EMPLOYMENT APPEALS TRIBUNAL
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. W. O'Carroll
Ms H. Murphy
heard this claim at Galway on 1st July 2016
Claimant: Mr. Shane McSweeney, MacSweeney & Company Solicitors, Lismoyle House, Merchants Road, Galway
Respondent: Ms. Siobhan McGowan, Purdy Fitzgerald Solicitors, GFSC, Block 1, Moneenageisha Road, Galway
The determination of the Tribunal was as follows:-
At the outset the claim under the Organisation of Working Time Act, 1997 was withdrawn.
The claimant commenced his employment as a Car Valeter with a previous employer in 2004. The respondent took over the petrol station in which the claimant was employed in 2010. All terms and conditions of employment remained the same. The respondent owned two premises, one in Westside where the claimant was employed and one in Whitestrand.
The claimant, at this point, was working in the shop as an Assistant together with two other employees, M and A, who were husband and wife. M was employed as the Car Valeter and A was an Assistant in the shop working alternative shifts to the claimant. A student was also employed by the respondent on Sundays. The claimant worked the 3pm to 11pm shift. At the end of these shifts, stock takes on certain items would be carried out, for example, household fuel.
Dismissal is in dispute and therefore the claimant gives evidence first.
The claimant gave evidence. He told the Tribunal that he had no contract of written terms of employment. There was no company handbook containing a grievance procedure and he only received a payslip if he requested one.
The claimant told the Tribunal that there were no previous issues raised concerning his employment until the meeting with the respondent owner on the 28th of February 2015.
The claimant explained his daily duties as an Assistant in the respondent’s petrol station which included picking up stock from the wholesalers for the premises twice a week and delivering stock to the second premises, for example newspapers, in Whitestrand. Paperwork regarding the transfer of stock from one premises to another was not always completed. The Westside premises had a facility for customers to pay household bills electronically. However, on occasion, problems arose where tickets could not be scanned and monies paid by customers for their bills would be left beside the cash register. The claimant had mentioned this to the respondent on occasion.
On the 28th of February 2015 the respondent contacted the claimant and requested he attend a meeting in the Whitestrand premises. The claimant told the Tribunal that he had no prior knowledge of the content of the meeting or advised to bring anyone with him. He spoke to his colleague A and asked her did she know what the meeting was about. A replied that she could not speak to him and that he should speak to the respondent.
The claimant attended the meeting alone and was surprised at its content. The owner of the respondent company accused him of theft alleging that money was missing. The respondent was very angry and told him he had CCTV footage, but would not show it to the claimant. The respondent asked him again and again where the money was. The claimant replied that he did not have it. The respondent told him that he “better bring it back or I will go to the Guards and a solicitor” and said he had to come back to him with an explanation by midnight. The claimant again replied that he did not have it. The respondent also accused him of taking cigarettes and told him the station was closed. He handed over the keys to the respondent and left.
The claimant told the Tribunal that when he arrived home he made a note of what had occurred at the meeting. (These notes were read into the Tribunal record). The following day, Sunday, the claimant drove by the petrol station and noted that it was closed. However, he found it open again on the Monday when he drove past. On the Sunday he contacted A and told her what the respondent had accused him of. A told him that the respondent had accused her of taking cigarettes to sell elsewhere.
On the 4th of March 2015 the claimant wrote to the respondent requesting his P45 and outstanding wages as he had been falsely accused of stealing and been dismissed from his employment. The respondent replied on the 16th of March 2016 stating the claimant had “thrown the keys on the table and left” As he had not turned up for his rostered shift the following Monday, nor since, that he, the respondent, understood the claimant had resigned.
The claimant gave evidence of the efforts he had made to mitigate the loss of his earnings since his employment terminated with the respondent.
Under cross-examination he said the respondent never fully explained to him what he had supposedly stolen. When put to him he said that he had not thrown the keys on the table during the meeting on the 28th of February and had not resigned his employment. He said he ahd only handed the keys back to the respondent when the respondent had told him the petrol station was closed and there was no work.
When put to him he said he was unaware if the respondent, himself, kept a record of the stock that was transferred between the Westside and Whitestrand premises.
The owner of the respondent company gave evidence. He explained that he had taken over the business in 2010 and the employees, including the claimant, transferred under the same terms and conditions of their employment.
He explained the claimant’s role in the Westside premises. The claimant would open/ close the shop, restock shelves, serve customers, order some stock and after some time it became the norm for the claimant to pick up stock from the wholesalers on Mondays and Thursdays.
The witness told the Tribunal that in the second half of 2014 issues arose in the Westside premises. The cash in the register was not balancing and takings lodged into the bank were down. The respondent told the Tribunal that the claimant had offered and paid on occasion when the cash in the register did not balance when he was working. On one occasion it was €50. The respondent decided he would speak to the staff individually as an incident had occurred regarding the electronic payment machine. The cash paid by customers and the information on the machine did not tally.
On the 28th of February 2015 the respondent decided he would meet A first as the claimant was still working his shift. On speaking to A she admitted to some wrongdoings and also implicated the claimant.
The claimant arrived to the meeting alone. The respondent told the Tribunal that he never accused the claimant of stealing but told him there was a discrepancy and he did mention CCTV. The respondent agreed that he had mentioned that he might have to speak to the Guards and a solicitor. He had a document regarding stock figures that he wished to discuss with the claimant but the claimant would not look at it and threw the keys on the desk, left the office and never returned to work again.
The respondent told the Tribunal that he his “head was all over the place” , was not sure what to do but decided that he would keep the petrol station closed the following day to decide what he would do next. He had informed the fuel supplier that the petrol station was closed on Sunday. The petrol station reopened on the Monday. When the claimant did not turn up for his shift the respondent covered the hours himself.
Under cross-examination the respondent stated that he had made no notes of the one to one meetings he held with the claimant or A on the 28th of February 2015. He refuted that he had been angry with the claimant at the meeting, that he accused the claimant of stealing money or that he had told the claimant to come back to him by midnight with an explanation. However, he did ask the claimant if had he taken cigarettes.
The Tribunal has carefully considered the sworn evidence and submissions made in this case.
There is no written contract of employment. There is no grievance procedure or disciplinary policy. The allegations made against the claimant were non-specific and vague.
The claimant was called to a meeting on the 28th of February 2015 with no prior knowledge of its content nor was he offered the option of being represented. No minutes of this important meeting were taken by the respondent. However the notes made by the claimant were agreed, for the most part, by the respondent when read into the record at this hearing.
The Tribunal find the claimant was unfairly dismissed in this case and award him the sum of €9,000 (nine thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal