ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004698

Parties:

Complaints

Date of Adjudication Hearing: 18/04/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Lansdowne House, Dublin 4

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and 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.

 BACKGROUND

The Complainant was employed from 6^th October 2003 until the employment was terminated without notice on 10^th March 2016. The Complainant was paid an annual salary of €22136.40 per annum and she worked 30 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 25^th August 2016 alleging the Respondent had breached the Minimum Notice and Terms of Employment Act, 1973 – a complaint under the Unfair Dismissals Act, 1977 that the Respondent had unfairly dismissed her.

The Complaint CA-00006634-004 under the Health and Safety Act 2005 was withdrawn at the Hearing. The Complaint under the Employment Equality Act, 1998 CA-00006634-003 was withdrawn on 16^th January 2017.

Summary of Respondent’s Position.

The Complainant commenced employment with the Respondent as a Sales Advisor in a specified location. She was dismissed on 10^th March 2016 for gross misconduct following investigation and disciplinary process.

In January and February 2016 in the specified location, a number of incidents occurred which resulted in an investigation process into activity surrounding the discounting of items on clearance and till activity. A number of employees, including the Complainant, were investigated. The allegations against the Complainant related to a number of transactions she carried out between 29^th January 2016 and 2^nd February 2016 whereby the Complainant breached Company Security rules. The Complainant last received these Security Rules on 7^th Mya 2015 where she acknowledged her understanding and agreement to these on 7^th May 2015. The incidents in question involved reducing of stock at the point of sale, excessively reducing items, issuing cash to customers when the correct action was to issue gift vouchers and the issuing of incorrect change.

The Complainant had been instructed by a member of Management to mark certain items to half their original value as the price on the sales ticket was incorrect. In general the original price of stock can be determined by scanning the item. This price should then have been halved such that the items were correctly marked at half price. The Complainant proceeded to mark the price down to less than half price e.g. an item for €21.50 was sold to a colleague for €10.50. The Respondent alleged the Complainant had opted to overwrite the correct price of items – details were provided. The Complainant also provided a colleague with a cash refund when the policy is to provide a gift voucher

The Complainant was suspended with pay from 9^th February 2016. Three other members of staff were also suspended. A Named Manger was appointed to investigate the incidents. This Manager was unconnected to the particular location of this store. Three separate meetings were held with the Complainant. The Complainant was shown cctv footage. Following the first investigation meeting the Complainant sought a meeting with the Investigating Manager. This meeting took place on 15^th February 2016 at which the Complainant identified there had been a mix up between two of the Complainant’s transactions in relation to correct cctv footage being shown. The Respondent acknowledged this mistake and a further meeting took place on 18^th February 2016 and any inaccuracy presented at the first investigation meeting was rectified to the conclusion of the investigation.

The matter was referred for a Disciplinary Hearing. This was conducted by another named Manager. The outcome was summary dismissal. The Complainant was afforded a right of appeal but she choose not to exercise this right. The Respondent referenced a number of Decisions in support of their argument that the Complainant had been afforded all fair procedures in relation to her dismissal and she did not exercise her right of appeal.

Summary of Complainant’s Position.

The Complainant alleges that the Respondent’s decision to dismiss her was both substantively unfair and procedurally unfair. The Complainant had been appointed as General Store Assistant on 6^th October 2003 and was promoted to HR Admin Assistant in April 2009. The Complainant requested to step down from this position in October 2012 and this was agreed and the Complainant resumed working as a Store Assistant where she was also requested to take on the role as Store Health and Safety Officer which she did. The Complainant was provided with a written statement of her Terms and Conditions of Employment including the Employee Handbook which contains a section on disciplinary policy and procedure which states “aim of the disciplinary procedure is to help and encourage you to achieve and maintain our high standards of conduct and job performance. If your performance falls below acceptable standards, our disciplinary procedure is designed to help managers to motivate and encourage to reach acceptable standards …… No disciplinary action will be taken until all the relevant facts have been fully investigated and carefully considered, including talking to any witnesses if necessary…..”. The procedure goes on to outline the stages of any disciplinary action including – counselling or informal warning – oral recorded warning – written warning – final written warning etc.

The Complainant was never subject to any adverse disciplinary finding prior to her dismissal. On 7^th January 2015 the Complainant wrote to a named City Area Manager in relation of two named Managers lodging a formal grievance. Following this the Complainant felt that she was penalised and subject to disciplinary procedure and singled out by the two named Managers. She met with the City Area Manage on 16^th January 2015 in relation to her Grievance. . The outcome was to find that her complaints were unsubstantiated.

On 10^th February 2016 the Complainant was requested to attend a meeting with a named Manager, being one of the Managers whom she had lodged a grievance against in 2015. She was handed a notice of suspension prior to an investigation meeting. There was no meeting held with the Complainant prior to her suspension and the named Manager was unable to tell her shy she had been suspended. The investigation meeting took place on 12^th February 2016 at which she was shown cctv and receipts she had never seen before, she had not been told in advance of the issues in relation to dates, times and transactions. After this meeting it became apparent that incorrectly matched receipts had been matched with incorrect footage. The Complainant was not furnished with the cctv post the hearing due to what the Respondent said were data protection issues. The Complainant wrote to the Manager on 15^th February 2016 strongly objecting to the fairness and conduct of the investigation and she furnished a copy of this to the HR Manager, named. In this letter the Complainant requested that two named employees be interviewed as she maintained they would corroborate her version of events. The Complainant attended a further investigation meeting on 18^th February 2016 at which she was provided with the witness statements she had requested. The Complainant stated that these corroborated her version of events. At this meeting the Investigating Manager confirmed that there was no proper checklist or policy for reducing prices and she admitted that the cctv footage was incorrect. The transactions were then dealt with one by one at this meeting. At the conclusion of the meeting the Complainant requested the Manager to select and interview any three employees of her choosing and ask them the procedure they followed if an item wouldn’t scan or was damaged. Three employees were selected but they were not asked the question the Complainant had requested the Manager to ask them

The Complainant alleges that the Investigating Manger failed to draft, publish or furnish any formal report as to the conclusions reached from her investigation and no findings of fact were submitted to either the Complainant or the Respondent. The Complainant requested a copy of the Investigation Report on a number of occasions but this was not provided.

The Complainant was invited by letter dated 29^th February 2016 to a Disciplinary Hearing on 2^nd March 2016. However she was invited to attend a Disciplinary Meeting on 3^rd March 2016 and this letter advised her that “you will be advised after the investigation is fully concluded and provided with further notice if applicable”. This clearly contradicts the first letter. The Complainant did attend a meeting on 3^rd March 20216 with a named Manager, whom she had previously lodged a grievance against. At this meeting the Manager produced cctv footage that had not been produced to her during any of the investigation meetings. The outcome was to terminate the employment with immediate effect. The Complainant was afforded a right of appeal to a named Area Manger. The Complainant appealed the decision by letter dated 28^th March 2016 on the grounds of a flawed and unfair investigation. There was no response from the Respondent. While the Complainant accepts that her appeal letter was outside the 5 day time limit but argued that the Respondent would not have suffered any prejudice in extending the time for the Complainant to lodge her appeal.

The Solicitor for the Complainant wrote to the Company on 27^th June 2016 setting out the concerns of the Complainant in relation to the investigation, disciplinary and dismissal process.

The Complainant and her legal representatives argued the law and identified a number of decisions of the Courts in support of their argument.

The Complainant stated that she had commenced employment on 13^th June 2016 working 20 hours a week and she is paid €11.50 an hour.

 FINDINGS

On the basis of the evidence and substantial written submissions from both parties I find as follows_

Both Parties confirmed at the Hearing that the Complainant had not been subject to any disciplinary sanction prior to her dismissal.

The Respondent confirmed that the Complainant was dismissed for gross misconduct and therefore dismissal was the only option considered.

I find that the investigation and Disciplinary process was flawed on a number of counts – the Complainant was suspended without being informed by the Manager as to the reasons for her suspension – the Manager who suspended her was one of the Managers whom she had lodged a grievance against in 2015 – prior to the investigation meeting on 12^th February 2016 the Complainant was not informed of the specific complaints against her and therefore was not in a position to prepare for the meeting –post the investigation meeting it became apparent that the Respondent had matched wrong receipts with the cctv footage and this was acknowledged by the Respondent and confirmed at the Hearing – the Complainant lodged a complaint with the Investigation Manager and copied to the HR Department as to how the investigation had been conducted – the Complainant in this letter had requested the Respondent to interview any two employees of their choice in the location where she worked and to ask them the procedure used in this location in relation to reducing prices – I note that two employees were interviewed but they were not asked the question as requested by the Complainant – I note that the Respondent confirmed there is no clear written policy or procedure available to employees in relation to reducing the price of an item – Both Parties confirmed that there was no written report of the outcome of the investigation, although the Complainant had requested this on a number of occasions – the Complainant was invited to attend a Disciplinary Hearing on 2^nd March 2016 and she was invited to attend a further investigation meeting on 3^rd March 2016 – this is clearly a conflict either the investigation had concluded or not – the Disciplinary Hearing was conducted by another Manager whom she had also lodged a formal grievance against in 2015 and at this meeting which did take place on 3^rd March 2016 this Manager produced different cctv footage than that produced at the Investigation Hearing.

The Complainant was afforded a right of appeal. The Respondent stated in their submission and at the Hearing that the Complainant did not appeal her dismissal. However the evidence was that the Complainant did appeal, although she was some days outside the 5 day appeal time limit. I accept the submission of the Complainant that the Respondent would not have been prejudiced in any way in accepting this appeal.

I note a recent Decision of the High Court in Lyons v Longford Westmeath Education and Training Board (2017 IEHC 272, which held the importance of fair procedures in circumstances especially where an employee is dismissed.

Decision:

Unfair Dismissals Act 1977 – 2015 CA-00006634-001

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

On the basis of the evidence and my findings above I declare this complaint is well founded. The Respondent did not apply fair procedures and natural justice to the dismissal of the Complainant. I direct the Respondent to pay the Complainant compensation of €15,000 (fifteen thousand euro) within 42 days of the date of this Decision

Dated:   8^th August 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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