A Waterford man who was dismissed from his job at the city's Roches Stores outlet, having received two extra breasts of chicken from a colleague while shopping at the store, has won an unfair dismissal claim at the Employment Appeals Tribunal.
Mr Bobby Marshall, of Sweetbriar Park, Waterford, brought an appeal against Roches Stores (Waterford) Ltd with hearings held in the city during November 2001 and again in February, March and September of last year.
A three-member tribunal heard evidence of how on October 20th, 2000, Mr Marshall, who was off duty, went shopping in the store from which there had been eight dismissals for dishonesty in one 12-month period.
A store detective observed a female colleague giving the claimant six chicken fillets rather than the four that were on offer at the time for £3.99.
The store management claimed that Mr Marshall and the woman, named only as Ms X, were "looking around to ascertain if any member of management was in the area".
The company concluded from the transaction and the body language between Ms X and the claimant that he knew he was getting extra chicken for which he was not paying.
However, Mr Marshall insisted that he was not aware how many fillets he had received and had simply told his colleague that he didn't want any "crappy" chicken.
However, the tribunal decided unanimously that Mr Marshall's dismissal was unfair and that his claim under the Unfair Dismissals Acts 1977 to 2001 should succeed.
It was found that Roches Stores (Waterford) Ltd had not afforded Mr Marshall any real, fair or adequate representation. The tribunal's verdict said the claimant was confronted during a meeting after the October 20th incident by three members of management, a fourth member purporting to represent him and a garda who was present for the latter part of the meeting.
"The claimant's representative had no prior notice of the meeting or prior knowledge of the incidents. He had not seen the video footage and was not afforded an opportunity for consultation with the claimant before the meeting and adopted a passive role at the meeting," the tribunal ruled.
Members stressed, however, that they were not criticising the representative, a departmental manager in the store, who they said was a "credible and fair-minded" witness who was in a "conflict of interest" situation.
The tribunal further found that the two-hour meeting "fell well below the standard of fairness required of a reasonable employer" with the claimant "in effect on his own".
"All those interviewing the claimant had seen the video evidence, but the claimant's request to see it was refused. A fair and reasonable employer seeking to do justice would at least have considered acceding to the claimant's request to see the video, but there is no evidence before the tribunal that the respondent gave any consideration whatsoever to the claimant's request."
The tribunal's judgment also says the three members found that the respondent approached the meeting with a closed mind. "It had already made up its mind about the claimant's guilt and throughout the meeting was seeking an admission."
Having heard that Mr Marshall had taken up alternative employment six weeks after his dismissal, the tribunal chairwoman, Ms Kate T. O'Mahony, awarded him €1,217.44 under the Minimum Notice and Terms of Employment Acts and €514.52 under the Unfair Dismissal Acts.