ADJ-00002115

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002115

Complaints for Resolution:

Date of Adjudication Hearing: 05/09/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Davitt House, Adelaide Road, Dublin 4

Procedure:

The aforesaid complaints referred under Section 7 of the Terms of Employment (Information) Act 1994, Section 27 of the Organisation of Working Time Act 1997 and Section 8 of the Unfair Dismissals Act 1977 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 24^th February 2016. In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, the Director General referred these complaints to me for adjudication. Following a preliminary hearing on 11^th July 2016, I proceeded to a full hearing on 5^th September 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented, the Complainant by Richard Grogan & Associates and the Respondent by Mr Marcus Dowling BL instructed by Byrne Wallace Solicitors. A number of witnesses gave evidence on behalf of the Respondent. I acceded to the Respondent’s application to have Gwen Malone Stenography transcribe the hearing for the purposes of its own record upon its undertaking that the transcript would not be used for any other purposes and it would uphold the privacy of the hearing. As Solicitor for the Complainant objected to Solicitors for the Respondent furnishing a copy of the transcript to the WRC without charge and to the Complainant only upon payment towards the costs of same, in the interests of fairness, I ruled that I would make my decision without requiring sight of the transcript. At the outset, it was agreed that I would hear the complaint of unfair dismissal first and then proceed to hear the other complaints. I also agreed to view CCTV relating to the unfair dismissal claim in question only if required and as it turned out nothing material arose. All oral evidence, written submissions, supporting documentation and case law presented by both Parties have been taken into consideration when coming to this decision in relation to all the complaints presented.

Background:

The main complaint referred herein is one of unfair dismissal. The Complainant was employed by the Respondent Retail Chain as a Store Check-out Manager from 3^rd September 2007 until she was summarily dismissed on 8^th January 2016. She earned €33,500 per annum at the material time of her dismissal. After a relatively short period of unemployment, she secured alternative employment in a similar role but on a lower salary of €25,000. She is seeking compensation of €6,979 in respect of her actual loss whilst out of work for a ten week period along with compensation for future loss to reflect her ongoing loss of €178 per week arising from the shortfall in her new salary, which over the remaining 94 week period totals €16,646, giving rise to a claim of €23,625 gross. 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. It was also accepted that the Complainant had the requisite twelve months’ service for the purposes of bringing a complaint of unfair dismissal and it was brought within time. She also seeks compensation in relation to a number of ancillary claims under the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997, of which Complaint Reference CA-00002922-007 was withdrawn. The Respondent strenuously refutes all of these complaints which are dealt with in turn hereunder:

Complaint of Unfair Dismissal under Section 8 of the Unfair Dismissals Act 1977 - CA-00002922-009

Summary of the Respondent’s Case:

On the evening of 1^st January 2016, as one of her normal duties and responsibilities as a Check-out Manager, the Complainant organised for the collection and return of cash float bags from the shop-floor to the cash office. Whilst security staff had offered to accompany her on her route from the shop-floor to the cash office, she declined assistance. The following morning, it was discovered that one of the bags containing approximately €640 was missing. Extensive searches were carried out to locate the missing money, but to no avail. An investigation and disciplinary process took place, during the course of which it was contended that the Complainant had admitted to the following breaches of procedures: (1) she went into the cash office unaccompanied; (2) she did not count the bags as she placed them into the cash office safe and (3) she did not sign the relevant control sheet in the float book with the number of bags. She had been unable to offer any explanations for her actions, save that she was distracted at the time. Given the seriousness of the matter, the Respondent decided to summarily terminate her employment. By way of written appeal, the Complainant appealed against her dismissal which was upheld. At the initial hearing, it was confirmed that the Complainant had not been dismissed for theft but rather because the float bag had gone missing on her watch in circumstances where she was the Manager responsible for same and had not followed procedures. The following relevant evidence was given in support of the Respondent’s position:

Store Manager

The Store Manager outlined the background to the Complainant’s employment as a Check-out Manager at the material time and procedures in relation to her role in collecting and storing cash. He confirmed that one of her duties required her to collect the float bags from each of the tills at the end of the day and transport them to the cash office, place in a time-hold safe overnight and account for the number of bags in a float book. Prior to Autumn 2015, the practice had been for Managers to attend the cash office alone but since then they had been informed at weekly management meetings and directly that they should have a member of security accompany them to the cash office, and extra security had been put on duty later to accommodate. He said that security staff were permitted to go into the cash office and a list on the door referred to those who held key fobs to enable entry. A float bag and float book were furnished in evidence. Under questioning from the Solicitor for the Complainant, the Store Manager confirmed that security staff were available to support cashing-up. He accepted that the procedures for the cash collection and storage were communicated verbally to the staff concerned and there were no written procedures. He submitted that there had been no issue or need for this as everyone had fully understood their roles. It was put to him that the absence of a written procedure created uncertainty as to the process. He could not confirm whether the float book in question was in place on 1^st January 2016 when the Complainant was alleged not to have signed the book. It was also put to him that there had been a CCTV blind spot on the route to the cash office. He said that the Complainant had always completed the float book before the evening in question and agreed that up until then, she also had a very good working record with the Respondent.

Security Manager

The Security Manager gave evidence confirming the Store Manager’s position that there had been a recent change in policy and Managers were to be accompanied by security staff to the cash office. He also confirmed that members of security staff had been on hand to accompany the Complainant to the cash office on the evening in question. When the missing cash float was reported missing, he had viewed CCTV of the floor for the time in question. He could see the cashier at Customer Service whose float had gone missing double-check the bag and put it out for collection. He described seeing two security staff on duty and on hand, one of whom assisted with the trolley which appeared to be broken and although the CCTV had no audio, the other appearing to ask if he could help before moving off. He also assisted with the initial investigation, the minutes of which were furnished at the hearing. They include an admission on the part of the Complainant that the security staff in question had offered to assist her in bringing the bags down to the cash room. She had also confirmed that she had not counted the bags in the cash office and had not signed the float book which he said was always there. He had met with and interviewed the security staff in question, one of whom confirmed that he had offered to assist the Complainant with transporting the bags to the cash office after the Store had closed. She had said that she was okay and asked them to let the staff out and do the lock-up as per their statements. He had also questioned the cashier whose bag had gone missing and she had confirmed double-checking her float bag was in the basket. He confirmed that Gardaí had not been called in relation to the incident. Under questioning from Solicitor for the Complainant, he was asked about the Respondent’s CCTV policy and accepted that it was not addressed in the Company Handbook. However, he said that he had gone through the CCTV with the Complainant. He also confirmed that there were no written procedures in place in relation to security staff assisting with the transport of cash and that Managers occasionally went to the cash office alone during the day. His contemporaneous statement was also furnished confirming that he had walked through the route taken by the Complainant to the cash office and searched all possible points where the bag could have gone missing but to no avail. CCTV had also confirmed that the staff member who had retrieved the bags from the safe had not made any mistake when counting them and there had been fourteen instead of fifteen bags there.

Assistant Manager

The Assistant Manager gave evidence confirming the circumstances giving rise to the missing float bag, including of being informed of same the following day of 2^nd January 2016, of checking all the points along the Complainant’s route at which it could have gone missing and of asking the Security Manager to go through the CCTV. It was noted that the CCTV did not show the Complainant counting the cash bags but did show the cashier whose bag had gone missing clearly putting it out for collection. He has also confirmed with the Complainant that she had brought fifteen bags to the cash room. Upon discussing the matter with the Regional Manager who was on leave, he had commenced the investigation along with the Security Manager. Solicitor for the Complainant questioned him about the fairness of procedures adopted during the investigation process, and was critical of the fact that she had not been adequately warned about the potentially serious consequences or furnished with the notes before being further questioned.

Regional Manager

The Regional Manager gave evidence confirming that he had interviewed the Complainant on 5^th January 2016 as per the notes furnished referring to the meeting as being “…a further investigatory meeting as part of the disciplinary process.” Upon warning her that it might lead to disciplinary action including dismissal and asking whether she would like someone to be present, she had declined. He asked her to go through the process of collecting and accounting for the fifteen float bags that had been signed out on 1^st January 2016. She had described having fourteen float bags and then locating the fifteenth bagged up by the cashier whose float had gone missing and placed into the basket so she knew she had the correct number. She also described having a difficulty with the wheel on the trolley which caused her to struggle and of having to transfer the bags to another trolley. He asked why she had not availed of the assistance of the security staff to attend with her to the cash office and she referred to one of them as not being available and the policy as only being a recent one. She then talked through her movements of taking the trolley to the cash office and putting the float bags into the safe. She said she did not double-count them at that stage as she knew she had fifteen. When asked why she had not signed the float book when she had signed every other night, she referred to that as being “My mistake” and could not provide an explanation. He had put it to her that as fifteen bags were confirmed as going into the basket which she then transported to the cash office and as there were only fourteen bags the next morning, the blame must rest with her and suggested that only one conclusion could be drawn and: “The fact that you went down on your own, one goes missing, doesn’t look good for you?” He also acknowledged that unfortunately parts of the route taken are not covered by CCTV. She was unable to explain how the cash float could have gone missing and said she would have heard if one had fallen out. However, she also said that she would not risk her job for something silly like that and would never take something that does not belong to her. He suspended the meeting to enable him to conduct further investigation before resuming later the same day.

Upon resuming the investigation meeting, the Regional Manager went over much of the same questioning again. He put it to the Complainant that CCTV showed both security staff as standing nearby when she was getting the floats done and of both offering to go with her to the cash room, in responseto which she said she got distracted and was concentrating on getting the bags done whilst staff were looking to leave the building. He then took 20 minutes out to consider the matter before suspending the Complainant on pay until Friday 8^th January 2016, stating that he had to consider what disciplinary action he was going to take.

On Friday 8^th January 2016, the Regional Manager commenced a disciplinary meeting with the Complainant and again she declined to have anyone present. He went through the minutes of the investigation hearing confirming the evidence as already adduced and including her admissions regarding the breach of procedures. He also referred to reviewing all of the CCTV confirming that another Manager and the person who discovered the missing float had gone into the cash office unaccompanied during 2^nd January 2016 and of there being nothing untoward about their behaviour. He then took 20 minutes out to reflect and decide upon the disciplinary action. Upon resumption, the Complainant confirmed that she had changed her mind and wanted to have a witness present. The Regional Manager agreed and concluded the hearing by going over the incident again and confirming that due to the very serious breaches of procedure, he had decided to terminate her contract. He also informed her that should she wish to appeal, she may do so in writing to the Textile Regional Manager. As noted, when the Complainant then stated: “I would like to appeal and have the CCTV footage and the minutes of the meeting”, he replied: “That is not possible.” When asked what she was being accused of, he restated his position: “Your contract has been terminated due to a very serious breach of company procedure resulting in the loss of a cash bag containing 640 euro.” By letter dated 11^th January 2016 (misdated as 2015), he wrote to the Complainant confirming the reasons for her summary dismissal as follows: “I am writing to confirm the termination of your employment by reason of serious breaches of Company policies and procedures, with effect from Friday 8^th January 2016. During the course of our investigatory meeting held on Tuesday 5^th January 2016, you admitted that you broke Company policy and procedures on cash office procedure. You confirmed that you were aware that your actions were against Company policy and procedures. You could provide no reasonable explanation for your actions. In the circumstances set out above, I decided that your actions amounted to serious breach of Company policies and procedures and that summary dismissal was the most appropriate sanction.” It also confirmed details of a written appeal to the Textile Regional Manager within seven days from that date. In direct evidence, he reiterated the seriousness of the matter given that the Complainant was responsible for ensuring that cash was safely transited to the cash office and his reasons for deciding to dismiss her.

Solicitor for the Complainant questioned the fairness of the procedures adopted by the Regional Manager. He accepted that at no point during the process had he written out to her setting out the allegations. When asked why he had never furnished the witness statements, minutes of the meetings and CCTV to the Complainant in advance of the disciplinary and appeals process notwithstanding her requests for same, he said that he did not feel it necessary and also they were not ready or available at the time. Whilst he accepted that the Complainant had not been afforded the opportunity to challenge the witnesses, he contended that the issues were very clear. He confirmed that the appeal comprised of a review by a Manager and was not a full rehearing. He was also asked about the two other members of staff going into the cash office unaccompanied on 2^nd January 2016 as confirmed by the CCTV, and it was put to him that it was clear that any such policy that staff be accompanied was not being adhered to and/or enforced.

Textile Regional Manager

The Textile Regional Manager gave evidence of his handling of the Complainant’s appeal submitted in writing on 13^th January 2016 which was considered to be an appeal against sanction only and was hence dealt with by way of written appeal. Reference was made to the Complainant’s appeal letter which included a detailed narrative of the events giving rise to the termination of her employment and requested that the Textile Regional Manager overturn the decision to dismiss her after eight and a half years of an exemplary employment with the Respondent. She had requested a statement of the grounds for her dismissal under the Unfair Dismissal Act 1977 and repeated her request for a copy of the minutes of the meetings she had attended. She stated: “I wish to ask you to take into consideration my years of service as a manager in your stores, and my unblemished record. Please also take into consideration that there is no evidence to suggest any conscious wrong-doing on my part. Any procedural errors that may have occurred, in particular, my failure to sign the Control Sheet, are regrettable but are also thoroughly explained in the attached statement. I do not, moreover, believe that these lapses on my part constitute gross misconduct to the extent that summary dismissal is merited. I believe that the decision to terminate my employment is wrong, and wish to formally request that you allow this appeal.” By way of letter dated 15^th January 2016 (misdated 2015) to the Complainant, he had acknowledged receipt of her appeal confirming: “I note the content of your appeal grounds and I will give consideration to the matters raised and investigate and inform you of my decision in due course.” By further letter dated 25^th January 2016 to the Complainant, he stated: “I am writing with regard to your appeal. I have considered the matter in full and have decided that the decision to dismiss was fair and appropriate in all of the circumstances. Therefore the dismissal stands.”

In direct evidence, the Textile Regional Manager went through all the steps he had undertaken in relation to considering the Complainant’s appeal which included requesting all relevant paperwork by way of internal post from Head Office. He said that he had taken his time to consider the appeal and statement having gone through all of the evidence including CCTV and minutes of the meetings. He repeated the reasons given by the Regional Manager for upholding the decision to dismiss the Complainant. He was questioned by Solicitor for the Complainant regarding the procedures adopted, timeline of his consideration of the appeal and evidence relied upon. In particular, it was put to him that the CCTV had shown two other members of staff attend the cash office unaccompanied and the policy requiring staff to be accompanied by security was not being enforced. When asked why the Complainant was not afforded a full hearing, he replied that it was an appeal against sanction only. He confirmed that he had considered her prior excellent service and alternative action / sanctions and had not come to his decision lightly.

Submissions

It was submitted on behalf of the Respondent that there were substantial grounds justifying termination of the Complainant’s employment as outlined above and her dismissal was reasonable in all of the circumstances. It was further submitted that it is not the role of the Adjudication Officer to substitute his/her views for that of the employer but rather to establish whether or not the decision to dismiss was within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent. This “band of reasonable responses” test was developed by the English Courts in response to tribunals substituting their own views in a number of cases including Foley -v- Post Office (2000) ICR 1283 and Anglian Home Improvements Limited -v- Kelly (2005) ICR 242, with Foley being approved in Doyle -v- Asilo Commercial Limited (2008) IEHC 445 as follows: “It is not the function of the courts to substitute itself for the employer and to make a decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v Post Office [2000] ICR 1283 at page 1295: ‘The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is should find whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.’ The test was also well-illustrated in Iceland Frozen Foods -v- Jones (1983) 1 ICR 17 which concluded: “… we do not think it the correct approach to deal separately with the reasonableness of the substantive decision to dismiss and the reasonableness of the procedure adopted. The correct approach is to consider together all the circumstances of the case, both substantial and procedural, and reach a conclusion in all the circumstances.” The test was also applied by Mummery LJ in the context of a retail environment in J Sainsbury plc -v- Hitt (2003) ICR 111 where it was found that the employment tribunal had substituted their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. In light of this case law, it was submitted that given the Complainant’s admitted conduct there is no basis for arguing that the decision to dismiss in this case was not reasonable in the circumstances. At the hearing, additional submissions were made citing various Irish cases regarding the fairness of the investigation and disciplinary process and in particular, Minnock -v- Irish Casing Company & Another (2007) 18 ELR 229 was relied upon to contend that the same fair procedures as apply to a disciplinary hearing do not apply to the investigation hearing. Also in Shortt -v- Royal Liver Assurance Limited 2008 IEHC 332, where the plaintiff had not been afforded an opportunity to cross-examine a witness, it was held that the type of disciplinary process implemented by the defendant did not lend itself to the application of the principles of natural justice in the manner in which they would be applied if the plaintiff had been entitled to a hearing by an impartial tribunal, and the defendant had not acted in such a way as to imperil a fair hearing or a fair result. It was also contended that it was not necessarily unfair to have the same person conduct the investigation and disciplinary process and a limited appeal was not necessarily unfair particularly when against sanction only.

Summary of the Complainant’s Case:

The Complainant did not go into evidence save than to confirm her losses and mitigation of same including efforts to secure alternative work as outlined in the background. No real issue was taken on behalf of the Respondent in relation to same. Reference was made to the Respondent not complying with Section 14(4) of the Unfair Dismissals Act 1977 and furnishing the Complainant “…within 14 days of the request, particulars in writing of the grounds for the dismissal” and hence that should be taken into consideration. Objection was taken to this submission on the basis that she had been furnished with the letter dated 11^th January 2016 (misdated as 2015), confirming the reasons for her summary dismissal. The Solicitor for the Complainant also outlined the various breaches of procedures with the investigation / disciplinary process. In particular, given that there were no written procedures for transiting cash to the cash office and other staff had attended the office unaccompanied, he submitted that the decision to dismiss the Complainant in the instant case was unfair. In this respect reliance was placed upon the Labour Court decision in Nurendale t/a Panda Waste -v- Robert Bourke UDD 163 (under appeal on points of law to the High Court), where an employee was found to have been unfairly dismissed in circumstances where the main instigator who had engaged in the same type of misconduct had not been subject to any disciplinary action. The Labour Court found: “At its most basic level the requirements of fairness in employment dictate that similar situations be treated similarly. It follows that where an employer acts inconsistently in responding to misconduct, a dismissal can be rendered unfair.” Furthermore, it was pointed out that at no stage had the Respondent written to the Complainant outlining the allegations which may result in a decision to dismiss her and the grounds for same. Neither was she ever furnished with the minutes of the meetings, witness statements or CCTV, nor had she been afforded the opportunity to confront her accusers or cross-examine the witnesses. Finally, it was submitted that the Complainant had made one mistake against a backdrop of an exemplary employment record not amounting to gross misconduct where there was no allegations of theft and the penalty of dismissal was completely disproportionate in all the circumstances.

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 am also guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) providing 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), the extent of which will depend upon the particular circumstances, and as such each case will turn on its own facts and there is no one size that fits all.

I accept the Respondent’s submissions and case law as outlined above in relation to the applicable “band of reasonable responses” test for dismissals on the grounds of misconduct, also 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 (as indicated during the hearing) where 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.” Likewise an adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury plc -v- Hitt (2003) ICR 111. In terms of 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: Turning firstly to whether or not the decision to dismiss the Complainant was within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent, I note the following evidence adduced herein which was not substantially in issue. In her role as Check-out Manager, she was responsible for collecting and safely transiting cash to the cash office. On 1^st January 2016, a cash float containing approximately €640 went missing under her charge between the time of collection on the shop floor and delivery to the cash room. Extensive searches were carried out to locate the missing money, but to no avail. During the course of the investigation and disciplinary process, the Complainant admitted that (1) she went into the cash office unaccompanied - initially she suggested that the security staff were not immediately available but latterly accepted that they had been nearby and she had been distracted by the job in hand; (2) she did not count the bags when she placed them into the cash office safe as she was certain that she had all fifteen bags before leaving the shop floor and (3) she did not sign the relevant control sheet, having placed the bags into the safe, but had done so on all previous occasions. At all stages she denied any conscious wrongdoing or taking the money but accepted that she had made an error in not recounting the bags in the cash office and signing the float book with the tally. However, she questioned the clarity of the Respondent’s policy particularly with regard to the requirement to be accompanied by security staff to the cash room. It was accepted on the part of the various witnesses for the Respondent that (1) whilst the policy had been discussed at management meetings, there was no written procedure for either Managers such as the Complainant or the security staff confirming the requirement to be accompanied and/or to accompany staff to the cash office; (2) given that two other staff had attended the cash room unaccompanied the following day of 2^nd January 2016, it was clear that this policy was not being consistently adhered to and/or there was some uncertainty around same. There were other confounding factors in the sequence of events giving rise to the missing float bag including the broken trolley causing the Complainant to transfer the bags at one point which may have contributed, and the fact that CCTV did not cover the full route to the cash office so that the Parties could not be vindicated one way or the other.

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan allowed an appeal from the Circuit Court, finding that the employer had failed to establish substantial grounds for dismissal along with criticisms of the disciplinary process adopted. He held that the sanction of dismissal for circulating inappropriate emails was entirely disproportionate and could not be regarded as falling within the range of reasonable responses of a reasonable employer to the conduct in issue, where this had been common practice and the bank had not brought to the employee’s attention, the serious consequences of a breach of its written email policy including dismissal, stating: “It seems to me that if a policy of zero tolerance was going to be adopted by the bank to breach of its email policy, its employees were entitled to some notice of this policy shift. This would not have been difficult to achieve. From Mr. Reilly's perspective, it clearly never occurred to him that in sending on chain emails, he was potentially exposing himself to dismissal. I have no doubt that had he known, he is very unlikely to have engaged in this conduct. He certainly had little reason to anticipate what occurred.” Likewise in the instant case, I am satisfied that the decision to dismiss the Complainant based upon breaches of procedures in circumstances where they were not in writing and were not being consistently applied, was not within the “band of reasonable responses” available to an employer finding itself in the position of the Respondent. In so concluding, I adopt the view of the High Court that if a policy of zero tolerance is to be enforced then at a minimum the Complainant was entitled to have written notice of the procedures including the serious consequences including dismissal that might follow for non-adherence to same. For the sake of completeness, I do not consider that the facts in this case are on all fours with the dicta in Nurendale t/a Panda Waste -v- Robert Bourke UDD 163, as arguably the Complainant’s conduct was more serious than that of her colleagues who also attended the cash office unattended, given her failure to count the bags and sign the float book and merited some level of disciplinary action in the circumstances. Nor do I consider there to have been non-compliance with of Section 14(4) of the Unfair Dismissals Act 1977 in circumstances where the letter of 11^th January 2016 set out the reasons for the Complainant’s dismissal.

Turning secondly to the procedures adopted on behalf of the Respondent in the conduct in the investigation and disciplinary process, I also find that the procedures adopted fell short of what one would objectively expect from a reasonable employer of the size and status of the Respondent. Given that the facts giving rise to the missing cash float were not substantially in issue and the Complainant who had responsibility for transiting cash safely to the cash office admitted to some failings on her part, I do not consider some of these shortcomings to be substantially material. For example, whilst it would have been best practice for the Complainant to be furnished with the witness statements, CCTV and minutes of the meetings in advance of each meeting/hearing and indeed essential in cases where facts are in issue, I am of the view that it would not have materially altered her position. Likewise, in this particular case, I do not consider that the failure by the Respondent to afford the Complainant the opportunity to confront and/or question the other witnesses would have had any bearing on the outcome given that the only minor difference in facts was the extent of availability of the security staff to accompany her to the cash office.

However, I am satisfied that there were other aspects of the process that did not comply with the general principles of natural justice and fair procedures and materially impacted upon the outcome. Whilst it is not fatal per se for the same individual to conduct both the investigation and disciplinary processes, best practice for an organisation of the Respondent’s size and resources would have dictated that separate persons conduct each stage. In the instant case, the investigation and disciplinary meetings were primarily conducted by the same person, the Regional Manager (the initial investigation having been commenced by two other colleagues on 2^nd January 2016 in his absence) and unfortunately and perhaps inadvertently resulted in there being no clear delineation between the two processes. In particular and as recorded in the minutes, he referred to two meetings on 5^th January 2016 as “…a further investigatory meeting as part of the disciplinary process” before stating that he needed more time to see what disciplinary action he was going to take and suspending the Complainant with pay to report to him again on 8^th January 2016. He then proceeded to commence a disciplinary meeting on that date leading to his decision to dismiss her later that day without any prior written notice of the findings from the investigation meetings or of what misconduct was being alleged. Throughout the process and certainly up until the final meeting of 8^th January 2016 as evidenced by the minutes, there seemed to be some ambiguity as to precisely what was being alleged and whether it was theft or a breach of Company procedures. Putting the allegations in writing would also have afforded the Complainant the opportunity to consider the seriousness of her situation and if necessary, to avail of expert advice and/or representation even if it was just to make a plea in mitigation. It was only during the final disciplinary meeting that she seemed to appreciate the seriousness of her situation and asked for a witness to be present, by which time it was clear that a decision had been made to dismiss her. I am also of the view that there was an element of pre-decision on the part of the Regional Manager as evidenced by his comments at the investigation meetings on 5^th January 2016 to the effect that the blame must rest with the Complainant, that only one conclusion can be drawn, the fact that she went to the cash office on her own and a bag goes missing did not look good for her and he had to consider what disciplinary action to take, before going on to dismiss her on 8^th January 2016.

In relation to the appeals process, whilst an oral appeal hearing would have been preferable, there is per se no difficulty with the Respondent adopting a written appeal procedure in circumstances where the appeal was essentially against sanction. However, again I find that it fell short of the fair procedures that would objectively be expected of a reasonable employer in the circumstances. Firstly, best practice for an employer of the Respondent’s size would dictate that the Complainant should have been furnished with the witness statements, CCTV and minutes for the purposes of appealing, as requested from the Regional Manager and in writing from the Textile Regional Manager who conducted the appeal. Having made this observation, again I do not consider that this failing led to an unfair appeals process in circumstances where the facts were not substantially in issue. The main failing is the absence of any consideration of the Complainant’s appeal and statement along with reasons for upholding the dismissal in light of same, in the brusque letter of 25^th January 2016 as set out above. In particular, there was no consideration of available alternative sanctions such as a written warning, demotion and/or retraining. The only reasonable conclusion that can be drawn from the letter is that there was no proper consideration of her appeal. Finally, I do not consider this shortcoming to be in any way remedied by the Textile Regional Manager’s retrospective evidence at this hearing that he had availed of and considered all the relevant evidence in coming to his decision. Fair procedures should be shown to have been adhered to at the material time.

Overall and having found both the substantive decision to dismiss and the procedures adopted to be objectively unreasonable, 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 where losses and/or mitigation of same are not in issue, is the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. As the Complainant did not go into evidence as to the circumstances giving rise to her dismissal, I did not have the benefit of directly hearing her version of what had occurred. Given her unrefuted omissions, I am satisfied that she contributed to a large degree to her dismissal and therefore consider it just and equitable in all the circumstances to award her €12,000, noting the highest value of the claim proffered on her behalf of €23,625. The Respondent is therefore ordered to pay the Complainant a total of €12,000 in compensation (subject to any lawful deductions).

COMPLAINTS REFERRED UNDER SECTION 7 OF THE TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

Non-compliance with Section 3 of the Terms of Employment (Information) Act 1994 - CA-00002922-001 & Non-compliance with Section 5 of the Terms of Employment (Information) Act 1994 - CA-00002922-002

Summary of the Complainant’s Case:

A complaint was made on behalf of the Complainant that she did not receive a statement which complied with Sections 3 and 5 of the Terms of Employment (Information) Act 1994, requiring an employer to provide an employee with a statement in writing containing certain particulars listed within those Sections. In written submissions, it had been contended that the written contract/s provided by the Respondent fell short of the requirements of Sections 3 in a number of respects and in particular, Sections 3(g) & 3(ga) were not set out and the name of the employer was not set out contrary to Section 47 of the Companies Act 2014. Additionally, the Respondent had not furnished a statement in writing containing details of the times and duration of, and any other terms and conditions relating to, the rest periods and breaks as per the Organisation of Working Time Act 1997 being allowed to the Complainant, contrary to S.I. 49 of 1998. Additionally, S.I. 146 of 2000 requires that a copy of the grievance and disciplinary procedure should be given to all employees ‘at the commencement of employment’. Various submissions were also made in relation to the application of the principles in Case C-14/83 Von Colson and Karmann -v- Land Nordrhein-Westfahlen (1986) C.M.L.R. in relation to the granting of compensation. However, at the hearing, the Solicitor for the Complainant conceded that the WRC is bound by the Determinations of the Labour Court including Irish Water -v- Patrick Hall TED161 which found against the complainants on identical points.

Summary of the Respondent’s Case:

It was contended on behalf of the Respondent that firstly, an Adjudication Officer of the WRC has no jurisdiction for the purposes of the Companies Act 2014 or S.I. 146 of 2000. Secondly, the Complainant was furnished with no less than six contracts during the course of her employment in accordance with the Respondent’s obligations under Sections 3 and 5 of the Terms of Employment (Information) Act 1994 as furnished at the hearing. She was also provided with a copy of the Respondent’s Handbook, which contained additional particulars such as rest and break entitlements and the various policies and procedures applying to employees including disciplinary procedures. It was not in issue that the Complainant signed her name acknowledging receipt of same on 3^rd September 2007. It was further submitted that an award of compensation would not be just or equitable in circumstances where no detriment had been suffered by the Complainant and/or they were ‘de minimis’. Reliance in this respect was placed upon a series of recent Labour Court Determinations in relation to appeals from similar claims including Dilion & Co. Limited -v- Demenko TED164 which found that similar shortcomings were “technical and insubstantial in nature”. Reliance was also placed on the Labour Court Determinations in C and F Tooling Limited and Jason Cunniffe DWT15125 and Philmic Limited t/a Premier Linen Services -v- Petraitis TED1616 confirming the non-application of the ’Von Colson Principles’ where there was no detriment.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to these complaints in accordance with the relevant statutory and redress provisions. Based upon the Solicitor for the Complainant’s concession, I consider that I am bound by the aforesaid Determinations of the Labour Court in relation to these complaints and accordingly find that they are not well-founded and dismiss same.

COMPLAINTS REFERRED UNDER SECTION 27 OF THE ORGANISATION OF WORKING TIME ACT 1997

No Sunday Premium paid contrary to Section 14 of OWT Act 1997 - CA-00002922-008 & Sunday Premium Not included Public Holiday Pay contrary to Section 22 of OWT Act 1997 - CA-00002922-003 & Sunday Premium Not included in Annual Leave Pay contrary to Section 20 of OWT Act 1997 - CA-00002922-006

Summary of the Complainant’s Case:

A complaint was made on behalf of the Complainant that she did not receive a Sunday premium in circumstances where she worked 2-3 Sundays a month, contrary to Section 14 of the Organisation of Working Time Act 1997. It was further contended that that such Sunday premium was not factored into her Public holiday pay contrary to Section 22 of the Act or annual leave pay contrary to Section 20. It was submitted that it was a matter for the Respondent and for the WRC to say what Sunday premium should have been payable within the requisite timeframe. Written submissions placed reliance upon various Labour Court Determinations on the issue of the payment of Sunday premiums, namely, Duesbury Limited -v- Frost DWT1063, Jump Juice Bars Ltd -v- Koniczan DWT12167, Scally v Lynch & Kelly DWT13102 & DWT13103, Hyper Trust Limited -v- Gordans DWT1367 and Ballinalard Transport Ltd -v- Gonzi DWT1368.

Summary of the Respondent’s Case:

The Respondent referred to the provisions of Section 14 of the Organisation of Working Time Act 1997 in light of the Complainant’s written contract and submitted that the requirement that she work on Sundays was taken into account in the determination of her salary. As the Complainant’s contract provided for an annual salary of €33,500 payable monthly and her hours of work as including Sunday work, it was submitted that Sunday working time had been taken into account when determining her salary. References were also made to the Dáil Debates that took place prior to the enactment of the 1997 Act as making it clear that it was designed to offer protection to part-time, casual and atypical workers and not salaried employees holding management roles such as the Complainant. It was also envisaged that Sunday premium payment should be set by reference to the going rate within that industry as determined by the Labour Court by looking at collective agreements already in force for comparable workers identified by the employee making such a complaint. The Complainant is a salaried employee holding a management position and notably has not referenced the industry standard or collective agreement identifying either an applicable hourly rate of pay or premium. Addressing the Labour Court authorities referenced on the Complainant’s behalf, it was noted that three of the authorities referred to hourly-paid workers who were covered by various employment regulation orders. The fourth referred to a shift worker who was very likely to be hourly paid and/or subject to an employment regulation order. Given that these authorities concerned complaints made by the type of employee that Section 14 was designed to protect, it was submitted that they do not assist the Complainant in circumstances where she was neither an hourly-paid worker nor covered by a collective agreement. It was also submitted that as there is no Determination of the Labour Court granting a Sunday premium at managerial level where it was clear that a written contract required Sunday work and provided for an annual salary and accordingly these complaints are ill-founded.

Findings and Conclusions:

I note that all the Labour Court authorities cited on the issue of Sunday premium relate to primarily low income workers on hourly rates and/or subject to employment regulation orders and the current Labour Court position requires employers to specify what element of the employee’s hourly rate of pay is specifically referable to the contractual obligation to work on Sundays. Having considered the underlying intentions of the underlying Directive 93/104/EC, I am not satisfied that Sunday premium payments are confined to part-time, casual and atypical workers as suggested. However, I have not been provided with any reference points in relation to the position of an employee in the Complainant’s position e.g. such as the going rates for other similarly situated managers in the retail trade, whether she was paid the same as the Respondent’s Managers not required to work on Sundays (if any) or the import of S. I. 444 of 1998 (if any). Therefore and in the absence of any evidence to the contrary, I am satisfied that the Complainant’s explicit contractual requirement to work 2-3 Sundays a month was factored into her managerial salary, and is therefore not in breach of Section 14 of the Organisation of Working Time Act 1997. It follows that neither are there any breaches of Sections 20 and 22 of the Organisation of Working Time Act 1997.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to these complaints in accordance with the relevant statutory and redress provisions. For the aforesaid reasons, I find that these complaints are not well-founded and accordingly dismiss same.

Did not get Rest Intervals contrary to Section 12 of OWT Act 1997 & Regulations - CA-00002922-005

Summary of the Complainant’s Case:

Written submissions on behalf of the Complainant alleged non-compliance in relation to the provision of the requisite rest intervals contrary to Section 12 of the Organisation of Working Time Act 1997 and Regulations made thereunder (S.I. 57 of 1998) in very general terms without any dates or specifics. Neither did the Complainant give any direct evidence, details or specifics of same. It was contended by the Solicitor for the Complainant that pursuant to Section 25(4) of the Organisation of Working Time Act 1997, the onus of proving compliance with same based upon working time records rests with the Respondent. Submissions were also made in relation to the application of the principles in Case C-14/83 Von Colson and Karmann -v- Land Nordrhein-Westfahlen (1986) C.M.L.R. in relation to the granting of compensation.

Summary of the Respondent’s Case:

Various records and detailed written submissions were submitted on behalf of the Respondent strongly refuting these complaints not least the fact that as a Manager, the Complainant had control over and indeed responsibility for ensuring compliance with the Organisation of Working Time Act 1997. Additionally she had never raised any issue or grievance regarding same during her employment.

Findings and Conclusions:

The effect of S.25(4) of the Organisation of Working Time Act 1997 is to shift the burden of proof to the Respondent in cases where records in the statutory form were not maintained as confirmed in the Labour Court Determination in Circus Gerbola Limited -v- El Mostafa Chtabbou MWD 1211 endorsing Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311. However, it also held that the evidential burden on a Complainant requires such evidence to be adduced as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the Respondent to know, in broad terms, the nature of the complaint before the burden of proof shifts to the Respondent. In relation to the instant complaint and in the absence of any direct evidence from the Complainant, I am not satisfied that sufficient evidence as is available has been adduced on behalf of the Complainant to support a stateable case of non-compliance with the Act such that the burden of proof shifts to the Respondent.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory and redress provisions. For the aforesaid reasons, I find that this complaint is not well-founded and accordingly dismiss same.

Dated:   02/06/2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissals Act 1977 - ‘Band of Reasonable Responses’ Test - Terms of Employment (Information) Act 1994 - Organisation of Working Time Act 1997 - Burden of Proof