Patience Ugwomaju v Primark
| Jurisdiction | Ireland |
| Judgment Date | 03 December 2007 |
| Judgment citation (vLex) | [2007] 12 JIEC 0301 |
| Date | 03 December 2007 |
| Court | Employment Appeal Tribunal (Ireland) |
Employment Appeals Tribunal
EAT: Patience Ugwomaju (claimant) v Primark (respondent)
Employment - Dismissal - Unfair dismissals - Fair procedures - Whether employee afforded fair procedures - Whether unfair dismissal - Unfair Dismissals Acts 1977 to 2001.
EMPLOYMENT APPEALS TRIBUNAL
| CLAIM(S) OF: | CASE NO. |
| Patience August Ugwomaju, 53 Boroimhe Cedars, Swords, Co. Dublin | UD444/2007 |
Against
Primark, 47 Mary Street, Dublin 1
under
UNFAIR DISMISSALS ACTS, 1977 TO 2001
I certify that the Tribunal
(Division of Tribunal)
| Chairman: | Ms. M. Levey BL |
| Members: | Mr. C. Ormond |
| Ms M. Maher |
heard this claim at Dublin on 12th September 2007
and 3rd December 2007
Facts the claimant had been employed by the respondent in its department store. She was caught on CCTV taking items from the store during her work day. When confronted about the theft, she denied same but contended that she intended to pay for the items later. A formal investigation was conducted and following an internal appeal, a decision was taken to dismiss the claimant for gross misconduct.
Held by the Employment Appeals Tribunal in dismissing the claim that there were serious credibility issues with the claimant's evidence. In the main, the respondent had adhered to the correct procedures. Given the seriousness of the incident and the weight of evidence against the claimant, dismissal was appropriate.
The general manager of the Mary Street store told the Tribunal that he was employed in that capacity for over a year. The respondent employed three hundred and sixty staff in Mary Street. He relayed an incident when the security officer on duty asked him to go to the security office as a member of staff was observed acting suspiciously. He went to the office and he told the staff manager that he may have a problem. He could see that the claimant had a lipstick in her hand, the seal was not on the lipstick and she put the lipstick on her lips. She went around the shop and went to the stock room. He went to the stock room and he could not see the claimant. He saw the claimant in the upper stock room and she was getting stock for the department. He asked the claimant if she used the makeup earlier in the day and she told him that she had used it. The claimant opened her pocket and produced the make up. He told the claimant that they should report this to the staff manager. The claimant had the lipstick in a side pocket of her jacket. He went to the staff manager's office and both the shop steward and the staff manager were in the office and a meeting took place at 11.00a.m. He asked the staff manager and the shop steward could they remain in the office. He told the claimant that they should discuss the situation. He again asked the claimant had she makeup and if she had anything in her pocket. The claimant went through her version and he then handed her over to the staff manager. The claimant was very nervous when she gave her version of events at the meeting. The claimant told him that she did not have anything else in her pocket. The staff manager gave a warning to the claimant and she read from the staff handbook and went through the process.
After the staff manager questioned the claimant they decided that they would ask the claimant to open her pocket. She had a number of sunglass covers in her pocket, which the respondent sold. He felt that this was a serious issue and HR dealt expeditiously with the disciplinary issue. The respondent had an 8%% stock loss in the health and beauty department and it had very high stock loss in makeup. The respondent was concerned about this matter. The store was quite at 10.30am and the security monitor was focused on the health and beauty department. The respondent sold its merchandise at a very keen price and the average item in the health and beauty department was priced under EUR5.
In cross-examination when asked if he was familiar with section C 4B of the disciplinary procedure he responded that he was aware of it. When asked why he did not give the claimant the opportunity to avail of representation at the meeting he responded that he would not recall what happened an investigative meeting. It was a version of what occurred before the meeting. He did not advise the claimant at the first meeting that she was under investigation. He came in half way through the incident and he spoke to the claimant in the stock room. He wanted to ensure that it was not her own make up and he did not see the incident occur. When he brought the claimant to the stock room it was a fact-finding mission and an investigative meeting took place after that. When asked how the claimant breached the security policy he responded that the claimant took makeup from a make up counter. She opened and sealed a lipstick and she concealed the item from her person. When asked if he gave her the opportunity to remove it, return it or pay for it he responded that the property was still in store. A sealed item had been used. When asked how he knew it was sealed he responded that he did not see the full view of CCTV footage and he saw her walking on the floor and opening the seal. The claimant told him that she had used the lipstick. When asked if she did not attempt to conceal the lipstick he responded that she did not deny using the lipstick.
When asked if it was normal procedure to inform staff of their rights before or during an investigation he responded it was normal to inform them of their rights during the investigation. The shop steward and the claimant were asked to attend a meeting. He asked the claimant to explain what happened and the claimant gave a version of what had occurred. Once the claimant admitted to using lipstick the shop steward informed the claimant of her rights. When asked if he was aware that staff could purchase goods in store during the lunch break he responded that he was not fully aware. He stated that staff could do what they wanted at lunchtime. He could not be sure that the rules and regulations were adhered to fully and generally goods were purchased outside of working hours. When asked if the claimant would not have the opportunity to purchase goods he responded that the store was open at 9a.m. The claimant was in work and she was not doing what she was supposed to do. The claimant had left the sales floor. There was a specific office in the stock room where items could be held. When asked if he was aware of every circumstance on the staff floor...
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