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In a determination published today (An Employee v An Employer – UD 1454/2011, MN 1536/2011) the Employment Appeals Tribunal was asked to consider the question of gross misconduct and whether it warranted dismissal.

Background

The Claimant worked as a food and beverage coordinator and also usually worked as a cashier. At the time of her dismissal she was the assistant general manager. The Respondent gave evidence that every employee who operates a till is given a copy of the Cashier’s Agreement and failure to follow the procedure outlined is a serious matter that could result in disciplinary action. The Claimant signed off the Cashier’s Agreement in December 2009 following retraining due to discrepancies in her till and received a verbal warning at the time.

On 4th February 2011 a mystery shopper reported an issue with the Claimant and upon viewing CCTV footage, she was suspended with pay pending an investigation. The General Manager then wrote to the Claimant and asked her to attend an investigatory meeting and was provided with details of her alleged four breaches of the Cashier’s Agreement. The investigation meeting was held on 24th February 2011 and the Claimant admitted breaching the Cashier Agreement. The Claimant had taken €200 which she signed for and an additional €600 without signing for it. The Manager who gave the extra money to the Claimant did not inform the General Manager and the Manager’s actions resulted in disciplinary action against him.

The General Manager did not provide the Claimant with a full copy of the CCTV footage because she felt it was not relevant. The Claimant was subsequently invited to a disciplinary hearing on 7th March 2011 by a second General Manager. The same four points were put to the Claimant. The Claimant requested a full copy of the CTV footage but was not given same.

Following the second meeting it was determined that the Claimant should be dismissed and no other sanctions were considered. The Claimant was given the opportunity to appeal to the Operational Manager and contended that whilst she had breached the cash procedure, she felt the sanction of dismissal was disproportionate. The Operational Manager did not think the CCTV footage was relevant and upheld the decision to dismiss.

In her evidence the Claimant stated that she had only seen fifteen minutes of edited CCTV footage and that the period of at least ten minutes before the breaches occurred were relevant in allowing her to explain why the breaches occurred. The Claimant expressed concern that the second General manager did not view the complete CCTV before deciding that dismissal was an appropriate sanction

Determination

The Tribunal further noted that the Respondent used mystery shoppers routinely to monitor employee performance and when a mystery shopper raised concerns, the Respondent correctly instigated an investigation. The Tribunal commented

It seems to the Tribunal that when a large unexplained surplus of funds was discovered in the Claimant’s till the tenor of the investigation changed from routine monitoring to an enquiry into a potentially serious fraud. When an innocent and reasonable explanation for the surplus was forthcoming the Respondent did not reduce the intensity of the investigation”.

The Tribunal determined that the actions of the Claimant, whilst amounting to breaches of the Cashier Agreement, did not amount to misconduct that would warrant dismissal and the Claimant was awarded €17,500.

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