Clancy v Sainsbury Supermarkets Ltd  (Unfair Dismissal)  (3 January 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF: 01587/01

APPLICANT:	Sedanta Clancy

RESPONDENT:	Sainsbury Supermarkets Limited

DECISION
The majority finding of the Tribunal is that the applicant was not unfairly dismissed and his application is dismissed.
Appearances:
The applicant was represented by Mr N Clancy, solicitor of William Fry, solicitors Dublin.
The respondent was represented by Mr B Mulqueen, of counsel, instructed by L’Estrange & Brett, solicitors.

1.	These reasons are given in summary form.

2.	The applicant claimed unfair dismissal.  The respondent denied that the applicant was unfairly dismissed.

3.	The Tribunal made the following findings:-

(i)	The applicant was employed by the respondent from 24 August 1999 to 8 December 2000 as a replenishment assistant.

(ii)	The respondent dismissed the applicant on 8 December 2000 because he had been found guilty of misconduct.

(iii)	The misconduct was that he had consumed product on the premises without prior permission or payment and had breached the trust between employer and employee.

(iv)	Dismissal for misconduct is capable of rendering a dismissal fair.

(v)	For conduct to render a dismissal fair an employee must have a reasonable belief that the employee has committed an act of misconduct, having carried out a reasonable investigation and dismissal must be within the band of reasonable responses.

(vi)	On the night of the 24/25 November 2000 the applicant had consumed nuts in a staff room without specific permission or payment.

(vii)	The respondent carried out a reasonable investigation.

(viii)	Under the respondent’s disciplinary code consumption of any product on the premises without permission or payment is an example of gross misconduct.  Breach of trust can lead to immediate termination of employment.

(ix)	At the disciplinary hearing the applicant was not advised of the breach of trust element of his misconduct until after he had been found guilty of misconduct.  This is a defect.

	The majority found that in relation to the consumption of product on the premises without permission or payment, however, the disciplinary hearing was reasonable.  The applicant was aware of the case against him; was given the right to be accompanied; was able to make his case and say what he wished; and he was entitled to appeal.

	The majority found that there was sufficient evidence before the disciplinary panel to enable a finding of gross misconduct to be made.

(x)	The minority found the disciplinary hearing was defective because it failed to consider the issue of implied permission to consume product on the premises from Gary Greer whom the applicant regarded as his supervisor that night.

(xi)	The defect concerning the breach of trust element of the misconduct was cured at the appeal stage.

The majority found the appeal hearing reasonable whereas the minority found it unreasonable for the reason set out at (x) above.

(xii)	The majority found that the respondent had a reasonable belief that the applicant had committed an act of misconduct.

(xiii)	The minority found that respondent could not have had a reasonable belief of misconduct for the reason set out at (x) above.

(x)	The majority find that dismissal is within the range of reasonable responses.  The minority find that dismissal was not within the range of reasonable response in the circumstances.

(xi)	Accordingly the applicant’s claim is dismissed.

____________________________________

Date and place of hearing:  26 and 31 October 2001

Date decision recorded in register and issued to parties: 3 January 2002