Lewis v Dunnes Store

• Jurisdiction: Ireland
• Judgment Date: 17 May 2004
• Judgment citation (vLex): [2004] 5 JIEC 1701
• Date: 17 May 2004
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Lewis v Dunnes Store

Representation:

Claimant(s):

Tormeys, Solicitors, Castle Street, Athlone, Co. Westmeath

Respondent(s):

BCM Hanby Wallace, Solicitors, 88 Harcourt Street, Dublin 2

Abstract:

EAT - Employment - Unfair dismissal - Misconduct - Unfair Dismissals Acts, 1977 to 2001 - Minimum Notice and Terms of Employment Acts, 1973 to 2001 - Whether the claimant's dismissal was justified by reason of his conduct.

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:

CASE NO.

Thomas Lewis, 22 Cederwood Drive, Monkaland, Athlone,

Co. Roscommon

UD597/2003 MN1613/2003

against

Dunnes Stores, 67 Stephen Street Upper, Dublin 2

Dunnes Stores, Irishtown, Athlone, Co. Westmeath

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001 UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Mr. P. O'Leary B.L

Members:

Mr. B. O'Carroll

Mr. P. Clarke

heard this claim at Tullamore on 16th October 2003

and 17th December 2003

Facts The claimant was employed by the respondent as a security manager and he stated in evidence that he had worked for three years and ten months without any complaints being levelled against him. The claimant gave evidence that he had received a written warning following an incident with a female colleague however, he stated that the allegation against him was never proven, and he had apologised to his colleague for any hurt caused. The Regional Security Manager for the area at the relevant time gave evidence that he held a discussion with the claimant regarding an allegation of sexual harassment. He gave evidence of a number of incidents involving the claimant. The first incident related to the claimant's involvement in an altercation with a customer, who had parked his car in a disabled car space without displaying the appropriate car sticker. The second incident involved the claimant barring a customer from the store for smoking in a non smoking area and the witness stated that he spoke to the claimant informally regarding his inappropriate manner at that time. The third incident related to the claimant's alleged use of inappropriate language to a number of children he found swinging on a gate for which the store had responsibility. The witness stated that he understood the parents of the children involved had complained about the claimant's treatment of their children. The fourth and final incident occurred on 11 November 2002 at a fast food outlet and involved an altercation between the claimant and a customer concerning an allegation of shoplifting. The witness stated that he attended a meeting with the claimant and the duty security manager on 16 November 2002. He gave evidence that the claimant declined representation and the meeting resulted in the claimant's suspension with pay, following investigation. The store manager also gave evidence for the respondent. He stated that in June 2002 an allegation of sexual harassment was made against the claimant. He stated that the decision to dismiss the claimant was based primarily on the incident at the fast food outlet, which could have resulted in the claimant being prosecuted. The witness reiterated in cross examination that the claimant was dismissed due to misconduct, and that the respondent feared being the subject of a civil action on the part of the lady involved in the incident in the fast food restaurant. The claimant also detailed the incidents described by the respondent's witnesses and explained that he took the actions he did because the parties concerned had been aggressive and/or abusive towards him.

Held by the Tribunal:

1. That having considered the evidence adduced the claimant was unfairly dismissed and accordingly his claim under the Unfair Dismissals Acts, 1977 to 2001 was entitled to succeed.

2. That the claimant was entitled to be re-engaged in his employment with the respondent. However the claimant did contribute to his dismissal and accordingly his re-engagement was only to take effect from the 1 July 2003 and the time prior to that was to be considered as a period of suspension without pay.

3. That the claimant's claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001 was not entitled to succeed.

1 The determination of the Tribunal was as follows:

Respondent's Case

2 A witness for the respondent, in sworn evidence, confirmed that he had been the Regional Security Manager for the area at the time the...