ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001352

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

 Date of Adjudication Hearing: 22/09/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 77 of the Employment Equality Act, 1998 and or Section 11 of the Minimum Notice & Terms of Employment Act, 1973 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).

Attendance at Hearing: 

 1:        Summary of Respondent’s Submission and Presentation:

The Respondent is a major pharmacy and health products retailer in Ireland. The Complainant was first employed in September 2013 as a Retail Graduate.

A number of incidents took place in July 2015 whereby the Complainant contravened the Respondent’s Security Rules and Procedures.

These Security Rules and Procedures are regularly updated and an update had been issued in February 2015 which the Complainant had read, as required by the Respondent policy, and signed.

Four (4) incidents were detailed in evidence.

Taking Beauty Product Testers without approval, Cash refunds to Friends, Returning Products against Company Rules and Abnormal Volume of Transactions involving Gift Vouchers.

Beginning in late August 2015 the Complainant was interviewed on three occasions by the Respondent’s Profit Protection Manager. Representation was offered and all witness statements were furnished to the Complainant.

The investigation recommended that the process proceed to a Disciplinary procedure.

A Disciplinary hearing took place on the 5^th September 2015.

Full representation rights were offered but declined by the Complainant. All evidence was presented to the Complainant.

The Complainant was afforded a full opportunity to rebut all the Respondents arguments.

The decision to terminate the Complainants employment, for failure to follow Company security rules, was communicated by letter of the 7^th September 2015 to the Complainant.

An opportunity to appeal the decision was offered in the letter. The Complainant did not avail of this Appeal procedure,

In summary, the Complainant was dismissed for Gross Misconduct following a full investigation and disciplinary hearing for breaches of the Respondent Company security policy.

Considerable legal precedents were quoted by the Respondent in support of their position.

 2:        Summary Complainant’s Submission and Presentation:

 3:        Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I decide 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.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Section 11 of the Minimum Notice & Terms of Employment Act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

At the hearing it was confirmed that the Complainant was pursuing her claim for Dismissal under the Unfair Dismissals Act, 1977 and not the Employment Equality Act, 1998.

4:        Issues for Decision: 

CA- 00001857-002

Was the Complainant Unfairly Dismissed?

CA- 00001857-003

Did the Complainant suffer Harassment country to the Employment Equality Act ,1998? Has a prima facie case of Harassment been established?

CA- 00001857-001

Was there a breach of the Minimum Notice & Terms of Employment Act, 1973?

 5:        Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977, Employment Equality Act, 1998, the Minimum Notice & Terms of Employment Act, 1973 and SI No 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.

 Rules of Natural Justice - Were fair procedures followed at all times? Was the Complainant afforded all rights to present her case and have it heard and considered fully? Was the Deciding officer of an Independent status and removed from the Investigation? Was an Independent appeal process offered?

 6:        Conclusions and Decision:

Considerable oral and written evidence was presented by both Parties. As all cases stand on their own facts I set out below what I took to be the pertinent facts.

Pertinent Facts

The Complainant was a Graduate Managerial trainee and had been fully inducted and trained on all the Respondent rules and procedures -including the Security rules. As a Graduate trainee, a high standard was expected of her.

As part of an annual review the Security Rules were re-presented to all staff in February of 2015. The Complaint in keeping with policy had read the Security Rules and signed an acknowledgment of having read same. Presented in evidence and dated 11/02/2015.

The four breaches of the rules were comprehensively investigated. All rights were afforded to the Complainant in terms of reviewing the evidence and having the opportunity of having representation. The subject matter of the Investigation meetings was made know to the Complaint in writing well in advance of the meetings. Records of the meetings were signed by the Complainant. All presented in evidence.

The Responded Profit Protection Manager, Ms. B, gave extensive oral evidence to the hearing in relation to the investigation and her methodology in same. Her evidence was clear and professional.

The Disciplinary Hearing of the 3^rd September 2015 was carried out by an uninvolved Manager, Ms. X, from another store. The subject matter of the Disciplinary meeting was advised in writing in advance and representation offered either via the Mandate Trade Union or a colleague. The Complaint declined to exercise this right.

The Manager involved, Ms. X, stated that she was not going to decide at the hearing on the 3^rd September but would take time to think about the decision. While Ms.X did not attend the WRC hearing, 13 pages of minutes from this Disciplinary meeting were presented in evidence. Close reading of the minutes indicates that an extensive and careful process was undertaken. The Complainant participated fully in the meeting of the 3^rd September and offered explanations as to the contested incidents.

Corroboratory oral Respondent evidence was given by three other Respondent Managerial employees as to the Company procedures and practices in the Security area. Written statements from other employees in the City Centre store were also exhibited. Among the witnesses was Mr. Z who was the Complainant’s Mentor on the Company Graduate Programme. He had not been approached at any stage by the Complainant in relation to this process.

The Deciding Manager Ms.X offered the Complaint an opportunity to Appeal her decision – letter of the 7^th September 2015. This was not taken up by the Complainant.

The Complaint alleged that there was a climate of racial harassment directed against her by the Manager of the City Centre store. This Manager gave evidence to the hearing. I did not detect any racial overtones in her evidence. It was clear that there had been some performance issues with the Complaint but none that could be related to a racial bias. The Complainant and her legal Counsel had full opportunity to address the Manager’s evidence during the hearing.

The Respondent is a major international High Street pharmacy /consumer personal goods chain and has extremely detailed procedures in the Security area. Extracts were cited in evidence. Detailed procedures were also demonstrated in the HR area.

The Complainant gave oral evidence to the hearing and was generally quite vague in her answers to both the Adjudicator and the Representative of the Respondent.

The Complainant’s legal Counsel was afforded full opportunity to question the Respondent’s witnesses but in my view, did not establish any new matters not already covered in the written or oral evidence. He did point to the absence at the hearing of the Deciding Manager. Ms. X . She no longer works for the Respondent. In his view this absence was in effect a denial of his rights to cross examine the evidence of the Deciding Manager. She should be compelled to attend a hearing.

As Adjudication officer, I took the view that Ms. X had provided extensive written evidence, both the minutes of the Disciplinary meeting and a detailed termination letter. I decided that there was not a lot to be evidentially gained in issuing proceedings to compel her to attend and declined to adjourn to call her.

Decision

CA- 00001857-002

Was the Complainant Unfairly Dismissed?

The Complainant was employed in a major high street Pharmacy/ Personal goods chain as a Graduate Trainee. A high degree of trust was placed in her as a Graduate Managerial Trainee. The relationship of trust had broken down.

She was made full aware of the Respondent’s Security Policies. She clearly understood them.

The incidents in July of 2015 were clearly in breach of these Security policies.

A full investigation was carried out following all proper and documented procedures. This was followed by a Disciplinary Hearing, again following all proper procedures. She consistently declined to be represented. Having reviewed the Investigation and the Disciplinary process I could find no procedural faults in either of them.

The Complainant did not avail of the internal Appeal procedure offered to her.

Accordingly, bearing in mind SI 146 of 2000 and much legal precedents, and having considered all the evidence both oral and written I find that the claim for Unfair Dismissal is not well founded and is dismissed.

CA- 00001857-003

Did the Complainant suffer Harassment country to the Employment Equality Act ,1998? Has a prima facie case been established as required by Section 85 of the Employment Equality Act ,1998?

I considered all the evidence both oral and written and in particular the oral evidence from the City Centre Store Manager and the Mentoring Manager. The Mentoring Manager was specifically there in the Corporate structure to mentor graduate Trainees , to offer advice as required and to be of assistance. There was no evidence presented that he had ever been contacted by the Complainant in regard to a racial Harassment issue in the Dublin City centre store.

Accordingly taking all the evidence into account I could not find the necessary prima facie evidence to support a claim of Harassment on Racial Grounds .

This claim is dismissed.

 CA- 00001857-001

Was there a breach of the Minimum Notice & Terms of Employment Act, 1973?

Did not arise as the Complainant was paid four weeks’ notice.

Claim is dismissed.

Dated:   10^th November 2016