EMPLOYMENT APPEALS TRIBUNAL
Tesco Ireland Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr B. Kealy
Mr F. Barry
heard this claim at Dublin on 16th February 2016, 28th April 2016,1st September 2016 and 2nd September 2016
Claimant: Ms Cathy McGrady B.L. instructed by Mr Stephen Mulvey, John L. Mulvey & Co., Solicitors, Main Street, Tallaght, Dublin 24
Respondent: Mr Seamus Clarke B.L. instructed by Mr John Kealy, Solicitor, Tesco Ireland Limited, Gresham House, Marine Road, Dun Laoghaire, Co. Dublin
The respondent is a large supermarket chain. The claimant worked as the Security Manager in one of the respondent’s stores. The claimant was in charge of two security officers and was responsible for protecting all of the respondent’s assets from both customers and staff. The claimant was dismissed on the 22nd of April 2014 for breaching the respondent’s staff purchase and honesty policy.
The Tribunal heard evidence from MK who is a security officer in the respondent. The claimant was his manager. He explained that the security office was strictly for security officers and they were the only ones who had keys to the security office. He had an interest in purchasing a particular V-Tech toy, as did the Claimant. They agreed to each leave the toys in the office so they could purchase them in the future; this was on the 7th April. MK was off work on the 8th of April and he returned on 09th April. There was only one VTech toy in the office. He was not sure if the claimant had taken his toy so he texted him. There was no reply to his text so some hours later he started to look through the CCTV footage. MK saw that the claimant removed the toy from the store but had not paid for the item. He discussed the matter with the personnel manager (OD). He was asked to review all footage and he was asked to give a statement. On the morning of 10th April MK manually changed the fire door CCTV angle so he could observe the claimant coming into work. He saw the claimant enter through the fire exit door with a big box, which he left behind the customer service desk. He then went back out through the same fire exit and came back in with a smaller box with which he went to the security office. He was making no attempt to conceal either box. When the claimant got to the security office he was surprised to see MK there, as he wasn’t due to start his shift until later. The claimant asked him what he was doing; he told the claimant that he was just doing some jobs. The witness explained that he left the office to speak with OD. When he returned to the office the claimant asked him why he had been looking at CCTV footage of him.
The Personnel Manager (OD) in the claimant’s store carried out the investigation that ultimately led to the claimant’s dismissal. MK informed OD that he thought a VTech toy had been taken by the claimant on the 8th of April. The claimant was not in work on the 9th of April so OD instructed MK to come into work early on the 10th of April and watch the claimant on CCTV when he arrived to start his shift at 8am. OD met the claimant to an investigation and he admitted that he brought the toy home without paying for it in order to see if it was suitable for his child. He was thereupon suspended pending a full investigation. He was invited to an investigation meeting on the 12th of April by letter of the 10th of April.
At that meeting, the claimant declined the opportunity to watch the CCTV footage. He accepted that he had left the store without having paid for the toy. He said that he had taken it home for safekeeping as something that he had previously set aside had been taken by someone else.
A second investigation meeting took place on the 15th of April. In the course of that meeting the claimant accepted that what he had done was wrong but that it was nothing more than a mistake and that the purpose had never been financial gain. The claimant said he was aware of the respondent policies in place but maintained that other senior managers had also left the store with items without paying (when the claimant provided the names of the managers, this accusation was investigated separately.) The claimant said that the confidentiality of the process had been breached as an employee in another store had called the claimant being aware that he had been suspended; this accusation was also investigated. In the course of the investigation, the claimant objected to the use of a text message sent by him to MK in which they discussed the toy. OD agreed that it would not be used in the investigation.
An investigation outcome meeting was then held on the 17th of April at which the claimant was informed that the matter would progress to a disciplinary hearing.
The incidents the claimant referred to as senior managers leaving the store without paying was not comparable to the claimant’s situation. In those cases for whatever reason staff could not pay for petrol already put into their car. There is a book where they write all the details of the purchase and return to pay for the petrol as soon as possible. This policy is applicable to both staff and customers. There is no ‘IOU’ policy.
At the first meeting the claimant had (B) as a staff representative. After that he had (C) the store shop steward as his representative, although he is not a member of a union. OD does not recall telling the claimant that he was not permitted to have B as a representative.
