EMPLOYMENT APPEALS TRIBUNAL
Sean O’Connell - appellant
against the recommendation of the Rights Commissioner in the case of:
McCormack Garages (Sligo) Limited - respondent
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A Courell B.L.
Members: Mr. D. Morrison
Mr T. Gill
heard this appeal at Sligo on 10th November 2015.
Appellant: Mr John McShane, Johnson & Johnson, Solicitors, Ballymote, Co. Sligo
Respondent: Mr Terry MacNamara, IBEC, 3rd Floor, Pier 1, Quay Street, Donegal Town, Co Donegal
These appeals came by way of the appellant (employee) appealing against the recommendation of the Rights Commissioner ref. r-141665-ud-14, r-141121-te-14 under the Unfair Dismissals Acts, 1977 to 1997 and the Terms of Employment (Information) Act 1994 to 2012.
The determination of the Tribunal was as follows:-
At the outset of the hearing the representative for the respondent raised a preliminary issue that as the appellant was not present the case must fail for want of prosecution.
The appellant’s representative responded that the appellant was working and living in Dubai for approximately one year. The appellant notified him on 24th October 2015 him that he was unavailable to attend the hearing today. The case had been set down for hearing on 17th September 2015 and had been postponed due to the appellant living and working in Dubai. The representative did not furnish the Tribunal with unsuitable dates for the hearing of the case. The representative made an application on 28th October 2015 to postpone the case but this had been refused. As the burden of proof was on the employer he asked that the Tribunal hear evidence from the employer. He welcomed the opportunity to apply and subsequently applied for a postponement of the case.
The respondent’s representative objected to a postponement of the case.
The Tribunal considered the preliminary issues and refused the appellant’s representative application for a postponement of the case and proceeded to hear evidence from the respondent’s witness.
JF Operations Manager gave evidence. The respondent operates ten retail outlets. JF liaises with managers in all the stores.
The appellant commenced employment on 8th June 2012 in the role of Shop Assistant. He was furnished with a written contract of employment some weeks later. He worked in Shop C.
In early June 2013 it became apparent that a number of staff were participating in the practice of taking and not paying for food. At this time the respondent became aware that some staff had not signed nor returned their Contracts of Employment. These were then re issued to the employees for signature and return. The appellant signed this Contract of Employment on 3rd July 2013.
It was the company’s policy that all goods purchased by members of staff must be paid for in full immediately. No credit is ever to be allowed to a member of staff. If a staff member has insufficient money with which to make an urgent purchase he should speak to his manager. Staff purchasing goods for removal from the premises must make the purchase from another member of staff, ask for, receive and retain the receipt until he leaves the premises. If there is no other member of staff, he must not purchase goods for removal from the premises.
If purchasing goods for consumption or use on the premises an employee must make the purchase before consumption or use from another member of staff. He must ask for and receive a receipt and retain the receipt for the duration of the current work period. The Manager on duty may request to view receipts. Theft or fraud constitutes gross misconduct.
In early June JF became aware that the appellant had taken food for his own consumption without paying for it and had spoken to him. As the practice continued he invited the appellant to a disciplinary hearing on 16th July 2013. Several allegations were put to the appellant. The appellant apologised for his wrongdoings. He signed the minutes of the meeting that day.
By letter dated 17th July 2013 the appellant’s employment was terminated. The appellant was offered a right of appeal. He did not appeal the termination of his employment.
No evidence adduced as the appellant was not present at the hearing.
On the basis of the evidence adduced by the respondent the Tribunal is satisfied that the appellant was issued with a contract of employment some weeks after the commencement of his employment.
The Tribunal is also satisfied that that the dismissal of the appellant for gross misconduct was fair in all the circumstances.
The Tribunal upholds the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 and the Terms of Employment (Information) Acts, 1994 to 2012.
Sealed with the Seal of the
Employment Appeals Tribunal