Complainant

Respondent

Anonymised Parties

An   Associate

A Clothes retailer

Act

Complaint Reference No.

Date of Receipt

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

CA-00003634-001

02/04/2016

The   complainant was an associate at a respondent store and was paid €9.50 per   hour. He worked part-time and worked on 18 occasions at one respondent store   between the 24^th September 2014 and the 26^th January   2016. He claims he was dismissed unfairly, which the respondent denies.

The   respondent outlined that the complainant’s fixed term contract was coming to   an end on the 26^th January 2016, so there could be no financial   loss after that date. In 2015, the complainant had earned €1,119 in total   pay. The complainant had been dismissed on the 26^th January 2016   on grounds of gross misconduct. The respondent had a “zero tolerance”   attitude to possessing alcohol on the workplace, as stated in its Associate   Handbook. Ten other employees had been dismissed following the same event.

The   Investigator gave evidence. He said that his role was that of Asset   Protection Investigator with the respondent, where he monitored shoplifting   and product losses. There was a zero-tolerance policy regarding alcohol and   any breach was reported to HR to investigate. It was part of his role to   speak with new recruits about their role and he could not recall to speaking   with the complainant. In respect of the events of the 22^nd   December 2015, he had been informed by phone by a security guard of staff   preparing to go out. At 10pm, he entered the store and went to the backroom.   There was alcohol on the table and in people’s hands. He approached the most   senior member of staff and asked them all to leave the premises. He then left   the store and contacted his line manager. He then provided an email account   of the event to the HR Coordinator. Later in the adjudication, the   Investigator said he had seen the complainant on numerous occasions and knew   him by name. He said that he had been in the backroom for approximately one   minute and could identify ten people who were drinking. He saw the   complainant hold a bottle of beer in his hand.

In   questioning, the Investigator agreed that the statement of the 22^nd   January 2016 was made one month after the event and that he viewed the CCTV   to clarify his recollection. It was put to the Investigator that this had   been an unlawful use of the CCTV and not provided in policy; he replied that   the CCTV was used as part of asset protection. It was put to the Investigator   that there was no CCTV in the backroom; he replied that he had used the CCTV   to clarify his recollection of the events. It was put to the Investigator   that staff had punched out at the time of the event, which he accepted. It   was also put to the Investigator that the complainant, who was then 18 years   old, had followed his manager; he replied that that alcohol was only permitted   at official functions and that it was not appropriate for the complainant to   think he had approval. It was put to the Investigator that the complainant   had not received onboarding.

The   HR Coordinator gave evidence. She was the senior HR Coordinator in the UK   where she managed 3,500 to 4,000 associates. There was a global, consistent   zero tolerance policy and it was very clear that there could be no drug use   or possession or use of alcohol. This is applied consistently across the   respondent. She said that onboarding occurred when a staff member joined and   they were also given a handbook. An official function required authorisation   from HR management, for example for a charity event and the alcohol would be   provided by the respondent.

The   HR Coordinator outlined that twenty people had been involved in the night in   question and they were dismissed because of the possession of alcohol. She   had been informed of the event on the 22^nd December 2015 and   contacted the Investigator. She asked the Investigator for a summary of what   had happened. The complainant was invited to a disciplinary meeting, which   took place via telephone conference. There was a conflict whether the   complainant had been holding alcohol, so she checked with the Investigator   and asked for his written statement. She believed his version of events   because of his pivotal role. She considered the mitigating circumstances but   the complainant knew of the Integrity policy and the health and safety issues   arising. There was a zero tolerance policy in relation to alcohol and the   complainant was summarily dismissed. She accepted that the CCTV footage was   sent in error to another associate.

The   HR Coordinator was asked who brought the beer into the break room; she   replied that it had been a former associate and she accepted that staff who   had carried staff from the store to the backroom had not been disciplined.   She said that she had regard to the Investigator’s position and role. She had   no prior knowledge of the complainant and she did not believe it relevant to   speak to other managers regarding his integrity. She said that the minutes of   the meeting of the 25^th January 2016 were not supplied to the   complainant as they had not been requested. It was put to the HR Coordinator   that the complainant had answered the question in respect of consuming   alcohol, as opposed to possessing it.

In   closing comments, the respondent submitted that the dismissal was based on   gross misconduct and the zero-tolerance policy outlined in the Employee   Handbook. Ten employees had been witnessed consuming alcohol and dismissed.   It was submitted that the CCTV was not enough to initiate against a   disciplinary process against a person and a named person was not dismissed.   The Investigator, however, had witnessed the complainant breaking policy. The   complainant had further received the right to fair procedures and given the   right to appeal. There had been a thorough, fair and reasonable disciplinary   process. The HR Coordinator had given careful consideration of the case and   also gathered an additional statement from the Investigator, which was   reinforced by the CCTV.

The   respondent said that it had established on the balance of probabilities that   the zero-tolerance policy was consistently applied and that the complainant   knew of the policy and related health and safety issues. The complainant had   been provided with an independent appeal, even though the CCTV had been sent   in error to another associate. This was not a case of mistaken identity. At   the appeal hearing, the complainant admitted possession of alcohol. It was   submitted that the outcome of the appeal was reasonable. There had been a   full enquiry and a full and fair opportunity given to the complainant to   contribute. It had been established that the complainant had been in possession   of alcohol on the premises. The respondent had acted in line with the zero-tolerance   policy when it dismissed the complainant. It referred to Hennessy v Read & Write Shop Ltd (UD 192/1978) and Kotaba v OFM Onsite Facilities Management   Ltd (UD43/2013) regarding gross misconduct and alcohol zero tolerance as   reason for dismissal.

The   complainant provided a detailed statement in support of his claim. He   commenced working for the respondent at age 17 and did not work very much in   the year 2015 as he was completing his Leaving Certificate. He was glad for   the work over Christmas 2015 for the pocket money. He worked a shift of 5pm   to 9pm on the 22^nd December 2015, at which time a former Associate   had supplied alcoholic beverages, a Mexican beer, for pre-party drinks. The   complainant states that he was in full training as a member of a sporting   team, so was not consuming alcohol. After their shift attended, at least 15   people, including two members of management went to the break out room. About   an hour later, the Investigator entered the room for less than one minute.   They left and went to a named public house. The complainant carried out beer   bottles as requested of him. He worked a double shift the following day because   of absences. The complainant states that of the 15 people in the break out   room, only 9 were dismissed. He states that he was drinking from a paper cup   and the Investigator could not have known what was in his cup. The   complainant challenges the fairness of his dismissal on the basis that   others, in particular managers, were given severe warnings as opposed to   dismissal. The complainant challenges the use by the respondent of CCTV and   the application of its zero-tolerance policy.

In   questioning, the complainant denied that he had possessed or consumed   alcohol. He had been drinking from a paper cup. It was put to the complainant   that he was observed in the possession of alcohol and that this was seen on   the CCTV; he replied that they had been asked to carry out beer bottles. It   was put to the complainant that the appeal manager had reviewed the CCTV as   part of loss prevention and this includes zero tolerance. The complainant   said he was aware that consuming alcohol was not accepted but he was not   aware that carrying bottles at the manager’s instructions would lead to such   consequences. It was put to the complainant that he had only admitted   carrying bottles at the appeal hearing and not at the disciplinary hearing.

In   closing comments, the complainant outlined that he had been 18 at the time of   these events and this had been his first job. Too much had been demanded of   his policy awareness, especially as he had worked so few hours with the   respondent. The complainant had complied with the instructions of his   managers, who had encouraged the activity notwithstanding the handbook. It   was submitted that pre-party drinks had occurred in previous years. There had   been another incident when beers had been stored in the fridge and the employee   had not been dismissed. It was submitted that there was a need for   reasonableness and compassion. It had been a harsh lesson in the   complainant’s Leaving Certificate year and he wishes to have his good name   vindicated. The reliance on the Investigator’s evidence was unsound given the   brevity of the time he was in the breakout room. The complainant referred to   injunctive High Court proceedings of Sheridan v Irish Rail 2017.

The   complainant worked for the respondent between the 24^th September   2014 and the 26^th January 2016. He worked intermittently as he was   completing his Leaving Certificate and he is also involved in sport. He was   at work as he and colleagues prepared to go out for a Christmas night out on   the 22^nd December 2015. The shop closed and staff brought in beer   to consume before going out. The Investigator intervened and the gathering   came to an end. The complainant attended work the following day and worked a   double-shift. His third fixed-term contract was coming to an end on the 26^th   January 2016. He was dismissed by the respondent on the 26^th   January 2016 on grounds of gross misconduct.

