ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002684
Parties:
Complainant
Respondent
Anonymised Parties
Support Manager
DIY Retail Store
Representatives
John Dunne McInnes Dunne Solicitors
Tiernan Doherty and Judy McNamara IBEC
Complaint(s):
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-00003704-001
06/04/2016
Date of Adjudication Hearing: 18/11/2016 and 06/03/2017
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Location of Hearing: The Mullingar Park Hotel
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was an assistant /support manager with the Respondent. She commenced working on the 22nd of August 2005. She earned circa €34,800.00 per annum, paid on a monthly basis. She worked forty five hours a week.
The Complainant was dismissed on the grounds of gross misconduct, effective on the 12th of October 2015 following an investigation and disciplinary process which took place over a number of months.
For a period of this time, the Complainant was on sick leave and the disciplinary process was suspended.
On the 28th of April 2015 she was suspended on full pay by the acting store manager pending an investigation of an “alleged unauthorised use of company property or merchandise and breach of store in use policy by borrowing company property for personal use”.
At the time of suspension, a pre-prepared statement was read to the Complainant which set out “suspension is not a disciplinary act and does not imply that there has been any misconduct, nor that you are guilty of the allegations made against you. It is a neutral act enabling you to be released from your duties while receiving full pay, pending a full investigation into the allegations made”…….
An investigation into this allegation commenced on the 28th of April 2015. An investigation meeting was held on the 29th of April 2015. The Complainant was accompanied by a friend.
On the 1st of May 2015 the Respondent wrote to the Complainant to inform her that additional allegations had come to light mainly:
“Unauthorised removal of our property, cash or merchandise, namely borrowing cash from tills and cash office
Deliberate falsification of company records and information in relation to the above
Serious breach of company procedures leading to a loss of trust and confidence. “
A further investigation meeting was held on the 8th of May 2015. The Complainant was accompanied by a colleague representative. During the meeting she admitted that she did ask a member of staff to give €100 to her husband from the customer service till and put a note / IOU to confirm that the money was for her. This event took place on the 25th March 2015 and the funds were replaced on the 27th March 2015. The Complainant further offered her resignation subject to terms which was not accepted by the investigator. She was asked to see the process through or contact HR directly regarding same.
The Complainant was invited to a disciplinary hearing by way of letter 13th of May 2015. This meeting was postponed pending the Complainant’s absence from work due to illness.
The disciplinary hearing took place on the 17th of September 2015. An area manager was the decision maker. The outcome of the disciplinary hearing was conveyed to the Complainant by letter 12th of October 2015. The Complainant was summarily dismissed on the following grounds:
Unauthorised removal of our property, cash or merchandise, namely borrowing cash from the tills and cash office
a) Based on all the facts, it has been proven to me that you removed the [redacted] for your personal use without prior authorisation. You claim this was the normal procedure. However having clarified this point with your previous store manager [redacted] I believe this was not normal process. Also the actions of store colleagues in reporting these issues demonstrates to me this was not normal procedure.
b) Also I note you were involved in rolling out the store in use policy to all colleagues in relation to “borrowing stock” from stores and therefore should have understood the process for this. However you made no attempt to seek permission from your store manager before taking this or authorising other colleagues to take the [redacted].
c) Also during the course of the investigation and disciplinary meeting you admitted borrowing money from tills and store cash office for various reasons. This included authorising a colleague to issue cash to your husband on your behalf, contrary to any cash, policy or procedure.
Deliberate falsification of company records and information in relation to the above
a) You admitted at an investigation and disciplinary meetings you had removed and authorised removal of cash contrary to our procedures. You also admitted falsifying documents and inserting “IOU” slips to allow cash safe to balance. You instructed a store colleague to add a note to account for the €100 discrepancy.
The Complainant was given the right to appeal this decision and she did so on the 14th of October 2015. The Complainant appealed both of the findings of the disciplinary hearing and the disproportionate nature of the sanction imposed.
An appeal hearing was held on the 23rd of October 2015. The outcome of the appeal hearing was confirmed to the Complainant by letter 10th of November 2015 which set out the grounds of the Complainant’s appeal. The decision maker set out that having considered her appeal very carefully and taking into account her representation statements, it was his decision to uphold the original sanction. He went on to state that he did “not feel that the unauthorised removal of property, cash or merchandise, namely borrowing cash from tills and deliberate falsification of company records are not minor offences. They combined to an irreparable breach of trust and confidence in her as a member of the store management team and its business”.
Summary of Complainant’s Case:
The Complainant’s case can be summarised as follows:
(1) The staff had been actively encouraged by management to take the [redacted] machine home to try them out.
(2) at no time did the Complainant attempt to hide the fact she was borrowing the [redacted]
(3) it was unusual circumstances that she borrowed EUR 100 for a personal expense
(4) there was an established practice of staff borrowing money from the customer service desk for business expenses and personal reasons
(5) The Respondent suffered no loss as a result of the Complainant’s actions
(6) She refutes that she falsified records or any information
(7) The Respondent deliberately used the words “falsification” to make the charge appear more serious than warranted without any evidence to support it
(8) The sanction of dismissal was grossly disproportionate having regard to the nature of alleged offences committed
(9) The decision to dismiss is linked to a staff restructuring process that was underway at the store
Summary of Respondent’s Case:
The Respondent’s case is that
The Complainant was an assistant store manager and had rolled out the “in store use policy” regarding the appropriate use of stock on the premises. The policy made clear to employees that any such removal of stock “without payment or without due regard for process will be deemed as misconduct and could lead to disciplinary action up to and including dismissal”.
At the investigation meeting the Complainant admitted that she had removed the machine from the store but she claimed that she did not believe it was wrong to do so. The Complainant confirmed that she understood the store in use policy and that she had been previously been given a copy of same along with the company disciplinary policy.
.At the second investigation meeting the Complainant admitted that she had phoned a colleague and instructed her to give €100.00 to her husband. The Complainant also admitted that she was fully aware that there was no company process in place at the time authorising staff to remove cash from the till and repay it at a later stage. The Complainant admitted that she realised that she should have not acted as she had. .The Complainant was an assistant manager and it was unacceptable for her to misunderstand a company policy and give permission to a subordinate to use stock in clear breach of this policy. Also to instruct a subordinate to pay €100.00 to her husband from the till was unacceptable. The Respondent’s case is that they had to act on foot of these issues and the disciplinary procedure was carried out correctly.
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 taken careful account of the evidence both oral and written made on behalf of the Complainant and the Respondent.
The evidence provided by the Respondent was to having in place a store use policy, an investigation procedure, a suspension on full pay pending a full investigation policy, a disciplinary procedure and an appeal process.
I am required to determine if the Respondent has demonstrated that there were substantial grounds justifying the dismissal on the objective standard of a reasonable employer. It’s a matter for the Respondent to show that there were substantial grounds justifying the dismissal. The burden of proof is on the Respondent. The question I have to address is whether the decision to dismiss was within the range of reasonable responses of a reasonable employer to the conduct of the Complainant concerned.
The Complainant referred to the cases of Hennessy –v- Read and Write Shop Limited UD192/1978 and Firzelle –v- New Ross Credit Union Limited 1997 IEHC 137 and Kilsaran Concrete –v Vet UD11/2016 in reliance of her position.
The principles of natural justice must be applied by the Respondent in the policies and procedures they apply to the Complainant’s employment and dismissal.
This requires that fair procedures are applied, not perfect procedures. As quoted by Mr. Justice Barrett in Boyle –v- An Post [2015] IEHC 589 “fairness is ever required, perfection is unattainable”.
The general facts of the case were agreed by both sides.
Looking at the steps involved in the disciplinary process applied to the Complainant, I make the following findings:
The Respondent submitted that its suspension of the Complainant was necessary to facilitate proper conduct of the investigation. This type of suspension is commonly described as a “holding suspension”.
The disciplinary procedure contained the following reference:
“suspension will full pay is not a disciplinary act and does not imply that there has been any misconduct, nor that you are guilty of the allegations made against you. It is a neutral act enabling you to be released from your duties while receiving full pay, pending a full investigation into the allegations made”
I find that the Complainant’s suspension on the basis of the knowledge that her manager had on the 28th of April 2015 (which related only to the borrowing of the machine only) and considering her position in the organisation, was somewhat trigger happy. Her manager had only been store manager for three weeks before the suspension. I accept that the store manager spoke with HR and expressed his preference for the Complainant to be suspended. His view was that he was following company policy. I note that the manager admitted that this was the first time he was in this situation and he had received no training for it. However, I do find that taking the keys from the Complainant and walking her out of the shop was heavy handed in the circumstances that the Complainant was suspected of at the time.
SI 146 of 2000 sets out the general principle that
“procedures should be reviewed and updated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practise generally”.
I accept that in his decision of The Governor and Company of Bank of Ireland –v- James Reilly [2015] IEHC 241, Mr. Justice Noonan extended the requirements for employers as regards suspensions by introducing a requirement of necessity in the decision to suspend. I appreciate that the disciplinary procedure provided for a suspension pending an investigation. However, since 2015 there is the requirement for the Respondent to apply a test of necessity in making the decision to suspend. I find that there was no consideration of whether it was necessary to suspend the Complainant in the decision to suspend her and as such is in breach of natural justice and fair procedures.
I am bound by that decision of Mr. Justice Noonan in Bank of Ireland –v- James Reilly which held that suspension should not be undertaken lightly and only after full consideration of the necessity for it. Suspension of an employee will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct.