OD considered both explanations the claimant provided as to why he removed the toy without paying for it, the CCTV, the text message and the witness statements before coming to her decision. OD did not give any weight to the fact the claimant returned with the toy, as she believes the text message may have prompted him to do so. The outcome of the investigation was that the claimant’s actions were in breach of the respondent’s Honesty Policy and Staff Purchase policy and warranted being forwarded to a disciplinary hearing.
The Store Manager (RD) carried out the disciplinary hearing. By letter of the 17th of April the claimant was invited to the disciplinary hearing to take place on the 19th of April. This letter enclosed all of the relevant policies and procedures. RD read the investigation outcome letter to the claimant and asked him if he wished to add anything to it. The claimant wanted to make it clear that he did not take the toy for financial gain but for safe keeping following a previous incident. He also stated that he was unaware that breaching the Staff Purchase or Honesty policy could lead to his dismissal. The claimant did not renew his allegations against other senior managers or object to his representative. As the security manager, the claimant should have raised any issues he had with staff removing items at the time it happened. RD does not believe the claimant’s explanations are valid for removing the toy without paying for it.
On Tuesday the 8th of April (the day the claimant removed the toy) RD and the claimant held a 2-hour meeting with the management team concerning security and the security policy in the store. The claimant was in charge of all security in the store so ‘led the efforts’. He was fully aware of what was the correct entry and exit points of the store i.e. not through a fire exit. The safest place in the store for the toy was the security office and that is where the claimant removed the toy from. It is not acceptable to remove any item to test it without paying for it. The claimant’s reply to MK’s text message suggests that the toy was hidden in the store when in fact he had removed it. He accepted that he had seen the portion of OD’s notes where she had agreed not to use the text message. He said that he did read it but that it was not a factor in his decision. The child’s bike that the claimant brought back the same day had been paid for and was being returned. The witness had no difficulty with that. There was, however, no policy that allowed products to be brought home without payment to see if it suits. He accepted that a manager would have authority to allow staff take things home but said that a manager could not authorise himself to do so. While the claimant was the most senior member of staff present on the night in question, as he left the store he handed-over to a night manager and did not discuss what he was doing with that manager.
RD considered all available sanctions before deciding to dismiss the claimant. The position the claimant held as security manager and the severity of the offence meant no lesser sanction was appropriate. His actions meant all trust in him was gone.
The claimant has not been replaced as the respondent re-structured to have 3 security officers without a security manager.
The appeal officer (CH) gave evidence. CH was a store manager in another respondent retail outlet. The appeal was delayed but CH is not aware of what caused the delay. CH had the claimant’s appeal letter dated the 12th of May 2014, which outlined ten grounds of appeal. He had his first meeting with the claimant on the 21st of November 2014. The claimant was offered the opportunity to have a representative present. He accepts that the claimant was denied legal representation but said that no dissatisfaction with the representation that the claimant actually had was expressed to him.
At this meeting he asked the claimant to tell him what happened. The claimant said there was no possible way of paying for the toy at 10.10pm, the time he was leaving and that he paid for it at the next available opportunity. The claimant said that his witness was denied to him but he hadn’t previously raised it as an issue. CH investigated all ten grounds of appeal. He first met with OD and asked her about the procedures used and the investigation into the accusation that other managers removed items from the store without paying. CH was happy with the procedures used and satisfied that not paying for petrol is not comparable to what the claimant did. CH then met with RD and spoke to him about his reasoning for the sanction and consideration of a lesser sanction. He said that he did not believe that RD’s decision was affected by the text message. CH watched the CCTV and reviewed all the personnel files of the named people including the claimant’s. CH has overturned decisions to dismiss on appeal but in this instance thought the decision was fair. For the claimant’s role of security manager the bond of trust was gone. It was not the normal culture for people to remove items without paying for them and the claimant himself never did it before. The circumstances of the similar offences the claimant raised were not comparable. The delay in issuing the appeal outcome letter until the 27th of January 2015 was due to the depth of investigation necessary and the busy Christmas period.
CH was not aware of the correspondence between the claimant, his representative and the respondent between May and November 2014. CH accepts that from the correspondence it appears the respondent refused to engage with the claimant’s legal representative. Although CH lived quite close to the claimant he had no prior knowledge of him.
No evidence was provided to Tribunal regarding the delay in proceedings or the reasoning behind the correspondence concerning the delay.
