EMPLOYMENT APPEALS TRIBUNAL
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. N. O'Carroll-Kelly BL
Members: Mr F. Moloney
Mr P. Trehy
heard this claim in Dublin on 15 July 2016
Marcin Szulc, Rostra, Solicitors, 78 Benburb Street, Smithfield, Dublin 7
Mr. Marcus Dowling BL instructed by Byrne Wallace, Solicitors, 88 Harcourt Street Dublin 2
The determination of the Tribunal was as follows:-
The claimant is alleging he was unfairly dismissed from his employment with the respondent. He was employed as a sale assistant in the Beacon Court store from September 2012 to May, 2015.
The Respondent had very specific policies in place in relation to ‘waste and reduce to clear’ items. The policy stated:
“A complete date check must happen in fresh food each day before 10am, this date check must be completed by trained staff who are clear on waste & reduced to clear procedures. The date check must be signed off by a store manager daily”
Where applicable goods are reduced by 50% in the morning and later in the day are further reduced. There is a device that is used to scan the items, make the reductions, print out the labels. Food that is within date but is damaged or is of poor quality can also be reduced but that is at the discretion of the manager. Items that have been reduced to clear are moved to a different section.
The two items, the subject matter of this claim, specifically raspberries and oranges, were not due to be reduced until the next day. It is alleged that the claimant reduced two items, within date and undamaged, without authorisation so that his friend/ colleague could purchase them at a reduced price. CCTV of the claimant at the material time was shown to the tribunal. The claimant stated that he didn’t know who signed off the goods on his trolley. They were just there when he came in and he took them to the designated area to stack them. The CCTV showed a gentleman come over in the direction of the trolley but when he saw a respondent manager he turned the other way. Shortly after that he returned, lifted up the top tray and took the items from the tray below. He went to the check out, paid for them and then had his receipt signed by the security officer. Only those working in the store must have their receipts signed. The individual in question was a merchandiser who was in the store regularly and was the same nationality as the claimant.
G.E the Deli Manager observed what was happening and immediately reported it to management.
E.O’ D the fruit and vegetable manager reviewed the CCTV footage at the security desk some moments after the event. He then went to talk to the merchandiser. His version of what happened was different from the CCTV footage.
The following day, 16th May, 2015,the claimant was called into a meeting with MG and CH. During that meeting he stated: “I reduced the raspberries because some of them had gone bad and placed them into the rtc section. P asked me to keep them for him so I placed them in a crate, we would do that sometimes for customers”
On the 19th May 2015 the claimant had another meeting. MG, AMG and MW were present. On that occasion when the claimant was asked had he breached the policy in relation to reducing items he simply nodded.
In the meeting of the 21st May when the claimant was reminded that he had admitted on three occasions in the last meeting to breaching the policy he said: “I am confused by all the amendments that you have made to the policies since you came here.” It transpires that no amendments have been made to the waste policy during the claimant’s employment.
Twenty minutes later the claimant was called into a disciplinary meeting. At the end of that meeting his contract of employment was terminated.
By letter dated the 22nd May, 2015 the claimant was formally dismissed. He was given right of appeal. On the 26th May, 2015 the claimant appealed the decision. On the 29th May, 2015 the appeal was heard and on the 6th June the appeal was refused.
During the course of the claimant’s evidence he gave several different versions of the incident all of which differed from the original version. It is for that reason that the Tribunal finds that the claimant was not a credible witness. On the balance of probabilities we find that he did conspire with the merchandiser, did reduce the items in breach of policy and did place them in a prearranged area for the merchandiser to collect. His behaviour only served to breach the trust and confidence that must exist between employer and employee. In those circumstances the respondent had no option but to dismiss him.
In all the circumstances of this case we find that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal