EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE claimant UD731/2012
Against
EMPLOYER respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr. M. Flood
Mr. S. O'Donnell
heard this claim at Dublin on 1st August 2013
Representation:
____________
Claimant(s):
Respondent(s):
The determination of the Tribunal was as follows:-
Application for adjournment
All parties to the hearing were issued with a notice of hearing on the 3rd July 2013 that the hearing would take place on the 1st August 2013. A representative on behalf of the respondent applied to a Division of the Tribunal to have the case postponed on the 17th July 2013, on the basis that one manager who had been involved in the dismissal was on maternity leave, and that two others were now working in the respondent’s UK store and would not be available as they were going to be on annual leave. This application was refused on the grounds that the application was made late and the case could not be replaced. All parties are informed in the notice for hearing that cases will only be adjourned in grave circumstances.
The respondent renewed the application on the date of the hearing, though there had been no change in circumstances since the refusal by the division of the tribunal on 17 July. The Tribunal refused the adjournment on the grounds that:
1. First, the respondent did not apply within the provided timeframe of three working days of receipt of the notice, when it should have known the availability of its witnesses given that it had submitted a T2 form in advance;
2. Secondly, the respondent had already applied and been refused well in advance of the hearing and the circumstances had not changed since that refusal;
3. Thirdly, on foot of the previous refusal the respondent had notice of the hearing proceedings and had failed to ensure that at least two of their central witnesses attend, those who were on scheduled annual leave with the associated company in the UK, and now wished to rely on that failure to adjourn the case. Scheduled annual leave is not an adequate reason for an adjournment as it cannot be considered a “grave circumstance”
4. In any event, the respondent could have requested, and the respondent’s representative should know that parties can request, cases not to be listed until after certain dates due to non-availability of witnesses. Given that annual leave is generally known well in advance in large corporations, the respondent could have made this effort to avoid the unavailability of its witnesses. The fact that this was not done further confirmed that the respondent should not be facilitated with an adjournment as requested.
The hearing then proceeded with the Respondent presenting its case.
Respondent’s Case
TK for the respondent told the Tribunal that he was HR manager and was responsible for five of the respondent’s twenty-one stores. He outlined in detail the various levels of management within the respondent. When employees commence work as sales advisors, as the Claimant had, they are given a two-day induction that includes the staff policies, the staff handbook, and training on tills and they are made aware of who is responsible in the store. New tills were introduced in 2011 and all sales advisors received training. Section managers are responsible for refunds tills but did not work full time on tills. If queries arose in relation to the tills, section managers dealt with them. All members of the management team were trained in relation to the respondent’s grievance and disciplinary procedures.
If an issue arises, an investigation takes place to establish the facts of the case and determine whether it needs to go to be escalated to the next stage. The individual is given an hour’s notice and has the right to be accompanied by a work colleague. If an incident that may breach company procedures is witnessed by an employee the employee involved in the incident is investigated. A decision is made by the Investigating Manager to move it to a disciplinary investigation and if the incident is serious an employee can be suspended with pay. The role of the scribe is to make a record of the meeting. At the end of the meeting employees are asked to read and sign the minutes. If there are any alternations a scribe is used to capture the correct details. An investigative report is completed and any witness statements are issued. An employee receives a letter regarding disciplinary. The respondent has an agreement with two unions regarding the process.
At this time the respondent did not issue written statements but this changed in September 2012. The respondent offers unions all notes of meetings and union representatives have the opportunity to cross-examine witnesses
A disciplinary hearing is conducted by another manager from another store. The manager explains the roles and purpose of the meetings and a note-taker is provided. The manager goes through the investigation and the employee has the right to respond. The employee could have a colleague, shop steward or trade union official present. On occasion, trade union officials are not available to attend meetings and the meeting could be moved for five working days. The investigating manager makes the decision to dismiss and may consult with the HR manager. The decision is based on the investigative and disciplinary process. If employees are at stage one of the process it could move to next level or go to stage five depending on how serious the incident is.
When the disciplinary investigation takes place a decision is made within 24 hours unless new information becomes available. Verbal warnings can be appealed. A HR manager is selected who is not involved in the process. If it is an appeal hearing the respondent would focus on the grounds of the Appeal.
The witness dealt with the claimant’s appeal hearing on the 16th March 2012 and he was not involved in the disciplinary investigation of the claimant. The claimant attended the appeal hearing without a representative. The claimant read a prepared statement, the meeting concluded and the claimant left. He reviewed the process to ensure it was in line with the union agreement and he was satisfied that it was. The decision to dismiss the claimant was upheld. He believed fair procedures were adhered to. The claimant did not engage with the respondent on the day of the appeal hearing.
In cross-examination TK stated that he looked at the investigative report and the disciplinary notes to establish if the respondent had complied with the disciplinary process. He ensured fair procedures took place during the disciplinary investigation. He reviewed the investigative notes and witness statements. The incident in which the claimant was involved in related to a customer being given the incorrect change. An hour elapsed before the claimant reported the incident and an investigation then took place. He did not consult the staff handbook. His role was to hear the grounds of the appeal.
He established that the agreement that was in place between the union and the respondent was adhered to. He gave the claimant every opportunity to lay out the grounds of her appeal. The claimant refused to have a trade union representative present. The claimant was offered an opportunity to be represented on the morning of the appeal. The claimant read a statement in relation to fair procedures and he was satisfied that fair procedures had been applied. He made his decision based on the appeal. He asked the claimant if she had anything further to say and she left the meeting. He did not ask the claimant if she felt that there was a reason that she should not be dismissed. He was aware that the claimant was at stage 4 of the disciplinary process. His role was to look at the substance of the hearing. He could not recall how much loss accrued to the respondent and he was unsure if it was €75.00.
When put to him that the claimant had a very good record with the respondent he replied he did not look at her file recently. Managers received training on tills and knew what was expected of them. If the claimant had raised the fact at the appeal hearing that she made a genuine mistake and was prepared to pay back the money or take a demotion he would possibly have spoken to Mr. L/Mr. O B to explore that possibility. The claimant reported the incident an hour after the event and she should have reported the matter immediately.
If the claimant had appealed against the severity of the dismissal and if she produced it as part of the appeal he would have considered it. He did not interview the investigating officer. He thought that matters referred to in the letter dated 13th February 2012 from the claimant’s union representative to the Regional Head of HR were important matters.
Claimant’s Case
The claimant told the Tribunal she was dismissed by the respondent on the 11th February 2012. Since her dismissal she applied for several jobs. She started work with Job Bridge on the 24th June 2013. She hopes that will lead to full employment after nine months.
It was submitted on behalf of the claimant that the respondent had not justified the dismissal of the claimant and sought that the Tribunal so find.
Determination
The Tribunal has decided that the respondent has not fulfilled its obligation under Section 6 of the Unfair Dismissals Act, 1977 as amended (“the Act”) that the dismissal was unfair.
Section 6 (1), 6 (6) and 6 (7) of the Act states as follows:
“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal….
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section of that there were other substantial grounds justifying the dismissal….
(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so -
(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) To the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment Act 1993) of section 7 (2) of this Act.”
Section 14 (1) of the Act states:
“14 (1) An employer shall, not later that 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.”
The respondent submitted a number of documents including the notes of all meetings held with the Claimant and the correspondence with her.
On 28 January 2012, the Claimant overpaid a customer in a transaction involving a gift card and a credit voucher, when re-doing a transaction that another employee had been unable to complete. She had been asked for help by the other employee.
She brought the overpayment to the attention of her manager an hour later. She realised that she had made a mistake and given the customer too much credit on a gift card.
The Claimant was invited to an investigative meeting on the same day. At the end of the investigative meeting, the Claimant was suspended on full pay.
The Claimant was invited, by letter dated 1 February 2012, to a disciplinary hearing on Friday 10 February 2012. It was stated that the meeting would investigate “alleged misconduct,” not serious misconduct. She was provided with an “Investigation Report” which contained a section of “General Observations” but was not provided with the notes taken in the investigative meeting.
She was accompanied by her union representative to the disciplinary hearing on 10 February 2012. The remit of that hearing is stated at the beginning of the handwritten notes provided by the Respondent as being:
“to establish if there is reason to believe that (the claimant) breached the named respondent’s till procedures on 28th January 2012 during transactions where the company incurred monetary loss as a result of her actions and if therefore there is a disciplinary case to answer.”
The notes of that meeting show that the Claimant apologised for making a mistake and overpaying a customer. She offered to re-pay the respondent the money it had lost. The union representative stated during the hearing that the Claimant was on a final written warning that was under appeal to the Rights Commissioner, and had prior to that never been in trouble since she began work with the Respondent in 2007.
The next day, the Claimant was notified by telephone that she was dismissed, and in writing by letter that she received on 12 February 2012. The reason cited was:
“Gross misconduct
o in that you did not follow company procedures in administering the transaction on 28th January 2012 resulting in a monitory loss to the company of EUR 95.
o You stated in the Investigation and at the Disciplinary Hearing that you were unclear about carrying out the transaction, however at no point did you attempt to resolve the transaction by calling another Section Manager or even Commercial Manager.”
The union representing the Claimant, Mandate, wrote to the Respondent on 13 February asking, pursuant to Section 14 of the Unfair Dismissals Act as amended, for “specific particulars in writing outlining the grounds of the dismissal. In line with Section 14, Mandate is requesting the specific procedures, which have been allegedly breached. The dismissal letter states that the breach is for gross misconduct for not ‘following company procedures in administering the transaction, which incurred the financial loss.’ Under Section 14 highlighted above, Mandate is seeking the specific procedures, relied on by the company, in the form of training documents, policy documentation etc.”
The letter went on to state that while the meeting was called in relation to misconduct, that a finding was made of gross misconduct by the disciplinary manager and this went beyond his function. It also went on to state that there was no intention to breach policy and that the error was a mistake. It further said that the Respondent had failed, in accordance with its Code of Practice, to provide the Claimant with details regarding witness statements and that Mandate was seeking all statements, training files, procedures be submitted to prepare her appeal. And that an appeal was requested.
The appeal was scheduled for 8 March 2012. On 3 March 2012, solicitors for the Claimant wrote to the Respondent and requested that the appeal be held until the outcome of her previous sanction, before eth Rights Commissioner, would be determined. That was due to be heard on 12 March. [In the event, that appeal was successful in that it recommended that the sanction be reduced to a Stage 3 warning, i.e. less that the final written warning of a stage 4.] The statements were again requested. In reply, the Respondent said that the appeal would proceed, and after an internal process, the Claimant “then has every right to engage a solicitor in this matter.”
A further letter asked again for the appeal to be adjourned, and was refused by the Respondent again, and appeared to say that as the Claimant now was represented by a solicitors firm, she had effectively indicated that she didn’t want to appeal internally. Further correspondence resulted in a rescheduled appeal hearing, which took place, as indicated in the evidence of the person who heard it above, on 16 March 2012.
The Respondent had stated in correspondence to the solicitor of the Claimant on 15 March 2012 that the Stage 4 warning given to the Claimant previously was “completely separate to the issue of dismissal” and had “no relevance to the issue of dismissal.”
At the meeting on 16 March 2012, as stated in the evidence of T.K., the Claimant attended without her solicitor and read out a prepared statement. At the conclusion of the meeting it was stated, per the notes provided by the Respondent, that “the decision will be confirmed to you in writing within 14 days.”
By letter dated 19 March 2012, the Manager deciding the Appeal wrote to the Claimant concluding that “you have failed to provide me with your grounds of appeal, I would confirm my decision to uphold the decision to dismiss you from your employment with (the named respondent).”
Company Disciplinary Policy
The Disciplinary Policy provided by the Respondent is unclear in relation to dismissal arising from misconduct. It lays out a 5-stage process stating that:
“It is important for you to understand that failure to reach the required standards of work and conduct or to follow the rules and regulations will result in disciplinary action which may include dismissal. If Management view an incident sufficiently seriously the person may be dismissed immediately and the normal procedures will not apply.”
The Policy goes on to outline the 5 stages. The last stage is outlined as follows:
“Stage 5: Dismissal
If any further incident occurs you may be dismissed. Please note that all personal [sic] file entries made as a record of the discussion, signed or unsigned, will be made in your presence.”
Conclusion
It is clear that the Claimant made a mistake that she was asked to assist another staff member. She did not benefit from this mistake. When she realised what she had done, an hour afterwards, she reported the incident. She apologised for the incident and offered to compensate the respondent for the loss it had suffered, EUR 95.
It was stated to the Respondent in correspondence that her one disciplinary issue, which was under appeal to the Labour Relations Commission, was “not relevant” to the issue of dismissal. This being so, the sole reason that she was terminated in her employment was the genuine mistake. It was stated that she was terminated for her failure to follow procedures resulting in monetary loss, and failure to resolve the transaction by calling another manager.
It is not clear that the Disciplinary Policy of the Respondent allows the Claimant to be dismissed for a first breach of company policy, except possibly in cases where there is a breach deemed so serious that the employee is dismissed immediately, i.e. without any investigation, and “the normal procedures do not apply.” The Tribunal considers that there was a failure to follow the procedure provided to the employee under section 14 of the Act, and therefore has had regard to this failure under section 6 (7)(b) of the Act.
Even if this is not the case, in all of the circumstances of this particular employee, the respondent has not shown that there were substantial grounds justifying her dismissal as required under section 6 of the Act. The Claimant did not realise that she had made a mistake until after the transaction finished. It was therefore understandable that she did not involve another manager. The mistake that the employee made was not such that, absent other factors, justified a dismissal.
This is so even if the evidence of the respondent is accepted in its entirety, and the case put forward by the respondent is accepted in full. There was no significant divergence in relation to the facts surrounding the claimant’s dismissal. At its height the case presented by the respondent does not justify the dismissal.
Having taking evidence into account the Tribunal finds that compensation is reasonable in all the circumstances and awards the claimant €17,500.00 compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)