Complainant

Respondent

Anonymised Parties

An Employee

A Builders Providers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004374-001

11/05/2016

The Complainant worked in the Plumbing Department of the Respondent's business since 9 May 2007. At the time of his dismissal the Complainant held the position of Department Head/Supervisor.

The Respondent's Plumbing and Heating Department sells cookers and stores to the general public. The Respondent does not provide a fitting service for these products but does give contact details of qualified Fitters to customers.

Staff provide customers with details of at least 2 Fitters. The customers can then make their own arrangements directly with the Fitter of their choice. It is made clear to customers that the Respondent is not recommending any individual Fitter and that neither they nor the product manufacturer are responsible for installation of the product by individual Fitters.

The matter at the centre of the Complainant's dismissal relates to one particular individual who, as well as being a stove Fitter, whose name is provided to customers by the Respondent, also purchases a considerable amount of product from the Respondent and is, therefore, regarded as a very good customer.

On 18 November 2015, the Complainant approached a Director of the Respondent and queried the procedure for reporting a customer who had abused staff. The Director asked the Complainant what the problem was and he was told that the Complainant had been verbally abused by the Fitter following a problem which had arisen when a customer who had engaged the Fitter to install a stove, did not have the correct parts when he arrived at her home to complete the installation. The Complainant informed the Director that he observed the Fitter becoming agitated during an interaction with a colleague staff member. The Complainant told the Director that when he approached the Fitter to find out what was wrong the latter verbally abused and swore at him.

The Director informed the Complainant that it would never be acceptable for anybody to abuse staff and he offered to arrange a meeting with the Fitter to deal with the matter. The Director stated that the Complainant informed him that he didn't want to take the matter any further but just wanted the Director to be aware that it had happened. The Director informed the Complainant to let him know if anything further happened in this regard.

On 23 November 2015 the Fitter telephoned the Store Manager to inform him that as a result of the actions of the Complainant, he (the Fitter) was taking his business elsewhere. In an attempt to persuade the Fitter to remain a customer, the Store Manager arranged to meet with him the following day.

During the meeting on 24 November, the Fitter informed the Store Manager that he was not prepared to deal with the Complainant and was taking his business elsewhere. The Store Manager requested the Fitter to take a few days to think about the situation and he would contact him again.

A further meeting took place on 26 November 2015 between the Fitter and the Store Manager. At this meeting the Fitter claimed that the Complainant had asked him for money so that he (Complainant) would recommend him to customers for stove installation. The Fitter told the Store Manager that he previously gave money to the Complainant who accepted it. The Fitter stated that he was prepared to sign a statement confirming that the Complainant had asked him for money in return for store fitting recommendations. The Fitter subsequently supplied the Respondent with a statement confirming his allegations against the Complainant.

A disciplinary hearing took place on 1 December 2015. On the following day, 2 December 2015, the Respondent took the decision to dismiss the Complainant for gross misconduct on the basis that he admitted he accepted payments from a number of customers without the knowledge or permission of the Respondent and that, based on the evidence of the Fitter, these customers were asked for those payments.

The Complainant exercised his right to an internal appeal of the dismissal decision. The appeal was conducted on 6 January 2016 by a Director of the Respondent. The appeal decision, upholding the original sanction of dismissal, was issued to the Complainant by way of letter dated 12 January 2016.

In making representations on behalf of the Complainant, his legal adviser highlighted two aspects to his challenge of the decision to dismiss him from his employment. Firstly, it was contended that there were a number of significant procedural deficiencies with the process conducted by the Respondent.

The first procedural matter raised by the Complainant related to the evidence provided by the Fitter to the Respondent. It was contended that the decision to dismiss was primarily based on the statement provided by the Fitter. It was contended on behalf of the Complainant that this statement was only hearsay and should not be admissible in the disciplinary process.

The Complainant also objected to the fact that the Fitter was not in attendance at either the disciplinary hearing on 1 December 2015 or at the appeal hearing on 6 January 2016. It was contended on behalf of the Complainant, that the statement from the Fitter did not represent proper evidence and that the Fitter should have been present in person to speak to his evidence, so that the Complainant had an opportunity to test this evidence.

The second procedural matter raised by the complainant related to the obligation on the employer to ensure that the disciplinary hearing is held in accordance with fair procedure and due process. It was contended on behalf of the Complainant that he was only given one hour's notice of the disciplinary hearing. It was submitted that such a short notice did not provide an adequate amount of time to the Complainant in which to prepare for the meeting.

The final procedural point raised on behalf of the Complainant related to the Respondent's failure to provide the Complainant with copies of the relevant company policies. The Complainant contends that he was not aware of any gift policy within the company and therefore was unaware as to where or how he had breached that policy.

In addition to raising the above procedural matters, the Complainant's legal representative made representation in relation to the substantive matter of the dismissal. It was contended on the Complainant's behalf that, while he never denied and readily admitted that he had received money from the Fitter, such a practice was common not just within the Respondent's business but in other such stores. It was contended that it was common practice for Fitters to hand over money to the shop staff.

In summary, it was contended on behalf of the Complainant that the only conclusion that could be made in relation to the procedure aspect of the case was that the procedures were unfair. With regard to the substantive matter it was contended that there was a responsibility on the Respondent to have a gift policy in place and to make sure all staff were aware of say same. In a context where there was no clear policy, it was contended that the Complainant's actions could not amount to gross misconduct.

While acknowledging that he accepted money from the Fitter the Complainant denied that he ever asked for that money. The Complainant denied that he "rubbed up" the Fitter and therefore did not commit an act of misconduct.

It was submitted on behalf of the Respondent that this was a clear case of gross misconduct.

It was stated in evidence by the Respondent that the Complainant both acknowledged and accepted that he took the money from the Fitter in question. The Respondent had a serious problem with such behaviour and was strongly of the view that the only appropriate sanction in this case was dismissal.

The Respondent stated in evidence that the company has a policy in relation to gifts from suppliers or others. It was stated that such gifts were normally given in the period coming up to Christmas. The Respondent stated in evidence that all gifts received are pooled together and allocated among all staff by means of a raffle which takes place before Christmas. Subsequent to the oral hearing, the Respondent provided documentary evidence in relation to the existence of the gift policy.

In response to the Complainant's contention that he was dealt with differently to another employee who was involved in similar activity, the Respondent stated that the company did address the issue with the other employee. However, the Respondent pointed out that the other employee did not at any time receive money at the Complainant did.

Preliminary Point:

At the commencement of the oral hearing the legal representative for the Complainant stated that he wished to change his preferred method of redress from compensation to reinstatement. The representative for the Respondent objected to the requested change of redress.

The Hearing proceeded to hear the evidence pertaining to the substantive matter of the unfair dismissal. The findings on the substantive issue, based the evidence adduced, would determine whether or not the preliminary point required consideration and determination.

Substantive claim:

In considering the Respondent’s decision to dismiss the Complainant, a number of factors or "tests" need to be considered.

Firstly, it needs be established whether or not there were sufficient grounds for the employer to initiate disciplinary action against the respondent. Secondly, any investigation/disciplinary process applied must be in accordance with the requirements of fair procedure, due process and natural justice. Finally, consideration must be given to whether the sanction emanating from such a process falls within what might be considered a range of reasonable responses by the employer.

With regard to establishing the existence of sufficient grounds to initiate disciplinary process, I am satisfied, based on the evidence adduced that the Complainant did except money from the Fitter in question. The receiving and accepting of the money by the Complainant is not in dispute. What was in dispute is whether or not he had requested the money from the Fitter in the manner suggested by the latter's evidence.

During the oral Hearing, the opportunity was provided to cross-examine the witness in relation to his statement of 28 November 2015. Having carefully considered that evidence I am satisfied that it was consistent with that as contained in the witness' statement.

Consequently, in a context where they had an admission from the Complainant that he had received and retained the money and had credible evidence from the witness, which they had no obvious reason to question or doubt, I am satisfied the Respondent's assessment that the Complainant's actions constituted gross misconduct was both reasonable and appropriate.

It is clear from the evidence adduced that a practice existed whereby the Complainant accepted and retained monies, not just from the Fitter in this case, but from others such contractors/suppliers. This was confirmed during the oral hearing by the Complainant's admission that as at the date of the Hearing, he was still holding money his personal possession which had been received in similar manner to that which existed in this case.

Evidence presented by and on behalf of the Complainant during the Hearing strongly suggested that he was not made aware of any policy in relation to the acceptance of gifts and it was further suggested that no such policy actually existed. Notwithstanding the Complainant's contentions in this regard, the documentary evidence presented by the Respondent subsequent to the Hearing clearly shows that not only does the policy exist but that it was communicated to staff. In the absence of any evidence to the contrary, there is no reason to believe that the Complainant was unaware of this policy.

Consequently, taking all the above into consideration, I am satisfied that the Respondent had more than sufficient grounds to initiate disciplinary process in relation to the Complainant's acceptance of money from the Fitter.

The second factor for consideration relates to the conducting of the disciplinary process. I would have some concerns that the initial notification of the disciplinary meeting may not have been consistent with what one would consider as best practice in this regard.

The evidence suggests that the Complainant was verbally informed of the meeting that was due to take place later that day. There is no evidence that the Complainant received formal written notice of this meeting. Despite the fact that I believe the Complainant was aware of the reason for the meeting, the short notice was less than ideal in terms of preparation.

However, notwithstanding the concerns raised above in relation to the notification provided to the Complainant in relation to the disciplinary hearing, the evidence before me would suggest that, from there on, the Respondent applied a careful and considered process, which meets the normal standards of fair procedure and natural justice. This is evidenced by the following:

> The Complainant was provided with ample opportunity to respond and make representation.

> The Complainant was given access to an appeal process.

> He was provided with the right to representation, which he exercised. He was accompanied at the disciplinary hearing by work colleague and at the appeal hearing by full legal representation.

Based on the above, I am satisfied that, with the exception of the amount of notice given for the disciplinary meeting, the Complainant was provided the fair and balanced process, in line with natural justice.

Therefore, the final test for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances. In circumstances where the Respondent has established that the Complainant had engaged in gross misconduct, which in turn had the potential to cause reputational damage and impact on its business, the sanction of dismissal could not be considered as disproportionate.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Respondent's decision to dismiss the Complainant to be fair and reasonable in the circumstances and, consequently, the Complainant's claim in this regard is not upheld.

Unfair Dismissal

Gross Misconduct