We have previously highlighted the case of Karen Egan v Ulster Bank UD1772/2010 where in the determination the Tribunal noted the dissenting opinion of a member of the committee, and that the majority decision was that the dismissal was unfair.
In a recent EAT decison in the case of James White -v- Tesco Ireland Limited (UD277/2011) we see yet a further example of a dissenting opinion of a Tribunal, and interestingly as with the Ulster Bank case this also involved Gross Misconduct and alleged dishonesty.
This case is an appeal to the EAT from the Rights Commissioners decision that the Employee was not unfairly dismissed.
The Employee was dismissed for taking four cans of red bull without paying for them. The substantive issue in this case is that the Employer holds a zero tolerance policy for theft, and that this policy is in place regardless of value. The Employee was dismissed in accordance with the Employers policies as he initially denied having taken these items without paying (he later took four additional items and paid for these at the self-service checkout) and only when probed did he admit to taking the four cans.
The Employees defence for the alleged dishonesty was that he had forgotten to pay for the items, and that as he had taken these in full view of the CCTV cameras it clearly shows that he was not attempting to conceal what he was doing. He also argued that he promptly paid for the items when the oversight was pointed out to him.
Interestingly the employee also acknowledged that he was in breach of the Company Honestly Policy however dismissal was too harsh a sanction in this case.
Determination
In the determination the majority decision of the EAT is that this Rights Commissioner decision be "upset" and that dismissal was too harsh as sanction due to inadequate procedures, and that the employee was aware of the positioning of the CCTV cameras and the fact that he made no attempt to conceal his actions "...would lead a reasonable employer to conclude that he was not acting dishonestly when he removed items for his own consumption." There was also a concern that the appeals officer was not familiar with the location of the security cameras and that "...a prudent employer would not act in such a manner..."
The determination interestingly was made that the employee be reengaged, but to the position of an Ordinary Worker, and not to the position of a Line Manager which he previously held. No reason is given for this, it may be due to trust or simply because the Line Manager position is currently occupied, but it does leave room for question.
Dissenting Opinion
We noted above that there was a dissenting opinion in this case and in a refreshing change the full dissenting opinion is submitted by Mr. J O'Neill who found that the dismissal was not unfair. He references in the opinion that in the Employers industry "Shrinkage" is a major issue and that this is the difference between purchases and sales, and that this was discussed with the Employee and all Managerial staff at weekly management meetings. Also present in the opinion was that "Pilferage" is a possible factor of shrinkage and that the CCTV is a key control measure of this.
In the conclusion Mr. O'Neill stated that the procedures used were of a high order and the fact that the appeals officer did not visit the location was not of such importance to invalidate the process. He concluded by saying that a Company has a duty to protect its business and to conduct its staff relations in an ethical and orderly manner, and has a right to do so by upholding the Honesty Policy, as tolerating some level of dishonesty would give rise to a variety of difficulties for staff relations and the business.
In the opinion it was also stated that the Employee had breached the trust essential in the retail sector, and particularly so when he is entrusted with responsibility for managing other staff. Mr. O'Neill concurred with the Rights Commissioner and that "forgetting to pay" was not an adequate defence for such behaviour and as such lacks credibility.
Again we see the dissenting opinion cropping up in determinations and worryingly these appear to be on the same themes where no clear decision can be made on matters of dishonesty and regardless of Employers policies on zero tolerance some instances can be found to be in favour of the employee by some tribunals. It is certainly one to watch.
We have previously highlighted the case of Karen Egan v Ulster Bank UD1772/2010 where in the determination the Tribunal noted the dissenting opinion of a member of the committee, and that the majority decision was that the dismissal was unfair.
In a recent EAT decison in the case of James White -v- Tesco Ireland Limited (UD277/2011) we see yet a further example of a dissenting opinion of a Tribunal, and interestingly as with the Ulster Bank case this also involved Gross Misconduct and alleged dishonesty.
This case is an appeal to the EAT from the Rights Commissioners decision that the Employee was not unfairly dismissed.
The Employee was dismissed for taking four cans of red bull without paying for them. The substantive issue in this case is that the Employer holds a zero tolerance policy for theft, and that this policy is in place regardless of value. The Employee was dismissed in accordance with the Employers policies as he initially denied having taken these items without paying (he later took four additional items and paid for these at the self-service checkout) and only when probed did he admit to taking the four cans.
The Employees defence for the alleged dishonesty was that he had forgotten to pay for the items, and that as he had taken these in full view of the CCTV cameras it clearly shows that he was not attempting to conceal what he was doing. He also argued that he promptly paid for the items when the oversight was pointed out to him.
Interestingly the employee also acknowledged that he was in breach of the Company Honestly Policy however dismissal was too harsh a sanction in this case.
Determination
In the determination the majority decision of the EAT is that this Rights Commissioner decision be "upset" and that dismissal was too harsh as sanction due to inadequate procedures, and that the employee was aware of the positioning of the CCTV cameras and the fact that he made no attempt to conceal his actions "...would lead a reasonable employer to conclude that he was not acting dishonestly when he removed items for his own consumption." There was also a concern that the appeals officer was not familiar with the location of the security cameras and that "...a prudent employer would not act in such a manner..."
The determination interestingly was made that the employee be reengaged, but to the position of an Ordinary Worker, and not to the position of a Line Manager which he previously held. No reason is given for this, it may be due to trust or simply because the Line Manager position is currently occupied, but it does leave room for question.
Dissenting Opinion
We noted above that there was a dissenting opinion in this case and in a refreshing change the full dissenting opinion is submitted by Mr. J O'Neill who found that the dismissal was not unfair. He references in the opinion that in the Employers industry "Shrinkage" is a major issue and that this is the difference between purchases and sales, and that this was discussed with the Employee and all Managerial staff at weekly management meetings. Also present in the opinion was that "Pilferage" is a possible factor of shrinkage and that the CCTV is a key control measure of this.
In the conclusion Mr. O'Neill stated that the procedures used were of a high order and the fact that the appeals officer did not visit the location was not of such importance to invalidate the process. He concluded by saying that a Company has a duty to protect its business and to conduct its staff relations in an ethical and orderly manner, and has a right to do so by upholding the Honesty Policy, as tolerating some level of dishonesty would give rise to a variety of difficulties for staff relations and the business.
In the opinion it was also stated that the Employee had breached the trust essential in the retail sector, and particularly so when he is entrusted with responsibility for managing other staff. Mr. O'Neill concurred with the Rights Commissioner and that "forgetting to pay" was not an adequate defence for such behaviour and as such lacks credibility.
Again we see the dissenting opinion cropping up in determinations and worryingly these appear to be on the same themes where no clear decision can be made on matters of dishonesty and regardless of Employers policies on zero tolerance some instances can be found to be in favour of the employee by some tribunals. It is certainly one to watch.
