ADJ-00002793

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002793

Parties:

	Complainant	Respondent
Anonymised Parties	A Security Officer	A Retail Company

Complaint(s)/Dispute(s) for Resolution:

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-00003808-001	13/04/2016

Date of Adjudication Hearing: 20/03/2017

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

Following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant worked as a security officer with the Respondent at their retail premises in a midlands town. He started working there in 2000 and was dismissed from his employment on 11 November 2015. The reason for his dismissal was “theft or fraud or attempted theft and breach of Company Honesty Policy.”

The uncontested facts of the case were that on 15 July 2015, the Complainant left the Respondent’s premises at the end of an evening shift, with products sold in the Respondents’ premises, which had not been paid for. This fact was not disputed by the Complainant.

Summary of Complainant’s Case:

The Complainant’s case was based on two points alone; one procedural and one substantive.

The procedural point is that the Respondent witness, who first reported her suspicion that the Complainant had stolen goods, was the same person who subsequently dealt with the investigation.

The substantive point was that the failure to accept the explanation given by the Complainant, which was supported by medical evidence was unfair and the penalty in light of his clean disciplinary record was disproportionate.

The Complainant admitted taking the goods at the first opportunity, he explained that he had forgotten to pay for the goods and medical evidence that was subsequently obtained revealed that the medication that the Complainant was taking and clinical depression that the Complainant suffered from , could result in forgetfulness, as had occurred.

The Complainant submitted that in light of his cooperation and his clean disciplinary record that a dismissal was a disproportionate penalty.

He also gave evidence that he was in a rush leaving on that day because he had to pick up his teenage son who was waiting for him in town.

Summary of Respondent’s Case:

The Respondent case was as follows:

The Complainant admitted taking the goods; furthermore he also admitted taking goods on other occasions and forgetting to pay.
In light of this, any procedural point is moot and the case is confined to an analysis of whether the Respondent’s decision to not accept his explanation, was reasonable.
The case is narrowed to determine whether the Complainant’s explanation of forgetfulness was a reasonable explanation for what he did.
In the opinion of the manager (who dismissed the Complainant) the medical explanation of forgetfulness might have explained a once off event, but it explained neither the way in which he took the goods ( which was that he picked up a number of goods over the course of an evening shift, moved them into the security office, took a shopping bag from the counter at the till and put the goods into this bag, in the security office and then left with the items at the end of the shift.) Nor did it explain the fact that he admitted forgetting to pay on other occasions.
The Respondent’s medical advisor opined that a once off event could be explained by the medical condition and the medication, but not a number of occasions.
It was more reasonable for the Respondent to believe that the Complainant intended to take the goods without paying, even taking the medical evidence into account.
The Respondent was aware that the Complainant was going through marriage difficulties and was suffering stress from that but this was not a justification for stealing from the Respondent.

Findings and Conclusions:

The salient facts in this case are not in dispute.

The Complainant admits taking goods from the Respondent without paying. Fair procedure points when the allegation in fact is admitted, renders the procedural point to be moot.

Medical evidence from both Respondent and Complainant agree that his condition for depression and anxiety and his medication could have the effect of causing forgetfulness, however the Respondent’s doctor stated that this might be an explanation for a once off event, not a number of such events.

The law in relation to dismissals arising out of theft, the determining test is whether it was reasonable for the Respondent to believe that the Complainant stole. If that has been shown then, it is a proportionate defence to dismiss because the relationship of trust is broken.

So the question in this case is whether it was reasonable for the Respondent to believe that the Complainant stole the goods, rather than unintentionally forgot to pay.

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.

Based on the evidence both oral and documentary at the hearing I find that it was within a band of reasonable response for the Respondents to form the opinion that the Complainant intended to take the goods without paying, rather than he forgot to pay.

The reasons that I rely on for this decision are as follows:

It required several steps of taking goods and bringing them into the security office for the Complainant to do what he did. In this way the taking of goods took place over a period of time and was not a singular event.
At one point the Complainant went to the till to take a shopping bag, this again was another opportunity that he had to pay.
Having collected the goods over the course of the shift and leaving them on separate occasions into the security office, I find it implausible that the Complainant, each time, would have forgotten to pay for the goods. As he lifted the goods from the shelves, as he brought them into the security office (itself unorthodox, as, in doing do he was taking the goods off the shop floor, having not paid for them), as he put the goods into the shopping bag, as he left the office with the bag of shopping, as he left the premises and put the shopping into his car, at each stage, he would have been aware of the fact that the goods were not yet paid for.
If this was a once off event, I might be persuaded by the medical evidence that his depression and medication caused him to forget once, but there was no evidence to suggest that the medication would have had an ongoing effect or an effect over a period of time.
Given the evidence and the fact that the Complainant admitted to other occasions of not paying for goods, it was not unreasonable, for the Respondent to consider that the taking of the goods without paying, was deliberate.
For these reasons I accept that the finding of misconduct and the reasons relied on to dismiss the Complainant were reasonable. Therefore this claim fails.

Dated: 09 May 2017

Workplace Relations Commission Adjudication Officer: Emile Daly

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