ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001227

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/04/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Respondent’s Submission and Presentation:

The respondent submits that the complainant was dismissed fairly on foot of an incidence of gross misconduct and that he was afforded full and fair procedures throughout the process. “In April 2015, an allegation was made that the Claimant gave cigarettes which were returned by a customer of the Respondent’s to a colleague of the Claimant’s. When a query was raised about the cigarettes, the Claimant advised that the cigarettes were belonging to his sister who has subsequently given them up.” He was invited to a formal investigation meeting on the 28^th of April 2015 to consider stated allegations (you gave cigarettes returned by {a customer} to another member of staff and when asked about the matter ….. you lied about where the cigarettes came from saying they were your sisters who had given up cigarettes) and offered the opportunity to be accompanied by a work colleague. He was offered an opportunity to comment on the report on the 29^th of May and his comments were appended to the final report. A disciplinary hearing was convened on the 29^th of June. The hearing concluded that the allegations were substantiated and decided that the appropriate sanction was summary dismissal. The complainant exercised his right of appeal albeit unsuccessfully. The respondent applied its policies in a fair manner and the decision to dismiss fell within the band of reasonableness having regard to the seriousness of the matter at issue.

Complainant’s Submission and Presentation:

The complainant submits that he was unfairly dismissed on both substantive and procedural grounds. The dismissal arose from the fact that a customer erroneously returned a 200 pack of cigarettes on 14^th of September 2014. The complainant was asked by the respondent to return the item on his next visit to the particular area. He placed the item in the boot of his car with a multitude of other products and forgot to deliver the item on his subsequent visit to the area. He noticed the carton in his boot about six months later and was too embarrassed to return it at that stage as it was also damaged. He gave a few packets to his colleague and the remainder to the same colleague on the occasion of his leaving the employment of the respondent on the 8^th of April 2015. The matter was reported to the GM who explained that the colleague in question was seen acting suspiciously in the car park and asked the complainant to account for his actions on the following day. He was embarrassed by the whole episode and in an effort to cover and compensate he said that the cigarettes belonged to his sister. It would appear that the GM then accessed his private purchases record contemporaneously without his knowledge or consent or indeed the consent of the HR department as is required under clause 2.1.10 of the employee handbook. The complainant was contacted for the second time on the 9^th inst. and the GM explained that he had accessed his private purchase records, that he was not happy with the explanation provided and that he wished to meet with him. The claimant contacted the GM thereafter and explained the situation. He apologised for his actions in the matter and expressed his regret therefor. He points out that he did not at any stage lead the GM to believe that he owned the cigarettes. He contacted the retail sales manager (RSM) thereafter and explained matters. The RSM invited him to a meeting on the 15^th inst. which he stated was not disciplinary but fact-finding and he attended without representation. He asked at that meeting whether or not his job was in jeopardy. This question was not documented in the respondent’s note of the meeting. Following a formal investigation of the matter (which was totally unnecessary in circumstances where the complainant had fully explained the position) a disciplinary meeting was held on the 29^th of June. He was dismissed on the 6^th of July and unsuccessfully made an appeal of the dismissal on the 5^th of August 2015. The complainant submits that the respondent’s reaction was excessive and that the sanction was disproportionate in all the circumstances.           He submits that the GM should instead have used his discretion taking into account his long and unblemished service and admission of human error and stupidity and dealt with the matter informally rather than formally. He asserts that he was never provided with a copy of the respondent’s grievance and disciplinary procedure, save on the 23^rd of April during the course of these events. The process was long drawn out and oppressive. He was denied the opportunity to have legal representation or question witnesses at all stages. The fact that he was kept in full employment during the process led him to believe that the matter was less serious than it proved to be. In the course of the disciplinary meeting he offered to reimburse the customer. The respondent failed to appoint an independent appeals officer demonstrating that the respondent’s policy and procedure is flawed. No formal written allegation was ever put and the outcome was determined in advance.

Decision:

The matter of legal representation and the right to question witnesses directly as it relates to company-in-house grievance and disciplinary policy and procedure has been well settled. Accordingly it can be stated that there was no requirement on the respondent to allow for legal representation within the process or indeed to allow for the direct questioning of witnesses.    Neither was there an obligation to appoint an independent/outside appeals officer. I accept that there was no formal written allegation put other than it was made clear what the issues for investigation were at that particular stage and that the reports findings were referenced in the invitation to the disciplinary meeting letter. Such an omission of itself would not necessarily be fatal in my opinion however the unauthorised accessing of the complainant’s personal data without the necessary authority as provided in the respondent’s own rules is another matter.

The substantive issue goes to the heart of the employment relationship and the sanction would in the normal course of events be considered reasonable.

However I find that the dismissal in this case was procedurally flawed and declare therefore that the complaint is well founded. I find that the complainant made a significant contribution to his own dismissal and that the appropriate redress is one of compensation in the amount of €5,000 (say five thousand euro) in all of the circumstances.

Dated:   19^th January 2017