We have previously looked at how the absence of any documentation or policies & procedures can make it very difficult for an employer to successfully defend a claim of Unfair Dismissal. However the latest ruling from the EAT shows that even where smaller policies are missing from a Company's suite of documentation it can lead to ambiguity and thereby lead to a claim of Unfair Dismissal.
The case in question was recently reported on by the Irish Times, where the EAT awarded an employee compensation in response to their claim that they were unfairly dismissed following an incident where goods were left in a trolly he was collecting in the car park of Dunnes Stores.
Background
In this case the employee was employed as a sales assistant for Dunnes Stores in Donaghmede Shopping Centre where his duties included collecting trolleys in the car park. On January 24th, 2012, security told the grocery manager in the shop that a customer had reported lost property from her shopping trolley in the car park. The manager reviewed CCTV footage and saw the employee removing the goods, which were in an unmarked bag, from a trolley left in the trolley bay and bringing them to another shop in the centre.
Dunnes Stores argued that this was in breach of its policy on lost property, and on being made aware of the existence of the CCTV footage, the employee having initially denied the allegations then admitted to doing so and to subsequently removing the goods from the store and placing them in his locker. The employee was suspended on full pay pending a disciplinary hearing on January 26th, 2012. He was subsequently dismissed by letter on January 28th, 2012, and was given the right to appeal the decision, which the employee did but the decision to dismiss upheld by a regional manager.
The employee argued that he was unable to return the goods to a particular shop as he had done on many previous occasions, as the bag was unmarked. He said he was not aware of the respondent’s policy on lost property and had never been given a copy of it. It was also argued on his behalf that a booklet on policies and procedures did not cover the issue of lost property that is not identifiable as having been purchased in Dunnes Stores.
Tribunal Determination
The tribunal found that, on the balance of probabilities, the employee was not aware of the supermarket’s policy on lost property adding that it appeared that there was no “hard and fast rule” as regards lost property which wasn’t bought in Dunnes Stores. However, the tribunal said it could not condone the employee's behaviour, namely putting goods which were not his property into his locker, and found that he had “contributed significantly” to his own dismissal by his actions. Despite this the tribunal found that the sanction was disproportionate in the circumstances, and awarded €25,000 to the employee by way of compensation.
Impact on Employers
This case really does highlight how the absence of one particular policy, no matter how small (lost property), can have a real impact on a business. The Tribunal does note the employee was not exactly helpful in their actions, but nonetheless they were punished disproportionately by being dismissed.
We previously noted that in the absence of policies and procedures an employer cannot hope to defend a case, but even where policies exist the absence of particular policies, which would be deemed necessary in certain industries, can leave an employer in a difficult position to defend a case.
