ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001056

Complaint for Resolution:

Date of Adjudication Hearing: 27th September 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 8^th December 2015, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 27^th September 2016. The complainant is a Senior Sales Consultant and the respondent is a mobile phone retailer.

At the adjudication, the complainant was represented by Colleen Cleary, CC Solicitors. A union official attended as witness for the complainant. The respondent was represented by in house counsel and the Employee Relations Manager, the Investigation Manager, the Disciplinary Manager and the HR Business Partner attended as witnesses.

In accordance with section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The respondent was first to present their case.

Respondent’s Submission and Presentation:

The respondent dismissed the complainant on grounds of gross misconduct on the 31^st July 2015. The respondent asserts that there were fair grounds for the dismissal and that fair procedures had been followed. It asserted that the dismissal was grounded on the express term in the complainant’s contract of employment that he would comply with the respondent’s disciplinary policy and “family and friends” policy. The respondent dismissed the complainant by way of letter of the 18^th June 2015. The dismissal was confirmed at the conclusion of the appeal, communicated to the complainant by letter of the 24^th July 2015.

The Investigation Manager gave evidence. He outlined that he is a longstanding employee of the respondent, having been employed by its predecessor. He said that this investigation arose after a disclosure had been made via an internal whistleblowing process in April or May 2015. He stated that the disclosure was that the complainant was signing people up to the “family and friends” policy without handing out handsets to customers signing contracts. The Investigation Manager explained that the “family and friends” policy provided customers with cheaper calls and texts, including international minutes for customers nominated by staff members. Both existing and new customers could be signed up and they would be provided with new handsets. The customer was a new IMEI number and a new SIM as well as receiving a contract with their name and address included. It was a condition that an employee should not process their own “family and friends” offers and that they should be done by a colleague.

The Investigation Manager stated that he examined all the “family and friends” offers issued by or on behalf of the complainant and found that 12 of the 21 phones were not on the network. He outlined that it was possible to physically see whether the IMEI number was in use in Ireland. The Investigation Manager indicated that there were three issues: the first was that 12 of the phones were not on the network, the second was that three of the other nine phones were in the name of customers other than those who had availed of the offer and the third related to a trade-in phone being used by a “family and friends” connection of the complainant. This traded-in phone should have been returned to the distributor.

The Investigation Manager outlined that there were investigation meetings on the 21^st and the 26^th May 2015. At the first meeting, he attended with the named area manager, the complainant and his union representative. They went through the “family and friends” policy as well as the 12 phones not being on the network. The Investigation Manager said that the complainant replied that he had handed out the 12 handsets but that customers asked to leave the phones in the shop to collect at some later time, if they changed their minds. The complainant said that he had processed offers for his own families and friends; the Investigation Manager replied that it had been made clear in a staff newsletter that this was not permissible. In relation to the use of the three phones by others, the complainant replied that he could not explain what other people did with their phones. The Investigation Manager explained that he then contacted the customers who had availed of “family and friends” offers associated with the complainant. He spoke with four who said that they had not received phones when signing up for the “family and friends” offer. They acknowledged receipt of the SIM card. In relation to traded-in phone issue, the Investigation Manager said that this related to the use of a traded-in phone by one the complainant’s “family and friends” connections. There had also been a phone left in the respondent shop and given to a different “family and friends” customer of the complainant.

In cross-examination, the Investigation Manager acknowledged that the investigation followed a whistleblowing disclosure and that this was probably not communicated to the complainant. He acknowledged that the issue was the phones not being on the network and accepted that customers could do as they wished with their phones. It was put to the Investigation Manager that an employee cannot be disciplined for gross misconduct if a customer does not use the phone; he replied that the issue was that the complainant had not given handsets to customers. It was put to the Investigation Manager that he had not provided documentation to the complainant or his union representative; he replied that he had shown the complainant the contracts and the complainant had not asked for the documents. It was put to the Investigation Manager that he had refused to hand over the contracts as they were confidential. In respect of the two attendance notes, the Investigation Manager accepted that he had not provided these to the complainant, but that he had discussed with the complainant contacting the relevant customers. The responses of the four customers were discussed at the follow-up meeting on the 26^th May 2015.

In further cross-examination, it was put to the Investigation Manager that the reality in the store was that staff did their own “family and friends” offers. He was asked where for the “family and friends” policy; he replied that the policy had been dealt with in the staff newsletter and that the complainant had denied doing anything wrong. He also said that the complainant had spoken about getting the approval of his line manager for doing his own “family and friends” offers. It was put to the Investigation Manager that his report does not recommend disciplinary action; he accepted that this was the case. He outlined that the reference in the notes of the disciplinary meeting to him being clear was his being clear about his conversations with the four customers. He said that he had contacted customers again after the first disciplinary meeting in the presence of the Disciplinary Manager. He checked the validity of the contents of the emails and that they were concerned about spelling discrepancies in an email and that one was sent from one of the complainant’s email accounts to another. It was put to the Investigation Manager that he had not followed up on these concerns to get a response from the complainant. It was put to the Investigation Manager that he had not put issues of concern to the complainant for his comment; he said that his role had ended at investigation stage.

In re-examination, the Investigation Manager said that the complainant had not requested documents at the meeting of the 21^st May 2015 and that he had not refused to provide these documents. In relation to the statements provided by the complainant, he said that he had contacted the customers again. There was a conflict between what one customer had said to him on two occasions and what was recorded in the statement; this customer had also used the traded-in phone. This customer’s new phone was never used. In relation to the second customer’s statement, he commented that this customer had never used her new phone and that the handwriting in her statement was similar to that in this previous customer’s statement. The third customer confirmed in the second round of phone calls that he had only received a SIM. The fourth customer also confirmed receiving a SIM and the Investigation Manager raised concerns about the spelling used in the email and the manner in which it was forwarded from one account to another.

The Disciplinary Manager gave evidence. He outlined that he has worked for the respondent for 12 years and was now a manager of retail and franchise stores for the respondent. He said that a named colleague was on annual leave so he was asked to take charge of the disciplinary hearing. The meeting of the 12^th June 2015 was a formal meeting where the Investigation Manager presented his report. The Disciplinary Manager had asked why “family and friends” customers had not received handsets when signing up for the offer and it was obvious that 12 customers had not joined the network. The issue was the high volume of phones not connected to the network and that the handsets were worth €400 – €500. Four customers had confirmed to the Investigation Manager that they had not received handsets. Also raised was the trade-in phone that had not been sent to a named repair service. He outlined that he and the Investigation Manager had concerns about the veracity of the documents submitted by the complainant during the investigation. One was an email sent from one email address of the complainant to another; there was no “FW” reference to the email. He was also not satisfied with the statement of a customer regarding the trade-in of an iPhone 5, where he had not used the iPhone 6. It was clear under the “family and friends” policy that under no circumstances should a staff member process their own offers and this had been clear in the staff newsletter. The Disciplinary Manager outlined that he sat in on the follow-up phone calls to four customers after the disciplinary meeting with the complainant; two customers confirmed that they had not received handsets. This amounted to a breakdown of trust and confidence. The Disciplinary Manager said that the grounds of dismissal were the fact that 12 of 21 phones were not on the network, that two customers had further confirmed the non-receipt of handsets, that the “family and friends” policy had not been complied with and that the forwarded email lacked veracity. The Disciplinary Manager confirmed the decision to dismiss in the letter of the 18^th June 2015. In later re-examination, the Disciplinary Manager referred in detail to staff newsletters regarding the “family and friends” policy, and said that he had taken six days to reach the decision to dismiss and that he had received HR support in this process.

In cross-examination, the Disciplinary Manager said that he had a large amount of training and experience of dealing with human resources issues and that this had been his first dismissal. He had managed teams for many years. He said that the “family and friends” policy was a tariff and that there was an obligation on staff to familiarise themselves with policies. The complainant had acted in breach of the policy and the issue was in relation to the non-issue of handsets to customers who had availed of the policy. In relation to the issues raised in the letter of the 9^th June 2015, the Disciplinary Manager said that they related to the “family and friends” policy, the non-issue of the handsets and the issue of handsets without authorisation. He accepted that the letter did not name the four customers, but that they had been identified to the complainant. The Disciplinary Manager said that he received four statements from the complainant at the meeting of the 12^th June 2015 but that he did not receive three other statements submitted to this adjudication. He witnessed follow-up calls with two of these customers. Following this, the Disciplinary Manager said that he made a decision as the complainant’s evidence did not stack up. It was put to the Disciplinary Manager that he should have reverted to the complainant with the results of the follow-up phone calls; he replied that the breaches of the “family and friends” policy had been established, including 12 phones not being on the network and the questionable email. The weight of the evidence led to his decision. He also said that having 21 “family and friends” connections was excessive and that the maximum was 10. He said that it was doubtful that the line manager would have told the complainant that it was okay for him to process his own “family and friends” connections. Commenting on the email forwarded from one email account to another, the Disciplinary Manager said that he was not sure whether he had asked the complainant about this specific document and that it had caused him concern. He stated that he carefully considered the breach of the “family and friends” policy and the non-issue of the handsets and this led to his decision to dismiss the complainant. The Disciplinary Manager did not accept that there should have been follow-up to the phone calls; the complainant had been given the time and opportunity to show that the handsets had been supplied to the customers concerned. Commenting on viewing CCTV, the Disciplinary Manager said that it was difficult to deal with the complainant as he said that some customers asked to leave their new phones in the shop. The Disciplinary Manager said that he had regard to the complainant’s service in making his decision and that this was a tough decision. He said that he viewed the complainant as no longer trustworthy so the decision to dismiss was made.

The HR business partner gave evidence. She outlined that she had supported the Appeals Director in hearing the appeal. The director had since left the respondent and was not available to give evidence. She outlined that at the appeal hearing, the complainant read through his appeal and submitted additional emails from customers. The emails were additional to the ones submitted already before the appeal. She acknowledged that the complainant had shown an image of a message and that this was the same content as the previous email. She said that it was not clear that this was the actual message sent at the time. The HR business partner outlined that the complainant had said that the phones not added to the network could have been gifts to family members. CCTV footage was only available for one month. She accessed a portal to nominate family and friends to the policy. She said that it was understood that there had to be a separation between the person who nominates and the person who benefits. She outlined that the complainant had raised his service and performance as well as the fact that he had written a thesis on his time with the respondent. She outlined that it took two weeks to confirm the dismissal and she had liaised with the appeal director to discuss the issues arising from the appeal.

In cross-examination, the HR business partner said that she had understood that the line manager had denied deviating from the “family and friends” policy. She acknowledged that the complainant had submitted new emails to the appeal hearing. She was not sure what the maximum number of customers one could have on a staff “family and friends” account. She outlined that it was an issue that over half of the phones on this “family and friends” allocation were not turned on, i.e. the 12 of 21 customers.

In closing comments, the respondent submitted that fair procedures had been adhered to and that this was clear in all of the correspondence issued to the complainant. The dismissal was based on gross misconduct and the complainant had acknowledged his awareness of respondent policies. The breaches fell within the definition of gross misconduct of the respondent’s disciplinary policy. The respondent relied on the breaches of the “family and friends” policy and that he had not been able to account properly for the handsets. The respondent relied on the complainant’s contract of employment and the disciplinary policy as well as the authorities of Kelleher v An Post [2013] IEHC 328 and Mooney v An Post [1998] 4 I.R. 288.

Complainant’s Submission and Presentation:

The complainant asserts that the dismissal was unfair.

At the adjudication, the union representative gave evidence. He said that he was an employee of the respondent but had been seconded as a union representative from 2001 to 2016. He attended the first investigation meeting of the 21^st May 2015 and it had not been disclosed where the complaint had originated from. It had been the HR business partner who first disclosed the disclosure in the course of the appeal. He outlined that the complainant had been forthcoming in addressing the issues raised by the respondent. He commented the fact that the complainant was not immediately placed on suspension suggested that this was not a serious matter. He outlined that the complainant had explained that he had liaised with his manager about approving his own “family and friends” connections. He acknowledged that the Investigation Manager had shown him and the complainant the relevant contracts, but the documents had not been given to them. He outlined that in response to the allegations raised by the respondent, the complainant asked for the customers to be interviewed with him present and also sought to gather their statements.

At the disciplinary hearing, the union representative said that the Disciplinary Manager had accepted their documents but the main issue seemed to be the 12 phones not connected to the network. The Disciplinary Manager never questioned their evidence regarding the role of the line manager and the fact that small shops might have a different reality to the policy. It was also not stated that non-compliance with the “family and friends” policy might lead to dismissal. The union representative outlined that he had been aware of the respondent’s two sets of phone calls to customers, but that he did not see the call sheets until later in 2015. At the time of drafting the appeal, he was aware of the three customers the respondent had spoken to after the disciplinary hearing. The union representative said that the decision to dismiss was over the top and out of proportion. In relation to the appeal, the union representative said that the appeal director did not contest any of the points raised in the appeal. The only issue commented upon by the respondent was the fact that 12 phones were not on the network and that he had emailed the HR business partner to correct the minutes to record that this issue was not part of the disciplinary process. The only issue of substance was the non-issue of handsets and the complainant had provided evidence on this issue. The respondent had said that they would give consideration to this new documentation. He outlined that he cannot see how the appeal director gave full consideration to the points of appeal in the decision to uphold the dismissal. In later re-examination, the union representative said that there was no reference to gross misconduct in the invitation of the 9^th June and this is not referred to in other correspondence, apart from the appeal decision.

In cross-examination, the union representative did not accept that there were two elements to the disciplinary issues raised in the letter of the 9^th June 2015 and that the “family and friends” issue was the same as the handsets issue. He acknowledged that his union represented less than 200 employees in the respondent, about a third of the workforce. He acknowledged the grounds provided for gross misconduct in the respondent disciplinary policy, but did not accept that these events amounted to gross misconduct. He outlined that no contest had been raised to the points raised in the complainant’s appeal. They had discussed the forwarded email and he was waiting on a request for the original message. He had also not been sure which witnesses to bring to the disciplinary meeting.

The complainant gave evidence. He said that he had had a successful career with the respondent. He had won awards for sales and performance, and never been subject to any disciplinary process. He had worked with the same line manager for four years and had a good relationship with this manager. In relation to the “family and friends” policy, it was open for staff members to nominate family members or friends to connect to this staff offer. His manager said that he could process his own offers as long as he did so correctly. He outlined that the customer would get a contract for 18 or 24 months, the SIM card and the handset. When the allegations were made, he asked for the CCTV to be consulted and the Investigation Manager said he would look at this. At the second investigation meeting, the complainant asked for the customers to be interviewed, but the Investigation Manager said that this would not happen. The complainant said that he approached his friends as they had been contacted by the respondent and were in touch with him in turn. They had phones with multiple SIMs and there was no requirement to use the phone provided with the “family and friends” policy. He said that all customers received the new handset at the point of sale. It was also common for customers to gift phones to others, for example their children. In relation to the contested forwarded email, the complainant said that he showed the original WhatsApp message at the appeal and was willing to open up his email account to show this being forwarded if this had been requested. He outlined that he was surprised to have been dismissed as a result of the disciplinary hearing and sought to gather more evidence for the appeal. The appeal director had said that he would check whether the SIMs had been activated, but no other issue was raised. In relation to mitigation, he outlined that in April 2016 he had obtained part-time employment with a competitor of the respondent and had sought employment in this industry and in other industries. He had initially sought reinstatement but the store concerned had since closed, with redundancies paid. He sought the losses accrued since his dismissal and future losses he was entitled to. In later re-examination, the complainant said that the appeal notes refer to the possibility of the respondent requesting to view original copies of the emails if required; the complainant agreed to this. He also stated that the staff newsletter made no reference to a possible disciplinary issue arising.

In cross-examination, the complainant accepted that he had familiarised himself with the respondent’s policies, but said that he had checked with his line manager regarding the “family and friends” policy. In relation to the traded-in allegation, the complainant said that he had paid the customer €50 for accessories and this was not for the traded-in phone. He referred to a letter from the customer. The “family and friends” customer had received the new handset. The other customers had asked why the respondent was repeatedly contacting them about the issue of new handsets and he expected to listen in on any phone call with these customers. He stated that the customers had agreed to attend this adjudication. He said that there was no “FW” inscription when he sent the original WhatsApp message to his email. He said that the respondent had never requested to check his email account regarding this issue. It was put to the complainant that the conditions of the “family and friends” policy were clear from the staff newsletter and this was also clearly a disciplinary issue; he replied that he may not have read every issue of the newsletter. The complainant was asked what happened to the unconnected phones; he replied that he did not know and that he connected many customers. It was put to the complainant that the price of the phones was €450 a unit.

In closing comments, the complainant outlined that the process in relation to the dismissal was unfair. He had not been provided with relevant documentation and the customers had not been identified to him. The respondent’s phone calls had been made behind his back. The “family and friends” policy was not included within the respondent’s gross misconduct policy. The call sheets of the phone calls made to the customers were not given to the complainant, but were considered as part of the respondent’s decision making process.

Findings and Reasoning:

The complainant commenced employment with the respondent on the 12^th June 2006 and this came to an end on the 31^st July 2015. The respondent dismissed the complainant on grounds of gross misconduct and informed him of his dismissal by letter of the 18^th June 2015. The sanction of dismissal was upheld on appeal by letter of the 24^th July 2015. The complainant challenges the dismissal, stating that it was not within the band of reasonable responses for an employer and nor was it proportionate; he further asserts that the process was flawed and that his length of service and record were not considered. The respondent denies the claim and asserts that the dismissal was substantively and procedurally fair.

The complainant initially worked in one named store of the respondent and then transferred to another store within the same county. The store has closed since the end of his employment. He was promoted during the course of his employment to the post of Senior Sales Consultant. As part of his role, the complainant sold contracts for the respondent mobile telephony service, including the supply of handsets. He reported to a store manager and his sales performance was assessed across the respondent network of stores. Much of this case related to the complainant’s use of the respondent’s “family and friends” offer. The “family and friends” policy was not before the adjudication and I understood from the respondent that this was administered via a portal and the rules were not available in hard copy. In passing, I note that the respondent relies on internal communication newsletters which referred to the policy. One was presented at the adjudication. The complainant says that the article on the “family and friends” policy does not refer to the possibility of disciplinary sanction arising. I also note that the express term relied on by the respondent, referenced in paragraph 2 of their submissions, refers to “rules, policies and procedures”, but not to such internal communication documents.

It is not entirely clear how the matters that later led to the complainant’s dismissal came about. At the adjudication, and in the respondent’s submissions, the Investigation Manager said that the disclosure made under the respondent whistleblowing policy related to the complainant. The investigation report of the 27^th May 2015, however, refers to the disclosure relating to the particular store and the “family and friends” policy. It appears from paragraph 1.1 of the report that the disclosure did not identify the complainant. The report further states that the contracts and receipts for the store were downloaded and the complainant’s use of the “family and friends” policy was identified as an issue.

The matter proceeded to investigation and the Investigation Manager gave evidence to the adjudication. The investigation report refers to the respondent having an investigations policy, which was not before the adjudication. Two procedural matters arise from the investigation. The first is the scope of the investigation was not provided to the complainant in writing in advance of the first investigation meeting of the 21^st May 2015. The scope of the investigation is recorded in the investigation report as being “to investigate and to establish if any financial loss had been suffered by [the respondent], if any criminal offences had occurred, or if any breaches of [the respondent] Code of Conduct and relevant policies and procedures had occurred”. The report presents as the investigation’s objectives whether “any staff member had stolen or defrauded handsets from [the respondent] by exploiting the “family and friends” proposition. Also to review the proposition to ensure there are adequate controls in place to protect [the respondent] from any losses.” Again, it appears from the scope and objectives of the investigation that it related to staff members generally and was not directed solely at the complainant. Neither the scope, nor the objectives, were provided in this detail in the email of the 18^th May 2015 inviting the complainant to attend an investigation to “explore a number of issues in relation to your “family and friends” connections.”

Between the first and second investigation meetings, the Investigation Manager spoke with a number of the complainant’s “family and friends” connections. One said he did not receive any monies for the handset he traded-in. Four other customers stated that they did not receive handsets on signing up for the contract.

The investigation report reached four conclusions in respect of the complainant. First, it concluded that the complainant had breached the respondent’s policies and procedures by processing his own “family and friends” connections. Second, he had supplied a handset to a “family and friends” connection without permission. Third, he had provided a trade-in handset to another “family and friends” nomination. Four, the complainant did not supply handsets to four customers who have availed of “family and friends” offers. No conclusion is made in respect of any criminal issue arising and no finding is made as to what had happened to the handsets in question.

The investigation report includes within its scope the question of whether policies and procedures were breached and one such finding is made. It is striking that an investigation of this kind should make conclusions in relation to specific breaches of policy. The disciplinary policy does not indicate that such findings can be made at investigation stage and it seems more appropriate to leave such findings to any subsequent disciplinary process, where an employee has the full panoply of fair procedures to avail of.

The complainant was invited by letter of the 9^th June 2015 to attend a disciplinary meeting. The letter refers to allegations that the complainant processed his own “family and friends” connections and did not supply a handset to a customer. It refers to an allegation that the complainant had supplied handsets to customers without authorisation. The letter refers to the investigation and states that if confirmed, such actions would be in breach of the “family and friends” procedure. According to the minutes of the 12^th June meeting, the following issues were raised by the respondent: the complainant processed his own “family and friends” nominations, 12 out of the 21 “family and friends” nominations had never used their handsets; four people had not received handsets and the issue of the trade-in phone. The complainant is recorded as replying to the points raised by the respondent, stating that his line manager had authorised his doing his own nominations. He asked for CCTV to be viewed and also supplied letters from the customers the Investigation Manager contacted or had sought to contact after the meeting of the 21^st May 2015.

After the meeting of the 12^th June, the Disciplinary Manager and the Investigation Manager contacted three of the customers the complainant had supplied letters or emails from. One customer is recorded as detailing the handsets he used since he said he availed of the “family and friends” offer on the 27^th September 2014. While the note records that this customer had previously denied receiving the handset, there is no record of him repeating this statement or of contradicting the contents of his handwritten letter of the 27^th May 2015. The second customer is reported to have again denied that he received a handset during the follow-up phone call. The investigation notes that the email submitted from the complainant is from his private email address and notes different spellings made by this customer of his own surname. In respect of the third customer listed in the call sheet of the 18^th June 2015, this customer is recorded in both calls as having only received a SIM when availing of the “family and friends” connection. I note, in passing, that this customer is recorded as being female in the call sheet of the 22^nd May 2015, but as male in the call sheet of the 18^th June 2015. I do not make any adverse inference in relation to this difference as it was not addressed at the adjudication hearing. The call sheets were submitted in loose leaf during the course of the hearing.

The letter issued by the Disciplinary Manager of the 18^th June 2015 informed the complainant of his dismissal. It cites two proven allegations to ground the dismissal. The first is “It is clear you did not follow normal company practice in processing several Family and Friends Connections” and the second is “You processed your own Family and Friends connections and on a number of occasions did not supply a handset to the customers despite evidence that handsets were sold as part of their plan.” The letter then refers to this breach of policy as being an inherent breach of employee/employer trust and confidence and that the complainant’s actions had irreparably damaged the trust and confidence that the company could have in him. The Disciplinary Manager gave evidence as to the grounds for dismissal.

Following this, the complainant submitted a detailed letter of appeal, citing five grounds of appeal. The appeal hearing convened on the 9^th July 2015 and minutes were prepared by the respondent. The HR business partner gave evidence in relation to the appeal hearing. The complainant and his union representative are recorded as producing additional correspondence from three “family and friends” connections; as raising the okay of the line manager in processing his own “family and friends” nominations and the need to check CCTV. The complainant showed an original WhatsApp message from one connection and later sent to his email. The appeal manager is recorded as replying that he might require the complainant to show emails in their original format; that he would confirm details of phones and SIMs being connected and check if CCTV footage was available. Despite these undertakings, there is no follow-up provided by the respondent prior to the outcome of the appeal being issued.

The appeal manager confirmed by letter of the 24^th July 2015 the decision to dismiss the complainant. It cites one reason for the dismissal, that is “I am satisfied that the process was fair and I am satisfied that upon review of the information provided by the investigation, and you, I conclude that not all phones were provided to all the customers who signed up to your family and friends connections.” The letter further says that a serious breach of a company policy may amount to gross misconduct and concludes that the complainant’s actions have irreparably damaged the trust and confidence the company has in him.

It is apparent from the documentary and oral evidence that there were a wide range of issues considered in the investigation, disciplinary and appeal processes. Below, I have addressed the grounds relied on by the respondent in reaching its written disciplinary findings and those concluded at appeal. It was apparent from the documentation and

the evidence given at the adjudication that there were other issues of concern to the respondent. I note that the disciplinary policy provides that “the details of any allegation or complaint will be clearly stated in writing to the employee concerned in advance” and “the employee concerned will be given the opportunity to respond fully to the allegations or complaint made.”

One issue raised during the investigation and referred to at the disciplinary hearing was the fact that 12 of the 21 handsets had never been connected to the respondent’s network. It was not included in the conclusions of the investigation, nor the finding of the disciplinary process. The respondent accepted at the adjudication that the complainant could not be responsible whether or not a customer used a handset and this was the issue the union representative contacted the HR business partner to say was not part of the process. Given that no finding of breach was ever made in relation to this issue, it cannot be used as a grounds to justify the complainant’s dismissal. The same applies for the issues raised during the process regarding the trade-in phone and the alleged unauthorised phone; while these issues were addressed, no finding of breach was ever made.

At the adjudication, the respondent raised the issue that the complainant had exceeded a maximum of ten “family and friends” connections. He certainly had more than ten connections, but this was never an issue recorded as being raised as a possible disciplinary breach and nor was a finding of breach ever made. The same applies to the allegation that three of the nine phones were in different names to the connection. I cannot see where this was raised in any of the investigation, disciplinary and appeal processes. It did not form part of the findings made against the complainant. It cannot retrospectively be applied as grounds to justify his dismissal.

Having made these comments, the appropriate starting points are the letter of dismissal and the conclusion of the appeal. The former states two grounds of dismissal: that the complainant breached the “family and friends” policy and that he did not supply handsets to a number of these customers. The appeal conclusion focuses in on one ground: not all phones were provided to all customers.

I appreciate that this case involves high value handsets and competitive tariffs offered to “family and friends” of staff members in return for their signing contracts with the respondent. A disclosure was made to the respondent regarding the store in which the complainant worked; it is not entirely clear whether or not the disclosure named the complainant. It is clear that the respondent was correct to act on the disclosure. I am entirely reliant on the letters and emails produced by the complainant’s connections to ascertain when the relevant transactions took place; this correspondence indicates that the transactions took place on the 27^th September 2014, the 11^th October 2014, the 24^th September 2014, the 7^th May 2015, the 22^nd November 2014, the 31^st May 2015 and an unspecified date in December 2014 (as per the order of the documents presented by the complainant). The respondent states that CCTV is only retained for four weeks, but even with that, they had the opportunity to view and test the complainant’s conduct in relation to the transaction of the 7^th May 2015. As voiced during the course of the adjudication, this case is about “what happened to the phones”. Given that this was a recent transaction, the respondent had a ready means of seeing how the complainant conducted himself.

In respect to the older transactions, I accept that CCTV footage may not have been available. It is striking, however, that the respondent did not avail of the next best evidence to CCTV, i.e. the evidence of colleagues and the line manager who, on a daily basis, walked the shop floor with the complainant. At all times, the complainant said he acted under the “okay” of the line manager in processing his own “family and friends” connections; this was found to be a breach at the investigation and disciplinary stages. The simple step for the respondent was to ask the line manager whether she did, in fact, give the okay. The HR Business Partner said that it was her understanding that the line manager had denied giving permission to the complainant; the Disciplinary Manager said it was doubtful that the line manager would have allowed the complainant to process his own nominations. The only documentary input, however, from the complainant’s current and past line managers are their praise of him in surpassing sales and performance targets. In the absence of the evidence from the line manager or other colleagues, I find as fact that the practice in the store was for staff to process their own “family and friends” nominations. It is also the case that the line manager’s evidence could have exonerated the complainant, or at least, offered mitigation for processing his own “family and friends” connections.

Given that the appeal conclusion rests on the issue of not all phones being provided to all customers, it is striking that the respondent did not interview the complainant’s colleagues. They may have been present when one or more of the transactions took place; they may have witnessed the transaction and observed whether or not the customer walked out of the premises in possession of a new handset. It would be a notable event in a mobile phone retailer if a customer completed the process of signing up to a new contract, say for 18 months, but then to leave the store without a handset. The respondent refers to named staff members processing connections on behalf of the complainant; why were they not interviewed to ask whether the customer they processed left the premises in possession of a new handset. The evidence of colleagues could have been exculpatory of the complainant in relation to these transactions.

I note that the complainant was a senior sales consultant in a shop stocked with the latest, high value mobile phones. I presume it also stocked earlier versions of these phones and the product of less high profile manufacturers. The inevitable question that arises is why an experienced sales consultant would misappropriate handsets in a way that tied him (via “family and friends”) to their removal from the store; why not just take the items without creating such a link? The complainant’s seniority, at least, demanded that the respondent thoroughly assess the basis of its findings of misconduct against him.

What is missing from the respondent’s analysis is what it says happened to the handsets in question. If it is correct that the handsets were not supplied to the connections in question, it took no steps to investigate or establish what it says the complainant did with the handsets. It concludes from its finding that they were not supplied to particular customers that they must have been misappropriated. This is an incomplete analysis.

It is fair to say that a central issue in this case is what was said by four “family and friends” connections of the complainant. The respondent contacted them directly by phone and relies on its notes of these conversations. It challenges the credibility of the letters and emails supplied by the complainant. The respondent points to spelling errors and the manner they were sent to the complainant. The complainant expressed the wish to cross-examine these customers, but I appreciate the respondent’s position that this was not appropriate. Given that the issue here was the potential dismissal of an employee, the respondent was under an obligation to ensure that it had a reasonable belief that the misconduct had occurred. In respect of the phone calls, I note that the customers in question may not have had English as their native language and the respondent’s calls to them related to events six or seven months ago. Together, this points to the need for corroborative evidence.

The respondent questioned the veracity of one document in particular; this is an email from a customer of the 31^st May 2015 regarding a transaction the customer says took place on the 22^nd November 2014. Two credibility issues arose. One is the manner in which it is presented on the print-out supplied by the complainant. A second is the spelling of the customer’s own surname. I believe that the complainant has adequately addressed the provenance of the email, and how it was sent from his private account to his work email. This is a matter left open to be explored after the appeal hearing, but the respondent never followed up on this. In relation to the spelling issue, I note that the writer of the email may have been transcribing his name from Arabic script into the Roman alphabet, and this should, at the very least, have given the respondent pause for thought. The later email from this customer is entirely consistent in its Roman spelling of his surname. Yes, it is correct that the message of the 31^st May 2015 misspells the author’s own name. This, of itself, cannot form the basis of a reasonable decision to dismiss without corroborative evidence. The Investigation Manager states that he spoke with this customer on two occasions regarding the supply of a particular type handset. Even taking these notes at their height, they cannot amount to grounds for a fair dismissal in the absence of a rebuttal to the customer’s further email of the 26^th June 2015 and the lack of other corroborative evidence.

It follows from these findings that the complainant’s dismissal was unfair within the definition of the Unfair Dismissals Acts. In respect of redress, the complainant indicated that he no longer wished to pursue reinstatement. He supplied a detailed booklet of losses arising from the dismissal, including his mitigating this loss. I find that he is entitled to recover the amount stated as financial loss in the booklet, i.e. €42,900.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00001333-001

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and the respondent shall pay to the complainant the amount of €42,900.

Dated:   7^th February 2017