Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2003/335_03.html
Cite as: [2003] NIIT 335_3, [2003] NIIT 335_03

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INDUSTRIAL TRIBUNALS

CASE REF: 335/03

APPLICANT: Josephine Devine

RESPONDENTS: M & D Crawford

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed by the respondent. The applicant is entitled to the sum of £1,316.00 compensation from the respondent.

Appearances:

The applicant was represented by Ms Ann Marie Perry.

The respondents were unrepresented.

By originating application lodged on 24 January 2003 the applicant alleged that she had been unfairly dismissed by the respondent by way of constructive dismissal. The applicant commenced employment with the respondent on 14 May 2001 and left her employment on 26 October 2002. She was employed as a sales assistant in the butchery department of the respondent's grocery shop.

The applicant complained of various issues relating to her employment including being asked to stack shelves as well as performing her role in the butchery department, however, the events relating to her leaving her employment took place on 26 October 2002. The applicant was working that day in the butchery department as usual when she left her position to go to the toilet. On her return she found one of the respondents, Damien Crawford going through a shopping bag. The applicant recognised this to be a bag of meat which she had placed in the chilled fridge. The applicant informed Mr Crawford that it was her shopping. Mr Crawford asked her for a receipt for a piece of silverside beef as this was not included on the receipt in the bag. The applicant told Mr Crawford that she had paid Kieran Hamill the butcher for the meat that morning. Kieran Hamill was present as this took place and Mr Crawford asked him if this was correct. Mr Hamill hesitated but then remembered that the applicant had purchased the meat at around 11.00 am. Mr Crawford said to Mr Hamill, "Are you sure she paid for it – don't be lying for her". Kieran Hamill responded that the applicant had paid for the meat. Mr Crawford put the meat back in the bag in the fridge. He said that this paying behind the counter had to stop and went of to his office. Kieran Hamill then told the applicant that Mr Crawford was away to check CCTV cameras. The applicant was very upset about this incident and remained on the premises for approximately one hour. After this she informed Michael Crawford that she was unable to finish her shift. The applicant left the premises and did not return to work.

The applicant accepted that her terms and conditions of employment included the employer having a right to search an employee entering or leaving the premises and any property which he may have in his possession. The applicant's case was that firstly her property was searched because she had enquired about holiday entitlement and queried the requirement for her to stack shelves. The applicant also argued that her bag of shopping was subjected to a search in full view of other staff and customers. She stated that staff did not have receipts for purchases made behind the counter and that it was a regular practice of staff to purchase items in this way. She argued that by being searched in public was contrary to the power contained in the employers terms and conditions. The applicant also argued that after the incident she could see Michael and Damien Crawford discussing her across the shop floor and looking in her direction. She argued that this made her feel very uncomfortable and unable to continue working. Nothing else was said directly to the applicant.

In relation to the respondent's case the facts of the incident were not disputed. It was argued for the respondent that the applicant's honesty had not been called into question. Damien Crawford accepted that he had not carried out searches of property before. He accepted that searches should take place out of sight but argued that in this case no customers were about. The rules also refer to searches being carried out by a member of the same sex as the employee. Mr Crawford said that he and his brother were the only people authorised to carry out searches. Mr Crawford said that as the bag was in the cooked meat fridge he searched it on impulse and did not suspect anything. He argued that all staff had receipts for goods as required by the company rules. He stated that he believed the applicant's explanation and left it at that.

The tribunal considered the evidence presented by the parties and the facts as set out above. The issue was whether the respondents by their actions acted in a way which was in breach of the implied term of the contract in relation to trust and confidence. The tribunal in relation to the implications of the incident preferred the evidence of the applicant. In particular we found that the manner in which Damien Crawford searched the applicant's bag and challenged her in full view of the shop was in breach of the terms and conditions of employment. We did not accept his evidence that he did not suspect the applicant of having stolen the meat. There would be no other explanation for the search being carried out in that particular way. The applicant had a work history of honesty and is now employed in a position of trust dealing with money. The applicant's perception of the incident was that she was being accused of theft The tribunal were entirely satisfied that the applicant gave an accurate account of how she was affected by the incident and her inability to remain with the respondent afterwards. We therefore found that the applicant had been constructively dismissed by the respondent and that she had been entitled to leave her employment.

In relation to the assessment of compensation the applicant was employed by the respondent from 14 May 2001 to 26 October 2002 at a gross wage of £117.00 per week and £109.00 per week net.

She obtained alternative employment on 14 January 2003 at a wage of £4.50 per hour for a 38-hour week. The tribunal therefore awards the applicant a compensatory award for loss of earnings for the period 26 October 2002 to 14 January 2003 when she commenced her alternative full time employment.

Basic Award £ 117.00

Compensatory Award

11 weeks @ £109.00 £1,199.00

TOTAL = £1,316.00

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Period of Prescribed Element from 26 October 2002 to 14 January 2003

Prescribed element is £1,199.00

The decision is subject to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (NI) 1996.

This decision is a relevant decision for the purpose of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 6 November 2003, Belfast.

Date decision recorded in register and issued to parties: