ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000771

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant had worked for the respondent for five years and had a clean disciplinary record. On the day in question the complainant was engaged in her work on the shop floor when she was requested by the Asst. Manager to fill two prescription trays. The complainant said that she would do so after she finished the tasks that she was engaged on. The Asst. Manager insisted that the complainant do the trays immediately. The complainant began preparations to do the trays but then realised that she had an appointment to look after in the Beauty Room and left the trays to look after the customer. Following that appointment she had to deal with two further walk-in customers in the Beauty Room. When the complainant went to finish the trays she could not access the room. She got a phone call from the Asst. Manager to return to the shop floor. After some time the complainant was informed that a director was on his way to the store to conduct a disciplinary hearing and that the complainant should arrange representation in this regard. The complainant contacted an off-duty colleague and when that person arrived they went into the meeting. The meeting was conducted by the store manager with the director present. The complainant was told that she had refused a management order and asked for a response. The complainant denied that she had refused an order. The outcome of the meeting was that she was dismissed. The complainant appealed this decision in writing and after a delay of some weeks received a letter informing her that her appeal was dismissed.

Respondent’s Submission and Presentation:

The complainant was requested by her manager to complete a number of prescription trays. The complainant refused and stated that she was booking in an order. The manager instructed her to leave the order and do the trays as they were more important. The complainant again refused saying that she would complete the order and then do the trays. The complainant was asked for a third time to prioritise the trays and leave the order until later. She responded by saying that she had appointments later. The manager checked the Appointment Book and saw that the complainant had one appointment. The complainant then said that she would have to mark out time in the book for doing the trays. The manager told the complainant that this was unnecessary as the trays would not take long to complete. Despite this the complainant proceeded to mark out a half-hour for doing the trays. The complainant then took one of the trays upstairs but did not work on it. The matter was reported to the store manager who in turn reported it to a company director. Because of the seriousness of the issue it was decided to arrange a Disciplinary Hearing and to advise the complainant to get representation. At the hearing held by the store manager there was no acceptable explanation from the complainant regarding her actions and it was decided that due to complete breach of trust involved in her behaviour that gross misconduct had occurred. The complainant was therefore dismissed with immediate effect. The complainant appealed this decision and the matter was reviewed by a member of the Head Office management who upheld the decision to dismiss.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Whether the decision to dismiss the complainant constituted an unfair dismissal according to the provisions of the Unfair Dismissals Act , 1977.

Whether the complainant was due notice under the provisions of the Minimum Notice and Terms of Employment Act, 1973.

Legislation involved and requirements of legislation:

Section 6(1) of the Unfair Dismissals Act, 1977 states:

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.

Section 6(4) of the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(b) the conduct of the employee

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an un fair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

1. To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

1. An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

2. The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(c)If the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks….

Decision:

The complainant was employed as a Retail Assistant / Beautician by the respondent company which operates a number of Retail Pharmacies. She commenced employment on September 1 2010 and her employment was terminated on October 21 2015. Her gross pay was €352.00 per week for a 32 hour week.

The main facts in this case are not in dispute. There is, however, a difference as regards the interpretation of those facts. In this regard I have to take into account that neither the Store Manager nor the Asst. Manager gave evidence as they have left the employment of the respondent. The respondent’s director who spoke to both managers on the day and who sat in on the Disciplinary Hearing did give evidence.  As part of the background to the situation he stated that issues had previously arisen in the store which had led him to meet with the staff and that the attitude of the Asst. Manager may have had a bearing on some of those issues. He also said that although he had sat in on the meeting, the decision to dismiss was taken by the Store Manager.

It therefore follows that when it comes to interpreting the actions of the complainant on the afternoon in question the only direct evidence before me is that of the complainant herself. Her view is that, while she may have had an issue with not being allowed to finish checking in the order, she had commenced working on the first tray only for events in the Beauty Shop to take over. When she did attempt to return to work on the tray she could not gain entry to the room as the managers were in a meeting in that room. The complainant also mentioned that as she made her way off the floor with the tray she had decided to seek a transfer from the store because of the ongoing attitude of the Asst. Manager. She sent an email to Head Office to this effect just before attending to her appointment in the Beauty Shop.

I now turn to the procedures adopted by the respondent in response to this incident. The respondent decided to go straight to a disciplinary hearing without going through the process of carrying out an investigation and interviewing all members of staff who had been witness to the events in question. The complainant was given very little notice of the fact that she was the subject of a Disciplinary Hearing and was not advised as to the precise charges that she would be required to address. She therefore had very little time to arrange for any sort of representation and had to rely on an off-duty colleague to accompany her to the hearing. It was only when the complainant was in the meeting that she was informed that she was facing a charge of gross misconduct for which she could face dismissal. How unprepared the complainant was is borne out by an extract from a report compiled by the director the day after the dismissal:

The decision to dismiss the complainant was reached by the manager without any break or consultation taking place. No letter setting out the reasons for reaching the decision to dismiss was furnished by the respondent to the complainant.

The complainant decided to appeal and did so by letter the next day. The respondent appointed the Accounts Manager to manage the appeal. This manager interviewed a number of staff over the following weeks but did not interview the complainant. On November 24 2015 the manager issued a written report to the complainant rejecting the appeal. The respondent’s own handbook, however, provides for an appeal hearing and for representation at that hearing. The manager appointed stated in evidence that this was the first time that she had conducted an appeal.   She was also the person in Head Office to whom the director had sent a report giving the reasons why the complainant was dismissed and instructing that the complainant be removed from the payroll. This manager could not therefore come to the appeal process as someone without preconceived views regarding the issue.

Finally, even if the procedures were properly utilised, an employer invoking disciplinary procedures must also bear in mind the principle of proportionality. In the circumstances of this case, involving an employee with five years service and a clean disciplinary record, the ultimate option of dismissal was out of proportion to the offence and the transgression that occurred could have been more properly dealt with by way of a less severe sanction.

For all these reasons I find that the process used by the respondent was fundamentally flawed and was not in accordance with the principles of natural justice. I accordingly find that the complainant was unfairly dismissed under the Unfair Dismissals Act, 1977. As the dismissal was unfair the complainant is entitled to notice. I therefore make the following decisions:

Complaint No. CA-00001150-001:

The complainant was unfairly dismissed. Compensation is the appropriate remedy. The complainant provided evidence of her efforts at mitigation and of the fact that she had recently secured employment at a lesser rate than that previously paid to her. In these circumstances, I award the complainant the sum of €15,000.00 in compensation.

Complaint No. CA-00001150-002:

The claim under the Minimum Notice and Terms of Employment Act, 1973, succeeds and I accordingly award the complainant compensation of €1,408.00 in this regard.

Dated:   9^th August 2016