In this case, I can find no justification for the suspension. The acting manager was new to the store and appears only to have been in his position for up to three weeks. The Complainant would have been his second in command. I find that if she had been aware of her new managers zero tolerance attitude on the store use policy, she would not have taken the machine.
I also find that the suspension was unnecessary in order to proceed with the disciplinary process. The Respondent’s loss prevention manager was on site taking statements on the date of suspension and the investigation was well under way.
I further find that the decision to suspend should be applied equally to all staff members concerned. The Complainant raised issues with regard to enforcement of the store in use policy. The Complainant’s colleague who borrowed the machine with the Complainant’s sanction was not disciplined. To suspend one member but not another whether the allegations are the same (albeit the staff were at different levels in the organisation) taints the suspension process.
I accept the Respondent’s contention that in an undisclosed date in 2014 the “in store use policy” was rolled out with the explicit statement that no stock was permitted to be taken from the premises for any reason and that employees were prohibited from “borrowing” stock from the store. However, there is a requirement for the Respondent to show that the policy was not meaningless, but that was notified and applied in the workplace.
There is a dispute between the Complainant and her manager as to his knowledge of her use of the machine prior to the 28th of April 2015.
I don’t accept the Complainants suggestion that she did not believe that the store use policy was to apply to the machine in question, as customers leased it from an independent company rather than the Respondent.
However, there is no evidence of any restating by the Respondent of its store use policy subsequent to its introduction in 2014 apart from the post-dismissal direction by the store manager to a co-worker regarding a piece of equipment that was not in sale or to be rented to customers. For the Respondent to have a zero-tolerance approach to breaches of the policy, I believe it should have made this known to the Complainant and her colleagues.
The Respondent’s disciplinary procedure contained the following terms:
“you will be afforded the opportunity to have witnesses interviewed by the investigator/decision maker provided they are relevant. Depending on the nature of the issue i.e. allegation has been made from a fellow colleague, you make see the opportunity to cross examine these allegations”
SI 147 of 2000 further contains “the principles of natural justice and fair procedures …….require that the complainant concerned be allowed to confront or question witnesses”.
The Complainant relied as justification for her actions on being authorised to do so by the previous store manager. She made reference to this at the first investigation meeting on the 29th of April 2015. The statement taken from her previous store manager was by the decision maker on the 6th of October 2015. While I accept that a copy of the statement was provided to the Complainant on the 12th October 2015 with the decision to terminate her employment, she was not given an opportunity to comment on this statement or seek to cross examine her previous store manager before the disciplinary hearing or the decision to terminate her employment was made. While I accept what took place was in line with the disciplinary procedure and the Complainant made no reference to disagreeing with the statement from her previous manager in her appeal letter of the 14th of October 2015; at the appeal hearing on the 23rd of October 2015 the Complainant did have comments and queries about the statement. Although she didn’t specifically seek to have the store manager at the appeal hearing to facilitate cross-examination, I find that it would have been a fairer process if his statement had been provided to the complainant before the disciplinary hearing took place on the 17th September 2015 to allow her to consider the contents of same.
While I acknowledge that the Complainant instructed a colleague to leave an IOU in the customer service till and to provide €100.00 in cash to her husband, I don’t accept that this was deliberate falsification of company records and information. The Complainant’s representative went to great efforts to show that the actions of the Complainant in inserting the IOU could not by the accepted definition of the words, be considered a deliberate falsification of company records and information. I don’t however accept that it was an innocuous incident as the Complainant’s representative proposed.
It was submitted on behalf of the Respondent that this behaviour was unacceptable and it must have taken disciplinary action on foot of same
The question for me to answer was is as to the proportionality of the sanction. Does the punishment fit the crime? Is the reaction of the Respondent and the sanction imposed within a range of reasonable responsess
In this case while I accept it is acceptable for the Respondent to take action when a member of the management team “borrows” a machine from the store in breach of a policy and money from the customer service till, I do accept that the Respondent over-gilded what the Complainant admitted in the investigation and disciplinary meetings to fit within the definitions set out in its disciplinary procedure.
I accept that the actions of the Complainant would have led to a loss of trust and confidence by the Respondent in her as she was a member of the store management team. For that reason I hold that the Complainant contributed to her own dismissal and I am reducing her award by 20%.
I find that the Complainant’s dismissal was unfair pursuant to Section 6(7) (a) of the Unfair Dismissals Act 1977 as amended
I accept the Complainant’s evidence that she has been unable to gain employment from the date of her being fit to work in February 2016. Having considered all the evidence, I award the Complainant the sum of €26,000.00 as I consider this to be fair and equitable in the circumstances.
Dated: 23rd May 2017
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Unfair dismissal, suspension, disproportionate