There is a   conflict in evidence whether the complainant was holding a beer bottle or a   paper cup in the break out room at the time the Investigator entered the   room. The complainant says he was drinking a soft drink in a paper cup, while   the Investigator states he saw the complainant holding a beer bottle. It was   not disputed that the complainant carried bottles out of the break out room   and was seen on CCTV doing so. The Investigator prepared two email accounts   of what he saw, including after having reviewed the CCTV. The complainant   states that he wishes for his good name to be vindicated.

It is well   settled that where there is conflict of evidence regarding a pertinent event   leading to a dismissal, the role of WRC adjudicators (and formerly Rights   Commissioners and the EAT) is not to determine what happened, but to consider   whether the employer had reasonable grounds for whatever conclusion they   reached. I refer to O’Riordan v Great Southern Hotels   (UD 1469/2003) and to Hennessy v Read   & Write Shop Ltd (UD192/1978). In the instant case, the respondent had   statements from the Investigator and his clear evidence of seeing the   complainant with a bottle. It also had the equally clear evidence from the   complainant that he was not holding a beer bottle, but was holding a paper   cup containing a non-alcoholic drink. The basis of the respondent’s   conclusion was that people were drinking beer, the complainant was seen on   CCTV carrying a bottle (for which he provided an explanation) and the   Investigator says he saw the complainant holding a bottle in the break out   room. Taken together, it cannot be said that the respondent did not have   reasonable grounds to reach this conclusion it reached. It is not my role to   determine whether or not the complainant was, in fact, holding a bottle.

Next is whether   the act is gross misconduct and the issue of proportionality. In DHL Express (Ireland) Ltd v Coughlan   UDD 1738, the Labour Court held as follows:

“The established jurisprudence in   relation to dismissal law in this jurisdiction takes a very restricted view   of what constitutes gross misconduct justifying summary dismissal. This is   evidenced, for example, by the determination of the Employment Appeals   Tribunal in Lennon v BredinM160/1978   (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary(IBEC, 1996)) wherein the   Tribunal states:

                        ‘Section 8 of the Minimum   Notice and Terms of Employment Act 1973 saves an employer from liability for   minimum notice where the dismissal is for misconduct. We have always held   that this exemption applies only to cases of very bad behaviour of such a   kind that no reasonable employer could be expected to tolerate the   continuance of the relationship for a minute longer; we believe the   legislature had in mind such things as violent assault or larceny or   behaviour in the same sort of serious category. If the legislature had   intended to exempt an employer from giving notice in such cases where the   behaviour fell short of being able to fairly be called by the dirty word   ‘misconduct’ we have always felt that they would have said so by adding such   words (after the word misconduct) as negligence, slovenly workmanship, bad   timekeeping, etc. They did not do so.’”

The respondent refers to its zero-tolerance   policy regarding alcohol and there is, of course, no issue with such a   policy. The Kotaba v OFM Onsite Facilities Management Ltd case, referred to by the   respondent, is an example of such an approach in the context of a care worker   consuming alcohol while watching a football match with a client. The   Associate Handbook is clear that using alcohol at work or being intoxicated   is prohibited. It is not entirely clear whether the informal event the   complainant attended is prohibited as it could fall within “celebrations where no further business   is anticipated for the day” referenced at page 22 of the Handbook. In   this case, I note that members of management were involved in organizing the   event. The shop had closed. Staff had assembled at the back of the store.   There was no evidence of drunkenness or of damage to the store. The   complainant was in attendance and left when instructed to. He was not working   at the time of the incident and attended work as normal the following day.   Applying DHL Express (Ireland) v Coughlan   to the complainant’s circumstances as a junior member of staff, his actions   did not constitute gross misconduct. It follows that the dismissal grounded   on gross misconduct was unfair.

In   assessing redress, I award the complainant €400. This is just and equitable   given the number of hours worked by the complainant and the fact that his   contract was coming to an end.

CA-00003634-001

I   find that the complaint made pursuant to the Unfair Dismissals Act is   well-founded and the respondent shall pay redress of €400 to the complainant.

Unfair   Dismissals Act

DHL   Express (Ireland) v Coughlan UDD 1738

Kotaba v   OFM Onsite Facilities Management Ltd (UD43/2013)