Missing Jam Tarts Leads to “Fair and Proportionate” Dismissals Because of “Reasonable” Zero Tolerance Policy

This case was an appeal to the Employment Appeals Tribunal of a Rights Commissioner decision who had decided the two men involved, Boyne and Moran, were fairly dismissed.

jam tarts dismissal
Employer’s zero tolerance policy “reasonable”

The background to the case is the 2 men worked for Keelings Logistics Solutions who operated as a distribution company for the supply of goods to one customer. The 2 employees worked in the warehouse.

The security manager saw the 2 men “acting suspiciously” beside an open cage and saw the cage being moved. He also said he saw the men eating something and putting their hands inside the cage and stated the men had no business standing together in front of a cage.

The employer had a policy that no food would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering and/or eating stock.

The Warehouse Manager was alerted and it became clear that a box containing jam tarts had been tampered with and two individual tarts were missing from a packet.

An investigation was carried out and after a CCTV footage reviewed many times. The men said they were sharing a Mars bar and denied eating the jam tarts.
The employer carried out a disciplinary procedure and dismissed the men who appealed the decision but lost.

The EAT found that the men’s evidence was not credible and on the balance of probability that they did tamper with the stock.

The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.

The Tribunal decision also stated:

The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.


What I find interesting about this case is that the EAT found that the employers zero tolerance policy in relation to staff tampering with stock was “reasonable in the circumstances”.

Many cases similar to this one has seen the EAT finding that the response of the employer was excessive and disproportionate.

But the fact that Keelings Logistics Solutions had only one customer and there was naturally a very high degree of trust required between them and their customer seems to have been critical in the EAT finding that the zero tolerance policy was reasonable.

Read the full decisions here and here.

Dunnes Stores Manager Sacked for Gross Misconduct Wins €16,630 for Unfair Dismissal

If you think that dismissing an employee for “gross misconduct” is easy, think again. This case involved a department manager with Dunnes Stores, Eleanor Preston, who set up a side business selling goods from a cash and carry to colleagues.


She admitted doctoring a letter from a community organisation group who packed bags in Dunnes in order to set up an account with a cash and carry in the name of the community group. The community group complained to Dunnes and on foot of this Dunnes suspended and then sacked (following a disciplinary hearing) Ms. Preston.


Dunnes argued at the Employment Appeals Tribunal hearing that they had lost the fundamental trust required in the employer/employee relationship. Ms. Preston explained that she was in financial difficulty when she ran her “enterprise”.


Ms. Preston had a good service record of 10 years with Dunnes and a clean disciplinary record. Dunes claimed that they took both of these into account in their decision to dismiss.


Ms. Preston appealed the decision to dismiss but the decision was upheld by a regional manager who said the essential element of trust was no longer possible.


The Employment Appeals Tribunal took a different view:

“As this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.”


Ms. Preston was awarded €14,000 in compensation for unfair dismissal and an additional €2,630 under the Minimum Notice and Terms of Employment Acts 1973 to 2005.



It can be very difficult to dismiss an employee for gross misconduct-you can learn more about unfair dismissal here.

Public Transport Employee Dismissed for “Gross Misconduct” Wins Reinstatement

A public transport employee who spat at a member of the public and was dismissed for “gross misconduct” has won her case to be reinstated in employment with the employer.

(Appellant: employee

Respondent: employer)

Member of the public annoying other passengers-appellant intervened-appellant was racially abused and spat at-she spat back at the passenger-all was recorded on CCTV-appellant admitted she was at fault in disciplinary process-employer dismissed her for “gross misconduct”-appellant brought case to Rights Commissioner-Rights Commissioner rejected her case-appealed to Employment Appeals Tribunal-appellant appealed the “too severe” penalty-pointed to her excellent prior record-EAT found that the dismissal was disproportionate-referred to section 6(1) of Unfair Dismissals act, 1977-”substantial” grounds are required to justify dismissal-EAT found that appellant’s conduct contributed to her dismissal-nevertheless appellant to be re-engaged back into the position she previously held and to take effect from 1st Jan. 2012-the period of absence from December 2010 to January 2012 to be counted for continuous service but not remuneration or leave entitlements.


