EMPLOYMENT APPEALS TRIBUNAL
Iscourt Limited T/A Happy Days Discount Store
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Daly B.L.
Members: Mr. D. Peakin
Ms R. Kerrigan
heard this claim at Letterkenny on 20th July 2016 and 27th September 2016
Claimant: Ms Catherine Boner solicitor, Sinead Bradley Solicitors, Unit C1 Cedarwood House, Kilmacrennan Road, Letterkenny, Co Donegal
Respondent: Mr. Gareth McGrory BL instructed by McGinley & Company Solicitors, Main Street, Milford, Co. Donegal
The respondent is a retail outlet based in the Glenties area, the head office is in Milford, the claimant worked in Glenties. The claimant commenced on 10th October 2010 and finished / gave notice on 21st May 2015. Dismissal is in dispute in this case. The Tribunal heard evidence from the claimant first.
The Tribunal heard evidence from the claimant. He commenced on 10th October 2010 and within a year he was given the option to manage the store. He managed the store for four years. On 20th May 2015 the owner / RM told him that he was incapable of doing the job that he was doing and that he wanted him to resign from the job. RM told him that he was suspended and took away the shop keys.
The claimant explained that he had never had difficulties in work, he had no warnings. He had a good relationship with RM.
It was put to the claimant if RM had mentioned an investigation and the claimant denied this. He was asked if RM said he was suspended with pay and he replied that he did not, that he just requested the keys; he was asked to leave the premises and hand over the keys and this was at around 4.00p.m. He had phoned RM and arranged to meet him. He asked RM what he wanted and RM handed him a piece of paper and told him that this is what he wanted.
The claimant explained the he was in shock. RM explained to him exactly what he needed. He wrote/ signed a letter of resignation. He knew that his job was gone. He had been told prior to this by RM that regardless of what happened that his job was gone.
In clarification to the Tribunal the claimant denied that there was mention of breaches of company policy. He had not looked for an explanation. He was not told why he was let go
A letter of 27th May 2015 was opened to the Tribunal. The claimant maintained that the issue of a shortfall was never addressed.
The claimant explained that RM contacted him by e-mail to arrange a meeting. On 06th June 2015, he and his wife met with RM and another person (MJ). Notes taken by the claimant’s wife were opened to the Tribunal. At the meeting he asked RM when the cash had been reported missing and RM said “the girls in the office”. He asked RM again when the cash had been reported missing and he did not get an answer. He asked RM why he was not told about this until now and the answer he got was that he was told by “the girls in the office”.
Evidence was adduced regarding the meeting and concerning monies and CCTV.
The Tribunal asked the claimant for some clarification as to whether the issue of resignation was mentioned and the claimant confirmed that it had not been mentioned.
A typed version of the notes of the meeting of 6th June 2015 was opened to the Tribunal.
The claimant was asked about the previous meeting. The claimant gave evidence as to his loss and mitigating his loss.
The respondent representative from the outset stated that the respondent does not accept the claimant’s evidence. Much examination was given to monies, sheets regarding monies and procedures etc. that RM asked him about zero cash lodgements, the float/s and cash drops being done by staff, the claimant denied that any of that was explained to him.
The respondent rep put it to the claimant that the claimant’s version of the matter “doesn’t add up it is untruthful”, i.e. why would he not ask why he was being suspended or not ask why he was asked to resign and the claimant replied “every bit of evidence I gave is the truth”. It was put to the claimant that RM will say that every bit of evidence that he will give is the truth.
RM, Managing Director of the respondent company, gave evidence of how he first offered the claimant a position in the Millford shop where he was trained by MJ. Approximately 18 months later the claimant moved to manage the Glenties shop where he performed well. RM felt that when a competitor opened a shop in the area it derailed the claimant and standards began to slip. There was an issue with a stocktake that didn’t balance but later when the claimant found a missing sheet the issue was resolved. The respondent began noticing other issues like employees smoking at the front door, using their mobile phones during working hours, out of date stock on the shelves and papers left around the till. On the 09th September 2014 RM wrote to the claimant regarding these issues. Things began to improve thereafter. RM explained to the Tribunal the intricacies of the Pod system the company used to operate the till floats. It was a system that meant that the balance in the last pod of the day was not counted by the cashier on the day but instead by the first person to use it the following day.
The girls in the office began noticing “zero cash lodgements” which effectively meant there were no cents in any of the lodgements. The Glenties shop was the only shop where this was happening. RM felt that there was a “number of irregularities of strict company procedures” regarding the handling of cash. On 20th May RM held a meeting with the claimant which resulted in the claimant being suspended on full pay pending an investigation. RM said he’d meet the claimant again when the latter was ‘ready for input’. He brought MJ to help with the investigation.
The next day the claimant requested a meeting with RM where he asked for a letter from RM for Social Welfare purposes. RM informed the claimant that he still worked for the company but the claimant responded that he was going to give RM what he wanted and proceeded to write a letter of resignation. The claimant then enquired about money owed to him for hours worked and holiday pay. RM said that the ongoing investigation had uncovered shortfalls in three floats in the Glenties shop and asked the claimant did he have an explanation for this. The claimant said he didn’t but wanted to leave on good terms so offered to deduct the shortfall from money he was owed. In June 2013 RM had a final meeting with the claimant, the claimant’s wife and MJ. Again RM asked the claimant about the shortfall but did not make any accusations. He also informed the claimant that all staff had been interviewed regards the matter.
In cross examination RM explained all managers were brought to monthly meetings and informed of any changes to procedures including the introduction of the pod system and that the claimant was well aware of how it was to be operated. He denied forcing the claimant to resign and was adamant it was the claimant who done so of his own volition.
MJ, head office manager for respondent company for two years gave evidence of training the claimant. He also took minutes of the monthly mangers meetings. At a stocktake in March 2015 in the Glenties shop he had observed staff counting their last pod, which was not in line with the company procedures. He informed the claimant of the proper procedures and the claimant said he’d address it after stocktake was finished.
On 20th May MJ was asked by RM to come to the Glenties shop to help with the investigation. His main role was to examine the CCTV footage. He concluded that the claimant was not counting the money in the floats .When MJ counted the tills himself he noticed there was shortfalls in three of the floats and reported it to RM. He took the minutes of the final meeting on 03rd June 2015.
Dissenting opinion of Rosabel Kerrigan
In light of a conflict of evidence between the parties I prefer evidence tendered by the claimant and because no fair and proper procedures were followed I find that an unfair dismissal took place.
The Tribunal finds, by majority decision, that the evidence tendered by the respondent is more credible than that of the claimant. The Tribunal is satisfied that the claimant voluntarily resigned his post on the 21st May 2015 and that no dismissal occurred. Therefore the claim under The Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal