ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003459

Complaints and a Dispute for Resolution:

Date of Adjudication Hearing: 13/09/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 13 of the Industrial Relations Act, 1969 and following the referral of the complaints/dispute(s) to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.

Background

The Complainant was employed from 4th December 2011 until the employment was terminated without notice on 10^th March 2016. The Complainant was employed as a Sales Advisor, was paid €1498.90 gross per month and she worked 30 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Respondent.

The Complainant referred a complaint to the Workplace Relations Commission, on 7^th June 2016 alleging she had been unfairly dismissed by the Respondent on 10^th March 2016 and a complaint that she had not been paid her Minimum Notice.

Minimum Notice and Terms of Employment Act, 1973

Summary of Complainant’s Position

The Complainant stated that she had not been paid her Minimum Notice entitlements on termination of her employment.

Summary of Respondent’s Position.

The Complainant was summarily dismissed for gross misconduct and therefore is not entitled to payment of Minimum Notice.

Findings

In view of my Findings and Decision in relation to the complaint of unfair dismissal, I find that the Complainant is not entitled to payment of Minimum Notice.

Decision CA-00005060 -002

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and Section 8 of the Minimum Notice and Terms of Employment Act, 1973 which provides there is nothing to prevent an Employer terminating a contract of employment, without prior notice because of the conduct of the employee, I declare the complaint is not well founded.

Unfair Dismissals Act, 1977

Summary of Respondent’s Position.

The Complaint has been employed as a Sales Advisor since December 2011 on an annual salary of €14,820.00.

A number of incidents occurred between 28^th and 29^th January 2016, whereby the Complainant breached Company Security Rules, which she had been provided with on commencement of her employment. Each employee reviews these on an annual basis and the Complainant last viewed these on 7^TH March 2015. She signed her understanding of them on that date.

The incidents involved the withholding of stock and the overwriting of stock prices, such that they sold to her colleagues at reduced prices.

Stock is registered on the system at the reduced price so it is not necessary for the Sales Assistant to manually calculate or to enter the sale price of items. However the Complainant opted to overwrite the correct price of items and then to sell them at the reduced rate. The Respondent provided evidence in relation to a number of these items which show in (1) the sale price of the item was reduced from €11 to €5.00 (2) the sale price was reduced from €25.50 to €18.40 and (3) from €21.50 to €20.00.

The Complainant was suspended on full pay on 10^th February 2016 in order to facilitate an investigation. An Investigation meeting was held on 22^nd February 2016 and the Complainant was afforded a right of representation from MANDATE trade Union. The Profit Protection Manager conducted the investigation. The Complainant was afforded an opportunity to review all the evidence, including CCTV footage. The CCTV footage shows the Complainant repeatedly scanning an item and then manually attempting to overwrite the price and it also shows her removing the price sticker from the item. The Complainant confirmed her understanding of the procedure at the Hearing. She was unable to explain her actions in reducing the cost of items.

The issue was progressed to a Disciplinary Hearing conducted by a named Store Manager for the Respondent. Again the Complainant was represented and afforded all opportunities to explain her reasons for her actions. She also stated at the Disciplinary Hearing that her Grandmother had passed away some 2 months prior to the incident. The Respondent stated the Complainant had been afforded 3 days paid bereavement leave and a further 4 days unpaid leave at the time. The outcome of the Disciplinary Hearing was to summarily dismiss the Complainant for breaches of the security rules amounting to gross misconduct. The Complainant was informed by letter dated 10^th March 2016 with a right of appeal.

The Complainant appealed and the Appeal Hearing took place on 15^th April 2016. The Complainant was represented by Mandate and the Appeal Hearing was conducted by a Named Area Manager. During this meeting the Complainant stated that she had dyslexia and it impacts on her when she is under stress. However the Complainant confirmed at the Appeal that she had not been put under any pressure by the Respondent she confirmed she had not. The outcome was to uphold the decision to dismiss.

The Respondent argued that the Company Security Rules were very clear and that the Complainant had breached these. The decision of the Respondent to dismiss is in accordance with what a reasonable employer would have done in the circumstances. The Complainant’s actions amounted to a breach of trust between the parties to the employment relationship. The Complainant was afforded at all times fair procedures in relation to the investigation, disciplinary and appeals process.

Summary of Complainant’s Position.

On 25^th January 2016 the Complainant was requested by a named Assistant Manager to clean the stock room, to clear the discontinued stock from the store room, reduce the stock and sell it off to make room for new stock. She is paid €420.00 net per week and worked between 20 and 30 hours a week.

The Complainant reduced a number of specified items, some of which were purchased by staff in the store. These items were identified at the Hearing. The prices were scanned and price checked at the till point and confirmed by her and she proceeded to reduce the price and attach a price sticker to the stock.

The Complainant was suspended on 10^th February 2016 pending an investigation. . This was scheduled for and 12^th February and 22^nd February 2016. Minutes were provided to the Complainant.

The Complainant was given one days’ notice of a Disciplinary Hearing to be held for 2^nd March 2016 but this was rescheduled for 3^rd March 2016. The Complainant’s employment was terminated by letter dated 10^th March 2016 with a right of appeal. The Appeal Hearing took place on 15^th April 2016. The Complainant had provided a letter from her GP in relation to her Grandmothers passing some 2 months earlier.

The Appeal outcome was to uphold the decision to dismiss and the Complainant was informed o the outcome by letter dated 3^rd May 2016.

MANDATE argued that the Complainant was forced to make a number of judgement calls in the absence of any clear direction to her from the Supervisory Team in the Store. They argued there is no clear Company Policy or guidelines for pricing reduced stock. They also argued that the whole process took place during a time of personal grief for the Complainant on the passing of her Grandmother.

The Complainant had an exemplary employee record and never received any disciplinary sanction. They argued that the decision to dismiss was unreasonable in all the circumstances of this case.

The Complainant confirmed that she had taken up further employment on 30^th March 2016, is paid €420.00 net per week and worked between 20 and 30 hours a week. The Complainant is seeking compensation.

Findings

On the basis of written submissions from both Parties and the evidence produced at the Hearing I find as follows: -

The Complainant was provided with a written statement of her terms and conditions of employment, including the Disciplinary Procedures of the Company.

The Complainant was provided with the Security Rules of the Respondent which she signed on 7^th March 2015 which states “I have read and understood the Named Security Rules 2015”.

These procedures of March 2015 do include Till Procedures and Staff Purchases.

The Investigation, Disciplinary and Appeal Meetings were conducted in accordance with fair procedures and natural justice and comply with both the Company Disciplinary Procedures and S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000

The Complainant and her Representative did not raise any issue in relation to the procedures adopted by the Respondent in relation to the process resulting in the Complainant’s dismissal.

I note that the Complainant was dismissed on 10^th March 2016 and she commenced employment on 30^th March 2016. Both Parties confirmed at the Hearing that the Complainant was paid €1432.72 net per month. The Complainant confirmed to the Hearing that she is paid €420.00 net per week in her new employment.

Decision.CA-0000-5060-001 

In accordance with Section 8 of the Unfair Dismissals Act, 1977 I declare the complaint of unfair dismissal is not well founded.

Industrial Relations Act, 1969 – 2001 CA-0000-5046-001

This complaint was withdrawn at the Hearing

Rosaleen Glackin

Adjudication Officer

Date: 15^th December 2016