Labour Court Database __________________________________________________________________________________ File Number: CD92361 Case Number: LCR13960 Section / Act: S20(1) Parties: OUR PRICE MUSIC - and - A WORKER |
A dispute concerning the alleged unfair dismissal of a worker.
Recommendation:
This long text of this Document is not available in the add field,
but in the database.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD92361 RECOMMENDATION NO. LCR13960
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: OUR PRICE MUSIC
(REPRESENTED BY NIALL BEIRNE B.L.
INSTRUCTED BY JOYNT & CRAWFORD, SOLICITORS)
and
A WORKER
SUBJECT:
1. A dispute concerning the alleged unfair dismissal of a worker.
BACKGROUND:
2. The worker concerned was employed by the Company as a sales
assistant from the 5th November, 1990 until 10th July, 1991 when
his employment was terminated.
A written complaint, dated 28th June, 1990 (copy furnished to the
Court) was received by the Company from a customer alleging that
on that same day he had made a purchase in the store which had not
been 'rung up' on the till by the sales assistant. The customer
claimed that the previous customer left without his receipt and
that the sales assistant had subsequently handed him this receipt
while at the same time placing the money in an open till. In the
letter the customer also gave a brief description of the sales
assistant. The Company pursued the complaint and requested the
customer to visit the store. This he did on the 3rd July, 1991
where he identified the worker concerned as the sales assistant
who had served him on the 28th June, 1991.
On 5th July, 1991, the worker was interviewed and searched by the
Company's head of security in the presence of the area manager.
During this interview the worker concerned denied any knowledge of
the incident as alleged by the customer. Following the interview
the worker was suspended on full pay pending further
investigation.
On 10th July, 1991 the worker was re-interviewed by the area
manager in the presence of both his father and the local manager.
Following this meeting the worker was dismissed for serious
neglect of duty. In accordance with Company procedure the worker
appealed this decision to the regional manager who, by letter of
6th September, 1991, informed the worker that the decision for
dismissal was upheld but that the reason for dismissal was being
amended to unsuitability due to failure to adhere to fundamental
till procedure.
The dispute was referred to the Labour Court under Section 20(1)
of the Industrial Relations Act, 1969. The Court investigated the
dispute on 20th July, 1992 and 2nd September, 1992.
WORKER'S ARGUMENTS:
3. 1. The worker denies the incident alleged by the customer.
His record with the Company was excellent and he had never
received a warning either verbal or written with regard to his
conduct or to any alleged discrepancies.
2. The worker contends that the manner in which the search
was carried out was intimidating and humiliating to him. He
was not initially informed of the reason for the search. Only
when the search was completed was he informed of the
allegations being made against him.
3. The onus is on the Company to prove that the dismissal was
fair and that correct procedures were followed.
COMPANY'S ARGUMENTS:
4. 1. During the time of the worker's employment there was an
unusually high number of till discrepancies in the store.
Based on the evidence of the customer and his positive
identification of the worker the Company was satisfied that it
could no longer have confidence or trust in the worker on the
till operations. The Company contends that the worker was
fairly dismissed.
2. In accordance with Company procedure the worker had the
right to appeal the decision for dismissal not only to the
regional manager but also to the Director of the Company. The
worker chose not to exercise this right. Moreover the worker
was aware of the Company policy regarding searches. The
Company is satisfied that the search was carried out in
accordance with this policy.
*RECOMMENDATION:
5. The Court considered the views expressed by the parties in
their oral and written submissions. The Court recognises the
Company has a code of practice in relation to allegations of theft
which embodies a right of search and representation. It would
seem to the Court that in normal circumstances a complaint would
initiate an immediate investigation where these procedures would
have been appropriate. However the Court would question whether a
search procedure, in this case with all its heavy undertones has
any meaning one week after the alleged incident.
The Court notes the account of the management as to the outcome of
its investigation, by a very experienced and professional person.
The Court also notes that the complainant did not vary his account
of events despite the intensity of the investigation and the
questions from the Court.
On the other hand the Court recognised that the customer who made
the complaint was also subject to stringent examination by
management during its investigation and in response to the
questions of the Court his account of the incident did not vary.
In its consideration of the case the Court noted that the Company
found no discrepancy in the till, and the till roll in use by the
complainant at the time of the incident was not available to the
Court.
Up to the time of the incident the complainant had an impeccable
record with the Company. Management had tested his suitability
throughout probation and furthermore had used its own security
system to test the reliability and integrity of its staff
including the complainant.
With regard to the customers allegation the Court accepts the
genuineness of his belief, however his conclusions appear to the
Court to have been based on his reflections of the event after he
departed the store. He made no complaint at the time of the
alleged incident but chose to go home and put his view of the
matter in a letter to the Company.
Given all the circumstances of this case the Court does not accept
management's conclusion based on, as it appears to the Court, the
philosophy that if conclusive proof is not available then the
Company can fall back on the concept of "lack of trust" to effect
a dismissal.
Accordingly the Court finds the complainant should not have been
dismissed and was therefore treated unfairly.
Given that it is unlikely a normal working relationship would be
possible the Court does not consider reinstatement in this case
would be a remedy. The Court therefore recommends that the
complainant be paid compensation in the amount of #1,500 in full
and final settlement of his claim, and that if he so wishes he be
given an appropriate reference.
RECOMMENDATION:
This long text of this Document is not available in the add field,
but in the database.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________
23rd February, 1993 Deputy Chairman.
A.NiS./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Ms. Aoibheann Ni Shuilleabhain, Court Secretary.