Date of Hearing: 4th April, 2013

For Appellant: Rosemary Mallon B.L. instructed by B.P. O’Reilly Solicitors, Tallaght, Dublin 24

For Respondent: David Farrell, IBEC, Lower Baggott Street

Read full decision here

Montessori Teacher Awarded €32,500 for Unfair Dismissal in Kildare

Montessori school in Kildare-Board of Trustees runs the school-Principal asked RD to go on board-Principal went on administrative leave in 2010-Vice Principal took over Principal’s class-Board asked Vice Principal for report on each child-Principal unhappy with this report-felt Vice Principal was trying to undermine her position-report questioned Principal’s competence, professionalism, and commitment to school’s method-Principal alleged report was defamatory and offensive-wrote to the Board with her views-gave a copy of the letter to the Vice Principal and asked her to reflect on her report-Principal invited to disciplinary hearing-purpose of meeting to discuss Principal’s actions/behaviour towards Vice Principal-Principal had asked Board to remove Vice Principal from school-Board sought advice from HR consultant-at disciplinary hearing Principal clarified that she wanted Vice Principal removed from post of Vice Principal, not from teaching post in school-a performance improvement weekly plan was initiated for the Principal-Board decide that Principal’s action in handing a copy of her letter to the Board to the Vice Principal and asking Vice Principal to step down to be serious misconduct-Board decided termination of the Principal’s employment was justified-previous warnings on the Principal’s file were not considered-Principal was offered a right to appeal-Principal did not appeal-Principal’s case that she had suggested an independent facilitator to assist with the matter-gave the independent facilitator background information who contacted the Board-Principal suspended at this point for breach of data protection-Principal attended disciplinary hearing with her solicitor-felt her position was undermined by the Vice Principal’s report while Principal was on administrative leave-Principal saw no point in questioning Vice Principal at disciplinary hearing-Principal dismissed on 3rd March, 2011-following legal advice Principal did not appeal-no faith in appeals process-Tribunal found that procedures used by the Board were unsatisfactory-it would have been helpful if principal availed of appeal’s process-nevertheless Tribunal found that the Principal was unfairly dismissed and awarded 32,500 euros.

Date decision published: 18th June, 2013

Read the full decision here.

Unfair Selection for Redundancy-Awarded €50,000 for Unfair Dismissal

The Employment Appeals Tribunal (EAT) awards 50,000 euro for the unfair selection for redundancy of environmental manager.

Claimant worked her way up in Oxigen Environmental-was told her role would cease-notified of redundant-company had decided a week earlier that her role would cease-claimant said she was unfairly dismissed and sought reinstatement-alternatively, she claimed that she was unfairly selected for redundancy-respondent claimed her redundancy was part of a company restructuring-claimant informed of potential redundancy on 29th April, 2010-redundancy was confirmed on 26th May, 2010-came into effect on 26th June, 2010-no appeal from claimant-Tribunal found that claimant was not treated fairly or reasonably-selection criteria must be objectively applied in a fair manner-no hard and fast rules for criteria-criteria will come under scrutiny if employee claims unfairly selected-no agreed procedure for redundancy in this case-therefore employer must act fairly and reasonably-EAT held that there was no serious or worthwhile consultation with the claimant-decision to make the position redundant was made before consultation with claimant-no substantial consideration given to alternatives to redundancy-no worthwhile discussion in relation to the criteria for selecting the claimant-claimant’s suitability for other roles should have been considered-Tribunal found claimant was unfairly dismissed by virtue of her unfair selection for redundancy-awarded 50,000 euro for unfair dismissal in addition to redundancy payment of 10,014 already paid to the claimant under Redundancy Payments acts 1967-2007.

Decision published: 27th June, 2013

Read the full decision here

Abrekbabra Supervisor Awarded €9,500 For Unfair Dismissal-‘Forgot to Pay’ for Food

An Abrekebabra supervisor, accused of consuming food on the premises without any record of the food having been purchased, wins €9,500 for unfair dismissal.

Supervisor since 2006-given a number of verbal warnings-CCTV footage showing him consuming food-no record of payment-supervisor claimed he ‘forgot to pay’-attempted to pay next day-breach of trust-one month’s notice and dismissed-no letter to claimant confirming dismissal-supervisor denied receiving verbal warnings-agreed received written warning-direct conflict of evidence between parties-‘lack of proper procedures’ in effecting dismissal-no formal invitation to dismissal meeting-no investigation-no letter to claimant confirming dismissal-no opportunity to appeal-did not receive full notice entitlement-unfairly dismissed.


For claimant: Himself

For respondent: company director

Decision published: 28th May, 2013

Read full decision here

Security Officer Denied Taking Money from Shopping Centre Pay Stations-Wins €46,800 for Unfair Dismissal

A security officer in a shopping centre, who denies misappropriating money from shopping centre pay stations, wins his case for unfair dismissal and is awarded €46,800.

