ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002485

Complaint for Resolution:

Date of Adjudication Hearing: 06/07/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

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 to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The complainant was employed as a Team Leader in the respondent supermarket. The particular outlet was a ‘convenience’ type outlet and not a large suburban supermarket.

Although not designated as being in a supervisory role the complainant had certain functions in relation to the closing down of the day’s cash receipts, known as ‘cashing up.

Specifically when the cash was collected at, or near then end of the day, his task was to collate the bags of cash (which were in amounts of €500.)

Following one such operation it subsequently emerged when the security company came to collect the bags that one of them was missing and the total was €500 short.

The complainant reported this to his manager and an investigation and disciplinary action followed as a result of which the complainant was dismissed for serious misconduct arising from the missing money, breach of the mobile phone use policy and failure to complete documentation procedures.

Complainant’s Submission and Presentation:

The complainant ‘wholeheartedly’ denied the charge against him. He challenged the CCTV evidence produced by the respondent which he said was inconclusive and said that he did not believe that the company had produced any evidence to substantiate the allegation.

Given that argument, he believed that the decision to dismiss was grossly unfair.

He says it is significant that it was he who brought the missing money to the attention of the shop manager and that no account was taken of this

He also complains that, in respect of the first ‘investigation’ meeting he was not advised that this was the start of a disciplinary process or that future disciplinary action would be taken against him.

In respect of a system of ‘dual accountability’, which requires a second person to witness the counting and related processes he says that this is not part of the company’s formal policies, he has never been trained in it and that it is often ignored. He accepted in the course of his evidence that the second signature (in fact an initialling) was done by him to make it appear that the dual accountability system had in fact been followed.

He stated that there were previous occasions when there had been shortfalls in the cash but that by the time these were discovered the CCTV footage was erased and that part of his motivation in bringing this to the Manager’s attention was to facilitate an investigation that might eliminate future problems.

In respect of the CCTV footage on which the respondent relied heavily he says it does not provide firm evidence and it does not show him taking or attempting to take any money. He has worked with the respondent since 2009 and at no stage has his honesty ever been challenged.

The bag which he is alleged to have taken was in fact a bag of discount vouchers which he tossed behind some desk equipment. The CCTV footage does not provide direct evidence of him placing anything on his person or appropriating the bag. He says that what the CCTV footage shows is him identifying the bag as one containing coupons and then proceeding to ignore it as he would not be logging bags of coupons.

Part of the allegation against him was that he breached the respondent’s mobile phone policy in that he was seen on the CCTV footage to be using it throughout the ‘cashing up’ process. To this he says that he has de facto, or quasi management functions and that use of the mobile phone is a necessary part of the discharge of his role.

The complainant says that if a company takes the ultimate sanction of dismissing an employee that the standard of proof should be that it should be beyond all reasonable doubt.

Respondent’s Submission and Presentation:

The respondent says that when the matter was brought to its attention it immediately held a preliminary investigation to establish the broad facts of the matter. The complainant was met as part of this as he was the ‘Team Leader’.

He was asked if he was aware of the ‘Dual Accountability’ policy and he confirmed that he was but that he did not always follow it and when there was no second person to hand he would sign the document twice.

Following this meeting the respondent initiated a formal investigation and the complainant was suspended. Prior to this meeting the complainant was fully on notice of the nature of the investigation and that the outcome could result in disciplinary action, up to and including termination of his employment. He was made aware of his right to representation and was represented by his trade union.

He was shown the CCTV footage as part of the process and allowed time to view it alone.

The respondent disputes the complainant’s argument that the bag at the centre of the CCTV footage was a bag of coupons.

In respect of the process the results of the first investigation by an Operations Manager were issued to the complainant on August 28^th 2015 and there was a recommendation that disciplinary action should follow.

A disciplinary hearing took place on September 7^th at which the complainant was represented by his union and at this meeting the respondent says he denied knowledge of the Dual Accountability policy. The adjudicator issued her decision on October 6^th 2015 and it was found that the respondent had ‘carried out’ an act of serious misconduct and that the grounds were theft or fraud or attempted theft or frauds, breach of the mobile phone policy and failure to complete routine documentation procedures and/or falsification of documents.

A decision was made to dismiss the complainant on the basis that the ‘bond of trust that needed to exist between the parties was broken’.

The complainant appealed on the basis that the investigation had been inadequate and that no mitigating circumstances were taken into consideration. This was heard by a different Operations Manager who upheld the original decision to terminate the employment.

The respondent states that it has a ‘zero tolerance’ policy in relation to theft and details of the policy were submitted. The complainant was aware of the dual accountability policy (despite some inconsistency in his admitting this) and failed to operate it. It says that the CCTV footage shows the complainant standing in front of a bag of cash and when he moves away the bag is gone and his hand is in his pocket. It challenges the complainant’s version of events on the basis that the alleged bag of coupons had never been found, one bag of cash (Bag 138) is missing and that the complainant had failed to provide an alternative explanation for what happened.

Findings and Conclusions

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct.

The onus under the Act falls on the employer to justify the dismissal.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of facts that are generally not in dispute and the outcome normally turn on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

This is not such a case. Working backwards, the sanction for proven events of the nature of those in this case would generally be a termination of employment. The respondent opened a number of decisions of the EAT in support of its case that theft or unauthorised taking of money justifies termination. The company ‘Honesty Policy’ makes it clear that theft ‘regardless of value, will be subject to dismissal and/or prosecution’. It is also defined as serious misconduct in the company Disciplinary Procedure.

The respondent conducted the process to a good standard of fairness. I regard the complainant’s criticism of the first, preliminary investigation as being without merit. Both adjudicators at the initial disciplinary hearing and the internal appeal gave evidence.

So, looking at the start of the process we find some conflict as to what actually happened.

The CCTV footage was viewed and discussed in the course of the hearing. The respondent has said that the CCTV footage ‘shows the complainant standing in front of a bag of cash and when he moves away the bag is gone and his hand is in his pocket’.

Starting with this, the complainant has said that it was not a bag of cash and that it was no longer in view because he had tossed it to the back of the desk. He says his hand was in his pocket because he had placed his mobile phone there.

Frankly, it is difficult to reach a definite conclusion solely on the basis of what appears on the face of the footage. The respondent was forced to resort to an element of speculation about what was going on here, although serious enough questions were raised by the footage to which the complainant had only partial answers.

However, what is not in dispute is that neither the alleged bag of coupons has ever been found and neither has bag number 138 with the missing €500. The respondent carried out a search of the office and nothing was found.

The respondent said it reached its conclusion on the basis of the balance of probability rather than the standard of proof urged by the complainant which is that of beyond reasonable doubt.

If that latter standard (the criminal standard of proof) were to be applied the complainant might succeed.

But this is not a criminal trial and the appropriate standard of proof is the balance of probability. The respondent was faced with a simple enough question which was; if the complainant did not take the money where did it go. The complainant, too was faced with the same question and could not provide an explanation. He was, after all, accountable for the safe transmission of the money to the safe.

The facts are that the complainant was alone in the room where and when the money was being counted and he was accountable for it. He could offer no explanation as to what might have happened. His explanation about the bag of coupons which disappears from view on the CCTV footage goes no way to explaining where the €500 went. Regrettably for him, (and his submissions and protestations of innocence were persuasive), the balance of probability tilts very much against his argument.

In relation to the dual accountability system he variously argued that it was not a policy or that it was in sporadic use. Despite this he clearly applied it except that he provided the ‘dual’ sign off himself. He cannot have both sides of this argument. As should be clear to him now, to have implemented the policy would not just have been a matter of compliance with a company procedure but it would also have given him a significant measure of protection.

Nonetheless, the respondent would be wise to clarify the application of the Dual Accountability policy for its employees. At the appeal stage the adjudicator found that the store was implementing the policy ‘consistently’; a position challenged by the complainant. In a case which turned on different facts the ambiguity and inconsistency about its status and application might have gone against them.

In this case, the facts point sufficiently to a conclusion on the central issue to render that procedural argument of less significance.

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.

The respondent has discharged the burden of proof in this case and I find that the dismissal was fair. The complaint under the Unfair Dismissal Act fails and I dismiss it.

Dated:   5^th October 2016