EMPLOYMENT APPEALS TRIBUNAL
CASE NOS.
UD1379/2013
TE174/2013
APPEAL OF:
Sword Risk Services Limited – appellant
against the recommendation of the Rights Commissioner in the case of
Damien Sheahan – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington SC
Members: Mr T. O’Grady
Mr Al Butler
heard this case in Dublin on 29th December 2014 and 2nd March 2015
Representation
Claimant: Mr Stephen Brady BL instructed by Mr Richard Lee of Baily Homan McVeigh Solicitors, 6 -7 Harcourt Terrace, Dublin 2
Respondent: Mr Warren Parkes, Solicitor, Suite 317, The Capel Building, Mary’s Abbey, Dublin 7
The determination of the Tribunal was as follows:
This case came before the Tribunal as an appeal by an employer, the appellant to the recommendations of the Rights Commissioner reference numbers r-132140-ud-13/JT and r-129896-te-13/JT.
Respondent’s Case
The respondent, the former employee, started working for the appellant in March 2007 as a security guard and he was assigned to a variety of tasks. For the last three years of his employment he was assigned to a centre city supermarket where his primary duties were protection of staff and protection of stock. He liked his job and had a good relationship with the store managers.
On 3 October 2012 the respondent received a phone call asking him to attend a meeting with the appellant’s operations manager. The meeting was to discuss a meeting he had with the area manager for the supermarket chain on 27 September 2012 where he was confronted for his use of an X-key for the tills. The X-key is used to do voids or refunds and to fix mistakes made by a cashier. The X-key must be used with a manager’s pin number. In the store, the managers’ pins were widely known. He knew how the X-key worked from watching the managers use it. He took an X-key from beside the window and took it to a cashier when needed. The store manager knew that he did this. If an X-key was left in a till overnight, the respondent would return it to its place beside the window with the other keys. The area manager informed him that it was counter to company policy for him to have an X-key. He already had a green key that gave him access to the office.
The respondent worked his shift on 3 October and then went to meet the operations manager at his office. He explained that he had not mentioned the meeting with the area manager because she had told him that the ‘conversation would go no further’. He felt there was no issue with trust. The appellant’s instructions to him were to carry out all duties assigned to him. At the end of the meeting the respondent was told not to report for work until he heard from the operations manager. The respondent did not work for a number of days. The operations manager did not contact him so the respondent sent him a text message. The respondent was offered hours at different locations but not at the city centre store. He had done nothing wrong there. The stores where he was offered hours were under the area manager who had requested his removal from the city centre store. It was likely that she would not accept him in any of her stores.
The respondent was suspended without pay on 3 October 2012. He was not paid of given work up to 17 October. He had no income but no reduction in his overheads and also he was spending hours at a loose end on his own. He did not refuse to work, he could not work in stores under the area manager and he was offered nothing else. When he pointed out this difficulty to the operations manager, the operations manager said that he would meet with the area manager to discuss the situation. This did not happen until after the respondent resigned. He resigned by letter dated 17 October 2012 which he delivered to the office.
The respondent established his losses.
Appellant’s Case
The general manager gave evidence. The respondent was working for the appellant when she joined. The respondent was a hard worker and she had a good working relationship with him. He was assigned to a tough store but they supported him.
She heard of the respondent’s meeting with the supermarket area manager when the head of security phoned her. Finding out this way put her on the back foot. She did not have the opportunity to support the respondent at the meeting. She told the security manager that she had no issue with the respondent. She heard from him that the store manager was being investigated and subject to disciplinary procedures. When the head of security did not want the respondent on site at the city centre location they had no option but to move him. He wanted to stay where he was.
The general manager met the respondent on the 15 or 16 of October to discuss the issues. He could have been assigned to any of the supermarket stores. She had not realised that at least one of the proposed stores was under the area manager who had an issue with him. She thought he had been offered hours in a busy store not under the area manager. He wanted to return to the city centre store. She was very surprised when he left because he was a good worker and had trained colleagues
The administrator gave evidence. Day to day she makes and takes phone calls. She keeps a log of every call every day. She also notes text messages. She deals with short notice contracts.
She got on well with the respondent. He would text her to confirm he had received his roster. Also he would phone her to report any incidents at work. He was a good communicator. She sent him a text giving him hours at an out of town store but he did not respond. She does not know if he was offered other work even though she drew up the rosters. She left him a voicemail message asking him to phone the office again he did not reply.
The respondent was upset when he came to the office with his letter of resignation. They did not want to lose him. He felt that he had been unfairly treated by the centre city store and that the appellant did not fight for him.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made during this appeal. The respondent was a hard-working and responsible employee of the appellant who was contracted to provide security to a busy supermarket. He enjoyed the confidence of the managers where he worked. Unfortunately he was caught up in an internal investigation by the area manager and head of security of the supermarket. His close association with local managers caused the higher managers to loose trust in him.
The appellant’s evidence was that the respondent was a hard worker with whom they had no issues. When his position with the centre city store became untenable they wanted to keep him in their employment. However it seems to the Tribunal that the appellant was not very proactive in assigning suitable alternative work to the respondent and they failed to keep him informed of their intention to retain him.
Taking all the circumstances into account the Tribunal finds that the respondent was unfairly dismissed and awards him the sum of €11,219.96 in compensation. The recommendation of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007 is varied.
The appeal of the Rights Commissioner’s recommendation under the Terms of Employment (Information) Act 1994 fails and the award of €1,000.00 is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)