Claimant was security officer employed by property management company-manager carried out investigation into alleged misappropriation of funds-manager satisfied that findings merited referral onwards for possible disciplinary action-referred case to company director-claimant categorically denied taking money-respondent in liquidation and failed to appear-Tribunal not satisfied claimant misappropriated money-respondent did not prove dismissal was fair-uncontested evidence of claimant-unfair dismissal claim succeeds-awarded €46,800 and four weeks’ pay under Minimum Notice and Terms of Employment Acts.

For claimant: Elaine Morgan BL instructed by David Burke & Co solicitors

For respondent: Derek Dunne BL instructed by McCullagh Higgins & Co. Solicitors on 9th July 2012

(No appearance by or on behalf of respondent on 15th November, 2012)

Decision published: 12th April, 2013

Read Full Decision Here

Secondary School Secretary Awarded €9,850 for Unfair Dismissal

A secondary school secretary is awarded €9,850 for unfair dismissal due to the employer’s “highly questionable” investigation into allegations.

Secondary school employer-claimant was full time secretary-number of versions of employment contract-claimant’s role to record and lodge school income-school’s power supply disconnected due to unpaid bills-unpaid newspaper-Principal became concerned about unpaid bills and stale cheques-issued warning to secretary-claimant granted leave of absence by Chairperson of Board of Management-claimant went to Australia-audit uncovered “unexplained and unaccountable absence of money” from school accounts-Principal wrote to secretary about “considerable discrepancies to accounts”-secretary invited to attend meeting-suspended secretary on full pay-secretary’s mother phoned principal-meeting attended by secretary, principal, accountant & others-disciplinary procedures invoked against secretary-another meeting requested-claimant denied stealing money from school-claimant had no access to office records to challenge allegations-EAT found unfair dismissal-accepted that there was discrepancies in school monies-audit found shortfall of €12,000 in school monies-legitimate questions to be asked-school not entitled to single out secretary-other people had access to the monies-accounting measures adopted by all members of staff ‘very slack’-was dismissal ‘reasonable’?-quality and extent of school’s investigation ‘highly questionable’-secretary had some responsibility-respondent failed to engage with process-enquiry flawed however-decision to dismiss not reasonable given it was based on flawed enquiry-€9,850 awarded to claimant for unfair dismissal.

For Claimant: Vernon Hegarty, SIPTU

For Respondent: Anne Hickey, Solicitor, Wine Street, Sligo

Date of Decision: 9th April, 2013

Read full decision here

Child Care Worker Dismissed for “Gross Misconduct” Awarded €19,000 for Unfair Dismissal

A child care worker who was dismissed for gross misconduct was awarded €19,000 because of “lack of proportionality” and “procedural unfairness”.

Child care worker in creche-dismissed for “gross misconduct”-failed to observe incident involving bullying-2 older boys-sock in mouth-father wanted investigation-claimant might have been on a break-did not see incident-dismissed with immediate effect-boy’s father put pressure on manager-claimant was on a break for 15 minutes-creche procedures not followed-child put at risk unnecessarily-manager did not inform claimant that meeting was disciplinary-dismissed for bringing crèche into disrepute-claimant not advised of right to appeal-manager over-ruled company disciplinary policy-child’s life had been in danger-claimant shocked to hear what happened-did not realize her job was in jeopardy-had not worked since dismissal-dismissal procedurally unfair-lacked proportionality-awarded €19,000 for unfair dismissal.

Date of decision: 21st November, 2012

For claimant: Eugene Hill BL instructed by Mercy Law Resource Centre

For Respondent: Donna Reilly BL instructed by Vivienne Matthews BL Das Group

Read full decision here

Pregnant Woman who Suffered Still Birth Awarded €72,000 for Unfair Dismissal

A pregnant woman who suffered the loss of her baby by still birth is awarded €72,000 for constructive dismissal due to unacceptable treatment at hands of her employer.

Claimant asked to compromise professional ethics-treated unacceptably in respect of pregnancy-employer unhappy that pregnancy would lead to maternity leave-increased her work load-would need to shorten her maternity leave-claimant received texts and emails while in hospital-bleed incident at hospital-claimant collected at hospital and ferried back to work-subjected to indecent comments after still birth-employer terminated part time work agreement after still birth-total disregard for claimant’s well being-speaker phone conversation-company intending to replace her-company director refused to discuss or engage-claimant leaves employment-Unfair Dismissals Act-awarded €72,000

For claimant: Neil Breheny & Co. Solicitors

For respondent: No appearance

Decision published: 15th November, 2012

Read full EAT determination here