The Tribunal heard evidence from a witness (DK) for the claimant. He commenced employment with the respondent in 2008 and worked there until 2013 when he took redundancy. He worked with the previous witness (MK) from 2009 to 2013. He also worked with the claimant who was his manager. He had over a period of time noticed that MK had been following the claimant’s movements on CCTV and, for example, monitoring how many smoke breaks were taken by the claimant.
One Saturday morning MK phoned him and said, “I have got him.” He asked MK whom he meant and MK told him that he had caught the claimant stealing. MK also said that the claimant was going to be sacked and when he left the store he would be arrested for stealing.
No one spoke to him about the phone call. He was not asked to be part of an investigation.
The witness explained that the culture in the store was that you could leave items in the security room that you wished to purchase them at a later time. Sometimes goods could be there for up to a week. He also explained an example that if you forgot your wallet and wanted to purchase an item you were given seven days in which to pay for the item. However, he said in cross-examination that he was not aware of instances where products were taken home without payment and that he thinks that the claimant was wrong to have so.
The claimant told the Tribunal that on the 8th of April 2014 he had commenced work at midday as the security manager and became the duty manager at 6pm, his shift ended at 10pm. MK had put the 2 VTech toys in the security office the previous week and had asked the claimant if he wanted one for his child as they would be reduced, the claimant accepted. The claimant is aware that putting anything on hold is against the respondent’s policy and had previously reported a staff member for doing the same thing. It is the culture within the store to put things on hold even though it’s against policy.
When the claimant was leaving work that evening he decided to bring the toy home with him to check its suitability and for safekeeping. The claimant had previously put something by to purchase and a manager had allowed another staff member to purchase it. The claimant had purchased other items that evening but didn’t have enough money on him to pay for the toy and he had forgotten his credit card. He always intended on paying for the toy. He left the store with the toy in his hand and made no effort to conceal it.
The following day the claimant received a text from MK asking where one of the toys had gone. The claimant replied that ‘it was hid’. The claimant did not view this text as a tip-off and as it was a personal message OD agreed not to use it as part of the disciplinary process so it was not discussed further. It was not referred to in any subsequent meetings.
On the 10th of April the claimant returned to work and brought with him an item he had intended exchanging. As he was doing his perimeter security walk he remembered the VTech toy was still in the car which was parked close to the fire exit so he went out and got it. This door is used by night staff to gain access to the store and had not been resealed or alarmed yet. The claimant was unaware that MK was following his movements on CCTV. When the claimant returned to the security office he knew something was wrong as MK was there and wasn’t due to be in until 12pm. The claimant discovered he’d been followed on CCTV and when he asked MK why, he was directed to go to OD.
The claimant was offered a representative for this meeting and asked B to do it as she had successfully been through a disciplinary process before. The claimant admitted leaving the store with the toy as he had no means of paying for it and wanted to check its suitability. At the end of that meeting the claimant asked could he make the exchange he had intended doing and OD gave permission to his representative B to do the transaction. The claimant did not tell OD that it was the toy he was doing the exchange for. B processed the transaction exchanging the bike for the VTech toy. OD later informed the claimant that B could no longer be his representative as she was now part of the disciplinary process as she had done the exchange transaction. The claimant had no problem with C as his representative as she was the shop steward for the store.
At the 12th of April meeting the claimant declined to view the CCTV as he was aware of what was on it. The claimant had been entrusted with large sums of money in the past so presumed he’d be trusted to leave the store with a toy. The claimant received 2 phone calls from people saying they heard he had been suspended for theft. The claimant felt the outcome had already been decided as “word had spread before I even got home.”
The claimant was informed at the meeting on the 15th of April that the 2 phone calls were being investigated separately. The claimant knew that his actions in bringing the toy home were wrong and he just wanted to put it right. It was an error of judgement and there was no financial gain for claimant. The investigation outcome letter was read out to the claimant at the meeting of the 17th of April. At this meeting the claimant also put forward names of people who had committed similar offences.
The claimant attended the disciplinary meeting with RD and got the dismissal letter on the 28th of April 2014. It stated that he was being dismissed for breaching the Staff Purchase Policy and the Honesty Policy. The claimant had launched a security ‘lockdown’ policy with RD the week the incident occurred.
