EMPLOYMENT APPEALS TRIBUNAL
Mothercare Ireland Limited, t/a Mothercare
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Killarney on 16th October 2014 and 3rd and 4th February 2015
Claimant : Mr. Seamus Cadogan, Cadogan O'Regan, Solicitors, 22 Denny Street, Tralee, County Kerry
Respondent : Mr Damien Cahill IBEC, Cork
The determination of the Tribunal was as follows:
The claimant was dismissed for processing unauthorised refunds in breach of store policy and procedures.
Summary of Evidence
The respondent retailer sells nursery and child care products in over twenty outlets throughout the country. It employed the claimant as store manager in its branch in Tralee from September 2004. The respondent has around 20 stores in Ireland at the relevant time and all of these branches reported either directly or indirectly, through area managers to its Operations’ Controller (OC) who maintained control over the stores. The company’s Operations Manual sets out the procedures for giving refunds and each employee is issued with a “unique clerk ID” on the commencement of employment with the respondent. The claimant signed for the updated company handbook on 19 January 2011. On 10 June she acknowledged that she understood the reasons code for refund & exchange transactions.
Towards the end of April 2013 the assistant store manager informed OC about staff concerns regarding the claimant’s handling of refunds. OC visited the store on 29 April and having spoken to AM, examined historic refund receipts and reviewed the CCTV footage, found possible irregularities in 24 transactions but focused on the four most recent on which there was CCTV footage. The four transactions were processed within month of April::
on 18 April for € 99.99
on 21 April for €164.99,
on 25 April for €64.99, and
on 25 April for €69.99.
OC met with the claimant on 30 April 2013, which was her first day back at work following four days leave. He explained his involvement to date to her and indicated that the purpose of the meeting was to seek her assistance in investigating recent cash refund transactions that had been done without following correct procedures and that he was focusing on the four most recent transactions as there was CCTV footage of these. The claimant opted to go ahead with the meeting without a witness and she declined the offer to view the CCTV footage of the transactions. OC presented the documentary evidence, including a reprint of the original receipt, for each of the unauthorised transactions, to the claimant seeking her explanation.
T/A1 The refund was processed at 16.51on 18 April 2013 for a “loved so much swing” in the amount of € 99.99. There was no customer or product present at the desk at the time of the transaction, there was no co signature on the refund receipt, the claimant had filled in the customer’s details the customer’s telephone number was invalid, while there was no original receipt of the purchase this was not required in the case of a recall product. The claimant’s position was that she had filled in the customer details on the refund receipt because the customer could not write. OC pointed out to her that the customer had printed her name on the receipt.
T/A 2 This refund was processed at 14.44 on 21 April 2013 in the amount of €164.99 for a madela breast pump. There was no original receipt of the purchase, no customer or product present at the desk at the time of the transaction, there was no co signature on the refund receipt, no address was provided and the telephone number was illegible.
T/A 3 This refund was processed at 16.03 on 25 April 2013 in the amount of €64.99 for a hop on stroller platform. There was no original receipt of the purchase or no customer or product present at the desk at the time of the transaction, the customer’s name, address and telephone number were not provided. The claimant had asked another employee to co-sign the refund receipt although she should not have done so as the employee had not been at the cash desk at the time.
T/A 4 This refund was processed at 16.26 on 25 April 2013 in the amount of €69.99 for a ‘hide and seek travel cot’. There was no original receipt of the purchase or no customer or product present at the desk at the time of the transaction, there was no co signature on the refund receipt, the full address was not provided and the telephone number was invalid.
The claimant had no recall of any of the four refund transactions other than that a foreign lady was involved in the second transaction. The manager confirmed to OC that the procedures for dealing with the disposal of faulty products on their return to the store was that they are documented (wasted) so they come off the stock list; towards the end of the day they are collected from the cash desk and put in the bin which is collected on Thursday. OC informed the claimant that his investigation found no evidence that the items had been wasted (documented) and a physical stock take had shown an excess of one unit for the breast pump and stroller and the claimant could not assist in finding the returned stock in the store. As the claimant failed to give any satisfactory explanation for the unauthorised refunds outside company policy, OC suspended the claimant on pay pending further investigation.
In his letter of 1 May 2013, inviting the claimant to a formal investigation meeting on 7 May, OC informed her of the seriousness of the situation and that it could lead to disciplinary action up to and including dismissal for gross misconduct. A copy of the file note from the previous meeting, a copy of the CCTV footage and the receipts were included with the letter. By letter of 3 May 2013 the claimant was advised of a change of venue for the meeting on 7 May and some confusion created about the time was cleared up.
As the claimant had viewed the CCTV footage by this time OC again went through the transactions with the claimant at the formal investigation meeting on 7 May 2013 but she could not provide any explanation for the refund transactions. At this meeting the claimant gave a different reason for the T/A3 refund. She explained that this transaction was to correct a till error made by another staff member who had had given a customer the wrong change. However, on the refund documentation, generated at the time of the transaction, the reason given for the refund was that the strap of the item was damaged. The claimant had asked another employee to co-sign for this refund but did not tell her it was to correct a till error. The claimant accepted that giving a refund would not to correct a till shortage. Following an adjournment of this meeting OC interviewed other staff members to ascertain the store practice inter alia for dealing with till shortages, reimbursing a customer who was given wrong change and the store procedures for dealing with faulty products.
At the final investigation meeting on 13 May 2013 the claimant further clarified the reason for T/A3 refund was that a staff member had reported to her that she had given excess change to a customer and to correct the corresponding till shortage of €65.00 she had processed a cash refund for the €65.00. The claimant could not remember which member of staff had reported this overpayment to her. She could not explain why she now had a different reason for giving the refund. OC told her that in the interim as part of his investigation the assistant store manager had confirmed to him that in the event of an overpayment to a customer the till shortage would be recorded as “reason unknown”. The claimant maintained that a previous HR manager had instructed her to give the customer a refund where there had been an overpayment. The respondent’s position was that the particular manager no longer worked for the respondent and in any event since her departure the respondent had issued a new detailed operations manual containing clear and precise policies and procedures which had been circulated to every store manager and for which the claimant had signed the acknowledgement form, on 19 January 2011, stating that she had read, understood and accepted the handbook as part of her terms and conditions of employment with the respondent. She had also signed the Training Evaluation Form on 24 January 2011, indicating therein that she found the training excellent and particularly benefitted from the disciplinary section. At this meeting the claimant volunteered the information that during a conference call some two years previously AM (the area manager) had directed store managers that if they were close to achieving bonus sales targets they should inflate their sales figures by putting through false sales transactions to achieve the targets and to later rectify this by doing refund transactions for these false sales.
OC explained to the claimant that he would now be presenting his findings to HRM and that this was her final opportunity to provide any information or explanation that might assist in his investigation and the final outcome. OC was satisfied that the claimant had committed serious breaches of the refund procedures and as she was unable to provide any satisfactory explanation he prepared his Investigation Report and sent it to the HR manager (HRM) for her consideration and a copy to the claimant as well as the file notes of the last meeting. He confirmed this in his letter of 14 May to the claimant.
A disciplinary meeting was conducted by HRM on 20 May 2013. The claimant could not still recall processing the actual transactions even when HRM reminded her that two of the transactions had been processed just four days prior to the commencement of the investigation. As regards the absence of customer details from the refund documentation, the claimant explained that customers do not always want to give these details. As regards T/A3 the claimant further clarified that the member of staff had told her that she had given the money back to the customer along with the receipt but she still could not remember the member of staff involved. She had not done a till count at the time. The claimant again put forward the facts that she was following the instructions of a previous HR manager and of the area manager AM. She asked whether other cameras in the store were checked to see if the customer was walking around. The respondent’s position in regard to this was that its focus was on the customer’s presence at the till point at the time of the transaction.
During the disciplinary meeting the claimant raised a number of issues about the investigation, which she had not raised with OC at the time. She sought OC’s notes of his meeting with the assistant store manager on 29 April and with the other store managers in relation to AM’s alleged instruction to them to inflate sales during a conference call some years earlier. The claimant maintained that she had been expecting OC to revert to her after their 13 May investigation meeting. She complained about short notice of the change of venue for 7 May meeting, the confusion about the time of the meeting and that two days’ notice of the disciplinary meeting was inadequate.
