EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Lorraine Fitzpatrick – claimant UD196/2012
Dunnes Stores – respondent
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: Ms F. Crawford B.L.
Members: Ms A. Gaule
Mr J. Flannery
heard this claim at Dublin on 24th September 2013 and 21st May 2014
Claimant(s) : Mr William Hamilton, Mandate Trade Union, O'Lehane House, 9 Cavendish Row, Dublin 1
Respondent(s): Mr Marcus Dowling BL, instructed by: Ms Fleur O'Shea, Byrne Wallace, Solicitors,
88 Harcourt Street, Dublin 2
The determination of the Tribunal was as follows:-
The claimant was employed from 2000 until December 2011 as a cashier in a supermarket operated by the respondent company. The claimant was dismissed by the respondent company for selling alcohol on 9th December 2011 to a minor who was acting on behalf of the Gardaí for a test purchase.
Summary of Respondent’s Case:
The store manager gave evidence. The supermarket in question was one of three in the Drogheda area belonging to the respondent company. This one was a convenience type outlet with 28 employees. The witness went through the claimant’s training documents in relation to the sale of alcohol, tobacco and paracetamol products. As part of the training the claimant completed questionnaires after every training session. Training took place on a one to one basis with the personnel officer for approximately 20 minutes. Since 2009 this training has taken place every 6 months. The last training session the claimant attended was on 18th November 2011. The claimant signed a declaration which included the line “up to and including dismissal”.
The store manager left the store at 7.40pm on the evening of 9th December 2011. The store was due to close at 8pm. The assistant manager was present in the store. Just before he left he saw an 18 year old employee passing through the claimant’s till to purchase alcohol. He reminded the claimant that even though it was a staff member purchasing alcohol the claimant must still ask for ID. The claimant was working on the customer service till. Staff members are requested to make their purchases through that till. Two other employees were working on other tills. Staff members are required to request ID when a customer purchasing alcohol or tobacco looks between 18 and 23 years old.
The store manager later received a phone call from the assistant manager informing him that an underage person had been sold alcohol as part of a Garda test purchase. The Guard had identified himself to the assistant manager and the claimant and warned that the shop could be prosecuted. He and the security manager met the claimant the following day. The assistant manager and another till operator were interviewed as part of the investigation, but were not found to have been involved in the transaction. CCTV was viewed by the store manager. At the time of the incident the assistant manager was in the vicinity of the customer service till but did not have a clear view. She was not visible on the CCTV. The other till operator had her back to the person making the purchase. The claimant said to him that she wasn’t thinking, she was worrying about her sick child at home and had end of shift jobs to do. The claimant gave a written statement. She queried herself about the customer’s age after the purchase as she was giving the change.
The claimant was suspended on Monday 12th December and 2011 was dismissed on Saturday 15th December 2011. There were two meetings held on Thursday 15th December 2011. An appeal was offered to a different store manager. The witness considered other sanctions but considered the breach to have been so serious as to warrant dismissal. She had no previous disciplinary issues.
The store manager was cross-examined. The claimant was not shown the CCTV footage as she had not requested it. He asked the assistant manager if she had seen the customer making the transaction and she had denied that. The claimant was not offered to bring a witness to the first meeting on 10th December 2011 as this was just for information gathering. The store manager offered her to bring a witness at the next meeting on 12th December 2011. This was a second investigation and came under the disciplinary procedure. He offered the personnel officer or someone else, though someone else was not noted in his notes. The claimant was offered to bring a witness for the third meeting, the disciplinary meeting. The handbook outlined that a representative be offered. The store manager understood that witness and representative meant the same thing. He presided over the investigation and disciplinary processes. He alone decided on the sanction. He had considered her 12 years service and other possible sanctions, such as suspension without pay. The claimant’s tasks that evening were no different to any other evening. She agreed that it was her fault.
The assistant manager gave evidence. Her first knowledge of the test sale was when the Guard approached her afterwards. She had instantly disputed the incident as she believed, at first, that he was referring to the sale involving the 18 year old employee. She had reminded the claimant to request ID from the employee even though she knew the girl was 18. She was tidying trollies adjacent to the customer service desk while the test purchase put through. She did not see the girl or the Guard during the test purchase. The Guard initially gave evidence that the assistant manager had been standing at the claimant’s shoulder during the purchase but he later retracted this after viewing CCTV footage which showed that she was not beside the claimant. CCTV footage showed the witness come in and out of shot as she manoeuvred the trollies while the test purchase was occurring.
