ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004127

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

Date of Adjudication Hearing: 17/10/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or 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).

Background

The claimant was an employee of the respondent since the 24th May 2004. An incident occurred on the 13th January 2016 and after a thorough investigation process, the claimant was dismissed on the 21st March 2016. The respondent submitted   that on the 13th January 2016 the claimant was witnessed by security via CCTV exiting the store after her work shift with a bottle of wine in her handbag that had not been paid for. The claimant was pursued outside the building by security, where she disclosed she had a bottle of wine in her handbag and had not paid for it. Having been requested to come back inside, the claimant again admitted to taking the wine without payment but claimed she had forgotten to pay. She was placed on suspension pending an investigation by the Compliance Manager. On 14th January 2016 an investigation letter was issued to the claimant which was held on the 19th January 2016 by the respondents. The claimant was accompanied by her Trade Union representative. On the 21st and 22nd of January 2016, a further separate investigation meetings was held with the Compliance Manager and the security officer. The claimant was informed that a disciplinary meeting would take place on the 1st February 2016. The claimant was dismissed, she appealed the decision but she was unsuccessful in her appeal.

The respondent submitted that a full and thorough process took place. The claimant clearly exited the shop with a bottle of wine and the respondent deemed that her explanation was not in line with the CCTV footage and as such raised serious questions as to the truth of the matter.

The union submitted on behalf of the claimant that she had an exemplary employment record throughout her career with the respondent. The claimant had come into contact with a friend who had recently lost a relative and this was upsetting for her.

The union submitted that the procedures were unfair and that the claimant was denied her right to representation at the time of her suspension.

It was further submitted that the claimant did not receive supporting documentation regarding the very serious allegations in a timely manner. The Union cited case precedents in support of their argument. It was also their belief that the respondent acted unreasonably in this case and would point to Section 6(7) of the Unfair Dismissals as amended by the 1991 Act.

“ (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, in 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”

The claimant also submitted that when she went to the office with the Security Officer she alleged it was said to her by him, “admit it, you stole the wine”, to which the claimant replied “I did not, this was a genuine mistake.”

Findings

Both parties made written and verbal submissions at the hearing. I find that having examined all documentation submitted that the claimant did put a bottle of wine into her bag and she left the store without paying for it. I find that while the CCTV confirms this fact, it does not show the intent of the claimant. I find that the claimant had an exemplary record with the respondent and this was confirmed at the hearing. I find the comment of the security officer (which was denied by him) “admit it, you stole it” as part of an investigation, falls below the principles of natural justice during an investigation process. I find that the principles were flawed as the interviewer demonstrated that he had his mind made up that the claimant was guilty. I find that the respondent did not take into account the exemplary record of the claimant in considering the appropriate action. I find however that the claimant did contribute to her dismissal and in those circumstances; I am making the following decision.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and

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.

I find the Dismissal Unfair, however, I find the claimant did contribute to her own dismissal and accordingly I am awarding her €4000 in compensation in full and final settlement of her claim including notice.

Date: 26^th January 2017