ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001024
Complaint(s)/Dispute(s) for Resolution: A sales assistant v A shop
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00001465-001 | 14/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001465-002 | 14/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00001465-003 | 14/12/2015 |
Date of Adjudication Hearing: 20/04/2016
Workplace Relations Commission Adjudication Officer: David Iredale
1. Background:
The Claimant worked for the Respondent as a Sales Assistant from 6 June 2013 to the date of his dismissal on 11 September 2015. The Claimant’s working hours varied depending on his roster. He was paid €9.00 per hour and during 2015 he was paid an average of €276 gross per week, inclusive of 82 hours holiday pay.
The Respondent submits that on 3August it was informed by an employee that the Claimant, at the end of some of his shifts, had been taking products from the premises without paying for them. By letter date 5 August 2015 the Claimant was issued with a letter requiring him to attend a “gross misconduct meeting” on 21st August 2015 to deal with 2 incidents of him leaving the Respondent’s premises with goods that he had not paid for on the day. The meeting was subsequently rearranged and took place on 4 September 2015.
At the meeting on 4 September 2015 the Respondent informed the Claimant that CCTV footage showed that he had taken products without paying for them. The Claimant was not shown the CCTV footage of the alleged incidents. He stated that he had no recollection of the days in question and denied any wrongdoing. The Claimant was suspended with pay for 1 week and a further meeting was arranged for 8th September 2015. The minutes submitted by the Respondent showed that the meeting lasted approximately 10 minutes
The Claimant was informed at the meeting on 8th September 2015 that the Respondent had statements from staff stating that they had seen the Claimant take product on a number of occasions without paying for it. The Claimant responded by saying that he frequently paid for products on subsequent days. The Respondent stated that the staff members who had given statements had been questioned and had confirmed that they had never witnessed the Claimant paying for products at a later date. The Claimant again denied any wrongdoing. The Claimant was not provided with copies of the witness statements or of the minutes of any meetings between the Respondent and the employees who had provided statements. When he requested a viewing of the CCTV footage he was informed that he could view the footage the following day. The minutes show that this meeting lasted approximately 10 minutes. A further meeting was arranged for 11 September 2015.
At the meeting on 11th September 2015 the Claimant was informed that it had been decided to terminate his employment for gross misconduct. He requested all wages due t him and a letter regarding his employment being terminated. The Respondent agreed to provide same. The minutes show that this meeting lasted 5 minutes.
By letter dated the 4 December 2015 the Claimant sought fromthe Respondent particulars relating to his contract of employment, the disciplinary process and his dismissal. No response was received to this request.
2. CA-00001465-001 – Breach of S.3 of the Terms of Employment (Information) Act, 1994 (the “1994 Act”):
2.1 Claimant’s Case:
The Claimant contends he did not receive a written statement of his terms that complied with S.3 of the 1994 Act.
2.2 Respondent’s Case:
The Claimant received a Contract of Employment and an Employee Handbook which together make up the Claimant’s written statement of his terms of employment. The written statement is in compliance with S.3 of the 1994 Act.
2.3 Decision:
The respondent provided a copy of the Contract of Employment that was given to the Claimant on the commencement of his employment. The document was dated and signed on behalf of the Respondent and signed by the Claimant. Having reviewed this document and the Employee Handbook I found the contents to comply with the provisions of S.3 of the 1994 except for the following subsections: -
(b) The employer’s address was not included.
(ga) The Claimant was not informed of his right to request a written statement of his hourly rate of pay for a specified pay reference period, as provided for under S.23 of the National Minimum Wage Act, 2000.
The Contract of Employment did however specify that the Claimant was paid €9.00 per hour, €0.35 per hour above the National Minimum Wage rate of €8.65 per hour.
(h) The length of the intervals between the times at which wages were paid was not specified.
The Claimant was paid weekly and was issued with weekly pay advices.
(k) (ii) The documents made no mention of pension or pension schemes.
While I declare the Claimant’s complaint that the Respondent was in breach of S.3 of the 1994 Act to be well founded as there were a number of particulars not included in the written statement of his terms, I am satisfied that the Claimant suffered no detriment due to these omissions as he was fully aware of his employer’s address, the fact that he was paid above the national minimum wage, that he was paid weekly and that the Respondent did not provide a staff pension scheme. In the circumstances I make no order of compensation.
- CA-00001465-001 - Complaint Under S.8 (1) (a) Of The Unfair Dismissals Act, 1977 (the “1977 Act”), The Claimant is Seeking Reinstatement For Being Unfairly Dismissed From His Employment.
3.1 Respondent’s Arguments:
3.1.1 On 3 August 2015 an employee informed the Respondent that the Claimant was taking some stock without paying for it or scanning it through the till at the end of some shifts. A review of the CCTV footage for the previous 6 weeks of the Claimant’s shifts showed that he had taken 6 to 7 items on 27June and 4 July 2015. An examination of the till receipts for the subsequent days showed no record of payment.
3.1.2. The Claimant stated that he had no knowledge of the incidents but maintained that he paid always paid for products even if he did not do so at the time of taking the items. When interviewed, staff members confirmed that the Claimant had never approached them to pay for products taken at a different time. Some staff also stated that the Claimant breached other procedures involving product sales. Statements from 3 staff members, LDLS, CM and AM, confirmed that the Claimant had been seen taking items from the shop without paying for them, giving items free to friends and taking lotto tickets without paying for them.
3.1.3. The Claimant’s employment was terminated for gross misconduct as he had breached procedures by taking products without paying for them. CCTV footage, till receipts and witness statements from 3 staff members confirmed had carried out these serious breaches of the Respondent’s procedures.
3.1.4. The Claimant was afforded the right to be represented at all meetings by a staff member of his choice. The Claimant was given full opportunity to give his side of events prior to it being decided that his employment should be terminated.
3.2 Claimant’s Arguments:
3.2.1 The Claimant was not afforded fair procedure throughout the disciplinary process.
3.2.2 The Claimant was instructed to attend the initial disciplinary meeting without being informed of the agenda, the allegations against him or the potential disciplinary consequences.
3.2.3 At the disciplinary meetings the Claimant was pressurised by the Respondent to admit that he had take products without paying for them. The Respondent stated that CCTV footage and witness statements from members of staff confirmed that he had taken items without paying for them.
The Claimant was not provided or given access to the CCTV footage or the witness statements. When he requested at the meeting on 4 September that he is shown the CCTV footage, the witness statements and the till receipts for the days it was alleged he had taken products, he was informed by the Respondent that while he was not entitled to same, these would be provided at the next meeting. The Claimant was not provided with copies or shown the CCTV footage, the witness statements or the till receipts at the meeting on 11 September.
3.2.4. The Claimant was never given an opportunity to cross-examine the witnesses. He was never advised of any procedures relating to the disciplinary process or given an opportunity to appeal the sanction. Furthermore, the investigation and the dismissal were carried out by the same persons.
3.2.5. The Claimant contends that the Respondent was in breach of the Data Protection Act as employees were never notified that CCTV footage could be used for disciplinary purposes.
3.2.6. Under S.14 of the Unfair Dismissals Acts, 1977 to 1993, the Claimant was entitled to be informed in writing of the reasons for his dismissal. The Claimant received no response to the request made of the Respondent under S.14 on 4 December 2015.
- Findings:
4.1. S.5 (b) of the Unfair Dismissals (Amendment) Act, 1993 provides: -
“(b) the substitution of the following subsection for subsection (7):
(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 rights commissioner, the Tribunal or the Circuit 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.”. The Claimant was entitled to fair procedure and natural justice during the investigation, disciplinary and appeals processes. The Claimant was therefore entitled to be: -
I find that the Respondent’s letter of 5 August 2015 did provide the Claimant some detail of the allegations against him, it also did inform him that he had the right to representation and, as the meeting he was instructed to attend was described as a “gross misconduct meeting”, informed him that he was liable to be summarily dismissed.
4.2 The letter of 5 August stated that the Respondent had “evidence” that the Claimant had left the premises without paying for products on 27 June 2015 and 4 July 2015. At the meeting on 4 September 2015 the Claimant was not shown the evidence the Respondent stated it had of CCTV footage and till receipts for the 2 dates on which the Claimant was alleged to have taken product without paying. This evidence 1 was also not shown or given to the Claimant at the meetings of 8 September and 11 September 2015. At the meeting of 8 September 2015 the Respondent stated, in response to the Claimant’s request to see the CCTV footage, that he could view it the following day. I find that it was the responsibility of the Respondent to put before the Claimant all the evidence it had gathered and that had been considered in reaching the decision that the Claimant was guilty of gross misconduct.
In addition to not being provided with copies of the witness statements, the Claimant should also have been allowed to either cross-examine the witnesses or to have questions put to the witnesses through the Respondent. No evidence was provided to show that the Respondent had questioned or sought any clarification from the witnesses regarding their statements. I believe even an initial reading of the statements would prompt the need for clarification and investigation regarding the dates of the alleged incidents, why CM’s and AM’s statements end with exactly the same sentence and why their actions were contrary to that expressed in their statements
The Respondent provided no detail of the allegations made against the Claimant by LDLS on 3 August 2015. The Claimant was also not provided with the minutes of the meetings held with staff on 3 August 2015 and 4 and 5 September 2015 with AM, CM and other staff.
I find the Respondent denied the Claimant the opportunity to respond fully to the allegations against him by failing to carry out a thorough investigation and by failing to provide him with the CCTV footage, access to till rolls and the minutes of meetings. 4.3 I find the Claimant was not afforded a fair and impartial determination of the issues concerned as the investigation and disciplinary processes were carried out by the same parties and, while the Claimant was only ever charged with taking product on 27th June 2015 and 4 July 2015 without paying, the unsubstantiated statements given by AM and CM were accepted by the Respondent at face value and formed part of the consideration leading to the decision to dismiss the Claimant.
4.4 The Claimant's contract of em “will in all cases be confirmed in writing”. The Claimant was never notified in writing at the conclusion of the disciplinary process that his employment had been terminated and given the reasons for his dismissal. It would be usual for such a letter to also inform an employee of their right of appeal in the same manner as the initial letter instructing the Claimant to attend a gross misconduct meeting had informed him of his right to representation. 4.5. Dismissal is the most severe sanction that can be imposed on an employee. It therefore places a responsibility on an employer to carryout a full and thorough investigation and apply fair procedure. The minutes of the 3 meetings held with the Claimant on 4, 8 and 11 September 2015 record that these meetings lasted approximately 10 minutes, 10 minutes and 5 minutes respectively. I find it not to be credible that the investigation and disciplinary processes involving the Claimant, who was alleged to have stolen product and denied any wrongdoing, could be conducted to a standard that meets the high threshold required in a total of 25 minutes
4.6 I find the Claimant failed to adhere to its own Disciplinary Procedure which provides that All disciplinary matters will be conducted with due regard to Natural Justice and fairness” and to S.I. 146 of 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, for the reasons set out in subsections 4.1. to 4.5.above.
Based on the findings set out above and having fully considered the written and oral submissions made by the parties, I declare, pursuant to S.7 of the 1977 Act, that the Claimant was unfairly dismissed as the investigation and disciplinary processes carried out by the Respondent were flawed to a degree that the Claimant was denied his right to fair procedure and natural justice.
The Claimant sought reinstatement as redress for his unfair dismissal. In the circumstances I do not believe either reinstatement or reengagement to be appropriate redress as I am of the view that the essential trust that must exist between an employee and an employer in an employment relationship, to have been irrevocable broken in this case.
I order the Respondent to pay to the Claimant the sum of €18,500 in compensation for being unfairly dismissed from his employment.
This award is based on the Claimant’s average weekly earnings of €283.55 that he earned over the 37 weeks worked during 2015. The award also takes account of the evidence he submitted showing his efforts to mitigate his loss and the Respondent’s failure to comply with its own disciplinary procedures or the provisions of Statutory Instrument 146 of 2000. 6. CA-00001465-003 – Breach of the Payment of Wages Act, 1991 (the “1991 Act” :
6.1 Claimant’s Case: The Claimant was dismissed from his employment without being given or paid his entitlement to 2 weeks notice.
6.2 Respondent’s Case: The Claimant was summarily dismissed from for gross misconduct and therefore had no entitlement to notice.
6.3 Decision – Breach of 1991 Act:
The Claimant was successful in taking a complaint under S.8 of the Unfair Dismissals Act, 1977; reference CA-00001465-002 where he was found by the Adjudication Officer to have been unfairly dismissed from his employment. I therefore declare his complaint to be well founded. I require the Respondent to pay to the Claimant the sum of €567.10. This award is based on the Claimant’s average gross weekly earnings of €283.55 in 2015.
David Iredale Adjudication Officer
DATE 22/02/2017 |
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