EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr A. O'Mara
Mr J. Moore
heard this appeal at Cavan on 2nd August 2013 and 31st October 2013 and 1st November 2013
Appellant: Mr William Hamilton, Mandate Trade Union, O'Lehane House,
9 Cavendish Row, Dublin 1
Respondent: Rep from Employer,
Mr David Farrell, Ir/Hr Executive, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
This matter came before the Tribunal by way of an appeal by the employee against the findings of the Rights Commissioner Ref: r-119303-ud-12/SR.
The appellant went to Liffey Valley Shopping Centre with her friend on a day when the respondent was having a double discount day for its employees. It is strict company policy that the Advantage Card, given to employees, is for personal use only and goods bought at discounted rates can only be for personal or immediate family use. The appellant’s purchase amounted to €1,037.58 and part of the payment was made on her friends credit card while another amount was paid in cash which came out of an envelope that was in her friends handbag.
CCTV 20mins – shown to Tribunal
ST on behalf of the respondent gave evidence during the CCTV footage outlining the transactions and how the advantage card/points system works and also how the double discount day operates. She told the Tribunal that discounts of 25% on non- company product and 45% on company product are available.
She was on a random visit to the Liffey Valley store when she was approached by the manager who advised her that that P (the cashier at the time of the purchases) wanted to speak to her as she had concerns about the appellant’s method of payment and the interaction with her friend at the checkout. P told ST that she had served a staff member and was uncomfortable with the transaction.
ST began fact finding. She looked at the CCTV and the transactions details. She also got printouts from the electronic journal to access the items in detail. There were two different trollies that contained similar products. Both the appellant and her friend entered the shop at different times, they shopped separately and had little interaction.
ST undertook a fact finding interview with the appellant and interviewed her at her local store. The appellant declined representation saying she didn’t think she had done anything wrong. A note taker was present. The appellant said that she always did this type of shop every year. She shopped with her friend and used her friend’s credit card at the end. Her friend was also holding cash in an envelope which belonged to her. ST concluded that she was unhappy with the situation, consulted with her H.R. department and suspended the appellant for breach of staff discount and advantage card rules.
Under cross examination ST confirmed that the first the appellant heard of the situation was when she showed up to do her fact finding. The appellant was not told in advance what the meeting was about and did not have time to prepare but denied it was an ambush. The appellant did say that they could go to her house and see the goods but ST declined. The appellant was not aware that she could be suspended during the meeting.
MQ was asked to carry out an investigation following ST’s fact finding interview. He told the Tribunal that he watched the CCTV and read the fact finding notes before meeting the appellant on 24th October 2011. She was accompanied by her representative. He put the evidence to her and asked her to explain the two trollies of shopping and the various types of payments made by her and her friend. She gave her explanations and he didn’t particularly understand it. He asked her about the use of her friend’s credit card and she told him she didn’t want her husband to see the amount she spent. He asked her about the cash her friend handed her and she gave him a convoluted story about money she had collected for a meal and something about work done by her brother in law. MQ concluded that it was two separate shops and the outcome of the meeting was the re-issue of the appellant’s suspension.
MQ held a further meeting with the appellant on 1st November and she was re-suspended until a disciplinary meeting was held on 4th November. MQ chaired the meeting and recapped on the evidence. He concluded that the appellant had breached company rules and dismissed her, giving two week’s notice. He told the Tribunal that it was not a decision he took lightly and gave the appellant leave to appeal.
Under cross examination MQ said there was no policy about lending someone money, the appellant’s friend was not considered for interview because she was outside of the company and it was the payments and how they were made that was the real issue. There were no blemishes on the appellant’s record and various sanctions can be used according to the terms of employment. No alternatives were considered. Asked why she didn’t get a verbal warning he said that this was treated as gross misconduct. The appellant was given 2 week’s notice, not summarily dismissed
CF, the area manager gave evidence of hearing the appeal on 2nd December 2011. He was contacted by HR who asked him to take the appeal and he got all the information via head office. The incident was gone through in detail. CF went back on the CCTV footage, he concluded that both people shopped independently, and that two separate transactions took place. He upheld the decision to dismiss.
Under cross examination CF said he could have changed the sanction. Policy had now changed regarding the investigation process in the company but not on foot of this case. He did not take into account the appellant’s previous good record and stated that he didn’t see as relevant the request by the appellant to visit her house and view the products. People had been dismissed previously for discount abuse.
AS told the Tribunal that double discount day is the day that she does all of her Christmas shopping plus additional shopping for the year. She has ten sisters, two brothers and foster kids so why would she not take advantage of it. The day is planned with military precision and she would even to a pre-run to check out what was available. She always bought in 3’s so as to buy 2 and get the 3rd item free and would mark the Christmas catalogue (x 3). AS said she always would need two trollies and it was not possible to do the shop on her own, she suffered with back problems and it was a day out for her and her friend E. AS did the shop for herself and her immediate household, E shopped from a list and the catalogue. They met on several occasions during the visit and it was totally untrue that they shopped separately for over an hour. Because of the size of the shop she paid in various ways, she didn’t want her husband to see a large amount on her credit card and her sister owed her money which her friend E had in her handbag. It never occurred to her that there was anything unusual about how things looked.
When she was interviewed by ST she thought that she would understand because it was as clear as day, not odd at all. She fully understood the discount rules and didn’t plan anything, it was just the way it happened.
E told the Tribunal that AS was a friend who had a back problem. E often shopped for her and they often lend to, or borrow money from, each other. It was unusual that they didn’t enter the store together but AS went to a shop next door for something so E just went ahead. She had a list on a folded A4 sheet of paper and the catalogue. It was totally untrue that they didn’t speak for an hour in the store. E said none of the shopping was hers, her brother can get her discounted gifts and she only buys for the kids because she doesn’t work and could never afford to shop like her friend. She had cash in an envelope that belonged to AS and allowed AS to use her credit card so as to keep down the amount appearing on her friends card.
The Tribunal considered the evidence adduced during the course of the hearing.It is evident that the respondent company did not utilise fair procedures in dismissing the claimant from her position, which she had held for 4 years. The Tribunal find that procedures were flawed and that there was a deficiency in company procedures. No alternatives were ever considered.
In such circumstances the Tribunal upsets the decision of the Rights Commissioner and finds the appropriate award to be compensation in the sum of €10,000 under the Unfair Dismissals Acts, 1977 to 2007
Sealed with the Seal of the
Employment Appeals Tribunal