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-00004248-001

05/05/2016

The Claimant was employed as a Store Manager by Respondent Shop for 1 year and 7 months in their Leinster Store; her employment began on 31st July, 2014. The Claimant was constructively dismissed from her employment on the 17th February, 2016 in the circumstances more fully set out hereunder. Prior to the Claimant’s dismissal she had never received any disciplinary sanctions or been the subject of any grievance procedures, informally or formally. The Claimant’s employment record with her Employer was exemplary, so much so the Claimant had attended a Managers Meeting in January, 2016 (in England) and had received nothing but positive feedback from her direct Supervisor (Mr.JK) the Retail Sales Manager from Head Office, who had visited the store in December, 2015. The Employer is a registered Company based in England. The Claimant’s Contract of Employment is governed by Irish Law. The Employer operates a store in a retail “village” which is run by XX Retail who receive a percentage of the Respondent Employers profits. Mr. AB a representative from XX Retail oversaw a number of stores within the Village on a day to day basis, including the Claimant’s Store. In or around the 7th December 2015 XX Retail held a presentation for the Employer and had nothing but glowing reports for how the Claimant was running the store. Mr.JK sent an email to the Claimant to her work email address to which she no longer has access thanking her for being “a shining star on the Christmas Tree.” On the 9th February, 2016, Mr.JK, Retail Sales Manager and the Claimant’s immediate direct Supervisor arrived at the Claimant’s store. The Claimant was on her lunch break in the Staff area and was instructed by Mr. JK to “collect her possessions and come with me”. The Claimant was escorted to the VIP room within the Village and was surprised and worried at the sudden nature of the meeting and asked whether a member of her staff had died. The Claimant was told that she was being suspended on full pay for a week whilst an investigation was being carried out. The Claimant was told that the investigation concerned the following matters; 1. A timesheet discrepancy; 2. A derogatory cartoon in the staff area; 3. Banking irregularities; 4. Issues relating to staff purchases/discounts and returns. The Claimant answered and gave full explanations in relation to the above matters along the following lines; 1. The Claimant was a salaried employee and was contracted to work a 40 hour week. The hours filled in on the weekly time sheet were five, eight hour days from Monday to Friday. The Claimant explained that she worked weekends and often worked in excess of 40 hours per week but filled in the time sheet for administration purposes, as five, eight hour days. She pointed out that her superiors were aware of this practice and had never raised any grievance in relation to this practice previously. She explained that the Weekend Manager and Assistant Manager within her store engaged in identical practices. 2. The Claimant requested details about the derogatory cartoon, dates, times and specifics of the complaint but her Employer was unable to provide same. The Claimant pointed out that she was unable to defend her position without this information. Another photo showing the staff area at the rear of the store was produced by the Employer. Staff were allowed to decorate this area and did so with various notes, photos etc. The Claimant explained that she had never received any complaint, formal or informal from any member of staff in relation to anything within this area. The Claimant requested the specifics of the Complaint that had been made but her Employer refused to give this to her and moved on. 3. The Claimant was asked whether there were any banking irregularities, She responded that there was not and explained how they “cashed up in store and put the takings in the safe”. The Claimant was unclear about what her Employer was asking/referring to and requested that he elaborate about what specifically he wanted to know, the Employer refused to so and moved on. 4. The Claimant was questioned about her use of staff purchases/discounts and returns. The Claimant explained that she had used her staff discount to purchase gifts for family and friends, which was permitted. The Claimant was questioned about a specific purchase relating to a jacket purchased in December, 2015. She explained that she had returned the Jacket in line with store policies, i.e. placed it in a transfer box to be returned to the factory store for processing. The Claimant was questioned about the price on the Jacket. The Claimant explained that in the Respondent Store she utilised Block Pricing, as she had been instructed to, to discount samples as they were not given (the tills were not installed with) Recommended Retail Prices (“RRP”). The Claimant was honest and felt she had sufficiently answered the questions Mr.JK had put to her. She was surprised when she was told she was still on paid suspension whilst an investigation would be carried out, she burst into tears and told him that “she had done nothing wrong”. The Claimant was told that if that was the case “she could return to work in a few days and not to contact any member of staff during the investigation and that she may be invited to an investigation meeting”. Following the meeting the Claimant sat crying in her car for 2 hours. She left a voicemail for Mrs JL who works in the Employers HR Department. Later that night the Claimant suffered an anxiety attack. The following day, the 10th February, 2016 day she attended her G.P and was prescribed tablets. JL returned the Claimant’s call and the Claimant requested that the points raised in the meeting with Mr. JK be sent to her in writing. The Claimant was told by Mrs. JL that no formal action was being taken and that this was just a fact finding investigation. Again, the Claimant requested these points in writing and was assured that no formal action was being taken and that the investigation may or may not lead to disciplinary action. On the 11th February, 2016 the Claimant spoke with Mrs.JL, who invited her to an investigation meeting on the 17th February, 2016. The Claimant enquired as to whether anyone from HR would be present and she was told there would not but that a note taker may be present. The Claimant received an email from Mrs JL inviting her to the investigation meeting to which she replied by return accepting the invitation. Attached to the email of the 11th February, 2016 was a letter of the same date from Mrs.JL referring to the phone call and containing details of allegations being investigated. These allegations were broadly in line with those which the Claimant had answered during her meeting of the 9th February, 2016. However, Mrs. JL in her letter dated 11th February, 2016 now referred to the allegations as a serious matter, an upgrade from an informal fact finding investigation she had spoken of on the 10th February, the previous day. The letter stated that the Claimant “would be given any relevant information from the investigations to review prior to any formal meeting”. On the 14th February 2016, the Claimant requested (via email) whether she could bring Ms.XY as a witness to this investigation. Mrs.JL emailed the following day confirming this was in order. The investigation meeting took place in Leinster at 11a.m. on the 17th February, 2016 and lasted approximately 2 hours (including 2 breaks). On behalf of the Employer Mr.JK was present and Mr.BX (Store Manager from Cheshire, England), Ms.AX was present as a witness/note taker on behalf of the Claimant. Broadly speaking those issues raised in the meeting on the 9th of February 2016 were revisited, they related to; 1. Irregularities with Payroll returns, re hours; 2. The Claimants in store purchases and use of discounts; 3. Returns processed by the Claimant; 4. Banking procedures utilise; 5. The Claimants conduct within the branch. The Claimant answered the above allegations put to her as follows; 1. The Claimant was questioned about the timesheet dated 18th to the 24th January, 2016 and why the rota read UK Mon – Fri. She explained that upon commencing her employment with the Employer she had been instructed to manage her own hours and that she should not work over her 40 hour week as per her Contract of Employment. The Claimant explained that she was one of three salaried staff working at the store and that was responsible for filling in the time sheets for the salaried members of staff. She explained that it was not her practice to put in the exact hours worked and that she permitted salaried staff to work over 8 hours per day and then work shorter days in lieu of same. She explained that she took a flexible approach but ensured that all staff worked their contractually required hours over the course of each week. She explained that she had been instructed to run the store autonomously and that this was the first time it had been flagged as an issue to her. The Claimant was often required to travel to her Employers Headquarters in England as part of her job, approximately every 3 months. The Claimant explained that she had been instructed by a long standing manager RX that travelling hours should be included as part of her contracted 40 hour work week. The Claimant explained that she had worked in the Leinster store on Monday the 18th January 2016 and had gone directly from work to the airport that evening to catch a flight to England, where she worked the remainder of her hours, the Claimant returned to Ireland late on Thursday night, the 21st January, 2016. The Claimant explained that she had instructed her Assistant Manager to fill in the timesheet and email it to payroll for the period 18th -24th January and she included her time in transit as part of her 40 hour week. 2. The Claimant was then questioned about her in store purchases and use of staff discount, she was asked by Mr.JK how much they were allowed to spend. She answered £1,000.00 per year and pointed out that if she had overspent she would be on the “Stop List” circulated weekly by her Employer’s financial department. Staff are entitled to a 60% discount on full price items and 40 % discount from Sale price items. The Claimant was questioned about two particular receipts, she requested more information as to which receipts her Employer was referring to but this information was not given to her. The Claimant repeated her position as she had done in her meeting on the 9th February,2016 i.e. that she used Block Pricing (as instructed) as they did not have RRP’s on the till’s. The Claimant was questioned about her store’s policy for when sales were incorrectly put through on the till. The Claimant explained that staff were given two options, the first being that the member of staff would pay the difference in the mistake or alternatively the member of staff would declare the error on the banking sheet and a recorded conversation would be put on their file. During the course of the Claimants 19 month employment she estimated that this happened on 4 occasions and the members of staff in question chose the option to pay the difference. The Claimant explained that this was normal practice in the stores where she had previously worked. There is nothing in the Company Policy or Handbook to cover this eventuality, the Claimant explained that she felt she being prudent in her actions. 3. The Claimant was questioned about the return of the Jacket referred to in the meeting of the 9th February2016. She repeated her position and told her Employer that it had been returned to the factory store as per policy and that the records would confirm this. 4. The Claimant repeated her position in relation to the banking discrepancies as she had done in her meeting on the 9th February, 2016. The Claimant was also questioned about the presence of a bag of coins in the safe. The Claimant explained that this bag was made up of change left by customers when they overpaid at the till. The Claimant estimates there was no more than €13.00 in this bag collected during her 19 months as Store Manager. The Claimant explained that she had used this practice while in previous employment and it was for the purpose of transparency. There is nothing in the Company Policy or Handbook to cover this eventuality, the Claimant explained that she felt she was being prudent in her actions. 5. The Claimant was questioned about her conduct in store. Her Employer made reference to several separate incidents but when the Claimant requested detail in relation to the specifics of these incidents (such as dates, times etc.) but none was given. The Claimant was shown several photos, one from a book which the Claimant utilised as part of an incentive scheme for employees which she had personally funded and ran in order to motivate employees, she explained this and the scheme to her Employer. The Claimant attempted to explain each of the matters raised but at each instance her Employer was talking over her and not listening to her answers. The Claimant felt intimated and became very upset at this point. The Claimants Employer asked “if there were any other surprises in store for him and that the investigation would be completed by Friday but that it did not look good for her”. He told her that “he could not put her back in the store as he could not trust her”, the Claimant found this very distressing. The Claimant was responsible for 13/15 members of staff within the store. She felt she had a very good relationship with all members of staff and that there was a very positive and open team dynamic. The Claimant ran various incentives in store to encourage staff members, all of these incentives were funded personally by the Claimant and designed to encourage a positive atmosphere and drive sales for her Employer. The Claimant had never received any complaint from a member of staff or management during her 19 months as Store Manager. The Claimant was asked to sign the notes taken by Mr.BX but refused to do so as they were too vague and general and did not convey what was actually said in the meeting. The Claimant was told that she would be informed of the outcome of the investigation by Friday the 19th February, 2016. The Claimant was in a state of shock following the meeting and in particular with regard to Mr.JK’s. She felt that the outcome of the meeting had already been set in stone and she had no option left but to hand in her notice in order to preserve her future employment prospects and to keep her dignity intact, rather than being fired. The Claimant emailed her Employer her 1 month’s Notice as per her Contract. The following day Mr.JK rang the Claimant and said that if the Claimant was prepared to considerably shorten her notice that he would drop the investigation and that if she did not the outcome would probably be one of Gross Misconduct. He told the Claimant to ring him with her answer that afternoon before the he flew back to England. Mr.JK also told the Claimant that he would be speaking to XX Retail to ascertain whether her behaviour had been in line with other Store Managers within the Village. The Claimant took this as a veiled threat and that if she did not shorten her notice, Mr.JK would inform XX Retail about the investigation and that this in turn would damage any prospects she had of procuring future employment within the Village. Immediately, following this conversation the Claimant suffered another anxiety attack. The Claimant made attended her G.P. and was certified as unfit to work for one month. Since being constructively dismissed the Claimant has gained alternative employment. She recommenced employment as a retail Manager on the 21st March, 2016. Unfortunately, the Claimant only lasted 3 days before suffering another anxiety attack, she has been advised by her G.P. feel that it is too early to return to work and that she has not recovered from the upset and trauma caused by her constructive dismissal. The Claimant is currently in receipt of Social Welfare and is under the ongoing care of her G.P.

must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or

complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during

the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues

concerned, taking into account any representations made by, or on behalf of, the employee

and any other relevant or appropriate evidence, factors or circumstances.

the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”