EMPLOYMENT APPEALS TRIBUNAL
Tesco Ireland Plc
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O’Mahony BL
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this case in Cork on 22 January 2016 and 9 March 2016
No legal or trade union representation
Mr. Damien Cahill for Mr. Paul O'Brien, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Evidence
The claimant commenced employment with the respondent in November 2005 in one of its supermarket as a general sales assistant and three years later became a check-out assistant. The claimant signed up to having been trained in the respondent’s policies including those listed hereafter.
Honesty Policy There was zero tolerance for breaches of this policy. Under it converting or attempting to convert to his/her own use any cash goods or valuable thing, regardless of monetary value, the property of the company (or in the company’s care) will be subject to dismissal and/or prosecution.
A Colleague Privilegecard is issued to members of staff with more than two years service. Holders get a 10% price reduction on staff purchases. Usage of this card is centrally tracked.
Under the Staff Purchase Policy all purchases in the store have to be made through someone else except for purchases made through the self scan checkouts which are monitored. It was a “no-no” for a staff member to serve oneself.
Under the Cash Register Operation Procedure each employee has to log on using his/her unique identity code and password before commencing on the scanning registers and log off in similar fashion on completion. Staff protect themselves by logging off. Each employee’s password is confidential. An employee is not, under any circumstances, to leave his or her register unattended and signed on. Failure to follow the standard cash register procedure precisely after training could result in disciplinary action up to dismissal. The cashier’s till receipt includes the operator’s details. Receipts are to be handed to the customers. Any receipts left behind must be destroyed.
Price Promise Vouchers: Due to the presence of competing discount stores in the market the respondent introduced a price purchase programme in October 2013 providing price promise vouchers (PPV/voucher) to compensate customers who had been charged more by the respondent for grocery goods than they would have been charged in a competitor store. The maximum value for an individual PPV was €10 euro and such vouchers are very rare as to have such a price differential in grocery goods between competitor stores would require a large amount of shopping. The voucher is valid on the day of issue and for twenty-eight subsequent days. The vouchers are produced with the till receipt and both are loosely joined together and given to the customer. The check out assistant is to remind the customer to take the voucher. Forgotten or discarded vouchers (and receipts) are to be destroyed/binned. A staff presence in the self-service area must look out for discarded vouchers and receipts and destroy/bins them. The operation of the price policy is constantly monitored. The respondent ran a national price promise campaign to inform the public and had a training programme for its staff as well as giving them a document on key things to remember about it.
Cashiers were instructed to tell the customers about the price promise programme and to give the voucher to the customer who was entitled to it. Staff on self-service tills were instructed to look out for customers forgetting their price promise receipt and to discard any left or unwanted receipts or vouchers. The PPV system is constantly monitored.
Summary of Evidence
On 8 January 2014 the respondent’s Deputy Manager (DM) called the claimant to a meeting to seek an explanation for her use of a €10 PPV (voucher) for her shopping the previous day which had been generated on her till earlier the same day. The claimant’s position was that she had got the voucher while shopping. When it was put to her that it had been generated at her till (serving herself) she suggested that perhaps she might not have signed off and that some other cashier might have generated it. She agreed that she had received training. DM was not satisfied with the claimant’s explanation. It was a trust issue for the respondent. He explained the serious nature of the problem to her and suspended her on pay pending a full investigation. DM was concerned about possible fraud. Relevant information was missing from the end of the voucher but the respondent was able to establish the origin of the voucher from a second number on it. As the voucher is based on the differential in price between competing stores, a high volume of grocery shopping would be required to generate a voucher to the value of €10. DM advised the claimant to find someone to represent her at this meeting and when she went to find someone a manager to the floor asked another member of staff to be her witness at the meeting.
By letter of 9 January 2014, the claimant was invited to an investigation the following day regarding the price promise issue and advised of her entitlement to have a representative present with her. The claimant was represented by her trade union official at the meeting on 10 January, 2014. Her position was that she received the voucher when shopping but could not say when, as she does shopping every day. When DM told the claimant that the voucher she used for her shopping belonged to a customer she had served earlier the same day, the claimant’s position was that she did not know how that could be. The claimant was shown the CCTV footage. It showed her putting the receipt in the bin and keeping the voucher, which was strange as the got receipt and voucher are kept together in case the customer returned for them. Having seen the CCTV footage, the claimant accepted that she had put a voucher at the side of the till after the customer left as she sometimes does in case the customer would return for it. She maintained that what the CCTV later showed her removing from that location and put in her pocket was her shopping list. She had received training in November 2013 on the PPV system. DM explained to her that this was a very serious breach of the PPV policy.
