EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Henry Shields UD318/14
The Carphone Warehouse Limited - respondent
The Carphone Warehouse Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Waterford on 14th January 2015 and 2nd April 2015.
Claimant: Mr Billy Kyne, 5 Parklane Drive, Abbeyside, Dungarvan
Respondent: Mr Emmet Whelan, Byrne Wallace, Solicitors, 2 Grand Canal
Square, Dublin 2
The determination of the Tribunal was as follows:-
The Respondent’s Case:
Evidence for the respondent was given by MR (Regional Retail Manager), Employee D, MH (Branch Manager), DS (Regional Manager) and KC (Regional Sales Manager).
It was the respondent’s position that the claimant was dismissed for breaches of the respondent’s company policies and procedures being the removal of a mobile phone by him on the 9th August 2013 from his workplace store without paying for it and the borrowing of €50 from the store till on 27th September 2013.
Employee D told the Tribunal that when she was counting up the till take on Friday, 27th September 2013, she noticed that the till was €50 short. She said she telephoned the claimant and told him that the till was short. She said the next morning Saturday the claimant appeared at the workplace even though he wasn’t due into work that day. He asked her to repay the €50 into the till but she refused.
MH gave evidence that on the following Monday, 30th September 2013, he called the claimant into the office and raised the issue of the €50. He said the claimant told him that he had borrowed it to buy a going-away present for employee G who was leaving that Saturday. The claimant was suspended with pay pending an investigation.
On 1st October 2013 the claimant submitted a grievance to the respondent regarding MH. On 18th October 2013 the claimant submitted a further grievance to the respondent regarding MH. These grievances were investigated and were not upheld other than it was admitted that DH had raised his voice to the claimant on the occasion complained of and was warned that raising his voice was inappropriate and unacceptable.
On or about 18th October 2013 the claimant was informed that the respondent was investigating the removal from the store on the 9th August 2013 of a Samsung Galaxy Ace mobile phone valued at €49.99. The box for the phone was with items on hold for customers and had been recorded as an “Open Order” item logged to the claimant. This system was explained to the Tribunal. If an item was put on hold for a customer it was logged into the “Open Order” system and was held for seven days. However, the evidence was that the mobile phone had been put on the system, removed and reinstated and was on hold for well more than the seven days. The respondent became aware that the box was empty and on checking found that a mobile telephone number assigned to the phone had been active since August 2013.
At an investigation meeting held on 24th October 2013 the issue of the phone was raised with the claimant and the claimant’s response was that he had taken the mobile phone for his mother and had not paid for it due to difficulties contacting MH to apply staff discount to the item.
When the matters of the mobile phone and the €50 were raised with the claimant at the various disciplinary stages the claimant said that it was custom and practice to borrow money from the till and that the delay in paying for the mobile phone was because he was waiting to have the staff discount applied, that MH was only in the store Tuesdays and Thursdays and that MH had been on holidays as had the claimant. The claimant also told the respondent that MH had taken a phone for his mother and that he had borrowed €100 from the till on one occasion and had told Employee D to take money from the till for a sandwich.
In cross-examination it was put to MH that he had borrowed €100 from the till and on another occasion had told Employee D to take the money from the till to buy a sandwich. MH told the Tribunal the incident with the €100 did not occur and could not occur in the manner alleged by the claimant. MH told the Tribunal when he told Employee D to take money from the till for a sandwich that was a joke. Regarding the phone for his mother this related to a faulty handset and was not similar to the current incident regarding the claimant.
In all investigatory meetings were held on 3rd October 2013, 10th October 2013, 21st October 2013 and a disciplinary hearing were held on 29th October 2013 with an appeal hearing on 26th November 2013. MR heard the disciplinary hearing following which the claimant was dismissed on 31st October 2013. The dismissal was upheld on appeal heard by KC and the claimant was informed of the outcome on the 2nd December 2013.
In cross-examination both DS and KC for the respondent accepted that none of the grievances raised by the claimant against MH were upheld but that MH had been informed in writing that raising his voice to employees was inappropriate and unacceptable.
It was the respondent’s position that whereas they accepted that the misconduct by the claimant was not theft it was breaches of the company’s policies and procedures. The legal representative for the respondent said the duty of trust and confidence necessary in a business such as that of the respondent was breached. These breaches constituted gross misconduct and the sanction of dismissal was both appropriate and reasonable in the circumstances.
The Claimant’s Case:
The claimant gave evidence that he commenced employment with the respondent on the 10th December 2007 and that he was dismissed on the 31st October 2013.
He told the Tribunal that he had a very good record with the respondent until the incidents complained of which resulted in his dismissal.
The claimant told the Tribunal that his mother needed a new phone and that he got the Samsung for her. He said he left the box on the shelf where goods being held for customers were stored and that he did this to remind himself to pay for it. He entered the phone on the Open Order system to his employee account. He said he removed it from the Open Order system later because he wished to enter another order for a Sky product for himself and you could not have two orders in this system together. After he purchased the Sky product he re-entered the mobile phone order on the system. He said he had not paid for the mobile phone because he was having a difficulty getting the staff discount applied to it. He said he phoned Customer Care re the discount and was told to contact his branch manager. MH, the branch manager, was only in the store two days per week and he wouldn’t always see him and both he, the claimant, and MH had been on holidays hence the delay. The claimant said he always intended paying for the phone.
In cross-examination it was put to the claimant as to why he did not contact DS, the retail manager, about the discount. The claimant said he did not know you could do this.
When raised by the Tribunal the claimant accepted that because the box was still in the store the fact that the phone was not there would not show up in stock check.
Regarding the €50 the claimant said on Friday 27th September 2013 he discussed with Employee D that they should get a going away present for Employee G. He said he did not have the money to buy it at that time, that he wished to have it for Employee G the next day as that was her last day and that was the reason he had borrowed the money. He said Employee D was to contribute to the cost of the gift. He said that it would happen regularly that money would be borrowed from the till to buy a going-away present and for other reasons. He gave evidence that MH had taken €100 to the bank for change and that he had it for a week before it was returned to the till on 8th August 2013. He also gave evidence that he heard MH say to Employee D that she could take money from the till to get a sandwich. The claimant said that the employees regularly took phone credit without paying at the time of purchase.
It was put to the claimant in cross-examination that Employee D had telephoned him on the Friday night to inform him that the till was €50 short. The claimant said he could not recollect this.
When questioned by the Tribunal the claimant said that Employee D did not pay her share of the gift, that he had no discussion with Employee D regarding what the gift was to be but that she would leave that to him and had no discussion about the cost of the gift.
In cross-examination the claimant could only name one specific time when a going-away present was bought for another employee and he could not say what the present was, whether the money had been borrowed from the till or not at that time but that if they had no money they would have borrowed it from the till.
The claimant gave evidence of his losses. He said he was unemployed and that he had worked in a temporary position for six months and had worked a further two weeks around Christmas since leaving the respondent. The claimant had little documentary evidence regarding his efforts to seek alternative employment and his oral evidence on efforts to seek alternative employment was general and vague.
He told the Tribunal that he would not defraud the respondent or steal from the respondent. He had simply borrowed the €50 and intended paying for the mobile phone.
The representative for the claimant said that the claimant had been a good employee with a long service record and had been instrumental in bringing new business to the respondent and that a lesser sanction than dismissal should have been applied.
Having considered the evidence of the parties adduced at the hearing and the submissions of the representatives for the parties the Tribunal finds as follows:-
- The Tribunal is satisfied that the claimant only borrowed the €50 and he intended putting it back soonest. The Tribunal is further satisfied that there was a practice of borrowing from the till float albeit that the evidence does not show that it was a regular practice. The Tribunal finds that when the claimant heard MH tell Employee D to take money for a sandwich from the till the claimant had no way of knowing whether MH meant this in jest or not and accordingly was justified in thinking it was ok albeit it was a breach of company policies and procedures to borrow from the till float. The Tribunal is of the opinion that a formal warning would have sufficed in respect of this act of misconduct.
- The Tribunal is satisfied that the claimant never intended misappropriating the mobile phone but intended to pay for it at some stage. This finding is supported by the fact that the claimant had kept the item on the Open Order system and had not disposed of the box. However, in excess of 3 months had passed and the claimant had still not paid for the item. The Tribunal finds that the issue is not whether the claimant intended to pay for the item or not the issue is that the item should have never left the store without being paid for or without permission from somebody in authority. The retention of the box on the Open Order shelf by the claimant had the effect of keeping stock control levels correct and hiding the fact that an item had left the store without being paid for albeit that the claimant said he kept the box to remind himself that he needed to pay for the item. An employer such as the respondent faces difficulties if it cannot rely on its stock control system.
- Even where dismissal is warranted, it is always open to an employer not to apply the sanction of dismissal should it so choose to do. However, that is a matter for an individual employer and does not affect an employer’s entitlement to dismiss where such is warranted or a Tribunal’s entitlement to uphold a dismissal if the acts of misconduct would cause an average employer in the circumstances to dismiss provided that fair or agreed disciplinary procedures were followed.
- In the circumstances the Tribunal finds that the dismissal of the claimant was warranted and that fair procedures in effecting the dismissal were followed.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal