Complainant

Respondent

Anonymised Parties

A Team Leader

A Retail Store

 Representatives

Represented 

Represented 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00004040-001

25/04/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00004040-003

25/04/2016

The Complainant was   employed as a team leader in the Respondent’s store from the 16^th   of July 2012 to the 20^th of February 2016. He alleges that he was   unfairly dismissed by the Respondent without due process or fair procedures   contrary to the Terms of the Industrial Relations Act, 1977. He also alleges   that he was not paid his minimum notice entitlements contrary to the terms of   the Minimum Notice and Terms of Employment Act, 1973. He filed a complaint   with the Workplace Relations Commission on the 25^th of April,   2016.

During week 32 to week 36 (29^th of September   2015 to the 2^nd of November 2015) it came to the attention of the Respondent   that cash had been going missing from the self-scan tills in the store.   Initially it was thought that a systems issue may have been the cause of this   but on week 36 (27^th of October to the 2^nd of November   2015) this was proved not to be the case.

The Respondent decided to track money through the self   scan tills by adding cash and counting continually throughout the week to   identify if there was a daily cash loss figure.

On the 10^th of November 2015, irregularities   were spotted by using this process. The Complainant was identified on CCTV   regularly accessing the notes dispensers alone when there was no need for him   to do so. This was followed by him emptying the bins located under each self   scan till beside where he had each of the notes dispensers opened.

The breakdown of the CCTV footage is as follows;

-            At 16:26 on the 10^th of November   2015, the store manager along with the Regional Head Office assistants added   notes to the self-scan till 71.

-            At 19:25 on the 10^th of November   2015, the complainant accessed the dispensers on the same till alone with his   back to the camera, blocking the view of the CCTV. He can be seen emptying   the bins and removing the contents to the warehouse where there is no CCTV in   operation.

-            At 8:36 on the 11^th of November   2015, the IT and business support manager checked the cash in till 71 and a   loss of €255 was discovered.

-            At 12:51 on the 11^th of November   2015, the Complainant again accessed the notes dispensers alone with his back   to the camera blocking the view of the CCTV, followed immediately by him   emptying the bins and removing the contents to the warehouse where there is   no CCTV.

-            At 15:12 the notes were again checked by the Respondent   and a loss of €490 was discovered.

The only times the notes dispensers were removed from the   machine are stated above. Although no cash is visible in the Complainant’s   hands, it is the Respondent’s belief that he concealed the notes in the bins   before removing them to the warehouse.

The complainant was shown the CCTV and asked about the   missing cash on the 13^th of November 2015. The Complainant denied   taking any money and the Respondent suspended him pending a full   investigation.

In line with the investigation, all CCTV footage for week   36 (27^th of October 2015 to the 2^nd of November 2015)   was reviewed. This review showed up further suspicious activity which was put   to the customer assistant (Ms. D.S) on the 25^th of November 2015.   She confirmed that the Complainant had been scratching scratch cards and that   she had been giving him pay-outs when he won. This was in breach of the cash   register policy. The Complainant was invited to a meeting with the Respondent   on the 2^nd of December 2015. This was a further investigation   meeting carried out by the Respondent and the Complainant’s Union Representative   was present.

The investigation manager issued her findings to the   Complainant on the 17^th of December 2015. Her report high-lighted   the following;

Allegation 1:

It is alleged that on the 28^th of October 2015   that you were in breach of the Company Staff purchases and Cash Register   Policies in that you served yourself, namely that you purchased Lotto scratch   cards and completed the transaction yourself.

I note that you have admitted to this breach of the Staff   Purchases Policy and that you were aware at the time that this was a breach   of the said policy.

Allegation 2:

It is alleged that on the 11^th of November   2015, you were in breach of the Company Honesty and Cash Register Policies in   that you are alleged to have removed cash in the sum of Circa €735 from the   self-scan till (No. 71) in the store.

Conclusion:

Having reviewed all the evidence available I have   concluded the following;

Allegation 1:

On your own admittance, you breached both the Company   Honesty and Staff Purchase Policies.

Allegation 2:

Having reviewed the evidence available I conclude that   there is no explanation possible for the short-fall in the self-scan till,   no.71, except that you knowingly removed the aforementioned amount. This   conclusion is based on the fact that till no. 71, having been filled and   checked at 4:30pm on the 10^th of November 2015, was subsequently   checked at 8:30am on Wednesday the 11^th of November when it showed   a short-fall of €255 euro, and checked again at 3:15 when it showed a further   short-fall of €480. During this period, you were the only colleague to access   till. No 71 alone and this is supported by CCTV footage. I conclude that   there is no other plausible explanation for the cash short-fall other than   you removed it from the till as you were the only person to access till no.   71 alone between 4:30pm on the 10^th of November 2015 and 3:15pm on   the 11^th of November 2015. I have verified and am satisfied that   the short-fall cannot be explained by machine or system error.

Overall Conclusion:

Taking everything into account it my decision to send this   matter forward to a disciplinary hearing.

A disciplinary hearing was convened on the 7^th   of January 2016 and the Complainant attended with his Union Official. The   outcome of that disciplinary hearing resulted in the Complainant being   advised that he was to be dismissed from his employment effective from the 20^th   of February 2016. He was dismissed on the grounds of serious misconduct under   the following heading;

“Theft or fraud or attempted theft or fraud if proven to   the company’s satisfaction. This applies equally to property of the company,   suppliers, staff members, customers and social committee/fund”.

Breach of the Company Honesty Policy – Converting or   attempting to convert to his or her own use or to use of another, any cash,   goods, supplies or equipment of monetary value….without authority….if found   guilty will be subject to dismissal and/or prosecution.

Furthermore, the bond of trust that needs to exist between   employer and employee has been broken.

The Complainant was given the right to appeal the   dismissal decision.

The appeal hearing took place on the 16^th of   March 2016 and the dismissal was upheld by the appeals officer.

Respondent’s   Position:

Section 6(4)(b) of the Unfair Dismissal’s Act, 1977   states:

Without prejudice to the generality of sub-section (1) of   this Section, the dismissal of an employee shall be deemed, for the purposes   of this Act, not to be an unfair dismissal, if it results wholly or mainly   from one or more of the following;

(b) the conduct of the employee

It is the Respondent’s belief that the Complainant took   the money totalling €735 from the self-scan till, no. 71 over the two date   period of the 10^th of November 2015 and the 11 of November 2015.   Although no cash is visible in his hands, the Complainant’s actions   reasonably led the Respondent to believe that he had concealed the notes in   the waste paper basket as he accessed the self-scan note dispenser. The   Complainant accused the IT systems of being faulty which was disproved by two   company experts. The Respondent had no other alternative, based on the   balance of probabilities but to dismiss the Complainant for his conduct.   Apart from the issue of serious misconduct, the bond of trust between the   Respondent and the Complainant had been severed. In the Circuit Court case of   Hestor v Dunnes Stores, Judge Clarke held

“The issue was not whether the appellant had actually   stolen the ham or not, but whether in all the circumstances of the case, the   Respondent was justified in the dismissal for misconduct. The Respondent had   not acted unfairly nor without justification, since the appellant had been   unable to offer a satisfactory explanation for her conduct which had given   rise to deep suspicion and required a satisfactory explanation.”

Furthermore, in line with fair procedures, the Complainant   was informed of the allegation made against him and provided with the   appropriate documentation and evidence. He was afforded the right to   representation and given the opportunity to state his case, was informed of   the possible outcome of the Disciplinary Hearing and was afforded the   opportunity to appeal the Disciplinary outcome.

The Complainant was called to a meeting on the 13^th   of November 2015 with the Respondent. He was not advised that he was the   subject to an investigation and the grounds for the investigation. He was not   made aware of the remit of the investigation prior to the meeting. There were   two strands to the investigation, shortages of €735 from till No.71 on the 10^th   and 11^th of November and that he had scratched a number of Lotto   cards on the 28^th of November without following the proper   guidelines in relation to the purchase of lottery cards.

At the meeting held   on the 13^th of November the investigation manager advised the   Complainant that the store was experiencing till shortages and she would like   him to answer a few concerns. The investigation manager also informed the   Complainant that the Gardaí were involved and that they would be contacting   him in due course. The union discovered that at no time were the Gardaí   involved and at no time did they contact the Complainant.

The investigation manager showed the Complainant CCTV   footage. At no time was it possible to see the Complainant doing anything   untoward or to see the Complainant taking the money from till. No. 71. It   would appear that the investigation manager drew an inference that because   the Complainant was at till 71 that he therefore must be responsible for the   money going missing.

A further investigation meeting took place on the 2^nd   of December 2015. During this meeting the company references three amounts of   money missing from self-scan 71- €890, €255 and €480. For each of those   amounts, the Respondent argued that the Complainant was the only person at   the till. The Complainant gave a clear explanation in relation to what he was   doing and why at all times. It was suggested by the Respondent that only a   select few staff members had access to the self scan keys. This does not   appear to have been the case as the keys were accessible to all staff.

On the 28^th of October 2015, the Complainant   accepts that he breached the staff purchasing policy by purchasing himself.   He also pointed out that other staff members did the same. There is no   suggestion that the Complainant had not paid for the scratch cards or that he   had given himself any payments for the cards.

The investigation manager in her outcome letter dated the   17^th of December 2015 was disgraceful. She went beyond her role as   an investigation manager to determine whether or not there was a cause to   answer by the Complainant and if so to move it on to the next level, that   being a Disciplinary Hearing. What the investigation manager did was to make   a number of serious accusations that the Complainant took €735 from till 71   on or between the 10^th and 11^th of November 2015. The   investigation manager made her decision solely on the basis that the   Complainant was the only one who had access to the till. This was stated   without showing the Complainant any evidence that he was in fact the only   person accessing the till on these dates. The investigation manager issued   her report on the 17^th of December 2015 and stated in that report   that she “had verified and was satisfied that the short-fall cannot be   explained by machine or system error.” This is not true as the IT manager had   only confirmed with the investigation manager on the 13^th of   January 2016 that he was confident that the “cash losses on lane 71 and 72 in   this store were not as a result of system error”. Therefore it was not   possible for the investigation manager to have taken this fact into account   when she issued her investigation report.

At the Disciplinary hearing which was held on the 7^th   of January 2016, the Respondent was accusing the Complaint of breaching the   Company’s Honesty Policy and yet they failed to give the Complainant a copy   of the policy. Yet, the disciplinary   manger saw fit to question the Complainant in relation to the policy quoting   sections of the policy relating to theft, fraud or converting or attempting   to convert the use of cash, goods, supplies or equipment. It would appear   that the disciplinary manager just confirmed the investigation manager’s   report.

The Complainant’s representative requested the opportunity   to cross examine witnesses on key issues. The Respondent refused to allow   this on the grounds that this would be out of process. This was totally   unfair to the Complainant.

An appeal hearing was held on the 16^th of Mach   2016. The Complainant’s Representative high-lighted that due process and fair   procedures was not followed by the investigation manager. She also   highlighted that she did not receive all of the CCTV footage. She also   pointed out that other staff may have had access to the tills. The Respondent   upheld the dismissal decision.

The Complaint attended at two investigation meetings which   were held on the 13^th of November 2015 and on the 2^nd   of December 2015. The investigation manager issued an investigation report on   the 17^th of December 2015. This report included the following   statement;

“I conclude that there is no other plausible explanation   for the cash-shortfall other than you removed it from the till as you were   the only person to access till no.71 alone between 4:30pm on the 10^th   of November 2015 and 3:15pm on the 11^th of November 2015. I have   verified and am satisfied that the shortfall cannot be explained by machine   or system error.”

The investigation report is flawed in a number of areas.

The investigation manager called the first investigation   meeting on the 13^th of November 2015 without writing to the   Complainant and advising him that he was the subject of an investigation and   the grounds for the investigation prior to the meeting. He should also have   been provided with the company’s honesty policy in advance of the meeting.

The investigation manager was not in a position to state   that she had “verified and was satisfied that the shortfall cannot be   explained by machine or system error” in her report on the 17^th of   December 2015. That information was only made available to her by the IT   manager on the 13^th of January 2016, when he stated “based on the   checks that we carried out on the self-service tills and the validation of   the data on the back office systems and the physical counting of the cash I   am confident that the specific cash losses on lane 71 and 72 in this store   were not as a result of the system error.”

I also note that the IT manager highlighted that cash   losses also occurred at till 72. There was no mention of the Complainant   being involved in any alleged theft relating to till 72.

Reference No: CA-00004040-001-    Re. Complaint taken under Section 8 of the Unfair Dismissals Act, 1977.  

Based on the evidence presented on the hearing, I find   that the complaint is well founded. The investigation manager went beyond her   role in relation to the findings of the investigation. As a result, this   report may have influenced the decision of the disciplinary manager in the   overall process.

Taking all circumstances of his case into account, I order   the Respondent to pay to the Complainant compensation in the sum of €5,000   for breaches of the Unfair Dismissals Act, 1977.

Reference No: CA-00004040-003- Re. Complaint taken under   Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

Based on the evidence presented on the hearing, I find   that the complaint is well founded. I order the Respondent to pay to the   Complaint €942 compensation for breaches of the Minimum Notice and Terms of   Employment Act, 1973.

These sums must be paid within 6 weeks of the date of this   decision.