EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
against the recommendation of the Rights Commissioner in the case of:
Marks & Spencer (Ireland) Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr D. Moore
Mr C. Ryan
heard this appeal at Dublin on 2nd September 2014
Appellant: Mr. Michael Meegan, Divisional Organiser, Mandate Trade Union,
O'Lehane House, 9 Cavendish Row, Dublin 1
Respondent: Mr David Farrell, I.B.E.C. Confederation House, Lower Baggot Street, Dublin 2
This case came to the Tribunal as an employee appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-129466-ud-12/JT.
The Tribunal has carefully considered the evidence adduced. The appellant comes before this Tribunal claiming she was unfairly dismissed following her dismissal for gross misconduct arising out of an accepted incident in the workplace. The appellant made and drank a hot beverage in the course of her employment, behind the café counter, contrary to workplace regulation. In addition the claimant did not pay for the said drink at the time of consumption.
The appellant was noted to have had this drink by a member of the security staff whilst watching CCTV footage. The said member of security notified the commercial manager, who, in turn notified the appellants direct line manager and, in effect, therefore directed the initiation of the investigation. It is worth noting that the commercial manger had seen the CCTV footage in advance of the instruction given to the line manager.
An investigation was conducted within the hour and on foot of the admissions made by the appellant, she was suspended pending further investigation and for a disciplinary action. The matter was sent forward for the purposes of initiating a disciplinary process.
The Tribunal is bound to be critical of a number of matters pertaining to the manner in which this investigation and disciplinary process was conducted. Of particular note, in this regard is the fact that the commercial manger, having initiated the investigation stage (having satisfied himself that there was something worth investigating) went on to deal with the disciplinary stage.
There can be no doubt that both the line manager in the investigation and the commercial manger, at the disciplinary stage, failed to outline to the appellant the nature of the evidence and failed to precisely articulate the nature of the complaint against her. This resulted in a certain amount of “hedging” on the part of the appellant, which reflected badly on her but also amounted to a failure (on the respondent company) to be seen to be conducting a fair hearing. The evidence and allegations should have been clearly put to the appellant in advance of the investigation and disciplinary stages setting the claimant up to make herself look bad was injudicious.
In addition, the dishonesty/forgery section of the company handbook should have been pointed out to the claimant because it is quite clear that the company were relying on this section of their handbook as being the premise upon which they were entitled to summarily dismiss an individual regardless of the minimal value of the dishonest act.
And it is on this last part that the appellant’s case fails. There can be no doubt that the policy within this company is that there is to be no toleration of theft, no matter what its form and no matter what it’s value. This fact would have been well known to the appellant who took a risk on the 26th day of September 2012 when she made and consumed a hot drink without paying for same.
In the circumstances the appellant’s dismissal, whilst undeniably harsh, was not unfair as per the Unfair Dismissal Act 1977 to 2007 and the Tribunal must therefore uphold the decision of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal