UDD1739

This is an appeal by Moses Okezie Ikoro (the Appellant) against the decision of an Adjudication Officer in his claim that he had been unfairly dismissed by his former employer Woodies DIY limited (the Respondent).

In a decision dated 2^ndFebruary 2017 the Adjudication Officer found that the Appellant’s complaint was not well founded.

The Appellant was employed from 1^stMarch 2007 to the date of his dismissal on 16^thNovember 2015. The fact of dismissal is not in dispute.

Summary position of the Respondent

The respondent was contacted by a customer on 26^thOctober 2015 who enquired as to whether money had been found in the store as €50 was missing from her purse. The respondent examined CCTV records and identified as a fact that the customer had dropped a €50 note at the Appellant’s till. The CCTV footage also identified that the note had been placed by the Appellant in his till at 5.17pm on that day.

The Respondent’s investigation of the matter examined the data associated with the till on the day. The Respondent established that the Appellant’s till had balanced but for a small ‘overage’ of 19c at 6.00pm on the day. The Respondent submitted that the fact of the till balancing demonstrated that the customer’s €50 note had been removed from the till between 5.17pm and 6.00pm. The Respondent acknowledged that the CCTV footage of the till did not show the Appellant removing the €50 note from the till. The Respondent conducted a disciplinary and appeal process and concluded that, on the balance of probabilities, the Appellant had removed the €50 note from the till. The Respondent submitted that it had followed fair procedures and that it was reasonable to dismiss the Appellant having come to the conclusion it came to on the balance of probabilities.

Summary position of the Appellant.

The Appellant did not dispute the fundamental facts of the matters before the Court. The Appellant contended that he had seen a €50 note at his till having completed a transaction with a customer. He had assumed that this note was related to the transaction and placed it in the till. He submitted that he had never removed the note from the till. He submitted that a cashier of the Respondent was responsible for the removal of notes from his till and that he had not signed for any internal transactions involving the removal of notes from his till after 5.17pm on the day in question. The Appellant submitted that others, including the cashier and the cash office, had handled the cash from his till but that the Respondent had failed to investigate those persons’ interactions with the cash from his till and had failed to properly investigate all possibilities as regards the absence of a €50 note from his till.

The Appellant submitted that the procedures of the Respondent had been deficient insofar as the investigation conducted into the events of 26^thOctober 2015 had not been thorough and was flawed.

Discussion and Conclusions

The parties are agreed on the essential facts. It is the case that a discrepancy in the till cash was identified following a report from a customer and an examination of the till CCTV records. The Respondent investigated the matter, engaged a disciplinary process and concluded that, on the balance of probabilities, the Appellant had removed €50 belonging to a customer and as a consequence dismissed the Appellant.

The Court accepts that it is reasonable for an employer, having (1) conducted a thorough and comprehensive investigation to the degree possible, and (2) employed fair disciplinary procedures, to arrive at conclusions on the balance of probabilities.

In this case the undisputed facts appear to be that a customer accidentally left a €50 note at the till 5.17pm. on 26^thOctober 2015. The Appellant placed that note in the till. CCTV footage of the till does not show the Appellant removing €50 from the till. A second staff member of the Respondent, a cashier, engaged with the till in the minutes approaching 6.00pm. In those minutes a range of cash related matters were dealt with, viz the notes in the till were counted and despatched to the cash office via two ‘pods’, coin was counted, a ‘Z’ report was run and certain records were completed and signed or not signed. In summary all of the cash in the till was handled in a transaction which involved or was observed by both the till operator and the cashier.

It seems clear to the Court that whatever happened to the €50 note had happened before the opening of ‘pods’ from the till in the central cash office on the following day. Therefore, whatever happened to the note had happened before those ‘pods’ were sealed and sent through a secure system to the cash office.

The Respondent cannot say with certainty what happened to the €50 note and that is accepted. The Respondent confirmed to the Court that while its investigation examined the records completed at the till and the CCTV footage of the till it did not engage with the cashier who signed for the removal of all notes from the till after 5.17pm and up to the till closure at 6.00pm.

A comprehensive investigation seeking to establish what happened to the €50 note which was deposited in the till at 5.17pm would require to examine and consider all aspects of cash operations up to and including the moment the ‘pods’ were sealed for transmission to the cash office. It is clear that the Respondent failed to comprehensively examine all stages of cash handling at this till insofar as no engagement took place with the cashier who participated in the major cash events occurring at 6.00pm approximately and whose evidence as regards those transactions had the potential to assist in ensuring that the entire chain of events surrounding the handling of the €50 note was understood and investigated. The Court therefore finds that the investigation undertaken by the Respondent was not comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process.

It is not for the Court to carry out an investigation of the events of 26^thOctober 2015 or indeed to draw any conclusions or make inferences as to what happened to the €50 note. Rather the role of the Court is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the events of 26^thOctober 2015. That decision and the disciplinary process leading to that decision took into account the outcome of the investigation which had been carried out by the Respondent. The Court has found that the investigation was not comprehensive. Consequently the Court must conclude that it was not reasonable of the Respondent to reach a decision to dismiss the Appellant in the absence of a comprehensive investigation of relevant facts and events.

Determination

The Court finds, for the reasons stated above, that the Appellant was unfairly dismissed. The appropriate remedy in this case is compensation. It took the Appellant some nine months to obtain alternative employment. The Court therefore assesses the financial loss to the Appellant arising from his dismissal as €17,000. Taking account of the fact that the Appellant was unavailable for employment at certain times between November 2015 and August 2016 the Court awards the Appellant €15,000 in compensation for his financial loss accruing from his unfair dismissal.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
JD______________________
03 August 2017Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.