On the 1st of May 2014 the claimant wrote to the respondent notifying them of his intention to appeal the decision to dismiss him; there was no response. The claimant wrote again on the 12th of May 2014 expressing his wish to appeal the decision and outlined his ten grounds of appeal; there was no response. On the 27th of May 2014 the claimant wrote to the respondent with his intention to appeal the decision but again there was no response. The whole process had a devastating impact on the claimant and the lack of response from the respondent compounded this. The claimant engaged a legal representative to communicate with the respondent on his behalf. His legal representative wrote to the respondent on the 6th June but they replied directly to the claimant as they refused to engage with his representative. At this point the claimant had suffered a heart attack and was not capable of engaging directly with the respondent. The claimant wanted the appeal to go ahead in his absence, which is an option under the respondent’s policy. He instructed them to do this. The respondent informed him they would go ahead with the appeal in his absence but they failed to do this.
Eventually an appeal officer was appointed and the claimant met with him on the 21st November 2014. The respondent refused to allow the claimant his legal representative, the claimant was not part of a union and he no longer had work colleagues so he had no option but to attend the appeal meeting alone. The claimant gave CH a full description of the incident and the process and read him his ten grounds of appeal. CH told the claimant he would revert to him by the end of the week. The claimant was not given any of the notes of the meetings with OD or RD; if he had known what their issues were he could have dealt with them.
In December CH told the claimant there was a delay in issuing his decision but the claimant did not hear from him again until he phoned him on the 8th of January 2015. CH told the claimant that there was a lot involved and he wasn’t finished yet but it would be soon. The claimant lodged a claim with the Employment Appeals Tribunal on the 19th of January 2015 and only thereafter did he receive the appeal outcome letter on the 27th of January 2015.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
At the outset of the hearing a preliminary issue arose as to whether the claim had been lodged within time. In its T2 the respondent had stated that the date of dismissal was the 30th April 2014 and that the complaint form had only been submitted on the 19th January 2015. On that basis it was lodged outside the six months allowed but within the twelve months of the Tribunal’s discretion. The Tribunal heard evidence from the claimant’s doctor of the impact that certain medical difficulties had on his ability to deal with his case. However, for reasons set out below, the Tribunal does see his medical difficulties as relevant to the resolution of this preliminary issue. The claimant appealed the decision to dismiss him. For various reasons, that appeal process was not completed until 27th January 2015. The outcome of the appeal process was that his dismissal was confirmed. It has previously been held by the Tribunal in Fitzgerald v. Chief State Solicitor UD529/2013 that time, for the purposes of s.8(2) of the Unfair Dismissals Act, 1977, starts to run when the disciplinary process has been exhausted. That is, in this case, the completion of the appeal process on the 27th January. That means, of course, that the claim form was submitted before the time for submitting claims started to run. However, as was made clear by the High Court in Brady v. Employment Appeals Tribunal  IEHC 1, time limits are to thwart the tardy not punish the prompt. In that case the High Court made clear that the Tribunal had notice of the intended claim throughout the entire duration of the period prescribed by s.8(2) by virtue of having received the notice in advance. Therefore, the claim had been submitted in timely accordance with the legislation. The same applies to the instant case. The High Court did observe in Brady that there would be some boundary in time where an ostensibly premature notice will be found not to have been lodged within the legislative time constraints. This is not such a case. The Tribunal is satisfied that it has the jurisdiction to hear this claim.
The Tribunal is satisfied that the claimant removed an item of stock from the respondent’s premises without authorisation and without having paid for it. The Tribunal is also satisfied that he brought it back to the premises on the next day that he was working. In taking it from the premises and in bringing it back, he did not attempt to conceal it. What he did was against company policy. It is important to note that a central part of the claimant’s role in his employment with the respondent was to police this policy. It is wrong, unless authorised, for employees to remove stock from the shelves and to hold it for later purchase after there has been a price reduction, as appears to have been the intention here. However, it does appear to have been a reasonably widespread practice in this particular store at least. The Tribunal is satisfied that the then new manager, RD, was trying to counter the practice and the claimant said that he was assisting in trying to break the culture. If that is so, it is somewhat perplexing that he would then continue to take part in it. However, the Tribunal is also satisfied that there was no practice or culture of taking goods home without payment for the purpose of seeing if they suited. Indeed, it is noteworthy in this regard that the claimant, on the same day, was returning a child’s bike that he did not want. He had previously paid for this bike, though, before taking it home and was bring it back to get a refund. The Tribunal also notes that the claimant accepts that what he did was wrong.
