Case Number: UD80/2015. Employment Appeals Tribunal

• Docket Number: UD80/2015
• Date: 01 December 2016
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO

UD80/2015

CLAIM OF:

Alan McNally

-claimant

Against

Tesco Ireland Limited

-respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr D. Hayes B.L.

Members: Mr B. Kealy

Mr F. Barry

heard this claim at Dublin on 16th February 2016, 28th April 2016,1st September 2016 and 2nd September 2016

Representation:

_______________

Claimant: Ms Cathy McGrady B.L. instructed by Mr Stephen Mulvey, John L. Mulvey & Co., Solicitors, Main Street, Tallaght, Dublin 24

Respondent: Mr Seamus Clarke B.L. instructed by Mr John Kealy, Solicitor, Tesco Ireland Limited, Gresham House, Marine Road, Dun Laoghaire, Co. Dublin

Background

The respondent is a large supermarket chain. The claimant worked as the Security Manager in one of the respondent’s stores. The claimant was in charge of two security officers and was responsible for protecting all of the respondent’s assets from both customers and staff. The claimant was dismissed on the 22^nd of April 2014 for breaching the respondent’s staff purchase and honesty policy.

Respondent’s Case

The Tribunal heard evidence from MK who is a security officer in the respondent. The claimant was his manager. He explained that the security office was strictly for security officers and they were the only ones who had keys to the security office. He had an interest in purchasing a particular V-Tech toy, as did the Claimant. They agreed to each leave the toys in the office so they could purchase them in the future; this was on the 7^th April. MK was off work on the 8^th of April and he returned on 09^th April. There was only one VTech toy in the office. He was not sure if the claimant had taken his toy so he texted him. There was no reply to his text so some hours later he started to look through the CCTV footage. MK saw that the claimant removed the toy from the store but had not paid for the item. He discussed the matter with the personnel manager (OD). He was asked to review all footage and he was asked to give a statement. On the morning of 10^th April MK manually changed the fire door CCTV angle so he could observe the claimant coming into work. He saw the claimant enter through the fire exit door with a big box, which he left behind the customer service desk. He then went back out through the same fire exit and came back in with a smaller box with which he went to the security office. He was making no attempt to conceal either box. When the claimant got to the security office he was surprised to see MK there, as he wasn’t due to start his shift until later. The claimant asked him what he was doing; he told the claimant that he was just doing some jobs. The witness explained that he left the office to speak with OD. When he returned to the office the claimant asked him why he had been looking at CCTV footage of him.

The Personnel Manager (OD) in the claimant’s store carried out the investigation that ultimately led to the claimant’s dismissal. MK informed OD that he thought a VTech toy had been taken by the claimant on the 8^th of April. The claimant was not in work on the 9^th of April so OD instructed MK to come into work early on the 10^th of April and watch the claimant on CCTV when he arrived to start his shift at 8am. OD met the claimant to an investigation and he admitted that he brought the toy home without paying for it in order to see if it was suitable for his child. He was thereupon suspended pending a full investigation. He was invited to an investigation meeting on the 12^th of April by letter of the 10^th of April.

At that meeting, the claimant declined the opportunity to watch the CCTV footage. He accepted that he had left the store without having paid for the toy. He said that he had taken it home for safekeeping as something that he had previously set aside had been taken by someone else.

A second investigation meeting took place on the 15^th of April. In the course of that meeting the claimant accepted that what he had done was wrong but that it was nothing more than a mistake and that the purpose had never been financial gain. The claimant said he was aware of the respondent policies in place but maintained that other senior managers had also left the store with items without paying (when the claimant provided the names of the managers, this accusation was investigated separately.) The claimant said that the confidentiality of the process had been breached as an employee in another store had called the claimant being aware that he had been suspended; this accusation was also investigated. In the course of the investigation, the claimant objected to the use of a text message sent by him to MK in which they discussed the toy. OD agreed that it would not be used in the investigation.

An investigation outcome meeting was then held on the 17^th of April at which the claimant was informed that the matter would progress to a disciplinary hearing.

The incidents the claimant referred to as senior managers leaving the store without paying was not comparable to the claimant’s situation. In those cases for whatever reason staff could not pay for petrol already put into their car. There is a book where they write all the details of the purchase and return to pay for the petrol as soon as possible. This policy is applicable to both staff and customers. There is no ‘IOU’ policy.

At the first meeting the claimant had (B) as a staff representative. After that he had (C) the store shop steward as his representative, although he is not a member of a union. OD does not recall telling the claimant that he was not permitted to have B as a representative.

OD considered both explanations the claimant provided as to why he removed the toy without paying for it, the CCTV, the text message and the witness statements before coming to her decision. OD did not give any weight to the fact the claimant returned with the toy, as she believes the text message may have prompted him to do so. The outcome of the investigation was that the claimant’s actions were in breach of the respondent’s Honesty Policy and Staff Purchase policy and warranted being forwarded to a disciplinary hearing.

The Store Manager (RD) carried out the disciplinary hearing. By letter of the 17^th of April the claimant was invited to the disciplinary hearing to take place on the 19^th of April. This letter enclosed all of the relevant policies and procedures. RD read the investigation outcome letter to the claimant and asked him if he wished to add anything to it. The claimant wanted to make it clear that he did not take the toy for financial gain but for safe keeping following a previous incident. He also stated that he was unaware that breaching the Staff Purchase or Honesty policy could lead to his dismissal. The claimant did not renew his allegations against other senior managers or object to his representative. As the security manager, the claimant should have raised any issues he had with staff removing items at the time it happened. RD does not believe the claimant’s explanations are valid for removing the toy without paying for it.

On Tuesday the 8^th of April (the day the claimant removed the toy) RD and the claimant held a 2-hour meeting with the management team concerning security and the security policy in the store. The claimant was in charge of all security in the store so ‘led the efforts’. He was fully aware of what was the correct entry and exit points of the store i.e. not through a fire exit. The safest place in the store for the toy was the security office and that is where the claimant removed the toy from. It is not acceptable to remove any item to test it without paying for it. The claimant’s reply to MK’s text message suggests that the toy was hidden in the store when in fact he had removed it. He accepted that he had seen the portion of OD’s notes where she had agreed not to use the text message. He said that he did read it but that it was not a factor in his decision. The child’s bike that the claimant brought back the same day had been paid for and was being returned. The witness had no difficulty with that. There was, however, no policy that allowed products to be brought home without payment to see if it suits. He accepted that a manager would have authority to allow staff take things home but said that a manager could not authorise himself to do so. While the claimant was the most senior member of staff present on the night in question, as he left the store he handed-over to a night manager and did not discuss what he was doing with that manager.

RD...