EMPLOYMENT APPEALS TRIBUNAL
Scotco Eastern (Ireland) Limited T/A KFC
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran BL
Members: Mr. R. Murphy
Mr. N. Dowling
heard this case in Dublin on 16-17 November 2016
Mr Gerry Meagher, Midland Legal Solicitors, Fitzmaurice House, Bank Place, Portlaoise, County Laois
Ms. Nora Cash, Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
The claimant was employed since 2006 by the respondent in its fast food restaurant in Newbridge from 2006. Later on in 2013 a new second fast food restaurant was opened. This was a drive-through fast food restaurant. This fast food restaurant was a much larger and busier one than the first one. The claimant was appointed as supervisor in the new fast food restaurant. However after sometime, difficulties arose concerning staffing levels and management structures. Matters eventually came to a head.
On or about September 2014 the company carried out an investigation in relation to cash irregularities. Arising from this and/ or in conjunction with this, two charges emerged which were preferred against the claimant, i.e. 1/ Misappropriation of company funds in the sum of 263-30 euro. 2/ Breach of company procedures in relation to cash handling. An initial hearing found against the claimant on both charges and he was dismissed. Later on there was an appeal and arising from this the first more serious charge was withdrawn. Notwithstanding this he was still dismissed on foot of the second charge only. The respondent stated that the claimant was asked to take over the new outlet. However in 2014 irregularities showed up i.e. “invalid voids/refunds” indicating no sales. These related predominantly to a product called “Kream Balls”. These matters were investigated by the respondent and he was subsequently dismissed on foot of the second charge only. The respondent adduced evidence of cash irregularities on slides/video to the Tribunal.
The evidence in general disclosed that there were staff difficulties which severely impacted on the claimant e.g. when staff were absent on sick leave or on holidays, they were not always replaced, the quota of staff for the second restaurant seemed to be much lower than the first restaurant, leaving the claimant to work long, unreasonable and unsociable hours.
The claimant was described in evidence as “an honest and loyal worker”.
Having perused the detailed evidence both oral and written that was adduced under examination, cross-examination, and re-examination, in this case, the following points are note-worthy.
1/ The evidence as denoted on slides/video was not totally conclusive.
2/ The severe and unreasonable conditions which the claimant had to endure and which was mainly as a result of short-staffing, inadequate staffing and management structures, more than out-weighed any perceived irregularities.
3/ Having regard to the fact that the first and most serious charge of misappropriation of funds was withdrawn, this should have been reflected in the sanction imposed.
4/ The penalty imposed, having regard to the totality of the prevailing circumstances in this case was disproportionate.
5/ Relevant portions of the evidence as adduced by the claimant was not challenged by the respondent witnesses, under cross-examination, and at times was agreed.
6/The respondent has not established the onus of proof necessary as prescribed under statute in this case.
In the circumstances we award compensation for unfair dismissals in the sum of 31000 euro, under the Unfair Dismissals Acts, 1977- 2007.
The claim under the Organisation Working Time Act, 1997, was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal