EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Mary Lafford –claimant UD903/2014
MN460/2014
against
Marks & Spencer (Ireland) Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney B.L.
Members: Mr J. Hennessy
Mr D. McEvoy
heard this claim at Thurles on 14th September 2015 and 8th November 2016
Representation:
Claimant: Mr Bill Kelly, Mandate Trade Union, 36 Michael Street,Waterford
Respondent: IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Background:
The claimant was employed as a sales assistant with the respondent company from May 2009 to April 2014. Following a random inspection of CCTV footage the claimant’s actions were the subject of an investigation. The matter proceeded to a disciplinary process and the claimant was dismissed.
Respondent’s Case:
The claimant’s contract of employment and induction training records were opened to the Tribunal including a document entitled: Sales Ordering and Reservation Policy for all Sales Goods. The policy stated as follows:
It is important to ensure that all customers, including employees, have a fair and equal opportunity to select and purchase sale items. It is also vital that we protect our profit and minimise theft and loss. This policy is designed to tackle each of these issues.
This policy applies to ALL SALES ITEMS.
Sale items may not be ordered or reserved by customers or staff members at ANY TIME including the day before the sale begins.
It is important that all employees read and understand the above procedures fully.
All staff must ensure that they comply with these procedures as failure to do so may lead to disciplinary which could result in dismissal.
The claimant signed and dated this policy on the 27th February 2010.
A Section Manager of the company gave evidence that she is based in the food section of one of the respondent’s stores while the claimant was based in the clothing section. The witness was charged with conducting the investigation. The matter was brought to her attention by the Store Manager. He had become aware of the matter following a third party’s random inspection of the store’s CCTV footage. The remit of the Section Manager’s investigation was whether or not there were grounds to believe that the claimant had breached the Sale Ordering and Reservation Policy on the 13th March 2014 and whether there was a disciplinary case to answer. The Store Manager outlined to the Section Manager that based on the random inspection of CCTV footage there was a believed breach of the policy. The subject of the investigation was whether an item that was reduced for sale was placed in a location by the claimant where it could not be sold for a period of five hours before purchasing the item herself at the end of her shift.
The Section Manager explained that it is permissible for a non-discounted item to be held for three days for a customer or a staff member. However, sale items cannot be held as everyone must have a fair opportunity to purchase these items.
The Section Manager with the assistance of the Human Resources Manager compiled a list of questions for the investigation meeting on the 25th March 2014. The notes of this meeting were opened to the Tribunal. The claimant was provided with one hour’s verbal notice of the investigation meeting and advised of her right to be accompanied at the meeting.
On the 13th March 2014 the CCTV footage showed the claimant reprocessing stock from the fitting rooms to the shop floor from 1-2pm. During that time the claimant brought an item from the shop floor to the fitting room which was unusual but the item being returned could not be seen on the footage. The Section Manager queried the action with the claimant during the investigation meeting and the claimant outlined that the only reason for this is if the item was on an incorrect hanger. The claimant stated that she had not reserved any sale items and she was aware of the rules around such items.
It was the Section Manager’s evidence that the claimant worked the rest of the shift until 7pm at which time she purchased the item which had been returned to the fitting rooms earlier that day.
The CCTV footage showed the claimant speaking with a colleague (B), at the end of her shift. The Section Manager stated that the CCTV footage showed the two employees behind the till removing items from a cupboard. When the claimant left the till area her colleague entered the fitting room and returned with the item in question which she scanned into the till. The claimant subsequently returned and paid for the item. During the investigation the claimant stated that she did not ask her colleague to go to the fitting room but that she had mentioned to her colleague B that there was a lovely coloured top in the fitting room that she was going to have a look at. She told the investigation team that she only realised it was a sale item when she took it out of the bag at home.
The CCTV footage was opened to the Tribunal.
As part of the investigation the Section Manager also interviewed the claimant’s colleague (B) on the 25th March 2014. Colleague B confirmed that the claimant was aware of the items in the bag at the time of purchase and that the claimant had asked her to go to the fitting room for the “orange” top.
The Section Manager compiled an investigation report which contained a number of findings. The report found that the claimant was able to fully explain the reservation of sale policy and that it had been signed by her and that the claimant could not recall whether the item purchased at 7pm was the same one that she was seen carrying into the fitting room at 1.30pm. The report also found that both items were the same colour and that the claimant had purchased a sale item that was not available for general sale and that there was a contradiction between the claimant and Colleague B’s statement as to whether Colleague B retrieved the item of her own accord or was asked by the claimant.
The investigation report concluded that there was sufficient evidence to believe that the claimant had breached the Reservation of Sale Policy and therefore she had a disciplinary case to answer. The Section Manager’s final involvement was writing the letter dated 26th March 2014 which invited the claimant to a disciplinary meeting.
It was put to the Section Manger that the company had changed the Reservation and Sale Policy since 2010 but that the new policy had not been used in the investigation. A document was opened to the Tribunal in support of this contention. It was entitled Sale Ordering and Reservation policy for all sale goods and it stated that failure to comply with the procedures outlined may lead to serious action. It was put to the Section Manager that this was different from the policy outlined by the company which stated that failure to comply could lead to disciplinary resulting in dismissal. It was not accepted by the respondent company that there was a change of policy and the Section Manager confirmed that it was the 2010 policy she was referring to in the investigation report
During cross-examination it was put to the Section Manager that a number of staff were rostered on reprocessing duties throughout the day in question but that the investigation had failed to establish this. The Section Manager replied that she did not know if reprocessing duties had been carried out at other times throughout the day in question. She did not think that it was relevant to her investigation as she was confident from the CCTV footage that the item the claimant had returned to the fitting room was the same, as there was no other item of the same colour. The Section Manager accepted that it was possible that another staff member on reprocessing duties could have returned the item to the shop floor. The fact that the claimant had later returned the item in question was not a factor she deemed relevant to the investigation.
It was put to the Section Manager that it was standard practice to sell items of clothing from the fitting room to members of the public. The witness disagreed and stated that it was not standard practice but that sometimes there is a separate rail for items other than those on the reprocessing rail. It was put to her that the company both before and after the incident in question sold items from this rail. The Section Manager accepted this but stated that the rail was not in operation on the day in question and that in any event it was not as accessible as the reprocessing rail. In addition she stated that she knew that there were no items sold from the fitting room that day as there was no sale rail in the fitting room that day.
In reply to questions from the Tribunal, the Section Manager confirmed that the purpose of her investigation was to determine if the item reduced in the sale was deliberately held by the claimant and therefore not available to be shopped by customers. The CCTV footage conveyed to her that there was a breach as the same item was brought into the fitting room by the claimant and then was later bought by the claimant at the end of her shift and she felt the claimant had a case to answer. She reconfirmed that she had not checked to see if any other employee had carried out reprocessing duties on the day in question.
TK conducted the appeal and upheld the decision. He told the Tribunal that there was a breach of policy and a breach of trust and that no other sanction could apply.
Claimant’s case:
ML told the Tribunal of the incident that occurred and the circumstances which led to her dismissal. She said that she began work at 1am on Thursday 13th March and started her day by clearing out the fitting room. Some stuff was on wrong hangers so she brought them back to the fitting room for rehanging, she then got called away. When leaving that evening she bought some items to the till and paid for them. A top that she had brought back into the fitting room was included, it didn’t suit her and she returned it on the Saturday because she wasn’t working on the Friday.
She told the Tribunal that the top in question had not been hidden in the fitting room; it was sitting there for everyone to see. She made a comment to B (her friend), that it was a nice colour and she (B) included the top in her shopping that evening, she (B) was a nice person and it was something she would do. ML gave evidence of the devastating effects that the dismissal had on her and gave evidence of loss.
The determination of the Tribunal was as follows:-
Having considered all the evidence the Tribunal consider that a sanction less proportionate for the alleged breach of policy would have been appropriate. The Tribunal is satisfied that no other sanction was considered and that it was unreasonable to dismiss the claimant for the reasons stated in evidence.
Furthermore, contrary to the principles of natural justice, the Tribunal is satisfied from the evidence given by the claimant that the dismissal led to a relapse of her addiction issues. In her own words “I went out the door and bought a bottle”.
The claimant was on job seekers allowance until June 2014 but was unable to seek alternative employment, thereafter on disability benefit by reason of her having a depressive illness and her addiction issues. Therefore she had been unavailable for work.
The Tribunal finds that the dismissal was unfair in all the circumstances and having regard to our statutory function we are confined to awarding the clamant the sum of €2550.00 in compensation under the Unfair Dismissals Acts 1977 to 2007 and a further €851.20 in respect of four week’s pay under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)