ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003110

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

Date of Adjudication Hearing: 26/10/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, 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).

Respondent’s Submission and Presentation:

CA-00004221-001 The respondent submits that the claimant was dismissed for gross misconduct following a breach of its policy and procedure in respect of mobile phone use, which had been well known to her and of which she had been constantly reminded in the course of the employment. The policy was set out in the handbook extant - “you are not permitted to carry/use your mobile phone during working hours, irrespective of whether it is turned on or off. Taking photographs/videos using mobile phones, cameras, camcorders or any other recording, filming or picture capture device of [the respondents]property, its customers or its employees or clients or agents is not permitted at any time.                                                                                                                                                                                                 Personal mobile phones may only be used during official breaks and never on the Sales Floor………   Failure to follow these procedures will be dealt with in accordance with the disciplinary procedure and may lead to disciplinary action up to and including dismissal.”                                                         The complainant’s husband took personal injury proceedings against the respondent as a result of an injury sustained in the course of his work. In the course of the hearing of those proceedings (February 2016) she presented photographic evidence (taken three months earlier) in support of her husband’s case, which was gathered in clear breach of the policy and in the course of her sworn evidence she indicated that “she was fully aware, at the time she took the photographs, that she was not allowed to have her mobile phone on her person whilst working.”                                                 The respondent decided to investigate these circumstances and in the course of meetings held on the 8^th and 11^th of February 2016, she gave various explanations thereof but none were consistent with her sworn evidence. She did accept that she had been unfair to the respondent and that she had not sought permission to take the photographs. In the circumstances, her employment was terminated and her subsequent appeal was unsuccessful.                                                                                       It is submitted that the dismissal was entirely justified on substantial grounds and that the decision fell firmly within the “band of reasonableness” available to the respondent and underlined by the relevant test. Furthermore the complainant was bound by her duty of fidelity to the respondent which she clearly breached.

CA-00004221-003 The respondent submits that the complainant was dismissed for gross misconduct and therefore she had no entitlement to statutory minimum notice in accordance with the provisions set out in the Act.

Complainant’s Submission and Presentation:

CA-00004221-001 The complainant submits that she was employed by the respondent as a sales assistant for in excess of 10 years and that she was unfairly dismissed for alleged gross misconduct on both substantive and procedural grounds. In the course of her duties on the 15^th of October 2015 she had occasion to be in the respondent’s stock room which was strewn with rubbish. Her husband worked for the respondent and had taken an action for personal injury against it. She was aware that the respondent had submitted pictures of the stock room in pristine condition to the court and decided to take photos to show that it was possible to sustain personal injury in that room. She presented evidence to that effect on the 2^nd of February 2016 and on her return to work on the at 3p on the 8^th inst. she was informed by the store manager that it was the intention of the respondent to conduct a “disciplinary meeting”. She was informed by the HR manager and Store manager that she had breached the phone policy which became evident during the course of her evidence on the 2^nd inst. she was shown a paper which it was alleged she signed in relation to a refresher training provided in respect of the policy. She did not recall the training or having signed a paper. She was then suspended without pay for three days in anticipation of a further disciplinary meeting. Her request for a postponement of the meeting of the 11^th inst. on the basis that she wished to engage professional representation was refused. In the event she attended with a colleague. She was presented with the minutes of the first meeting at the second meeting. She stated that her 2006 handbook did not mention anything about taking photographs and that she did not recall any refresher training in the matter. The meeting was adjourned for 15 minutes after which she was informed that she was dismissed. She appealed the dismissal subsequent to receipt of the letter of dismissal of the 11^th of February 2016 without success.                                                                                               The dismissal is procedurally unfair in that the complainant was not informed in advance of the disciplinary hearing of the 8^th of February 2016, nor was she put on notice of the charges she would face or the possible consequences thereof. The decision to dismiss was taken hastily without due regard to the alleged use of mobile phones to take in-store pictures. In this regard no comprehensive investigation was undertaken. The sanction was disproportionate and it is submitted that no alternatives were considered.

CA-00004221-002 The complaint was withdrawn.

CA-00004221-003 The complainant submits that she was not paid her entitlement to statutory minimum notice in accordance with the provisions of the Act.

Decision:

CA-00004221-001 I am satisfied that the substantive issue in this case was of sufficient import and gravity so as to justify dismissal in the instant case but only on the proviso that the procedural process was sufficiently robust. I am not satisfied that it was sufficiently so. It seems to me that the respondent acted with undue haste despite the gravity of the breach of policy involved to such an extent that the complainant was denied fair procedure. Its own minutes of the two disciplinary hearings are indicative. Additionally the disciplinary officer failed to provide the proper notification in advance of the first meeting.

I find that the herein dismissal was unfair on procedural grounds and that the complaint is therefore well founded. The level of contribution was substantial and the attempts to mitigate less than acceptable. In the circumstances the appropriate redress is one of compensation in the amount of €2,000 (say two thousand euro).

CA-00004221-003 in light of my decision in respect of the unfair dismissal complaint I find that the complaint is well founded and hereby require that the respondent pay the complainant her statutory entitlement to minimum notice

Dated:   12/04/2017