Complainant

Respondent

Anonymised Parties

Shop Assistant

Large Retail store

Representatives

Marc Bairèad Solicitor

O`Shaughnessy Bairèad Solicitors

Marcus Dowling BL

Stephen Kane Solicitor

Byrne Wallace

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-00011131-001

04/05/2017

The Complainant is a shop assistant.

The Respondent is a large retail store.

The Complainant commenced working for the Respondent on the 26th of April 2008. Her role was managing the shelves and occasionally working on the tills. The Complainant was dismissed on the 12th January 2017.

The Complainant’s case was that she was dismissed unfairly due to lack of fair procedures in breach of natural justice.

Her representative relied on the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). In particular, he relied upon Section 7 of this code which states

“These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given and that the employee concerned be allowed to confront or question witnesses”.

The Complainant’s case was that no correspondence was sent to her setting out what the process was or the outcome of the process could be. The first and only letter she received was sent on the 12th of January 2017 informing her that she had been dismissed.

The Complainant submitted that she wasn’t given an opportunity to fully respond to any allegations or complaints against her. Any statements that were obtained by the Respondent were not provided to the Complainant in advance and were not discussed at any of the meetings. (These statements were not opened to me in evidence).

She submitted that she was a Romanian national and was not provided with an appropriate amount of time to digest the magnitude of the decision and prepare her defence and appeal.

The Complainant had an issue with the head of HR and felt that she openly disliked the Complainant.

The Complainant also submitted that the penalty imposed by the Respondent was not fair and was disproportionate to the actions of the Complainant. The value of the coupon that the Complainant used was €10.00.

She also submitted that there was no evidence that the Respondent considered any other sanction other than summary dismissal.

Since her dismissal, the Complainant was in receipt of jobseekers’ benefit. She tried to seek alternative employment.   She submitted applications for different sales jobs and cashiers and accommodation assistants.

The Respondent’s case was that the incidents which lead to the dismissal occurred on the 23rd of December 2016. While on a break, the Complainant presented at a grocery checkout to purchase several items. The items were all from the textiles section of the store. When the Complainant’s items were scanned by a member of staff, the Complainant produced a “Shop and Save” coupon.   This provided a €10.00 discount on items from the grocery section of the store when €50.00 worth of items were purchased. The promotion did not apply to items purchased from the textiles section of the store.

When the Complainant produced the coupon, the member of staff on the checkout informed the Complainant that she could not use the coupon as her items were all from the textiles section. The security manager on duty voided the transaction and the Complainant gathered her items and left the checkout.

The Complainant went to another checkout and attempted to use the same coupon in respect of the same items that had been rejected a number of minutes before.   Again, the member of staff at the checkout informed the Complainant that she could not use the coupon as the items where all from the textiles section of the store. Again, the security manager on duty was called to void the transaction. This time the security manager repeated to the Complainant that the coupon could not be used in respect of textile items.

When the Complainant completed her shift, she collected her items from the checkout and proceeded to yet another grocery checkout. The Complainant presented her items at the checkout again and the staff member at the checkout completed the transaction applying the voucher discount.

Investigation meetings were held with the Complainant on the 5th , 7th and 11th of January 2017. The store manager suspended the Complainant on full pay pending further investigation on the 7th January 2017.

The store manager met with the Complainant on the 11th of January 2017 for a follow up investigation meeting. The Complainant demonstrated a clear understanding of when the Shop and Save coupon could and could not be used. The Complainant recalled being informed on three occasions that she could not use the coupon in respect of textile items. At the conclusion of the meeting, the store manager was satisfied that the Complainant had a case to answer and advised the Complainant the matter would be escalated to disciplinary stage.

The disciplinary meeting was held on the same day. The Complainant was advised that she had failed to follow the instructions of a senior manager. The store manager found that the Complainant’s conduct constituted a serious breach of procedure. The store manager terminated her employment and provided her with a right of appeal within seven days.

No appeal was pursued by the Complainant.

The Respondent relied on Section 6(1) of the Unfair Dismissals Act on the defence

“having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

The Respondent submitted that the dismissal was reasonable in the circumstances.

The Respondent relied on the band of reasonable responses test developed by the English Courts and accepted in this jurisdiction in a number of cases including by Noonan J in Bank of Ireland –v- Reilly [2015] E.L.R 229 and by the Labour Court in UD/16/69 Dunnes Stores Limited -v- Elaine O’Brien applying Bunyan –v- United Dominion’s Trust [1982] ILRM 404.

In forming any decision, I must consider the reasonableness of both parties’ conduct, actions and decisions.

I must decide whether the Complainant was afforded fair procedures in the process leading to her dismissal.

The insertion of Subsection 7 into Section 6 of the Unfair Dismissals Act reinforces the concept of procedural fairness and requires the Respondent to follow fair and proper procedures before the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

There is no fixed standard of natural justice which lays down what certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are certain fundamental requirements of fair procedures that cannot be dispensed with.

I have considered all of the evidence provided to be at the hearing both orally and in writing. I have reviewed the Respondent’s disciplinary procedure contained in the employee handbook which was provided to me at the hearing. I have read the minutes of the meetings held with the Complainant.

The Respondent submitted that the Complainant was well aware of the complainant that was against her and this was imparted to her verbally during the various meetings.

In this particular case I find that there are three overarching requirements which were not complied with under the principles of natural justice, namely:

1. The Complainant should have received written notice of the process which was being undertaken, what complaint was being made against her and the possible outcome of the process. She should also have been advised in writing that she had the right to be accompanied to the meetings (investigatory and disciplinary).        

The Respondent was in control of the process being undertaken and in the interest of fairness, it should have set out in writing to the Complainant on a formal basis, the process which was commencing and that it could lead to her dismissal.

1. The Complainant should have been provided with copies of all statements taken into account by the decision maker in reaching his decision.

I note that witness statements were taken by the investigators that were not provided to the Complainant. These were referred to by the decision maker in the disciplinary meeting on the 11th January 2017. The store manager stated

“I have spoken to all people concerned and I have taken the time to review my notes…….”

1. The decision maker went on to set out both in the minutes of the disciplinary meeting and the letter of the 12th January 2017 to described how the bond of trust had been broken and how he had no alternative but to terminate her employment effective immediately.

In the minutes of the disciplinary meeting there was no evidence that alternative sanctions were considered by the decision maker.

Having regard to all of the foregoing, I am satisfied that the disciplinary process undertaken by the Respondent was flawed and that the conduct of the Respondent could not by any objective standard be described as reasonable.

I find that the Complainant succeeds in her complaint of unfair dismissal.

As regards redress, because of the actions of the Complainant leading to her dismissal, I hold that compensation would be the most appropriate remedy.

Under s.7(2)(f) of the Unfair Dismissals Act 1977, I am required to consider the extent to which the conduct of the Complainant contributed to the dismissal in dealing with the remedy of compensation.

The evidence of the case was that the Complainant was told on three occasions that she could not use the coupon on drapery items. By her own admission, she wanted to use the coupon. She continued her quest until she could use the coupon.

I was informed by the Respondent that the employment of the checkout teller that accepted the coupon was also terminated.  

In these circumstances, I can’t but find that the Complainant substantially contributed to her dismissal.   I am attributing 50% of the responsibility to her own actions and reducing her award accordingly.

It was agreed at the hearing that the Complainant was in receipt of a gross weekly wage of €492.00.

Having considered the evidence of the Complainant as to her efforts to minimise her loss, I have decided not allow her the full 31 weeks’ loss of earnings from the date of dismissal to the date of the hearing. The evidence of her efforts to find new employment were not convincing and the areas in which she sought employment were very selective, such as Brown Thomas and the K Club. I will allow her a loss of 22 weeks.

I find the complainant was unfairly dismissed and aware her compensation of €5,412.00 calculated as follows:

22 x €492 = €10,824 X 50% = €5,412.00 gross.

This payment is to be taxed in accordance with Revenue rules.