EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Ian Fortune – claimant UD1541/2014
Ikea Ireland Limited – respondent
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Mac Carthy SC
Members: Mr J. Goulding
Mr N. Dowling
heard this claim at Dublin on 29th December 2015 and 16th February 2016
Claimant(s) : Mr Peter Duff
Peter Duff & Co., Solicitors, 34 Main Street, Blackrock, County Dublin
Respondent(s): Ms Katie Doyle
IBEC, IR/HR Executive, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
Dismissal was not in dispute. The claimant was employed as a ‘food service co-worker’ by the respondent company from May 2009 until 13th October 2014. The claimant worked in the Bistro fast food area of the respondent’s furniture store. He was put on paid suspension on Wednesday 1st October 2014 after he and three other employees were seen drinking milkshakes after their shifts which the claimant had taken tokens for without paying. Employees are permitted to drink tea, coffee and soda fountain drinks free of charge, but milkshakes require a token which are kept beside the till and the respondent contended that these must be paid for. The retail price of a milkshake is €1.25.
The respondent issued a letter, dated Friday 3rd October 2014, by courier to the claimant. The delivery document from the courier company indicated that it was delivered on Monday 6th October 2014 and the claimant’s name was written as the receiver. The same signature, which the claimant denied was his, was recorded on the delivery sheets for the letters of 10th October 2014 and 15th October 2014 (the letter of dismissal). A witness subpoena was granted for the courier to attend on the second day of hearing. He had left his employment and could not be traced, but the courier company provided some documentation.
The respondent did not accept that the claimant was out of the country during the applicable time and argued that the letter of suspension required the claimant to be available for further meetings. The respondent acknowledged that the claimant had pre-booked leave for the period but argued that suspension and annual leave could not run concurrently. When he was suspended the annual leave was held. The respondent withdrew the claimant’s pay after he failed to attend the investigation meeting on 7th October 2014.
The then bistro manager gave evidence. He witnessed the claimant and others consuming milkshakes after their shift. He asked them if they planned on paying for the milkshakes and he wrote in his statement that he received ‘inaudible responses’. The next day he checked the security cameras. He took notes at the suspension meeting and escorted the claimant out.
At the beginning of their employment employees are notified of what items can be taken for free. There are also signs around the department warning employees about consumption of stock such as: ‘consuming stock without paying is theft and will result in disciplinary action being taken’ and in small writing below that ‘tap water is obviously free, as are all soft drinks from the soda fountain’.
In cross-examination he conceded that there was a lot going on around him when he asked if the milkshakes were paid for. He did not get a response so he said ‘shall I assume they’re paid for?’ He had no knowledge of employees treating milkshakes the same as the free entitlement to soft drinks. Occasionally if food is going to be thrown out at the end of the day it is offered to employees instead, but the milkshake machine preserves the product overnight and so this situation does not apply. He was aware that the claimant had holidays booked. The other employees drinking the milkshakes were queried about the incident and gave statements. No disciplinary action was taken against them. It was possible that the claimant replied ‘do you want us to pay?’ when asked about the milkshakes.
A HR Generalist gave evidence. She conducted the suspension meeting with the claimant in the company of the claimant’s line manager on 1st October 2014. She took notes at the investigation and disciplinary meetings which the claimant did not attend. The incident was treated as gross misconduct. She followed the gross misconduct protocol as theft in any form is considered gross misconduct. She denied that the claimant informed her that he was going abroad. She would have delayed the disciplinary process had she known. In regard to holidays the note of the meeting stated ‘holiday due, holiday still paid’. She clarified his address and informed him that she would be writing to him. The letter of suspension stated that this would be within five days. She instructed payroll to amend his status to suspension with pay.
The investigation meeting was conducted in the claimant’s absence. The officer conducting the meeting was unaware that the claimant was abroad. She was satisfied that he was on notice due to the signed courier receipt.
The Food Manager conducted the disciplinary meeting. She was also unaware that the claimant was abroad. She conducted the meeting and read through the questions in his absence. In reaching her decision she read through the statements, the claimant’s training record and viewed CCTV. She concluded that theft had occurred and that dismissal was warranted. The claimant did not appeal. The next correspondence was the Workplace Relations Commission claim form.
Summary of Claimant’s Evidence:
The claimant contended that he had pre-booked annual leave for the time in question and was in France from Sunday 5th October until Saturday 18th October 2014. He produced emails of flight bookings to that effect. He contended that he did not receive the invitations to the disciplinary meetings and the letter of dismissal until he returned. The claimant disputed that he was instructed to remain in the country and he believed the disciplinary process would occur on his return. He did not appeal as he had no faith in the company’s process after being dismissed while on holidays. He consulted a solicitor on his return and submitted a claim for unfair dismissal on 4th November 2014.
The claimant did not dispute that he took the milkshakes. He contended that it was an honest mistake. When queried he had responded to his Line Manager ‘do you want me to pay for them?’ His Line Manager kept walking and so he presumed there was no issue. His Line Manager was aware that he was going abroad as he had been awaiting leave approval in order to book flights for him and his wife and son to travel to his mother-in-law in France.
The Tribunal addressed the question of whether the letter of Friday 3rd of October 2014 inviting him to the investigation meeting was received by the claimant. The documentary evidence showed the claimant was out of the country from Sunday 5th October 2014. The Tribunal cannot therefore be satisfied that he was aware of the meetings. It is not clear if different managers knew the claimant was to be out of the country. The claimant said he believed that he had told the HR Manager that he would be out of the country, although he admitted it may not have registered with her. It is clear however that his Line Manager already knew that he was about to take holidays and he may or may not have passed that information on to the HR Manager. One way or another the disciplinary process went ahead while he was out of the country and could not attend. This, by itself, would be sufficient to render the dismissal unfair.
The Tribunal has also considered whether the failure to pay for the milkshakes amounted to a substantial ground for justifying the dismissal under section 6 of the Act. The Tribunal has always recognised that retail outlets are entitled to have their cash and stock protected and to apply strict rules for control. However in the present case tea, coffee and ‘soft drinks from the soda fountain’ are free. The respondent argued that milkshakes were in a different category. The Line Manager commented ‘shall I assume they’re all paid for?’ and that the response was inaudible. The claimant responded ‘do you want me to pay for them?’ and said he did not get a reply.
Taken all in all and given the circumstances of the milkshakes and the conversation at the time the Tribunal is not satisfied that the matter amounts to a ‘substantial ground justifying the dismissal’.
For the foregoing reasons the Tribunal finds that the dismissal was unfair.
In regard to redress, both parties ruled out reinstatement and re-engagement. In assessing his financial loss we have had regard to some earnings he had had since the dismissal. The Tribunal also considered whether he contributed to the dismissal by his failure to appeal on his return home from France. On balance we are of the view that he did not so contribute.
In our view the amount of €30,000 (thirty thousand euro) would be “just and equitable having regard to all the circumstances” under section 7 of the Act and we award compensation in that amount.
Sealed with the Seal of the
Employment Appeals Tribunal