FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUFFY GROUP (REPRESENTED BY TOM SMYTH & ASSOCIATES) - AND - MANDATE DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation No 1241/97.
BACKGROUND:
2. The appeal concerns one worker who was employed by the Duffy Group as a sales assistant, at the Londis store in Blakestown, Dublin, from October, 1996 until she was dismissed, in August, 1997.
In late 1996, it was discovered that difficulties had arisen in the store concerning till discrepancies and stock leakage in the areas of drink and tobacco. Consequently, security arrangements were upgraded and, on the 30th of July, 1997, the day before the worker went on holidays, the manager received a security report highlighting a particular problem. This matter was investigated during the period that the worker in question was on holidays. On the day of her return from holidays, she was interviewed by the Garda� on the premises, and later at a Garda station. A statement was given by the worker which was reported to management as being an admission to having committed larceny. The worker did not attend work on the following 2 days and, subsequently, the Company dismissed her by letter dated the 21st of August, 1997.
The Union claims that the Company was in breach of procedures in a number of respects regarding the worker's dismissal. The Company conceded that while normal procedures had not been followed, a full investigation had been carried out during the worker's absence on holidays.
The dispute was the subject of investigation by a Rights Commissioner who concluded that although all concerned agreed that procedures had not been followed, the Union did not accept that the reasons were valid. The Rights Commissioner considered that while the Company could have advised the worker of the purpose of the Garda interview, it had acted reasonably, given the seriousness of the security situation in the Company, and the advice given by the Garda�. It was not the Rights Commissioner's belief that any other actions on the part of the Company would have altered the outcome, given the circumstances.
In her recommendation the Rights Commissioner concluded that the decision to dismiss the worker had been a fair one.
The Recommendation was appealed by the Union on the 23rd of April, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 15th of June, 1998.
UNION'S ARGUMENTS:
3. 1. The worker was dismissed without having had a meeting with her employer and without having been spoken to by any member of the Company's management. She had not been accused of any wrongdoing by her employer and had not been given any opportunity to present a defence. The letter of dismissal did not even make clear the nature of the alleged "serious breach of Company procedures".
2. A few weeks subsequent to the worker's dismissal, a former colleague of hers, who was accused of failing to follow cash register procedures and falsification of Company records, was offered the opportunity of having a colleague present when interviewed and was suspended, with pay, to allow Step 2 of the procedural agreement to take place. In that case, the Union was given every opportunity to respond to the charges and to offer a defence on behalf of the worker in question.
3. It is the action of the employer that is under scrutiny in this case, not the action of the worker. The Company's unreasonable decision to dismiss the worker shows a complete disregard for that worker's rights.
COMPANY'S ARGUMENTS:
4. 1. The suspension stage of the procedures is implemented in order to allow for investigation of an alleged offence. Following the examination of documentary and video evidence, this stage had been completed before the worker's return from holidays. The directors of the Company were convinced that the worker was guilty of gross misconduct which warranted summary dismissal, in accordance with Step 3 of the procedural agreement.
2. During the Rights Commissioner's hearing, the worker denied any wrongdoing, despite her previous admission of guilt to the Garda�. Notwithstanding her denial, she subsequently pleaded guilty to the offence at a civil court hearing. The comparison between this case with a subsequent case forms a major part of the Union's case. However, the 2 cases are different given the worker's admission of ongoing larcenies and the conspiracy with a non-employee to defraud the Company in this case.
DECISION:
The Court, having considered the written and oral submissions, finds no reason to change the Rights Commissioner's Recommendation.
The Court, therefore, upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
24th June, 1998______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.