ADJ-00005746

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005746

Parties: 

Complaints:

Date of Adjudication Hearing: 20/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act, 1977 – 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints

Background

The Complainant was employed from 14^th November 2005 until the employment was terminated, without notice on 5^th May 20216. The Complainant was paid €5500.00 gross per month, which included a monthly car allowance of €666.67, and he worked 48 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 3^rd November 2016 alleging he had been unfairly dismissed by the Respondent and a further complaint in relation to payment of his Minimum Notice entitlements.

SUMMARY OF RESPONDENT’S POSITION

The Complainant was a senior member of the management team. Matters of concern first came to light in 2015 when a named HR Manager commenced working in the Store where the Complainant was Store Manager in early 2015. She alerted Head Office who investigated the matter and found there was cause for concern and measures were taken to rectify the situation. The once amicable relationship between the HR Manager and the Complainant became strained. The HR Manager became aware that another Manager was having a personal relationship with a Sales Assistant and the HR Manager urged the Complainant to seek advice in relation to personal relationships although the Respondent does not have any written policy concerning personal relationships between employees. The Respondent stated the Complainant did not do anything about this situation even though he had been aware of it for some time. Later the HR Manager became aware that the personal assistant was pregnant but still the Complainant did not do anything about the issue. Following further discussion between the HR Manager and the Complainant in December 2015 the Complainant did seek the advice of the Regional Manager. Following this interactions between the HR Manager and the Complainant deteriorated.

The Respondent Company has clear guidelines in relation to surplus or deficit cash in a cashier’s bag. This situation can arise from miscounting a customer’s change or forgetting to give a customer his/her cashback. Save in very limited circumstances can cash be taken from a cash bag to balance out a bag that may be in deficit. In February 2016 the Respondent became aware concerning a surplus and a deficit in two Cashier bags. Another named Manager in the Store instructed the cash office to balance the bags. This ensured that the employee with the cash in deficit would not be subject to a performance management meeting. This was in breach of cash handling procedures of the Company. The HR Manager brought this to the attention of the Complainant and she also brought to his attention another problem concerning this Store Manager and the Personal Assistant who would unilaterally change their working hours so that they could start and finish work at the same time. The Complainant informed the Store Manager that he would deal with both situations.

On 16^th April 2016 the Complainant notified the Respondent’s Head Office concerning a serious incident involving the HR Manager concerning the deliberate changing of the cash lift records on the computer system in breach of procedures. This was investigated and concluded the HR Manager had done nothing wrong.

The Director of Operations, Named, met with the Complainant on 21^st April 2016 in relation to the cash handling issue. The Respondent asserted that the Complainant had lied to the Director of Operations when he informed him that he had spoken to the Store Manager involved and that he had issued this Manager with a verbal warning in relation to the cash handling issue. The Director also discussed the personal relationship between this Manager and a sales assistant and what he had done about the situation. The Complainant again lied when he said that he had been assured by the Regional Manager that this Manager would be moved to another store. The Director then raised further issues of concern involving his management of the store, including changing the hours of full time employees and his management of a staff member with a poor attendance record. The Complainant emailed the Director with a report on the cash handling issue.

The Regional Manager then commenced an investigation into the cash handling issue with the Manager concerned and discovered during this investigation that the Complainant had not in fact conducted an investigation into the issue and no disciplinary sanction had been imposed on the Manager.

The Director of Operations decided that the issues he had discovered concerning the Complainant’s failure to properly manage his Store were so serious that immediate dismissal was warranted and the Complainant was dismissed on 5^th May 2016.

The Respondent confirmed that it did not engage its normal disciplinary procedures in respect of the Complainant but argued that the dismissal of the Complainant fell into the narrow band of cases where instant dismissal was warranted without the requirement to engage in any form of process. They identified a number of English cases in support of their contention and also noted the decision of the Supreme Court in Berbert v Dunnes Stores Limited ( concerning the mutual obligation of trust and confidence).

The Respondent was requested to forward a number of emails between named Parties as raised at the Hearing. This was provided on 2^nd October 2017 and copied to the other Party

SUMMARY OF COMPLAINANT’S POSITION

The Complainant stated that he had contacted the Regional Manager as instructed on 19^th April 2016 in relation to seeking her advice concerning a personal relationship between the Assistant Store Manager and a sales assistant. He had been on annual leave the previous two weeks. The Director of Operations did an inspection in the Store managed by the Complainant and was not happy . He arranged to return on 21^st April 2016 for a meeting with the Complainant. This meeting followed a previous meeting between the Director of Operations and the named HR Manager during which the HR Manager had raised some concerns concerning the Complainant’s management of his Store. The Complainant also asserted that the HR Manager had sent an email on 22^nd April at 10.11 am to the Director. (The Respondent was requested to forward this email but did not do so in the emails submitted on 2^nd October 2017 stating that despite all their efforts they were unable to locate this). There are no Notes/Minutes of the meeting between the Complainant and the Director. The Complainant was not informed in advance of the issues to be discussed nor was he informed that it was a Disciplinary meeting with consequences.