In cross-examination the witness denied that the claimant spoke to her during the transaction. She was adamant that she had not seen the purchase.
Summary of Claimant’s Case:
The claimant agreed that she had sold alcohol to a minor. She did not do it knowingly. Immediately after the transaction she saw a man approach the assistant manager and then thought that the customer might be underage. She contended that she was having a conversation with the assistant manager during the sale and that she could have intervened to stop the sale. She believed that there was more concern over what might happen to the store than her and that she was dismissed to protect the company. She was not shown the CCTV footage during the process. She received stills of the CCTV later through a data protection request.
The training process consisted of filling in a questionnaire. The trainer was not always there and she sometimes completed it in the company of another employee and they helped each other with the answers.
Her trade union representative wrote on her behalf to seek an appeal setting out the grounds for the appeal. The company requested that the claimant make her own request for appeal. She applied for an appeal setting out the same reasons for the appeal on 2nd January 2012. She understood that there would be an appeal meeting, but she then received a letter dated 18th January 2012 informing her that her appeal had failed. The respondent submitted that appeals are always conducted in writing in the respondent company and that the claimant should have been aware of that. The disciplinary procedure states that ‘appeals will be heard by an appropriate member of management’.
The claimant was cross-examined. She had not mentioned her conversation at the time of the sale with the assistant manager during the investigation or meetings. Neither did she imply that the assistant manager should have also been sanctioned. She could not remember what the conversation was about. In her statement made the day after the test purchase the claimant noted that she had spoken to a different employee during the sale. She first thought she spoke to the assistant manager when she saw the CCTV stills. She disputed that the assistant manager told her to seek ID from the 18 year old employee who bought alcohol. She did not seek ID from the employee as she knew she was 18. Her last training session on selling alcohol was one month prior to the test sale.
The claimant could not recall if the girl looked over 23, she believed she was over 18. When alcohol is put through the screen prompts the question “is this customer over 18?” No one asked during the process whether she thought the girl looked 23.
The claimant gave evidence of her loss.
The Claimant in this case seeks redress under the Unfair Dismissals Act and also for relief under the Minimum Notice and Terms of Employment Act 1973.
It was accepted by the Claimant that she had sold alcohol to a minor without adhering to the correct procedures of the Respondent relating to the sale of alcohol. That issue is not in dispute. This action of “serving alcohol to any person under the legal age” is deemed an example of “Serious Misconduct” and was a breach of the policy and procedures of the Respondent. The Claimant was subsequently disciplined and ultimately dismissed on grounds of this breach of policy and procedure.
In such a case, the Respondent may dismiss an employee without giving full notice entitlements but only after there is (as outlined in the Respondents’ policies and procedures) “a thorough investigation of all the relevant circumstances” and also where “the employee be informed of the action being considered and given a full opportunity with accompanying work colleague to present his/her case.” An employee must be given fair procedures at all stages of the disciplinary process.
The Tribunal after hearing all the evidence and the submissions made (including the case law submitted) concludes that in all the circumstances, the dismissal was unfair as fair procedures were not given to the Claimant.
The Tribunal also concludes that there was a lack of proportionality with the decision to dismiss given the circumstances of the case and the personal background of the Claimant with 12 years of service. The Tribunal is not satisfied that there was assessment or consideration of other sanctions given the background of long service.
Further, there was no evidence given to the Tribunal as to the Appeal process undertaken against the decision to dismiss. It is noted that the Respondents’ policies sets out that any appeal “will be heard by an appropriate member of management” (emphasis added) and in this case, there was no oral hearing offered to the Claimant albeit that submissions made to the Tribunal this was the usual practise for there not to be an actual Appeal hearing. Mr Fitzpatrick who undertook the appeal of the disciplinary procedure was not called in evidence.
As the Claimants’ claim under the Unfair Dismissal Act succeeds, the Tribunal must address the issue of redress under Section 7 of the Act. In the application made to the Tribunal, the Claimant seeks re-instatement in her previous employment. Bearing all the circumstances in mind, the Tribunal is of the view that this relief would be impractical.
However after hearing all the evidence (including all matters as set out in Section 7 of the Act), the Tribunal awards the Claimant the sum of €13,500.00 under the Unfair Dismissals Act 1977 – 2007.
The Claimant is also entitled to notice on the basis of her 12 years of service under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, and accordingly the Tribunal awards her €1,623.60 (one thousand six hundred and twenty-three euro sixty cent) in respect of six weeks’ pay under that Act.
Sealed with the Seal of the
Employment Appeals Tribunal