The People Bulletin

With cases of dismissal due to misconduct it would seem that CCTV footage of the employee carrying out the alleged misconduct would be irrefutable evidence of the act, however as this case demonstrates the decision isn’t always so cut and dry.

The background

In this case Mr Vladutu was employed as a warehouse operative for Logistics & Mega Carrier. In February 2010, he went to get a snack from a third-party owned vending machine. The subsequent incident, which resulted in his dismissal from his position, was caught on CCTV.

The incident

The CCTV footage shows Mr Vladutu entering the room and getting a coffee. He then appears to take money out of his pocket and peer at his hand. However, the angle of the footage is side-on to the machine, and does not clearly show whether or not Mr Vladutu put money into it. He then goes to the back of the machine and gives it a couple of “very vigorous” pushes, before returning to the front and appearing to “scoop something” out of it. 

At one point in the footage, Mr Vladutu ceases his activities with the machine for around 30 seconds while some colleagues enter and leave the room. 

As a result of this Mr Vladutu was suspended. Following his suspension he was invited to attend an investigation meeting into the incident. Rather than investigating the case in an objective manner the tribunal found that Mr Vladutu was “constantly being challenged” throughout the meeting, and that his account of the incident varied, however, Mr Vladutu maintained that he did put money into the machine.

As a result of the investigation Mr Vladutu was dismissed for theft. He appealed the decision but this was not upheld. As a result Mr Vladutu lodged a claim for unfair dismissal.

At the tribunal

The tribunal found that the company had not handled the investigation correctly. They ruled that whilst Mr Vladutu’s changing account of the incident could be viewed as evidence of his guilt, it could also be because he was trying to remember a rather mundane event several weeks before.

The tribunal also found that whilst it wasn’t clear from the footage whether Mr Vladutu had put money into the machine, this did not consitute evidence to the contrary.

The tribunal found that if Mr Vladutu had put money into the machine and not received his chocolate bar, then it was understandable that he shook the machine to see if something would happen. Equally, the fact that he stopped shaking the machine whilst his colleagues were in the room could have been because he simply did not want them seeing him doing it.

Although the company’s belief in Mr Vladutu’s misconduct was genuine, it was not a reasonable belief, and the dismissal was unfair. The employer should have taken into account all the relevant circumstances of the incident - including the employee’s explanation of the events in question and examined all the evidence objectively.  This is particularly important where the evidence of the alleged misconduct is inconclusive.  This was an act of minor misconduct that did not warrant summary dismissal.

 www.xperthr.co.uk 

Do you have an opinion on this case? Why not discuss it on our LinkedIn group.

To find employment law specialists search findasupplier