EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD584/2015
PW205/2015
APPEAL(S) OF:
Melinda Pungor – appellant
V
MBCC Foods (Ireland) Limited – respondent
against the recommendation of the Rights Commissioner in the case of:
Melinda Pungor
V
MBCC Foods (Ireland) Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr F. Moloney
Mr A. Butler
heard this appeal at Dublin on 27th May 2016
Representation:
_______________
Appellant(s): Mr Bryan O'Duffy, 16 Elm Hall, Loughlinstown Road, Celbridge, Co. Kildare
Respondent(s): Ms Nora Cashe, Peninsula Business Services, Unit 3 Ground Floor, Block S, East Point Business Park, Dublin 3
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref:r-147064-ud-14/JT) and a decision under the Payment of Wages Act 1991 (ref: r-149183, 149185-pw-14/JT).
The determination of the Tribunal was as follows:-
The appellant is a Hungarian national. A Tribunal appointed interpreter was present for the hearing. The appellant’s representative accepted that the appeal under the Payment of Wages Act 1991 was not served to the other side as set out in section 7(2)b of the Act. The respondent undertook to pay a stated amount of unpaid wages.
Summary of Respondent’s Evidence:
The respondent operates a chain of approximately 100 coffee shops. The brand also operates in the UK. A loyalty club card scheme was introduced whereby customers receive four points for every €1 spent with each point having a 1 cent value. Employees are not permitted to have a club card as they already receive a 50% discount on food and free coffee and tea.
A case in Northern Ireland arose where an employee was abusing the club card scheme which led the then Marketing Manager to carry out an audit of the club card scheme in all of the respondent’s stores. This led him to discover a number of unusual transactions which were all associated with the appellant’s employee swipe card (used when operating the till). She worked in a Dublin branch. The swipe card policy was detailed in the claimant’s contract and specified that each employee is responsible for their own swipe card and under no circumstances should they use another employee’s swipe card. €374.86 had been amassed on various cards and further transferred to different cards, €134.00 of which had been redeemed. The theft was reported to An Garda Síochána. No conviction has been made. Employees can manually transfer balances to different cards or add on points from receipts not previously used. He reported his findings to the Regional Manager who sent the Dublin Area Manager to investigate.
The Area Manager gave evidence that she brought a printout of some of the transactions to the store on 8th May 2014 and asked the claimant for a chat. She had a note-taker with her and the claimant later signed the minutes. She was only recently appointed to that area and so only knew the claimant in passing. The claimant was employed at the store since 2011. She told the claimant that she was carrying out a routine inspection and asked if she knew anything about the transactions. The claimant agreed that she did. She did not think she had done anything wrong. She had collected receipts from trays and added them to cards for a friend. The witness did not believe that there was any language barrier as the claimant did not say that she did not understand. She suspended the claimant as she had basically admitted to stealing. She contacted HR and requested that a letter to the claimant informing her of the suspension and setting a disciplinary hearing date. She had not offered the claimant the opportunity to bring someone with her to the meeting.
The Regional Manager gave evidence. He met the claimant at a Citywest store branch on 12th May 2014. The claimant had been offered to bring a colleague or trade union representative. She attended alone and confirmed that she was happy to proceed. At the outset she presented a letter of apology to the witness. He queried her about the misuse of club cards under her swipe card. She admitted collecting receipts from trays and predominantly spent the points on tins of coffee and food for a friend. He was concerned how she had moved the points from card to card which made it more difficult for the company to track and she did not have a good explanation for that. He considered it a deliberate act which took thought and planning. He chose to dismiss her as she had been dishonest and the company had lost trust in her. She was given the opportunity to appeal within seven days but she chose not to exercise this right.
A HR representative gave evidence. She drafted the letter to the claimant after the Area Manager spoke to her. This was the procedure in the company. She was not involved in the disciplinary process. The claimant had signed three copies of her contract which were returned to head office and signed by the witness. A copy was returned to the claimant. Training included a mini induction day and tour of the store. Club cards were introduced in January 2013. When a new policy is introduced a memo is sent to stores, the manager informs the employees who sign the memo before it being returned to head office and put on file. The claimant’s representative phoned to speak to her about the claimant. He stated that he was a friend of the claimant’s whereupon she informed him that she could not communicate with him regarding the claimant. The claimant and her representative contacted the head office several times seeking the claimant’s outstanding wages and her P45. They never mentioned wanting to appeal the dismissal.
Summary of Claimant’s Evidence:
A colleague who previously worked in a UK store trained her in on the cards. This colleague had a club card and she thought she would have one too. She contended that others did the same thing, but she did not name them. She did not suggest this at the disciplinary meeting as she did not want to get her colleagues in trouble. She informed the Regional Manager that employees left their swipe cards in a box behind the till where anyone could access them. She did not understand everything at the investigation and disciplinary hearings which is why she requested an interpreter at the Tribunal.
The claimant did not appeal as she believed it would have been rejected. She did not really understand how the appeal procedure worked. She accepted that employees were not allowed to use club cards. She redeemed the points for a friend. She agreed that she made admissions at the two meetings. She agreed that she had signed the policy on swipe cards. She submitted the letter of apology as she did not realise what she had done was wrong.
Determination:
The Tribunal has no jurisdiction to hear the appeal pursuant to the Payment of Wages Act, 1991, as the appellant has not satisfied her obligations pursuant to section 7(2)b of that Act. The Tribunal finds that the respondent’s investigation and disciplinary procedure were fair and transparent. The appellant was offered to bring a colleague or trade union representative to the disciplinary meeting and she was afforded a right of appeal, which she did not avail of. The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations.
In all of the circumstances the Tribunal affirms the recommendation of the Rights Commissioner. The appellant’s appeal under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)