel Manager. The Store Manager read out the Chilled Manager’s statement to the appellant. The appellant did not dispute what he had done but contended that he did not know it was wrong and that other staff members did it too. He said that he had challenged another staff member for doing this, but clarified this statement by saying he had only questioned the staff member. He was requested to provide a statement. He was suspended with pay pending a further investigation meeting.
A second investigation meeting was held the following day 21st December 2011. At this meeting the appellant produced the receipt and items purchased on 18th December 2011. The Store Manager read out statements made by the Stock Control Manager and a member of the reductions team who the appellant asked to make the final reduction on the products (this person is no longer a staff member or resident in the country). The appellant had previously denied knowing he had done anything wrong. At this meeting it was put to him that the Stock Control Manager had told him the week before, after discovering reduced items in the back up chiller, that he could not put reduced items there.
The Stock Control Manager made a further statement on the same day as the meeting clarifying that while he told the claimant that he could not remove reduced items from the fridges and put in the chiller the main focus of the conversation was that reduced items could not be put away for further reduction.
A disciplinary meeting was held on 22nd December 2011. The claimant reiterated that he did not know he had done anything wrong. The outcome meeting on 23rd December 2011 was held in the appellant’s absence as he was involved in a car accident. The dismissal letter was issued on 29th December 2011. The claimant phoned and the Store Manager told him he could come in to discuss the matter. The Store Manager believed that it was a fair decision to dismiss the claimant. The store in question had the highest stock loss in Ireland and management were striving to reduce this. A manager breaching company policy sent the wrong signal.
The Store Manager was cross-examined. He denied that he dismissed the apellant due to a grudge over a reduced BBQ which the appellant purchased six months previously. The appellant was accompanied by the shop steward to the 2nd and 3rd meetings.
The Stock Control Manager gave evidence. He was duty manager on Saturday 10th December 2011 when he found reduced items, mainly meat, in a green plastic crate in the back up chiller. He put it back on display in the reduced fridge. He queried a staff member who told him that the appellant had put them there. He made clear to the employee that reduced items were to stay in the reduced fridge. The appellant came to him a short time later and asked why he had removed the products. He told the appellant that no reduced stock was allowed in the back up chiller and warned him that he would get in trouble.
The appeal officer gave evidence. He is a manager from a different store. The appellant stated that his ground for appeal was that the dismissal was unfair because of his record in the store. He said that he had not received training. The appeal officer queried this as the appellant provided training to staff. The appellant stated this was only in arrests and CCTV. He also met with the Stock Control Manager and the reductions employee. Ultimately he rejected the appeal. There was zero tolerance for management contributing to shrinkage.
The Line Manager told the Tribunal that a General Assistant reported to him that prawns, which had been reduced, were taken by the appellant and put into the chiller. The Line Manager reported the matter to the Store Manager. In cross-examination, the Line Manager stated that he had never come across that practice in the store before.
Summary of appellant’s case
The appellant commenced his employment with the respondent in 2006, working in a number of different branches. He was working in branch C as a manager at the time of dismissal. The appellant stated that he took some reduced stock off the shelf and put it into the chiller but that there was a practice of this type of thing happening. When he received the final reduction he paid for the items and left the store. When the Store Manager questioned him the next day, he told him that everyone does it. He was called to a meeting with the Store Manager and the Personnel Manager that same day and the Personnel Manager told him “no-one is sacking you here, you’ve never done it before”. The appellant stated that the Store Manager read out the Line Manager’s statement at the meeting, although the Line Manager was not present. The Store Manager asked the appellant to leave the shop – the appellant wrote his statement and then left the shop as instructed. He was told there would be an investigation meeting the next day. The following day, the Stock Control Manager’s statement was read out. The Personnel Manager was not at this meeting nor was the Stock Control Manager.
The appellant stated that the Store Manager also chaired the disciplinary meeting on 22nd December 2011. The dismissal letter was issued on 29th December, 2011. The appellant indicated that he did not receive any written documents outlining the complaints nor were any of the witness present at the meetings in order for the appellant to question them. A Manager from another store heard the appeal. This Manager was at the same grade level as the appellant and upheld the dismissal decision. According to the appellant, the Store Manager has held a grudge against him over a reduced BBQ which the appellant purchased six months previously.
When the appellant was told what he had done was wrong, he said he never knew it was wrong and that it would never happen again. The appellant denied that he had signed a staff purchase document issued to staff and stated that the signature on the document was not his. He did not receive a formal warning in relation to the incident and was not aware that it was a dismissible offence.
In cross-examination, the appellant stated that he waited until 7pm in order to receive the final reduction. The appellant submitted that he did not ask for the reduction, he took what he was given. When asked if taking goods into the back and bringing them out again to get the reductions was widespread, he replied “yes”. He was aware that his staff took goods into the back store but did not take any action.
The appellant accepted that by moving the items to the back store, he was aware they could not then be purchased by a member of the public. The appellant gave evidence of loss and efforts to mitigate his loss.
Having regard to all the circumstances of this case, the evidence adduced both orally and in writing, and the manner in which it was tendered, following examination – in chief, cross-examination and re-examination, of all the witnesses produced in this case, including the demeanour of the witnesses, and the efforts by the appellant to mitigate his loss. It is the decision of this Tribunal that the Respondent, on balance, did not discharge the onus of proof in order to establish that the Appellant was fairly dismissed. We rule that he was unfairly dismissed. However we are also of the view that the appellant by his behaviour was careless and contributed extensively to the situation. Accordingly the Rights Commissioner’s decision is hereby overturned, and we award the sum of €3,125 to the appellant, in this case. In making its decision this Tribunal is mindful of the provisions of section 7 of the Unfair Dismissals Acts 1977 as amended, in particular section 7(2)(b), which states as follows: “that without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee”.
Sealed with the Seal of the
Employment Appeals Tribunal