ADJ-00003750

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003750

Parties:

Complaint for Resolution:

Date of Adjudication Hearing: 27/02/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Lansdowne House, Lansdowne Road, Ballsbridge, Dublin 4

Procedure:

Following referral to me by the Director General, I inquired into this complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977, received by the Workplace Relations Commission (hereinafter ‘WRC’) on 22^nd June 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. I proceeded to hearing on 27^th February 2017. The Complainant was represented by Ms Clodagh Brick BL, instructed by Johnston Solicitors. The Respondent was represented by Mr John Barry of Management Support Services (MSS), and a Sector Director gave evidence on its behalf. I outlined the legal requirements for a claim of unfair dismissal and indicated that I would be relying upon the relevant statutory provisions and case law on the area. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration in relation to this decision.

Background:

The Complainant is seeking compensation in respect of a claim of unfair dismissal. The Complainant was employed by the Respondent as a Cleaning Operative from 19^th January 2015 until he was summarily dismissed on 26^th January 2016 for gross misconduct. As the fact of dismissal is not in dispute, it was accepted that the onus of proving that the dismissal was fair under the Unfair Dismissals Act 1977 rests with the Respondent. The Complainant also had the requisite twelve months’ service for the purposes of bringing a complaint of unfair dismissal which was brought within the six month statutory period.

Summary of the Respondent’s Case:

A Sector Director who had conducted the disciplinary hearing and had made the decision to dismiss the Complainant gave evidence confirming the Respondent’s position as set out in a written submission. He outlined the Complainant’s employment history with the Respondent and a signed written contract of employment containing its disciplinary procedures was furnished at the hearing. At the material time of the incident giving rise to his dismissal, he was employed to provide cleaning services on a site for a client of the Respondent. The canteen for the site was operated by a third party, hereinafter referred to as ‘A Catering Company’. A map of the canteen was presented to illustrate a one-way system from the servery area via the tills to the seating area. All persons using the canteen facilities pay for transactions by using a card which they can credit with money via a machine as the till system is cashless. In this respect, the Sector Director said that he was familiar with the layout and that there are signs to the effect that payment is required before proceeding to the seating area. He also confirmed that as part of his induction, the Complainant was made fully aware of these procedures and use of the card. On 28^th October 2015, he took a break and entered the restaurant as normal to access the servery area. In order to do so, he had to pass a card reader where a user can check to see if they have sufficient credit on their card or can credit it. He proceeded to go into the canteen and took a bar of chocolate and two lemonades. However, rather than proceeding to the cash register as normal, he sat down in the seating area to have his break. He was approached by an employee of the Catering Company who asked him whether he was going to pay for the chocolate. At that stage, the Complainant indicated that he did not have enough funds on his own card and he was going to get a colleague to pay. He got his colleague’s card and proceeded to pay for the chocolate.

This incident was subsequently brought to the attention of the Site Manager by someone from the Catering Company. She was unable to attend the hearing but signed minutes of her investigation meetings with the Complainant were furnished and no material issue arises in relation to the contents of same. She had confirmed with the Complainant that he was the person involved in the incident and asked him what had happened. He confirmed the above version of events and when asked why he had not paid for the items, he said: “I forgot no excuse.” When asked who had told him that drinks were free, he maintained that he was never required to pay for drinks as the staff always wave him through. When asked whether this had happened on this occasion, he said it had not as after checking his balance he had proceeded straight to the seating area without going via the tills. As a consequence of this conversation, the Site Manager indicated that he was to be suspended on pay pending further investigation. By letter 10^th November 2015, the Complainant was invited to an investigation meeting with the Site Manager on 12^th November 2015 in relation to an “allegation of stealing.” He was advised of his right to be accompanied by a colleague or recognised Trade Union representative but declined. During the course of this meeting, he confirmed his previous discussion regarding the matter, save that he had got up to get a tissue when he was approached about paying. He maintained that drinks were always free but “…the chocolate was a big mistake.”

As a consequence of this investigation, the matter was referred to a disciplinary hearing which was eventually held on 17^th December 2015 as the Complainant had maintained that he had not received a letter inviting him to a hearing on 14^th December 2015. The invite letter stated: “At this meeting, we will discuss the possibility of disciplinary action against you, in line with the Company policy, in relation to: Allegation of stealing. If this allegation is found to be true, disciplinary action may be taken against you by the Company in line with the disciplinary policy. Please note, the severity of the sanction issued will be dependent on whether your actions were deemed major or minor misconduct.” The Sector Director confirmed that he had conducted this hearing. The Complainant had again declined to have anyone accompany him to the hearing and gave a similar account of what had materialised also stating: “This is completely against my character. I am disgusted.” Upon hearing this, the Site Manager stated as per the minutes: “On this site we have already let person go for similar situation, and we had to let them go. So unfortunately I cannot let you back on site. We will confirm up to what date we pay you.” He confirmed that he had formed an intention to dismiss at the hearing and these words were intended as a dismissal. By letter dated 26^th January 2016, he wrote to the Complainant confirming as follows: “I wish to confirm that following a disciplinary meeting on 17^th December 2015, a decision has been taken to terminate your contract of employment in accordance with the Company disciplinary procedures. You were offered the right to be represented at this meeting; you chose to attend on your own. The purpose of the meeting was to discuss information gathered during the investigation process in relation to the following allegation: Allegation of gross misconduct in that you took food from the (Catering Company) canteen without paying. You did not provide reasonable explanation for your behaviour and due to precedent already set on this site, it is not acceptable to proceed to sitting area without paying. You also did not inform cashier that you will use colleague’s card, you just proceeded to sitting area and had to be approached by cafeteria manager and reminded to pay. Following due consideration, it has been decided that you will be dismissed with immediate effect for Gross Misconduct under Non observance of your terms and conditions of your employment with the Company, the unauthorised possession of property or money belonging to the Company, its employees, customers or clients or their employees. Any outstanding monies will be paid to you in the next pay run and your P45 will be issued to your home address. You have the right to appeal against this decision, etc.” The Sector Director confirmed that the finding of gross misconduct arose from a lack of trust whilst working for an important client and also that the Complainant had not appealed.

Under questioning, the Sector Director confirmed that no CCTV of the incident or witness statements had been obtained from the staff from the Catering Company including those who had approached the Complainant about paying for the chocolate bar, or to confirm whether there was a practice of not charging for drinks. It was contended that this would not have made any difference in circumstances where the Complainant had confirmed that he had taken the chocolate bar without paying or alerting staff at the tills of his intention to pay for same and the findings made by the Respondent were based on his own lack of credibility as “his story kept changing”. Counsel for the Complainant raised issues regarding a disparity in the dates and contents of the correspondence, the inference being that there had been a predetermination of the matter but these were confirmed as typographical errors. Issue was also taken with whether the wording of the Respondent’s Disciplinary Procedures afforded the Complainant a right of appeal after the investigation stage and it was clarified that an appeal arose at the end of the process. When the Sector Director was asked whether he had considered alternatives to dismissal such as a move to another site, he confirmed that this was not an option as the trust was lost. He denied that moving the Complainant to another site had been considered as asserted by the Complainant. It was also put to him that the items in question were not the Respondent’s property but that of a third party and given that the bar of chocolate had been paid for before the Complainant left the canteen, this could not amount to theft. Finally it was put to him that as he did not have direct knowledge of the drinks policy and as no witnesses from the Canteen Company were present, the Complainant’s position in this respect could not be challenged.

The Respondent’s Representative submitted that the Respondent operates on a client’s site in accordance with its instructions. In this regard, the Complainant was familiar with the procedures in relation to use of the canteen and it was well-established that users had to firstly go through the tills and pay for the items before proceeding to the seating area. If there is a credit difficulty then one would expect at the very least that this would be brought to the attention of a member of the catering team so that they would be aware of the person’s intention to pay for the items. Regardless of the Canteen Company’s policy regarding drinks, the Complainant had admitted that he should have paid for the chocolate bar. In addition to his failure to notify anyone at the tills of his intention to pay for the chocolate, it was only when he was challenged by a member of staff that he made arrangements to pay for the item by using a colleague’s card. It was also pointed out that there were inconsistencies with his explanations from the first time he was spoken to and his evidence at this hearing as set out below and various examples were cited. In particular he had first mentioned at this hearing that he been on his way back to the tills with his colleague’s card to pay when he was approached about paying despite previously stating: “I forgot no excuse.” The issue which faced the Respondent was his credibility regarding his true intentions and the only conclusion that can be drawn from his actions was that he did not intend to pay for the items. Based upon the information collected during the course of the investigation and disciplinary meetings/hearings, it was reasonable for the Respondent to find that he failed to provide a reasonable explanation for the unauthorised removal of the items in breach of procedures and could not continue to employ him in the circumstances. Finally it was confirmed that statements had not been taken from the Complainant’s work colleague or the staff of the Catering Company in question, as the issue was the Complainant leaving the servery area without paying for the chocolate bar and not whether the drinks in question were free.

Complainant’s Submission and Presentation:

The Complainant confirmed his history of his employment as a Cleaning Operative with the Respondent and that he earned €9.50 per hour or €1,400 gross per month. He gave his own account of what had materialised during his break in the canteen on 28^th October 2015 giving rise to his dismissal. He said that he had gone into the canteen and selected the drinks and chocolate bar which he placed in his pocket before going to the card reading machine to check his balance. He only had 35 cent which was insufficient to pay for the chocolate so he proceeded to sit down with his colleague. He asked him for his card and was walking back up with it to pay when he was approached by two staff from the Catering Company and asked whether he was sure that he was going to pay and he said he was. He had not consumed the items at this stage and sat down again before going up to the tills to pay for the chocolate bar. He had apologised for the inconvenience caused and there was no issue. He confirmed that he had not paid for the drinks as it was common practice for the staff not to charge for drinks. He said that when he returned back to the office, he was approached by the Site Manager and questioned about an allegation of stealing as per the minutes and suspended. As also indicated in the minutes, he said he could identify the ‘girls’ who waved him through in relation to drinks. He said he felt humiliated and in a “panic situation”. He confirmed that he had no intention of stealing the chocolate bar, having sat near the tills and had paid for it before leaving the vicinity. He had not appreciated how serious the matter was at the time and whilst he knew he was in trouble over the incident, he did not believe his job was at risk. He had not appealed because he was under the impression that he would be moved to another site although this was disputed by the Sector Director. He had also indicated in his claim form that he had not appealed as he had lost all faith in the procedures.

In relation to mitigation of his losses, the Complainant confirmed that he initially had difficulty obtaining Social Welfare owing to the nature of his dismissal but this had been backdated upon confirmation of his claim for unfair dismissal. After taking a few weeks to get over the incident which had left him humiliated, he said he had made phone calls and sent CV’s to a number of named companies but had received nothing back and had no documentary evidence of his efforts to find alternative employment. After an eight month period of unemployment, he started a plumbing apprenticeship where he earns €200 per week so he has suffered a shortfall of approximately €150 per week. He is seeking compensation in relation to his actual and future losses. He confirmed that his loss of income for the period in question was circa €11,200.

The Respondent’s Representative questioned the Complainant’s credibility in relation to the incident in question and the sequence of events as they related to his explanations for non-payment for the chocolate bar. He denied seeing signs requiring him to pay as he went by the tills and said that the only sign he saw was a ‘complimentary drinks’ sign. It was put to him that he had given different versions of what had materialised and this was the first time that he had mentioned that he was on the way back with his colleague’s card to pay for the items when he was approached by staff from the Catering Company about paying. When he was asked why he had not said this to the Sector Director during the disciplinary hearing, he said that this had “slipped his mind” and he would have said anything to keep his job. When the signed minutes were put to him where he said: “I forgot no excuse.” when asked why he had not paid for the items at the initial meeting, he said he would have signed his life away given his mind-set at the time. When questioned as to the severity of the matter, he said that as he had paid before leaving the vicinity, he did not consider that he could be disciplined for stealing and subject to dismissal and that any alleged misconduct was minor. When asked why he had not contacted the Sector Director about moving sites or appealing, he said he was shocked when he received the dismissal letter and it would not have made any difference. He also confirmed that it was not until March 2016 before he obtained legal advice in relation to this matter. He was also questioned about his mitigation of losses and said that he had sent out more than 20 CV’s and applied for more than 28 jobs but had not approached any cleaning companies as he had lost faith. He said he also wanted more and to better himself and hence the plumbing apprenticeship.

Counsel on behalf of the Complainant submitted that the Respondent’s dismissal of the Complainant was totally disproportionate to the alleged conduct in question. It was accepted that he had only taken a bar of chocolate which he had paid for before leaving the canteen, and this could not amount to theft. There was no evidence to refute his contention that the Catering Company in question operated a free drinks policy and he had felt entitled to pick up the chocolate bar and pay later. It was therefore imperative that the Respondent should have made enquires about the matter with the Catering Company, the items being its property, and as also being relevant to determining the Complainant’s intention at the material time. Issue was also taken with the investigation and disciplinary procedures adopted by the Respondent. In particular, the Respondent had not approached or interviewed any of the staff from the Catering Company in relation to this matter and as there was no direct evidence of the signage, the Sector Director’s evidence in this respect should be disregarded. When the Respondent reneged on assurances that he could move site and instead sent him a letter of dismissal, it was reasonable for him not to have any faith in an appeal.

Findings and Conclusions:

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (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, if the adjudication officer or the Labour 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, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217).

In weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows:

Whilst there was no factual dispute between the Parties that on 28^th October 2015 the Complainant attended for a break in a third party canteen on the site of the Respondent’s client, and put a bar of chocolate in his pocket without paying for it until he was approached by canteen staff, the surrounding circumstances in terms of whether he had ever intended to pay were hotly disputed. Having considered his responses under questioning at this hearing, most particularly his contention for the first time that he had been on his way back to pay with a colleague’s card when approached about paying, I find the Respondent’s concerns around his credibility to be justified. However, it is not my role to determine whether or not he intended paying for the items in question but rather whether it was objectively reasonable for the Respondent to form the view that he had not provided a reasonable explanation for his behaviour and to proceed to dismiss him for “Gross Misconduct under Non observance of your terms and conditions of your employment with the Company, the unauthorised possession of property or money belonging to the Company, its employees, customers or clients or their employees.” Whilst it is not disputed that someone from the Catering Company was sufficiently annoyed to complain about his conduct to his Site Manager, I am of the view that fair procedures would have dictated that as part of the Respondent’s investigation, it would ascertain the Company’s view as to the severity of his conduct so that it could be assessed in the context of same. In other words, whether the Catering Company considered the Complainant’s conduct to constitute theft or some lesser form of wrongdoing was fundamental to considering such an allegation. As recorded in the minutes, the Complainant repeatedly confirmed that he could identify the staff who did not take payment for drinks but it appears that this was not followed up.

It is also clear from the minutes of the various investigation and disciplinary meetings/hearings that the question of whether the Catering Company operated a free drinks policy (either formally or informally) was of relevance to the Complainant’s conduct at the material time and whether it was permissible to sit down with the items without paying for same or indicating to the till staff an intention to pay later. This should also have been ascertained from the Company as part of the investigation. It may well have been the case that the Catering staff adopted a casual attitude towards the payment of items which led the Complainant to believe that his action was permissible, in which case it is difficult to see how his conduct could be viewed as gross misconduct meriting dismissal. Conversely it may have been the been the case that the Catering Company operated a strict payment before being seated policy, in which case the Respondent may have been justified in viewing the conduct as gross misconduct justifying dismissal. I do not consider that this flaw can be remedied retrospectively with evidence from the Sector Manager to the effect that that there was signage in place requiring users to pay for food before proceeding to the seating area as even if I was to take this evidence at face value, it still does not confirm the Company’s actual practice.

I also find that there was a lack of clarity throughout the process as to what precisely was being alleged against the Complainant. The investigation and disciplinary meetings/hearings referred to an “allegation of theft” as set out in the correspondence pertaining to same but the Complainant was in fact dismissed for “Non observance of your terms and conditions of your employment with the Company, the unauthorised possession of property or money belonging to the Company, its employees, customers or clients or their employees”. It is noted that the latter ground is a combination of two listed grounds of gross misconduct in the Respondent’s Disciplinary Procedures. It seems to me that fair procedures would dictate that the Complainant should have been fully aware of the actual grounds of gross misconduct alleged at the time of the disciplinary hearing and so afforded the opportunity to rebut and defend same. In the instant case, defending an allegation of theft is quite different from defending an allegation relating to the non-observance of terms and conditions of employment. I am also of the view that the finding of “the unauthorised possession of property or money belonging to the Company, its employees, customers or clients or their employees.” is unsustainable in circumstances where the items in question belonged to a third party and furthermore, the staff were not consulted at any stage in relation to how they viewed the Complainant’s conduct and whether it amounted to an “the unauthorised possession of property”. It was also unclear as to whether this was tantamount to theft and indeed whether the allegation of theft was still being maintained in circumstances where there was no dispute that the Complainant had paid for the chocolate bar before leaving the vicinity of the canteen regardless of whether he had ever intended to pay.

Finally and most seriously, I consider the Sector Director’s decision to dismiss the Complainant at the disciplinary hearing as confirmed in his evidence to be a fundamental procedural flaw and indicative of predetermination without taking any time to consider his responses or whether a lesser form of disciplinary action would be appropriate. I also find his dismissal letter and evidence given at this hearing to be somewhat inconsistent with the minutes of the disciplinary hearing which appear to indicate that a change of site might have been under consideration. Given the lapse of some six weeks before the formal dismissal letter issued, I can only conclude that there were other extraneous factors at play. In the circumstances, I do not consider the Complainant’s failure to avail of the appeal to be unreasonable.

Overall and having found both the substantive decision to dismiss and the procedures adopted to be objectively unreasonable and unfair, in all the circumstances and for the aforesaid reasons, I am satisfied that the Respondent has not discharged the onus of showing that the Complainant’s dismissal was fair.

Decision:

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1) (c) (i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of most relevance to this case is the extent (if any) to which the conduct of the employee contributed to his losses and measures adopted to mitigate same. In circumstances where it is undisputed that the Complainant had drawn negative attention to himself meriting a complaint from the Canteen Company to the Respondent, and indeed accepted some responsibility throughout the process until his departure from that position at this hearing, I am satisfied that he contributed to some degree to the circumstances giving rise to his dismissal and consequent losses. I also found his evidence in relation to his mitigation of losses somewhat vague in the absence of any supporting documentation. As against this, I have to give him some credit for the fact that he had obtained a plumbing apprenticeship within eight months of his dismissal as being indicative of some effort to secure future employment in the interim period. Therefore I consider it just and equitable in all the circumstances to award the Complainant €5,600, reflecting 50% of the actual losses claimed. The Respondent is therefore ordered to pay the Complainant a total of €5,600 in compensation (subject to any lawful deductions).

Dated:   01/08/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissals Act 1977 - ‘Band of Reasonable Responses’ Test - Fair Procedures