It is possible that, had this been a decision for the Tribunal to make in the first instance, we would not have decided to dismiss the claimant. The claimant had a good record. There was no loss to the respondent. He had not made any attempt to hide the toy either when he left the store with it or when he took it back. Nor was he alone in doing what he did as regards putting the toy aside. The Tribunal might have regarded as reasonable his explanation that he had taken it home only for safekeeping after a previous item put aside had been taken by someone else. However, the test that the Tribunal must apply is not whether it would have made the same decision. It has been long held that the Tribunal must decide whether the decision on the sanction to be imposed was one that a reasonable employer might have made in the circumstances. Given the claimant’s level of seniority; given his role as security manager and the trust that that entails; and given that there was no culture of bringing unpaid-for goods home, the Tribunal is satisfied that the decision to dismiss was a reasonable one. The claimant made the point in cross-examination that he had previously been allowed to leave the premises with large amounts of cash for the purpose of getting change and so did not see why it was a problem to leave with a toy where there was no intention of financial gain. However, it seems to the Tribunal that this is exactly why the issue of trust was so important to the respondent.
However, this is not the only issue for the Tribunal to decide. It is not enough that a dismissal takes place for reasonable grounds. The procedure used to achieve that end must also be fair.
In this case it was agreed during the investigation stage that a text message sent by the claimant to MK would not be used in the respondent’s deliberations. The message had intimated that the toy was still on the respondent’s premises when it was not. The Tribunal is satisfied that it was used both by OD and RD. RD accepted that he had some regard to it and it is clear from the record of OD’s meeting with CH during the appeal process that she did too. It appears to have been taken as an inconsistency with his later explanation. While this issue was not addressed before the Tribunal, we are doubtful whether there was any basis on which the text message should not have been used by the respondent. However, once it was agreed by the respondent not to use it, regard should not have been had to it.
In the course of the appeal procedure, CH held meetings with OD and RD but did not thereafter engage with the claimant.
After his dismissal the claimant wrote three times to the respondent about initiating an appeal. He received no response. It was only after he had suffered a heart attack and his solicitor wrote to the respondent did he receive a reply. In the circumstances, it might not have been unreasonable to expect a reply to the solicitor rather than to the claimant. The Tribunal is satisfied that the claimant was for some time thereafter not in a position to engage with the respondent. However, he did ask for his appeal to proceed without him. This option was available under the respondent’s procedure. It did not proceed in his absence. It was not until November that CH was appointed to deal with the appeal. No explanation was given for this delay. An unexplained seven-month delay in dealing with the claimant’s appeal was unacceptable. Particularly so in circumstances where he asked for it to proceed in his absence. From the evidence before the Tribunal, CH does not appear to be at fault. Nor does the Tribunal accept that the delay in him producing a report was so long as to be unfair, particularly when the time of year is considered.
It was submitted that some of the respondent’s witnesses spoke in terms of “theft” when this term was not used at any point in the investigative or disciplinary process. The Tribunal is satisfied that his conduct was discussed in terms of leaving the store without paying for an item and that at all times the claimant was clear what the disciplinary process related to.
The Tribunal is satisfied that there was significant procedural unfairness in the manner in which the decision to dismiss was made. Of particular significance in this regard is the long and unexplained delay in commencing the appeal and the use of the claimant’s text message when it had been agreed not to use it. The onus lies on the respondent to explain the delay. It is entirely possible that, with sufficient reason, a seven-month delay might not be considered excessive. In the absence of explanation, that does not arise. The Tribunal is satisfied that these are not minor or incidental unfairnesses. As a result the Tribunal is satisfied that the claimant was unfairly dismissed.
Compensation was the preferred remedy of both parties and the Tribunal is satisfied that it is the appropriate one in the circumstances. However, in assessing the level of compensation to be paid, in addition to considering the losses sustained by the claimant, the Tribunal will also consider the extent to which the financial loss was attributable to the claimant’s conduct. In this case the Tribunal is satisfied that the major contribution to the claimant’s loss was his own conduct. In circumstances where his total loss arising from an unfair dismissal would have amounted to approximately €65,000, the Tribunal is satisfied that compensation in the amount of €18,000 is just and equitable in the circumstances.
Accordingly, the Tribunal finds that the claimant was unfairly dismissed and, pursuant to the provisions of the Unfair Dismissals Acts, 1977 to 2007 awards him €18,000 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal