EMPLOYMENT APPEALS TRIBUNAL
Ann Dwyer - Claimant
Tesco Ireland Limited - Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan BL
Members: Mr. M. Noone
Ms. S. Kelly
heard this claim at Wexford on 8th April, 27 and 28th May 2015
and 28th, 29th and 30th September 2015
and 1st and 2nd October 2015
Claimant: Ms. Niamh McGowan BL instructed by: O’Doherty Warren & Associates, Charlotte Row, Gorey, Co, Wexford
Respondent: Eamonn McCoy, IBEC, Confederation House, 84/86, Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The claimant (AD) and three of her colleagues (LK, EL, EH) were employed in the public café run by the respondent in its original premises in a town in Co. Wexford.
The claimant was employed from the 27th September 1999 until her dismissal for gross misconduct on the grounds of breaching the respondent’s policies on honesty and staff purchases on the 19th August 2013.
The respondent has since opened a larger store on the other side of the town. The respondent does not operate the new café which is located within the new store but which is operated by an independent coffee company. The original store had a staff canteen onsite that was subsidised by the respondent company. Any food consumed in the public café was charged at full price to staff members.
Of the five employees that worked in the original café four were dismissed from their employment. The fifth employee remains working in the new store.
In November 2012 all staff were required to sign off on a number of company policies.
On the 18th May 2013 a Security Guard (SG) observed on CCTV one of the café staff (EH) handing a magazine, a bun and a drink to a child who was accompanied by a male. These items did not appear to be paid for. SG reported this observation to the Store Manager (BK) who in turn asked SG to monitor EH. When carrying out this monitoring SG observed EH and three of her colleagues – the claimant, EL and LK serving themselves food in the café, consuming it but not appearing to pay for it. He reported these incidents to BK who viewed the footage in question. An investigation was undertaken in each case by BK. CCTV was viewed, receipts were married up with the purchases on the CCTV and statements were taken from various members of staff. BK met each of the four staff members – the claimant, EH, EL, and LK, separately and on a number of occasions. All four employees were placed on paid suspension pending further investigations. The claimant had her investigatory meeting on the 20th June 2013 following which BK concluded that there had been a breach of the company purchase and honesty policies and that he had no option but to put the matter forward for a disciplinary hearing.
A Manager from an alternative store (MMcM) was appointed to meet each of the four staff members individually and he did so on a number of occasions. Having considered the matters independently the claimant was dismissed and given the right to appeal the decisions. M McM made the decision to dismiss the claimant. The letter of dismissal stated:
“Your dismissal is on the grounds of serious misconduct under the following headings:
Theft or fraud or attempted theft or fraud if proven to the Company’s satisfaction. This applies equally to the property of the Company, suppliers, staff members, customers and the social committee/fund.
Staff Purchase Policy which states ”all purchases must be produced and paid for at the time of purchasing. No credit or IOU’s are permitted” “these purchases are liable for checking by Security at any time.” If this policy is breached in any way it will be deemed as serious misconduct and may be subject to the disciplinary process up to and including dismissal.
Furthermore, the bond of trust that needs to exist between employer and employee has been broken.”
The claimant appealed the decision stating numerous grounds of appeal. The appeal hearing was held on the 3rd September 2013 and heard by a Store Manager from a different store (PS). Following the appeal hearing none of grounds of appeal were upheld and the decision to dismiss the claimant was upheld.
BK, MMcM and PS all stated that they had forwarded their notes and decisions on each matter to the Human Resources Department and that HR in turn issued the outcome of each, investigation hearing, disciplinary hearing, and appeal hearing, to the claimant.
BK gave evidence that SG, the Security Guard, had made him aware of an incident regarding EH, a colleague of claimant, and having viewed the CCTV footage he asked SG to monitor the café. Some incidents were then observed involving the claimant and which he was informed of. Having viewed the CCTV footage in question BK decided he must discuss the matter with the claimant.
On the 1st June 2013 the claimant was approached and requested to attend a meeting with him and she was offered the right to bring a representative with her. A list of allegations was put to the claimant.
The list of allegations was read into the Tribunal record:
“ 22/05/13 – Approx. 09.55 – Goes to breakfast with (EL) gets 2 waffles, 2 toast, rasher, egg and tomato. No payment made at till.
23/05/13 – Approx. 08.40 – (staff named) gets Lucozade from shelf for transfers, leaves it beside mirror at service area, (staff named) picks it up gives it to (AD). Shortly afterwards seen drinking Lucozade out of a glass. No payment at till, empty bottle found in bin.
23/05/13 – Approx. 15.20 – (staff named) leaves left over scrambled egg, seen bringing eggs into the back area with a drink.
28/05/13 – Approx. 09.35 – Gets a hash brown, sausage and water and consumes them at the back of the service area.
28/05/13 – Approx. 09.35 – Gets another hash brown and eats it.
28/05/13 – Approx. 10.05 – makes a cup of tea / coffee goes out and grabs a paper. Walks into the back area and then gets a small bun and leaves 30 cent on the till, no transaction was put through.
28/05/13 – Approx. 13.20 – Takes a sausage and eats it.”
In total BK met with the claimant on four occasions. The claimant told him that all items had been paid for. Following the meetings and having considered all answers given by the claimant he upheld all the allegations and forwarded the matter to the disciplinary stage.
In cross-examination BK stated the claimant’s union representative had contacted him to inform him he was no longer representing her and her colleagues as they had sought legal advice. When put to him that waffles were not on sale in the café and therefore the claimant would never have been paying for them in the café BK said he did not know that and agreed there was no evidence the claimant had consumed the scrambled egg. BK told the Tribunal that he had never accused the claimant, or her colleagues, of theft. BK said he did not know that there were options other than proceeding to the disciplinary stage open to him under the respondent policy.
MMcM gave evidence. He stated he had viewed the CCTV in question and the evidence put before him by way of minutes and notes. He met with the claimant on three occasions. At all times the claimant said the items in question had been paid for but could not say when or by whom. MMcM told the Tribunal that he accepted BK’s investigation report and his conclusions and having reviewed all issues he upheld each allegation against the claimant and he made the decision to dismiss the claimant.
In cross-examination MMcM said he could find no evidence that the items in question had been paid for and found the claimant’s answers regarding payment very unsatisfactory.
PS gave evidence. He received the claimant’s letter of appeal citing fourteen grounds of appeal of the decision to dismiss her. The appeal hearing took place on the 3rd September 2013 and each issue in the letter of appeal was discussed. The claimant told PS that all items had been paid for but could not say when or by whom. There was no mention of the tip plate or the funds available in the potato oven to pay for food items consumed in the café. The claimant did ask to view the till transactions for the café but PS informed her that this was against data protection procedure. PS upheld all the allegations against the claimant and did not uphold any of the claimant’s grounds of appeal. The decision to dismiss the claimant was upheld.
In cross-examination PS said he had not read all the statements before the appeal hearing. He said that he knew the claimant well and had no prior issues with her. When put to him he agreed the issue of theft had not been mentioned until it was in the letter of dismissal.
The claimant gave evidence. She told the Tribunal she had no prior disciplinary issues with the respondent during her fifteen years’ employment and had hoped to “retire from there”. She said that when she was called to the initial meeting with BK she was aware what it could be about as her colleagues had already had their meetings with him.
In respect of the issue of the waffles, the claimant explained that she had purchased them earlier in the store and kept them in the café fridge for later consumption. In respect of the scrambled egg she said she had not consumed it but had taken it out back to dispose of it, it was unused product, and had informed BK of that fact at her meetings.
The claimant told the Tribunal that the respondent had no reason to believe she had breached their trust or any reason to doubt her replies to the allegations put to her. She explained it had been her idea to seek legal advice from a solicitor and because of that their union representative had stepped down. She was told that she could not have legal representation at either the disciplinary hearing or at the appeal hearing.
The claimant told the Tribunal if any member of staff or management had told her what she had been doing was wrong she would have ceased the practice, not one person had raised the issue in the eight years she had worked in the café. It had been common practice to eat now and pay later.
She gave evidence of the mitigation of her loss of earnings and the effect her dismissal had on her. She had to go home and tell her parents she had been dismissed for theft. She had secured another job with a local firm through a connection with her parents.
In cross-examination the claimant said she had received training while working for the respondent but none on the Staff Purchase and Company Honesty policies. She said that she felt the whole reason this dismissal had taken place was to get rid of her, and her colleagues.
Detailed legal submissions, supported by relevant authorities, were made by the representatives for both parties.
Having considered the evidence adduced at the hearing, the submissions and the authorities relied on the Tribunal finds as follows:-
1. That the claimant was investigated in respect of whether or not she had paid for food consumed by her in the public café.
2. That an allegation of theft or fraud was never put to the claimant at the investigation and accordingly she was dismissed for a charge that was never put to her.
3. That the investigation concluded that she had consumed food items but had not paid for them and had accordingly breached the honesty and staff purchase policy of the respondent company.
4. That the evidence of MMcM who carried out the disciplinary stage was that the claimant was dismissed because the food was not paid for at the time of purchase. Notwithstanding the letter of dismissal stated that the claimant had been dismissed for theft and fraud. Accordingly, the claimant was dismissed for misconduct not found against her.
5. That even if the claimant had been guilty of theft and fraud the investigation to determine same was inadequate because, inter alia:-
- the claimant was prejudiced by the delay in commencing the investigation;
- she was not given adequate notice of the investigation;
- insufficient CCTV footage was viewed and that viewed could only show that the food items were not paid for at the time of consumption or on the day of consumption and accordingly a conclusion was reached without any or any adequate evidence - (see Levi Curran v Tesco [UD560/2008];
- not only did the investigation make findings of fact that the matters alleged had happened but deemed that there was a breach of company policies (see Gallagher v Certus  IEHC 621);
- no or no adequate weight was given to the he claimant’s own oral testimony that she did pay for the food consumed but not at the time of purchase and which evidence the claimant gave to the Tribunal under oath;
- failed to test the evidence of the claimant by way of viewing CCTV footage for the following days and failed to ask the claimant’s colleagues had she paid them;
- failed to realise that the waffles or hash browns that the claimant had consumed were not sold in the café and accordingly she would not be paying for them in the café in any event;
- failed to take into account that the CCTV viewed did show the claimant paying for one item which supported her evidence that she always did pay for food consumed in the café.
6. That the conclusion reached at the disciplinary stage, that the food was not paid for at the time purchased, mutated into a breach of the respondent company theft and fraud policy and which mutation remained through to the end of the final appellate stage.
7. That there was conduct by the claimant such that required an explanation but the claimant did give an explanation being that she always paid even if not at time of consumption and that this practice of paying later was custom and practice. (See Martina Hestor v Dunnes Stores Ltd (No. 22/87, Appeal UF 38/87 M134 and  E.L.R.12).
8. That the value of the goods is not relevant (See, for example, Looney & Co.; Patience Ugwomaju; Valerie Byrne; Martina Hestor – noted above) and an employer is entitled to have a zero tolerance policy when it comes to theft or fraud.
9. That it would, however, be reasonable for the respondent to consider factors such as the claimant’s long service record, her exemplary record up to the incident complained of and the explanation for the impugned conduct that could not be discounted on the evidence.
10. That there was a practice of paying later in respect of food consumed in the café. Accordingly, there was implied authority granted to the claimant. The mere fact that all of the staff of the café engaged in such a practice, that PO’B did not dispute that it was practice and a manager confirmed its existence is sufficient evidence of the practice and if the store manager was not aware of the practice he ought to have been particularly taking into account the security arrangements in an undertaking such as the respondent. The Tribunal finds that this practice arose out of necessity in that the claimant could not have her purse with her whilst on duty in the café and the staff canteen and lockers were a distance away in the context of a 15 minute break.
11. That the practice could have been discontinued by simply informing the claimant that it was not an approved practice, that it was to cease forthwith and that continuance of it could led to dismissal. (See Coady & Power v Oxigen – UD1047/2013).
12. That the respondent Purchase Policy provides that purchases must be produced and paid for at the time of purchase and that no credit or IOUs are permitted. However, there is ambiguity as to whether food consumed in the public café or indeed in the staff canteen is purchases for the purposes of this policy in circumstances where the policy states that the goods “must then be placed into the employee’s locker or car” and which clearly could not apply to food to be consumed in the café. The policy also requires that “receipts for purchases bought within the store must be checked and the receipt signed by a member of security or management and attached to the purchases”. It appears that this procedure was not operated in respect of food consumed in the café which further indicates that consumption of food in the café was treated otherwise than according to the Purchase Policy.
13. That the respondent’s Honesty Policy and Purchase Policy are not sufficiently clear when it comes to the consumption of food and are overridden by the existence of the practice of paying later for food consumer.
14. That there is no evidence that the claimant breached the Honesty Policy. The evidence is that she didn’t pay at the time of purchase.
15. That the respondent is entitled to rely on its policy regarding its procedures. However, the investigator failed to realise that under the policy he had a discretion as to whether to put the matter to the next stage, being the disciplinary stage, or not and the evidence of MMcM was that he did not comply with the tick-box procedure at the disciplinary stage.
16. That the disciplinary stage and the appellate stage were unsatisfactory not least because the report of the investigator was accepted at face value and the failure to uphold certain grounds of appeal which clearly as a matter of fact should have been upheld and which failure is in the circumstances irrational.
17. That it is common practice for Unions to stand down once an employee engages legal representation and accordingly the respondent is not liable for any lack of Union representation for the claimant.
18. That it is part of the claimant’s contract that she may not have legal representation at the various disciplinary stages and the respondent is entitled to rely on this. However, if an employee requests to have legal representation particularly where the allegation relates to theft or fraud an employer should at least consider the request notwithstanding company policy. (See Alan Burns & John Hartigan v The Governor of Castlerea Prison  IEHC76. In the within case the presence of the claimant’s solicitor clearly may have been beneficial to both sides in that for example CCTV footage for a later period may have been advised and he may have ensured that the respondent procedures were followed.
19. That “suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question” and it “will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct” (see The Governor and Company of Bank of Ireland v James Reilly). That none of these justifications existed but rather the claimant was suspended because it was part of the policy of the respondent.
20. That if employer intends to use CCTV to identify disciplinary or other issue relating to staff in order to comply with the provisions of the Data Protection Act 1988 staff should be informed of this before the CCTV is used for such purposes
21. The fact that the dismissal of the claimant may make it easier for the respondent to close the café or transfer it to another undertaking does not necessarily prohibit the respondent from dismissing the claimant if she had engaged in conduct such that warranted a dismissal.
22. Taking into account the nature of the misconduct, paying later for food consumed, the justification for same and the claimant’s long and exemplary service record the sanction of dismissal was disproportionate.
Accordingly, the Tribunal finds that the claimant was unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €35,550.00.
Sealed with the Seal of the
Employment Appeals Tribunal