ADJ-00001221

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001221

Complaint for Resolution:

Date of Adjudication Hearing: 16/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and following the referral of the complaint to me by the Director General, 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.

Background 

The Complainant was employed by the Respondent from 1^st March 2007 until his employment was terminated on 16^th November 2016. The Complainant was paid €12.61 an hour and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 18^th December 2015 alleging he had been unfairly dismissed.

Summary of Respondent’s Position.

The Complainant was called to an investigation meeting by letter dated 28^th October 2015 to investigate allegations of unauthorised removal of cash, where it was alleged he took €50.00 belonging to a customer on Monday 26^th October 2015. The Prevention Manager was appointed to conduct the investigation. He was afforded a right to be accompanied by either a friend or work colleague. The Investigation meeting took place on 29^th October 2015 and the Complainant declined representation and attended on his own. The Complainant confirmed that he was the only employee working a specified Till on that day. He was asked about the €50 that was left on the counter by a customer. He was shown CCTV footage whereby he can be seen taking €50 from the counter and putting it in his till. He confirmed he did put it in the till. The Complainant was shown a mid-shift till spot check which had taken place at 14.56 on the 26^th October. This shows a till discrepancy of plus 18 cent. He was shown a second till report taken at 17.59 which again showed a discrepancy of plus 18 cent. This despite the fact that at 17.17 the cctv footage shows the Complainant putting the €50 in the till. He agreed that at 17.59 his Till should have had a discrepancy of plus €50.18. The Respondent verified that nobody else had touched the Till and the Complainant had signed off on this himself. Following the investigation it was decided to proceed to the disciplinary stage.

The Complainant was invited to attend a Disciplinary meeting on 16^th November 2015 to be conducted by a named Store Manager. The Complainant was informed of the outcome by letter dated 16^th November 2016 and the outcome was to dismiss the Complainant on the following basis (1) that on the balance of probability he had removed€50.00 from the Till (2) He failed to follow procedures (3) He made no attempt to notify anyone that he found €50.00 and (4) he did not provide any reasonable explanation as to where the €50.00 belonging to the customer had gone. The Complainant was afforded a right of appeal

The Complainant appealed the decision by letter dated 20^th November 2015 and a named Area Manager was appointed to hear the appeal. The Appeal Hearing took place on 27^th November 2015 and the outcome was to uphold the decision to dismiss.

The Respondent confirmed that they had considered an alternative to dismissal but that trust between the parties was irreparable

Summary of Complainant’s Position.

The Complainant has been working for the Respondent for 8 years and in that period he has never been subject to any disciplinary sanction. On 26th October 2015 there was an incident when he noticed €50.00 on his counter and he placed it in the Till. He accepts that later on the Till count there should have been an extra €50 in his Till. At the end of his shift he did not count his Till.

He alleged that another named employee did have access to his Till but that this employee formed no part of the investigation process and nobody in the cash office was interviewed in relation to the missing €50.00. He stated he believed he was being targeted as he was the one who had put the €50.00 in the Till

The Complainant stated that he had raised this issue in his appeal letter to the Area Manager but stated that the whole investigation, Disciplinary and Appeal was flawed as others who had access to his Till were not questioned during the entire process.

The Complainant stated at the Hearing he had been in receipt of Jobseekers Benefit from the Department of Social Protection from the date of his dismissal until he became a self-employed Taxi Driver on 1^st August 2016. The Complainant was requested to forward a statement from the Department to confirm the dates he was in receipt of Jobseekers Benefit but he did not do so.

Findings 

On the basis of the evidence and a written submission from the Respondent encompassing the Investigation, Disciplinary and Appeals Notes and correspondence between the Parties, I find as follows:

The Complainant was issued with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company. The evidence was that a customer complained she had left €50.00 on the counter of the Till on 26^th October 2015 and she sought its return. The Respondent conducted an investigation, with particular attention to the CCTV footage and they identified the Complainant who was seen placing €50.00 in his Till at 17.17. The Complainant’s Till had been checked at 14.56 and a plus 18 cent was identified. The Till was checked again at 17.59 and the result was the same although at 17.17 the CCTV footage shows the Complainant placing a €50.00 note in his Till.

An Investigation Meeting was held on 29^th October 2015 and the Complainant was informed of the allegation against him and of his right to be represented prior to the meeting. It is clear from the Notes of the Investigation Meeting that the Complainant initially denied placing the €50 in his Till but later in the Meeting confirmed he had. The Complainant did not explain why he had not declared the €50.00 when he found it on his counter in line with the procedures of the Company. The Complainant confirmed he knew the procedures.

A Disciplinary Hearing took place on 9^th November 2015 and the Complainant was afforded a right of representation but he declined. The outcome was to summarily dismiss the Complainant

The Appeal Hearing took place on 27^th November and again the Complainant was afforded a right of representation but declined.

I find that the Investigation, Disciplinary Hearing and the Appeal was conducted in line with fair procedures and natural justice and in accordance with S.I. 146/2000-Industrial Relations Act,1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

Decision CA-00001617

In accordance with Section 8 (1) (c) of the Unfair Dismissals Act, 1977 I declare the complaint of unfair dismissal is not well founded. The Respondent applied fair procedures and natural justice to the dismissal of the Complainant.

Date 2^nd February 2017