ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003434

Complaints for Resolution:

Date of Adjudication Hearing: 24/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment Act, 1994 Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant commenced work as a shop assistant on 6 November, 2000. She received payment of €135.00 for a 15 hour working week .The complainant claimed constructive dismissal and sought redress for the failure of the respondent to furnish her with a statement of her terms of employment. The complainant was a widow who went back to work when her husband died.

The complainant had worked without incident and had an unblemished employment record .She submitted that the owners had been friendly towards her and she enjoyed her job. She submitted that she had been loyal to the respondent. The trading pattern at the store had reduced and the complainant had found that she had more time on her hands. She developed a practice where she would purchase an array of “scratch cards” for her own perusal. She then reconciled  the payment for the cards at the end of the business day. She added the amounts to grocery transactions at the store for administrative purposes.

The complainant received a call on 15 December from the owner of the store asking her to change her working hours from 16 December to 17 December. She agreed to this .She came to work at 2pm on 17 December and was met by Mr O, the owner of the store and a lady she had never seen before, Ms I.

She was escorted into a tiny room at the back of the shop without a window. She sat down and was confronted by reference to CCTV footage of December 12 which showed her scratching lottery tickets. She was accused of stealing and sought to explain that she had handed the owner €50 cash in recompense for the scratch cards that evening .She also sought to draw his attention to a series of three receipts from the same day business which explained the context of the payment .

The owner refused to look at her and she was not heard on her protestations that this was not theft, but a habit that she had developed for which she reconciled in cash payments to the respondent. The complainant offered to make amends by paying “on the double” but this was not accepted. She was threatened by the respondent and Ms I that she would be suspended from her employment and was informed by them that trust between the respondent and her had disappeared.

The complainant felt that she was to be fired if she did not resign and submitted her resignation there and then, under duress.

The complainant’s representative submitted that the conduct of the respondent was unreasonable, that her client was faced with false allegations, an absence of a grievance procedure and was ambushed .Statutory Instrument 146/2000 was disregarded and there was a complete lack of natural justice or fair procedures. The complainant was treated in a wholly unfair manner and at 69 years of age, she was treated in a haphazard fashion and ambushed at work. She had no option outside resignation.

The complainant disputed the admissibility of CC TV footage on grounds that it was selective and not reflective of her working week as a whole. The complainant’s side had sought all the CC TV footage but had only secured some snap shots .They also disputed that the hand written minutes were accurate. The complainant’s representative submitted copies of business receipts for the relevant period.

In March, 2016, Solicitors for the respondent offered an independent investigation of the case but this was judged to be too late in the day and was not acted on.

Evidence of the Complainant

The complainant worked a three day week, where she received a composite payment of cheque and cash to the value of €135 per week. She worked at the store opposite a Bangladesh worker, who had resigned before her.

She described the evolution of her habit of securing scratch cards at the shop, scratching them and making an end of business day payment for them. On 12 December, 2015,this practice occurred around 2.30pm by purchasing 6x€2 scratch cards and this was followed up during the day by securing and scratching more cards and ultimately by her handing €50 in cash to the owner at close of business ,which he put into his pocket . She detailed the amounts on the cash register. She had bought some scratch cards as Christmas presents.

The complainant was aware that there was a surveillance camera in the store. It was there before a robbery had taken place some years earlier.

She attended the store on 17 December at 2 pm for her shift .She was approached by Mr O, who described himself as the “go between” between Ms I and the complainant .When she heard the detail of the allegations of theft, she asked Mr O, why had he not come to her directly as she could prove that the money paid for the scratch cards could be accounted for .She was informed that she would be suspended with pay and felt outnumbered 2:1.

The complainant submitted that she was shocked to hear this and asked both Mr O and Ms I “How can I tell my family that I have been accused of stealing? “. She was asked by the respondent if she was resigning and she agreed to resign. She heard Ms I instruct Mr O to obtain a signature. The complaint wrote her resignation in her informal name and was instructed to attach her formal name to the document. She heard Mr O state “I owe the bank”, which she understood to be money worries.

During cross examination, the complainant confirmed that she had reduced her hours from 28 to 15 earlier in 2015. Working relations were good with the respondents and they accommodated one another. The owners normally cashed up and she handed the till to them for that purpose and added whatever she had spent herself on both groceries and scratch cards.

She recalled the phone call from Mrs O on the 15 December as being unusual in that it was short and cut off quickly. The complainant phoned the respondent at home to say that she was sorry about the events of December 17 only to inform by Mr O that the respondents were both sorry also .She understood that they were to call her again.

She was admitted to hospital on the following Tuesday and she received a call from Mr O stating that she owed the business €11,000

€5,000 for the respondent

€3,000 for Hr Consultant

€3,000 for the Accountant

This sum was requested to be paid before Christmas .The sum was to go up to €20,000 if it remained unpaid after Christmas. On 31 December, Mr O called again and the complainant informed him that she did not owe him. She contacted her solicitor who represented her from that point forward.

In response to further questions, the complainant recalled that the meeting on December 17^th occurred over an hour long period and that she walked home as she was too upset to get the bus. She arrived home by 3.30pm

She had not worked since December 17, 2015. She was reliant on social welfare for income.

Respondent’s Submission and Presentation:

Mr L, the Liquidator appeared on behalf of the respondent. The respondent business had entered Liquidation on 25, July 2016. He submitted a USB key and synopsis of CC TV footage of 9 dates involving the complainant at the respondent shop. He submitted a copy of hand written minutes of the meeting that took place on 17 December, 2015 between the complainant, Ms I and Mr O.

He stated that he was compelled under regulation to inform the Gardaí of the allegations against the complainant.

He raised a variation on the weekly salary for the complainant from € 135-€90 per week. He confirmed with the complainant that her sole income was now “Old age pension”. He disputed information contained on the complainant’s documents of receipts, in particular to the money allegedly paid in cash to the respondent on December 12.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 7 of the Terms of Employment Act 1994 requires me to make a decision under 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 that Act .

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Act, 1977 defines “dismissal”, in relation to an employee, means—

………

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

Constructive Dismissal derives from this definition.

Decision:

I accept the complainant’s uncontested evidence that she was not furnished with a statement of her terms of employment within eight weeks of her employment in 2000. I find that her complaint is well founded and I award four weeks remuneration of €540.00 as compensation under 7(2) (d) of the Act.

2 Unfair Dismissals Act 1977 CA-00004240-003

I have listened carefully to the submissions raised by the complainant and the evidence given. I have read the documents submitted by the Liquidator. I identified one sequence of photo stills dated 12 December from the USB key, I was unable to access further shots. I am mindful that the complainant is the sole witness before me of the events which occurred in December 2015 and beyond. I appreciate that the complainant was unable to test the documentary evidence submitted by the Liquidator due to the non appearance of the respondents at the hearing. I find that these documents had little probative value.

A claim for constructive Dismissal places a very high burden of proof on the complainant. In Fitzgerald V Pat the Baker [1999] E.L.R.227, the EAT referred to S.1 (b) of the Act as

“This would normally be described as resignation, but under the conditions set down in the definition such a resignation is to be construed as dismissal. It is a dismissal by construction, hence the words, constructive dismissal”.

I have chosen to apply the “reasonableness test” to the evidence adduced in this case. I accept the evidence of the complainant that she took pride in her job and the dignity and self respect that followed this role. She gave very clear evidence on just how “the scratch card” practice developed and how she reconciled the returns at the close of business. I find that there was no mal-intent in this practice. Instead, this was a shop assistant with acknowledged time on her hands and the scratch cards served as a distraction .It is regrettable that the practice was not raised onto a formal arrangement basis by the complainant with the respondent.

However, I must now examine the conduct of the employer in this case to assess whether the complainant was reasonable in her approach when she resigned on December 17.

I am struck by the uncontested description of the working environment as friendly. I find that there was a sharp departure from this between 15 and 17 December. This was a small shop with a lull in business. The complainant was aware of this but had no idea that the respondent had” money worries “until December 17.

The events of December 17 as described by the complainant are stark .The synopsis of video footage submitted by the Liquidator records the practice of the complainant taking scratch cards in the main but it is not linked to a corresponding loss in end of business intake . Neither the complainant nor the documentary evidence submitted by the Liquidator point to a cash count deficit.

The complainant was met by a proverbial ambush on her arrival to work on December 17. She was 69 years of age and confronted by a stranger who accused her of stealing in the company of her boss. I find that this was completely disproportionate and precipitous.

In MacLehose V R and G Taverns [1999]10 ELR 180. The EAT determined an unfair dismissal following inconclusive video evidence, the lack of a stocktakes report and an insufficient investigation in a business which had a 5% drop in profits. A core part of the decision centred on the failure to interview all employees involved.

There are considerable overlaps in this case. However, what struck me most on the complainant’s evidence was the visible impact of recollection on her at the hearing. She recalled being in an enclosed space for over an hour with two accusers who would not listen to her. She described being cornered , out manoeuvred and humiliated .She described walking home as she was too upset to catch the bus .She was visibly upset .Therefore, I find that I must accept the evidence of the complainant in this regard over the documentary evidence of the respondent .

I appreciate that this was a small shop, but the scale of the business should not be proportionate to the application of fair procedures on any occasion .In Sarah Lynn Mc Kenna v Pizza Express ltd [2008]19 ELR 234, The EAT found the dismissal to be unfair and the complainant constructively dismissed when the manner and level in which an investigation was conducted was found to be disproportionate .The decision was upheld on appeal. In Fahy V Denis Kinane Motors ltd UD 1681/2014, the Tribunal held that the respondents lack of reliance to “ investigate or discuss or in any way explore ……(the missing items) is fatal to the respondents case/defence”.

The complainant, in the instant case was met with an unsubstantiated allegation of theft during the afternoon of December 17; she was faced with the accusations without warning, without a representative and without a correlation to a business report leading to a deficit in intake. She was not permitted an adequate opportunity to make an adequate defence in what strikes me as a “kangaroo court “environment. She was deeply hurt by the imputation of theft and threatened suspension. Furthermore, the respondent had not provided her access to a grievance procedure or any alternative identifiable point of recourse. While I appreciate that utilisation of the grievance procedure is usually the bedrock to underpin any claim for constructive dismissal, I find on this occasion, that that avenue was not open to the complainant. I cannot reasonably hold that against her.

In A Worker (Mr O) v An Employer (No. 2 [2005] ELR 132,the Labour Court stated:

“There is authority for the proposition that this [invocation of the grievance procedure] is not a fixed or universally applicable rule and there can be situations in which to give prior formal notice of grievance will not be fatal.”

I find this is such an instance.

I am satisfied that the conduct of the respondent was wholly unreasonable. I find that the complainant was entitled to consider herself constructively dismissed by virtue of the lack of fair procedures, defective investigation and an inordinate level of pre judgement and duress directed towards her by the respondents and their agents on December 17, 2015. An employee cannot have two masters and the binary approach adopted by the respondent fell seriously short of good practice.

I find that her claim under the Unfair Dismissals Act must therefore succeed. The options of re-instatement or re-engagement are not practical in light of the erosion of trust and the subsequent liquidation; therefore, I award the sum of € 10,000 in compensation, which takes account of a part contribution by the complainant, mitigation and loss.

Dated:   16/11/2016