EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Olga Maslova - claimant UD18/2012
against the recommendation of the Rights Commissioner in the case of:
Golden Mushrooms Limited - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr D. McEvoy
heard this appeal at Thurles on 11th February 2014
Appellant(s) : Ms Andrea Cleere, SIPTU, Liberty Hall, Dublin 1
Respondent(s) : Ms. Catherine Day, Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing against the recommendation of a Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007 (Ref –UD94537/10/MR).
Summary of Evidence
The respondent company operates as a mushroom producer. The claimant commenced employment with the respondent as a mushroom picker in January 2001. She had a good working relationship with the director of the respondent company and was highly regarded as a worker. She was promoted to the position of supervisor in 2004. The director had some difficulties with the manner in which the claimant spoke to and referred to other employees and considered it bullying and harassment. He also had problems with her lack of respect for the manager. These issues were discussed with the claimant at a meeting in January 2010 and she was issued with a first written warning, which she refused to sign.
In March 2010, while at work, the director of the respondent company (the director) observed the claimant running with a bag in the yard and speaking to another employee. On confronting the employee the director learned that the claimant was selling illegal cigarettes in the workplace. The employee admitted buying some cigarettes from the claimant; he was ashamed and apologised. The director took no immediate action but continued to observe the claimant’s activities. A few days later he observed two further incidents of the claimant selling cigarettes to work colleagues. The director informed the local office of the Revenue Commissioners. A revenue officer later contacted the director and advised him not to take any action as they would take over and he was asked not to alert the claimant. Some days later revenue officers approached the claimant while she was engaged in the act of selling illegal cigarettes in the local village. The director later learned that revenue officers had investigated the matter but no prosecution resulted as the claimant had been co-operative with the revenue officers.
On the 22 March 2010 the claimant was called to an investigation meeting by the director. The claimant had a witness with her. A list of allegations against her, including selling illegal cigarettes in the workplace during working hours, harassing co-workers and failing to follow instruction to cease harassing employees, were read to the claimant and she was informed that she was being suspended with pay pending a disciplinary hearing. The claimant maintained that selling cigarettes was her private business and had nothing to do with the respondent. She was argumentative and disputed her suspension. The claimant was given the written statements of three employees admitting to having purchased cigarettes from her, the respondent’s code and the letter of suspension outlining the allegations against her and informing her that she was entitled to be accompanied by a fellow employee at the disciplinary hearing on the 26 January. The director’s position was that had the claimant apologised and promised to stop selling cigarettes he would have just issued her with a warning.
The disciplinary meeting was arranged for the 26 March 2010. In the letter inviting the claimant to the disciplinary meeting, she was advised that her alleged behaviour constituted potential gross misconduct and could result in summary dismissal. The claimant attended without a representative but wanted to continue with the meeting. However, the meeting was ultimately adjourned to enable the claimant to find a representative because she appeared very nervous and was tearful. The rescheduled meeting was held on the 6 April 2010. The director’s position was that the meeting was recorded on a mobile telephone with the claimant’s consent. The claimant’s position was that she could not remember consenting to it being recorded. The claimant admitted selling cigarettes but no explanation was put forward by her. She offered an apology at this meeting. She maintained that that those buying the cigarettes were equally guilty of wrongdoing.
The director considered that the evidence, including the facts that the claimant had been involved in the sale of illegal cigarettes over a period of time to a number of employees and her failure to put forward an explanation, constituted gross misconduct and he took the decision to dismiss her. The incidents leading to the first written warning earlier in January did not form part of his consideration leading to his decision to dismiss. The dismissal was communicated to the claimant by letter dated the 8 April 2010. She was offered an appeal within seven days. The identity of the appeals officer was not specified in the letter of dismissal. She did not appeal her dismissal.
The claimant’s evidence to the Tribunal was that the sale of cigarettes was common in the workplace and the assistant manager had on occasion purchased cigarettes from her in the workplace. At the meeting on the 22 March 2010 she admitted wrongdoing and apologised.
She wanted to keep her job. She had not realised the seriousness of selling the cigarettes until she was contacted by the revenue officers. She believed that the director was fully aware of the culture of selling cigarettes in the organisation and this was not condemned by him. She made no money from the sale of the cigarettes; she had sold them to help a friend.
The Tribunal does not accept the claimant’s evidence that she did not realise the seriousness of her illegal activity until the revenue officers spoke to her. It is satisfied that the respondent’s decision to dismiss the claimant on grounds that her conduct constituted gross misconduct was reasonable in the circumstances.
Accordingly, the appeal under the Unfair Dismissals Acts 1977 to 2007 fails and the decision of the Rights Commissioner under the Acts is set aside.
Sealed with the Seal of the
Employment Appeals Tribunal