At the hearing before the Tribunal the claimant maintained that she had missed out on some training and had only got the on-the-spot training at till and that she had not received the PPV booklet. or the full. DM’s position was that he had raised training with her during the investigation and she was emphatic that she had got training and did not highlight any short fall in it. The claimant did not complain about her representative at the 8 March meeting. BM’s evidence was that one would not put a receipt in bin and hold on to a voucher.
DM met the claimant and TU on 13 January 2014. The claimant did not avail of a final opportunity to explain about using the voucher. DM informed her that the matter was being progressed to the next disciplinary stage.
A disciplinary meeting was conducted by the store manager (SM) on 16 January 2014. He had ascertained from the history of her colleague privilegecard that she had not earned a €10 voucher. At this meeting the claimant continued to maintain that the voucher had been hers but did not know when she got it as she does a lot of shopping and had a number of vouchers in her purse. She continued in her denial that she had not printed the voucher and had nothing further to add. At one stage she did say that she “might have” taken the voucher with her shopping list. He reminded her that the camera footage showed that she had not given the customer the voucher. She confirmed that she knew the procedures that any vouchers left behind must be binned. The receipt and voucher had been separated, the receipt was binned. The claimant could not explain why the end part of the voucher, which contained identification information, was missing. SM believed the claimant had used the voucher for her own financial benefit. SM concluded that failing to give the voucher to the customer and using it to purchase groceries was actual or attempted theft or fraud amounting to serious misconduct and breaching the respondent’s honesty policy and bond of trust essential to the employee-employer relationship and warranting summary dismissal. This outcome was communicated to the employee at a meeting on 23 January 2014.
The claimant appealed her dismissal claiming that it was excessive. AO (a store manager from another store) heard the claimant’s appeal on 13 February 2014. AO took the claimant through the events of 7 January 2014 and for the first time in the process, she admitted to taking the voucher with her shopping list. AO reviewed all the evidence including the CCTV footage and the record of the investigation meetings and the disciplinary meeting. He found that, on a number of occasions, throughout the various meetings, the claimant had misled the respondent. AO was satisfied that the essential bond of trust between the employer and employee damaged and upheld SM’s decision to dismiss. TU made the case that dismissal was a harsh decision given the claimant’s long service and hitherto clean record. Whilst aware that he could have overturned the dismissal, AO felt that misleading DM and SM, throughout the investigatory and disciplinary process, had to be taken into account.
The claimant’s position was that she had mistakenly picked up the voucher. She confirmed to the Tribunal that she was a union member and had known what she was signing when putting her signature to the respondent’s documentation. She only received the price promise pocket guide when she was leaving the company.
In determining whether a dismissal is unfair, the function of the Tribunal is not to consider what sanction it would impose but to determine whether a reasonable employer, in the same circumstances as those which confronted the respondent, would have dismissed the employee or whether the dismissal comes within the band of reasonable responses of the reasonable employer. This test was clearly was set out by Lord Denning MR in the English Court of Appeal in British Leyland UK Ltd v Swift  IRLR 91 at 93 where he stated:
The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these case there is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views might be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair even though some other employers may not have dismissed him.
The claimant’s submission that the respondent had not proved the misconduct is misconceived. What is required of the reasonable employer is to show that’s/ he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate. See Noritake (Irl.) Ltd v. Kenna (UD 88/1983) and Martin v Audio Video Services Centre Ltd. (UD617/1991.
The Tribunal accepts that the claimant had not received full training. However this had never been raised this by or on behalf of the claimant during the entire disciplinary proceedings and at all times she had indicated that she had received training. The reasonableness of the employer’s decision is judged by his knowledge of the facts at the time of the dismissal.
The Tribunal is satisfied that the claimant knew that using the voucher was a serious matter.
The claimant signed company training record on 8 November 2012, acknowledging that she had received training in the respondent’s honesty policy.
Having regard to the facts that a €10 voucher is rare, that the claimant failed to adhere to the PPV procedures in a number of respects and that she misled the process, the Tribunal unanimously finds that the decision to dismiss came within the band of reasonable responses of the reasonable employer.
Accordingly, the dismissal is fair and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal