ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006417
Complaints:
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-00008843-001 | 19/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00008843-002 | 19/12/2016 |
Date of Adjudication Hearing: 03/04/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Canteen Assistant from 11th November 2002 to 9th November 2016. She was paid €413.00 per week. She has claimed that she was unfairly dismissed and did not receive minimum notice. |
1) Unfair Dismissals Act CA 8843- 001
Summary of Respondent’s Case:
The Complainant worked as a Canteen Assistant and had responsibility for stock management and cash handling. When she commenced employment she received a contract of employment and a staff handbook, which contained the Disciplinary Procedure., which listed gross misconduct including “theft of company, employee or customer property & failure to comply with security regulations as behaviour which warrants immediate dismissal. The handbook also states, “Any company goods, products or equipment found on the person of any employee without the express permission of management will be deemed to be illegally obtained and will result in immediate dismissal”. |
The Site Technical Manager was advised that an employee on 18th August 2016 had thrown a basket over the security fence. He met with the employee and she confirmed that she had done so. She was suspended with pay pending an investigation. The Complainant was going on holidays and so the investigation was suspended. Upon her return to work she submitted a medical certificate for one month until 3rd October. The investigation resumed on her return to work. While she was a union member she was represented by her husband. The evidence was presented to her, CCTV footage was shown and minutes of the meeting were agreed. She was accused of taking company property without permission, deliberately concealing the basket from security, threw it over the fence and placed it in her car. The matter was referred to a disciplinary investigation on 7th November 2016.She was given a copy of the Grievance & Disciplinary procedure. Notes of the meeting were agreed. It was found to be a case of proven misconduct, warranting immediate dismissal. She appealed the decision to the Managing Director. A hearing was held on 22nd November 2016. Notes were agreed from this meeting. The appeal failed.
This dismissal was fair. The Complainant saw the basket, moved it to the canteen, devised a plan to get it to her car, she didn’t get permission, she concealed it and she parked her car away from the normal place away from the security station. It was not her place to decide the value.
She was given fair procedure throughout. This dismissal was not unfair and the complaint should be rejected.
Case law was cited in support.
Summary of Complainant’s Case:
The Complainant accepts that she took the basket and put it in her car. The basket was old and smelly and was on a rubbish dump. She took it to use it at home for displaying flowers in. She was aware that you can’t take company property.
When she was taking the basket out it was raining. She knew that the basket would not fit through the security stiles so she threw it over the fence. She accepts that she was wrong to take the basket.
The dismissal was unfair. The Respondent didn’t look at alternatives to dismissal. The Respondent didn’t establish if it was rubbish. She had never been told about the zero tolerance. The investigation didn’t establish where the basket came from. The Respondent didn’t try to retrieve the basket. Initially the Site Manager had accepted her explanation but changed his opinion and decided to suspend her. There was no need to suspend her. This was a misunderstanding, not theft. If the Respondent Company treats this as zero tolerance then natural justice does not apply. The Respondent had believed that there was something in the basket, this was clarified that there was not anything in the basket. The room where the rubbish was in is an anti-room. The Respondent did not establish whether it was rubbish or not. One member of management found that it was not rubbish. There was a lack of specifics with regard to the investigation and disciplinary hearings. They treated this as zero tolerance and dismissed her.
She has sought compensation. She has not worked since. She has tried to mitigate her loss and supplied a list of 22 job applications. Also she called into the shopping centres for work without success.
Findings and Conclusions:
I note that the Complainant had almost 14 years of employment with no disciplinary history. I note that upon commencement she was given a contract of employment and a Staff Handbook which explained gross misconduct and the consequences thereof. It stated, “theft of company, employee or customer property & failure to comply with security regulations as behaviour which warrants immediate dismissal. The handbook also states, “Any company goods, products or equipment found on the person of any employee without the express permission of management will be deemed to be illegally obtained and will result in immediate dismissal”. Therefore the Respondent was clear on the matter of theft. I note that she handled cash and stock in her job. I find that she identified this basket and devised a strategy to remove it without permission. I am satisfied on the balance of probability that she deliberately concealed this basket from the Respondent and threw it over the fence so as to avoid security. I find that she parked her car adjacent to where she would throw the basket in a deliberate attempt to avoid security and conceal the removal of the basket. I do not accept her argument that rain influenced her actions or that the basket would not fit through the security stiles. I find that she deliberately removed this item of company property. I find that her argument that this item was rubbish was not hers to make. I find that it was not her decision to determine the value or otherwise of the basket. I note that she accepts that she took the basket and that she should not have done so. Substantive Matter I have decided that she took company property without permission. I find that trust and confidence is essential in all working relationships. I find that the company failed to adequately consider alternatives to dismissal. I find that given the circumstances of this case and the item in question the sanction of dismissal was disproportionate and so the ‘punishment does not fit the crime. Therefore I find that the dismissal was unfair on substantive grounds. However I find that the Complainant has contributed substantially to the dismissal. Procedural Matter I find that she was made aware of the allegation against her. She was given the right to defend herself, the right of representation and the right of appeal. I find that the Respondent applied fair procedure to the investigation, disciplinary and appeal hearings. Mitigation of loss The Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. I note that she gave evidence of 22 written applications and many ‘walk in’ applications. I note that 8 of the 22 written applications were for positions that appear that she was not suitably qualified. I note that she accepted this at the hearing. I am surprised that she was unable to secure any employment since the date of dismissal. Therefore I find that she has not mitigated her loss and this must be reflected in the decision. Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have decided that the dismissal was unfair; however the Complainant has contributed substantially to the dismissal. I have also decided that she has not properly mitigated her loss. I have decided that she should be paid compensation of €1,500 for the unfair dismissal which reflects her substantial contribution to her dismissal and her failure to mitigate her loss. This should be paid within six weeks of the date below. 2) Minimum Notice & Terms of Employment Act CA 8843- 002Summary of Complainant’s Case:
Summary of Respondent’s Case:
Findings and Conclusions: I refer to the decision on the unfair dismissal case set out above. I have found that the dismissal was unfair. Therefore I find that the Complainant is entitled to minimum notice. Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that she is entitled to minimum notice. I have decided that according to the Minimum Notice and Terms of Employment Act she is entitled to 6 weeks’ notice amounting to €2,478.00. I order the Respondent to pay the Complainant €2,478.00 within 6 weeks of the date below. Dated: 15th June 2017 Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words:
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