HRM adjourned the disciplinary and having checked with OC, forwarded his written responses to the claimant and met her on 28 May 2013, mainly to deal with those issues. OC had not undertaken to revert to her after their meeting of 13 May. The file notes of 13 May meeting as well as OC’s letter of 14 May made clear to the claimant that the investigation was concluding and that the matter was being handed over to HRM. The purpose of his visit to the local office was to gather local data such as receipts and CCTV footage. He had spoken to AM about his instruction to store managers but this was a separate issue and has no relevance to the investigation on the refunds being investigated. The claimant was informed at the outset of the initial investigation meeting that it was an investigatory meeting and this is confirmed in the minutes of that meeting. Having gone through these issues HRM emphasised the seriousness of the situation and as she had some recollection of T/A3 again asked her if she could remember the employee involved but she could not remember who it was. HRM gave the claimant a number of opportunities to put forward some explanation but nothing was put forward.
The findings of the investigation and the claimant’s responses at the disciplinary hearings, in particular:
- her failure to provide an explanation for the unauthorised refund transactions outside company policy,
- her failure to provide any reason or explanation as to why she would be carrying out a refund transaction with no customer present at the till,
- her failure to satisfactorily explain T/A3 and in particular her failure to remember the sales assistant who brought the shortage to her attention,
- her failure to provide any explanation as to why she did not get the refund receipts signed by a relevant person,
resulted in a fundamental breakdown in the trust necessary to continue the employment relationship. As the claimant’s conduct in and about the refunds constituted a breach of company policy amounting to gross misconduct, HRM felt that she had no option but to dismiss the claimant. She considered other options but the respondent’s trust in the claimant had been sundered and even if demoted the claimant would still be involved in processing refunds. By letter of 30 May 2013 HRM informed the claimant of her dismissal.
The letter of dismissal also outlined the claimant’s right to appeal. The claimant did not appeal her dismissal. She felt the same people would hear the appeal.
Throughout the investigation and disciplinary hearings the respondent was also dealing with safe discrepancies but because the safe balanced when the claimant was going on her holiday this issue did not form part of the respondent’s decision to dismiss the claimant.
The claimant’s evidence was that OC phoned her after Christmas 2012 asking her to work on Sundays but she was not wish to. He told her she was taking too many days off together. At this time she found him rude and aggressive and wanted this noted in his file. The decision to dismiss her was disproportionate and a lesser sanction such as redeployment or demotion would have been more appropriate to the alleged breach of policy that she had committed. She was not aware of the seriousness of the situations she was facing.
Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager, who is responsible for implementing store policy. Breaching the refunds procedure and the failure to offer any satisfactory or any explanation for these breaches destroyed that trust and confidence and constituted gross misconduct warranting summary dismissal. Following the instruction of a previous HR manager, as to how to deal with till shortages was no defence where a new procedures manual had been introduced by the respondent. The Tribunal is satisfied that the sanction of dismissal was fair.
The claimant contended that the investigatory and disciplinary procedures were flawed in that the respondent failed to interview a number of other employees who ought to have been interviewed and deprived her of the opportunity to examine what they may have had to say. The Tribunal rejects the claimant’s contentions. The documentary evidence and CCTV footage formed the basis of the respondent’s case and were the vital evidence in this case demonstrating at least four breaches of procedures in each of the refund transactions put to the claimant. The Tribunal accepts that OC did not interview the assistant store manager on 29 April as part of his investigation and that the purpose of his visit to the store on that day was to collect data. In this case fair procedures did not require that she be interviewed. The allegation about AM’s instruction, to inflate sales to achieve the bonus target and later do a refund transaction to rectify the till, was not a relevant issue for consideration by the respondent in its investigation or disciplinary meetings as the claimant had not put this forward as a reason for processing the refund transactions. The Tribunal is satisfied that the claimant was informed before the investigation proper began, at the initial investigation meeting on 30 April, that she was made aware that it was an investigatory meeting, as confirmed by the minutes of that meeting. This met the requirements of fairness.
The Tribunal does not accept that the claimant was not aware of the seriousness of her situation. The letters of 1May inviting her to the investigation meeting stated:
“You should be aware that that unauthorised refunds outside of company is a very serious matter and could lead to disciplinary action being taken against you up to and including dismissal for gross misconduct based on a breach of trust and a breach of company policies and procedures.”
Paragraphs to similar effect were contained in the letters of 8 May and 15 May respectively inviting her to investigation and disciplinary meetings as well as having been reiterated during the final disciplinary meeting.
For these reasons the Tribunal further finds that the respondent adopted fair procedures.
The Tribunal unanimously finds that the dismissal was fair and the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal