ADJ-00004257

Complainant

Respondent

Parties

A Worker

A Retail Pharmacy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006248-001

03/08/2016

The claimant is aggrieved by a disciplinary sanction imposed on her on the 5^th May 2016 arising from on line Company Holiday Discount Scheme purchases in December 2015.

The claimant connected employment with the respondent as a Healthcare Assistant in 2008 and moved to her current location in July 2011- she works as a dispenser, entailing the dispensing of prescriptions to customers and earns €2,779.00 per month. It was submitted that the claimant had a blemish free record with the respondent and in her entire career had never received any disciplinary sanction. Her performance with the respondent was consistently graded as “legendary”.

The claimant made on line purchases under the company Holiday Discount Scheme in Dec. 2015 – amounting to €45.94 having received a computerised discount of the original amount of €187.69.She collected the purchases on the 16^th Dec. and was unofficially advised by her manager on the 17^th Dec. that there was a computer error with the scheme resulting in her receiving too much discount. The claimant returned the items on the 19^th Dec. and was reimbursed by the company on the 12^th Jan. 2016. Meantime while the claimant was off on Christmas Eve the store manager advised the staff that there was a problem with the online purchasing offers and the matter was to be subject to investigation. The union set out the ensuing investigation and disciplinary process the outcome of which was a First Written Warning, ineligibility for the 2016 Company Bonus Scheme and removal of the Staff Discount Card for a period of a year. The claimant unsuccessfully appealed the sanctions.

It was submitted that upon becoming aware of the problem, the claimant returned them as expeditiously as possible – as had been acknowledged by her store and area manager. In the warning, the claimant was advised “As a XXXX employee, you have a special responsibility to bring to the attention of management any unusual discount for clarification, whether it would be for in-store products or company online products it is reasonable to ascertain that your actions at the time was not in the best interest of the company values which is built on trust”. It was submitted that the claimant had always stated that she was unaware that the discount offered and received was unusual – as per her interviews “it was a good deal”, “never really thought about it”, “didn’t think anything of it, just ordered it and paid the money”. It was submitted that this challenges the respondent’s arguments about trust particularly given that the claimant remains in her high value dispenser role involving large sums of money.

It was further submitted that the claimant was never informed and or appraised of the policy that she was alleged to have breached. While the claimant was aware of ‘special discounts’, it was submitted that there special discounts available and rates of 50-90% have been applied to clear stock particularly post Christmas. The claimant contended that some of the stock had never been sold at this outlet and consequently she would be unaware of the stock’s premium standing. When the claimant made her purchases she received an email from the respondent stating that her order would be subject to further validation checks. The claimant had ensured that the respondent was at no financial loss by returning the goods as soon as she was made aware of the problem. It was submitted that the claimant was “very concerned and upset that the respondent would see fit that her unintentional actions were contrary to the employer/employee relationship of trust, that she was fully aware of what she was doing and thus there was premeditated intent on her part and that her exemplary employment record with the respondent was given limited weight when disciplining her.” The claimant had lost out on a performance bonus of €900 and the union sought that a finding issue that recognises that the claimant’s actions did not warrant any disciplinary sanction.

The respondent explained that the company operates a website on which customers can access items for on line purchases. When the claimant made her purchases “ she received “ discount in excess of the 12.5% staff discount she was entitled to .In total , over the course of 3 transactions , the discount received by the claimant was 76%. It was advanced that the claimant spent 3c for an item which should have amounted to €19, and 72c for an item which should have amounted to €40 spending a total of 75c on one transaction for the 13^th Dec. The excess discount amounted to €141.75 over 3 transactions. The respondent set out a chronology of the ensuing investigatory and disciplinary meetings. It was submitted that when asked whether she considered the implications to the company as regards profit when she was charged €.75 for 2 items worth €59.00, she stated that she simply thought it was a good deal. It was further asserted that when asked what the correct procedure would be were the item to scan at the incorrect price in store, the claimant affirmed that in those circumstances it is appropriate to bring such an issue to Management’s attention.

It was submitted that the claimant’s actions, in benefitting from   the fault in the respondent’s system, failing to notify the respondent of same, and financially gaining from this fault on 3 separate occasions, represented a fundamental breach of the trust and confidence, constituting misconduct as per the Company disciplinary procedure. It was submitted that the claimant’s actions go against the spirit of the company security Rules – “ Discount …. May only be given on qualifying goods to persons authorised to receive such discount”. It was advanced that Company Security Rules further outline that concerns regarding issues relating to Security should be reported to Management. ”The Act of profiting from a computer error is inconsistent with the behaviour expected of a XXXX employee with regard to protecting the profit of the Company”

It was submitted that the claimant was afforded her rights under natural justice. It was submitted that the claimant had damaged the trust and confidence between the parties and that the sanction imposed was proportionate. It was submitted that of the “items available on the XXXX website, the discount error applied to a total of merely 6 items. It is not credible that the Claimant inadvertently or by chance purchased such products over three transactions in the course of four days, in ignorance of the fact that the discount she received was excessive and therefore incorrect.”

In their post hearing submission the respondent set out the discount arrangements for discount card holders. Double discount was explained and it was submitted that colleagues are advised by their managers at team briefings prior to the commencement of this incentive and notification of same and the criteria applying was erected in the claimant’s store in 2015. It was submitted that where double discount is offered, it is the maximum discount available through the staff discount card and “the claimant was aware of this”.

The respondent was unable to identify items that may have been reduced in the claimant’s store at the time of the incidents leading to her disciplinary action. With respect to clearance stock, it was submitted that certain products can be reduced to 25% initially, others to 50% initially.” In store clearance items are clearly identified to store colleagues and customers as they are marked with a large barcoded reduction sticker which is annotated with the price”.

The respondent submitted that their position remained that the claimant, “as an experienced member of staff, would have been aware from the information displayed on the screen that the discount applied to her purchase, an average of 76% from the already reduced offer price of the items she bought, could not have been correct. The respondent further noted that the incorrect discount was applied in error, on a company wide basis, to only six products. ”Over the course of 3 transactions, the claimant purchased 12 of these items, such that the differential between the sub total amount and the total amount was unquestionably far in excess of the 12.5% staff discount she was entitled to …The company requires all of its employees to act with honesty and in the best interest of the company, in a manner which upholds the trust the company places in its employees and protects the company’s profits. The claimant’s actions were not in line with this expectation”.

I have reviewed the evidence presented at the hearing and in the respondent’s later submission and noted the respective positions of the parties. I have distilled the following matters of note :

The source of this problem was a systems failure on the part of the respondent’s IT system. I take it that the respondent incurred a loss as a result of online purchases of the products by members of the public and owing to their contractual obligation to their customers had no means to recover said losses.

At the hearing, the respondent was requested to provide information on the profile of discounts applying in the store at the time of the purchases at issue and has been unable to do so.

There are numerous inferences of dishonesty on the part of the claimant peppered throughout the respondent’s submission and the claimant is understandably distressed by same. The continuation of the claimant in her role as dispenser raises significant question marks about the respondent’s assertions regarding trust issues with the claimant. Additionally the respondent’s failure to identify specifically the breach of procedures by the claimant undermines the company’s position.

Having perused the respondent’s policies and procedures, the provision the respondent appears to be relying upon is the following reference in the Security policy :-“Reporting your concerns – It is possible that in the course of your work you have reason to believe that a fraud , criminal act or malpractise is taking place. You should report your concerns to a manager so that they can be investigated ……….”

There is no reference here to an obligation to report a concern about an IT error that a staff member is or ought to be aware of – if the respondent’s policy contained a specific reference to same, I would perfectly understand the imperative to investigate the matter.

I found the claimant’s position throughout the disciplinary process as set out in the records of the various meetings and at the hearing, to be credible and consistent and do not agree that her response with respect to raising a concern arising on the shop floor with her manager to be inconsistent with her other evidence. I further find that the respondent failed to pay due regard to the claimant’s blemish free and ‘legendary’ record with the company and indeed   her protestations that she would never do anything to put her job at risk. I have concluded that in the context of alleged bad faith the respondent failed to take account of the undisputed contention by the claimant that the products were the subject of open discussion amongst the staff at the store in question and of the claimant’s assertion that she was unaware of the premium prices for the xx products as they were not for sale in her shop. I find the respondent erred in failing to take into account – in the context of their allegations of dishonesty by the claimant – the extent to which clearance products can be reduced –“ reduced to 25% initially, others to 50% initially”.

I find the respondent has failed to present any compelling evidence to support their contention of dishonesty or mal fides on the part of the claimant. Accordingly I am upholding her complaint.

I recommend that the respondent expunge the disciplinary sanction from the claimant’s record and restore her lost bonus within a time frame of 42 days from the date of this recommendation.