ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004105

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

Date of Adjudication Hearing: 15/12/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, 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:        Complainant’s Submission and Presentation:

2:        Summary of Respondent’s Submission and Oral Presentation:

Detailed evidence was provided of an incident that took place on the Respondent’s premises on the 9^th of January 2016. This involved the alleged use of obscene and abusive language to a Customer.

On receipt of a formal complaint, in writing from the Customer, the Complaint was suspended on full pay (18^th January) pending an Investigation. A full investigation was carried out. The Customer was interviewed by Store management. An other staff member, a cleaner, allegedly present at the scene of the incident, was interviewed and CCTV footage was looked at.

A Disciplinary Hearing took place on the 1^st February 2016 in which an explanation was sought from the Complainant. A satisfactory explanation was not forthcoming.

A further meeting took place with the Area Manager on the 8^th February 2015 at which the Respondent informed the Complaint of the decision to dismiss him from his employment.

An Appeal hearing took place on the 21^st March 2016 with the Operations Director. By letter of the 30^th March 2016 the Dismissal decision was confirmed.

At all times proper and fair procedures were followed, the right to Representation was afforded and all meetings and agendas were advised in advance.

3:        Decision:

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.

4:        Issues for Decision:

Did an Unfair Dismissal take place?

Were all proper procedures in keeping with SI No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures and the basic rules of Natural Justice followed?

5:        Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 and SI No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures

6:        Decision:

All cases run on their own facts. After considering all the evidence both oral and written the following facts became apparent.

The Complainant now accepts that language was used on the 9^th January 2016 that was a likely cause for complaint. However the key issue for the Complainant was the interpretation placed on this situation by the Respondent Employer and the reasonableness or other wise of the subsequent decision to dismiss.

Sections 6 to 10 –.    

Section 6

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•That employee grievances are fairly examined and processed;
 
• That details of any allegations or complaints are put to the employee concerned;
 
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
 
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
 
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence,
factors or circumstances.
 
7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.
 
8.
As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.
 
9. The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would
warrant suspension or dismissal
 
10. Disciplinary action may include:
 
• An oral warning
 
• A written warning

• A final written warning
•Suspension without pay
 
•Transfer to another task, or section of the enterprise
 
•Demotion 
•Some other appropriate disciplinary action short of dismissal
 
•Dismissal

At the Oral Hearing it was clear that full evidence was not presented to the Complainant at the first meeting on the on the 1^st February 2016. Evidence was presented but the Complainant did not have any opportunity to counter question the witnesses who was the centre of the allegation. The disputed witness statement was read aloud to the Complainant but he was not afforded an opportunity to take a copy. The witness was never presented in person to the Complainant for interview. The witness gave Oral evidence to the Adjudicator hearing to corroborate his earlier written complaint and interview with the Respondent.

Oral Reference was made to subsequent viewing of CCTV and Interviews of the Cleaner by the Area Manager prior to the second meeting of the 8^thh February 2016. The Complaint was not afforded an opportunity to see the CCTV or to cross question/interview the Cleaner.

On the basic rules of evidence these actions or non actions were unfair to the Complainant.

Section 7 of SI 146 of 2000 refers (above)

7. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

Specific Incidents:

(1) The meeting of the 1^st February 2016

Mr. AB, Area Manager, gave oral evidence in relation to this meeting and full minutes were provided. Much of the meeting related to Witness A –the source of the Customer Complaint. The Customer Complaint was read out but not handed to the Complainant and a difference of opinion followed between the parties at the meeting as to what had been said and in what manner or what interpretation could be taken from it.

The Area Manger concluded with stating that he would carry out further investigations including the CCTV records and the staff rotations for the day. He stated that the Complainant had not asked for a copy of the Witness / Customer Complaint

(2) The meeting of the 8^th February 2016

The meeting opened with Mr. AB, Area Manager, reading out the Dismissal letter and in the minutes stating

“Having reviewed all the evidence including statements from parties involved I have concluded that you did use obscene and abusive language while serving on the till. I have considered your response and do not consider them to be valid based on the evidence”

Mr.AB stated in Oral evidence that had spoken to the Cleaner and had reviewed the CCTV.

I could not find anywhere any evidence of the Complainant being provided with the evidence or records from the interview with the Cleaner or the CCTV.

(3)          The Appeal Hearing of the 21^st March 2016

The minutes were presented and the Operations Director (Mr. AC) gave oral evidence. The meeting was very wide ranging and spent a considerable time on the Complainants’ earlier Grievance issues which were not before the Adjudicator Hearing. The Complaint again referred to differences of Interpretations that could be placed on his oral comments on the 9^th January 2016. The Operations Director concluded by stating that he would “Investigate” everything before reaching an outcome.

I could find no evidence of any of the Investigation findings being put to the Complainant for his comments.

6:5          Legal Precedents are strong in this area.

1. Employment Law 2014 (updated to 2015) Roundhall Press, is worth quoting here – Chapter 20 Section 127 /128

20-127

The Employment Appeals Tribunal holds that the appropriate tests in a case of dismissal for dishonesty are:

whether the employer has an honest/reasonable belief, based on reasonable grounds arising from a full and fair investigation; and

whether the employer complied with the rules of natural and constitutional justice.

20-128

The tribunal has stated:

“In unfair dismissal cases the rules of natural and constitutional justice as are appropriate to this case apply. The meeting of 7 November 1997 transpired to be the only meeting the Respondent had with the claimant in relation to the allegation [stock discrepancies]. When the claimant was summoned to the office he assumed it was about the upcoming job in C. Limerick. The claimant had no prior notice of the meeting or its purpose. The allegation of theft was put to the claimant but the directors refused to tell him who made the allegations or when the alleged theft occurred. A bare allegation is not sufficient: O'Shea v Commissioner of An Garda Siochana [1994] 2 IR 408. The claimant was not afforded an opportunity of investigating the allegation against him. Accordingly the Tribunal finds that the Respondent failed to comply with the appropriate requirements of natural and constitutional justice in this case.”¹⁸⁹

7:       Summary Conclusions   

Notwithstanding the acknowledgement of the Complainant that unfortunate words were spoken on the 9^th January 2016 the handling of the matter by the Respondent was procedurally unfair to the Complainant. No opportunity to cross question witnesses or to see full evidence was afforded. The Rules of Natural justice were not properly followed.

The Dismissal must accordingly be found Unfair.

8:        Redress

Reinstatement or Re engagement were not deemed applicable as the relationship between the parties has broken down to such an extent as to render these options inappropriate.

Accordingly in recognition of the serious procedural breaches in this case Compensation of one years pay, being an award of €20,500 is made ( calculated by reference to the Pay Slips provided Periods 8 to 12 of 2015) (Period 12 Gross earnings for 2015 being €24,011 – average monthly tax being €300 x 12 £3,600 nett annual income of approximately € 20,500).

In view of the fact that the Complainant acknowledged that an incident did take place but not of the serious nature advanced by the Respondent as a justification for Dismissal I reduce the award by 25% giving a final award of €15,375

It was noted that the Complainant is currently in Third Level education but on a part time basis that would allow for employment. The Complainant provided evidence of efforts to secure employment since the ending of his employment with the Respondent.

Dated:   24 April 2017