The Director raised five issues at the meeting on 21^st April 2016 – (1) Cash Bag issue in February 2016 when the Complainant was on a day off. He stated he did investigate the issue and issued a verbal warning to the Assistant Store Manager but confirmed he did not make a note of this on the Asst Store Manager’s File (2) Staff Hours of Work. He stated that he was facilitating Fixed-Term Employees not having to work late evenings. He had a staff budget therefore Fixed-Term Employees worked the early 6am shift while Part-Time Employees worked the late shift. (3) Failure to discipline an employee for attendance. The Complainant stated that this employee had been on extended sick leave and Bereavement Leave and had medical issues and he confirmed he did give her some leeway because of her issues. (4) Personal Relationship involving the Assistant Store Manager and a sales assistant. The Complainant stated that he did inform the Regional Manager who then sought the advice of the Director of Operations in October 2015 and in November the Complainant sought direction from the Regional Manager. He had no authority to move an employee from one Store to another. He contacted HR in March 2016 and he was informed that the Assistant Store Manager was to be moved. (5) Pregnancy of the Sales Assistant. The Complainant stated that this was not his responsibility as Store Manager. Following this meeting the Complainant forwarded a full report to the Director on 2^nd May 2016 in relation to the cash discrepancy.

The Complainant met with the Regional Manager on 29^th April 2016 . The only notes available from this meeting are those sent in an email dated 29^th April 2016 from the Regional Manager to the Director of Operations. The Regional Manager phoned the Director of Operations on 3^rd May 2016 to have all involved with the cash incident in February 2016 attend a meeting on 4^th May 2016. The Complainant attended with the Regional Manager but the Director did not attend. He was informed at this meeting by the Regional Manager that the Director of Operations would meet with him on 5^th May 2016. He was not informed of the purpose of this meeting. The Complainant met with the Director of Operations at 5pm and he was informed “Look for another job”. This was a meeting that lasted 10 minutes during which he was informed that he had failed to deal with the cash issue correctly and that he had failed in relation to staff working hours. He was also informed there were new complaints namely that he was leaving early on Saturdays and the Complainant confirmed that he finished work at 4pm every second Saturday. He was also informed that he was taking too many Sundays and Mondays off and he confirmed that he was contracted to work 5 days a week over 48 hours a week. The Complainant sought a reason from the Director as to why he was being dismissed. He was informed that the reason was his lack of management of his Store and the Director was not happy with him. The Director walked him to the door and escorted him off the premises.

The Complainant was not provided with a letter of dismissal nor was he afforded a right of appeal of the dismissal. His Solicitor wrote to the Respondent by letter dated 27^th July 2016 stating the Complainant had not been informed in writing of the reasons for his dismissal and therefore could not invoke the internal appeals procedure.

The Complainant informed the Hearing that in the absence of a letter of dismissal he could not claim Jobseekers Benefit from the Department of Social Protection. The Complainant confirmed at the Hearing that he had commenced employment on 10^th October 2016 where he is paid €3349.00 net every four weeks x 13 payments over the year. The Complainant also confirmed that he had been provided with a written statement of his Terms and Conditions of Employment including the Employee Handbook comprising the Grievance and Disciplinary Procedures of the Company. The remedy sought by the Complainant was compensation.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence and a written submission by the Respondent and also including the information provided post the Hearing on 2^nd October 2017, some nearly 3 months post the Hearing date, I find as follows:

Firstly Section 6(7)(b) of the Act provides as follows: 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 of the Labour Court) as the case may be, considers it appropriate to do so (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) of Section 7(2) of this Act. “.

Section 7(2) of the Act provides as follows – (d) “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 subsection (1) of Section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.”

Section 14 (4) of the Act provides that an employer shall if so requested furnish to the employee within 14 days of the request particulars in writing of the principal grounds of the dismissal.
S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets down the procedures to be followed by an Employer in the context of a dismissal. This Code of Practice was approved by the then Minister, Ms Harney on26th May 2000. The evidence from both parties confirmed – The Complainant was not informed in writing prior to the meetings held with the Director on either April 2016 or 5th May 2016 nor was he informed of the basis of the meeting with the Regional Manager held on 4th May 2016. – The Complainant was not informed if any of these meetings were investigation or Disciplinary Meetings – The Complainant was not afforded a right to be accompanied at any of these meetings – The Complainant was not informed in writing of the reasons for his dismissal as he had requested at the meeting held with the Director of Operations on 5th May 2016. – The Complainant was not afforded a right of appeal contrary to all fair procedures and natural justice and contract to the Disciplinary Procedures of the Company.

I have examined in detail the emails provided to me post the Hearing and note with some concern the failure of the Respondent to keep an email dated 16^th April 2016 from the Regional Manager to the Director of Operations – an email dated 22^nd April from the Regional Manager to the Director, all of which would be relevant to any investigation and Disciplinary Meetings.

The Regional Manager who attended the Hearing on 20^th July 2-017 as a Witness for the Respondent, was in fact involved in the whole process that lead to the dismissal. It was confirmed at the Hearing the Respondent had not complied with the Disciplinary Procedures of the Company and that the Complainant had been summarily dismissed without adherence to these procedures.

The Respondent also confirmed at the Hearing that the Complainant had never been subject to any previous disciplinary sanction during the course of his employment with the Respondent since November 2005.

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.

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.

Unfair Dismissals Act, 1977 – 2015 CA-0000

In accordance with Section 8 (1) (c) of the Act I find that the Respondent Company summarily dismissed the Complainant without fair procedures and natural justice in breach of this Act and in clear breach of S.I. 146/2000. I declare the complaint of unfair dismissal is well founded. I direct the Respondent to pay the Complainant compensation of €29,000.00 within 42 days of the date of this Division. Both Parties confirmed that the Complainant was paid an annual salary of €58,000.00 gross together with a car allowance of €8000.00 per annum. The Complainant was paid €3549.14 net per month per a monthly payslip provided at the Hearing. The Complainant stated that he is paid €3349.00 net in his current employment paid every four weeks and paid 13 times a year. Accordingly, I have estimated the loss at €29,000.00.

Minimum Notice and Terms of Employment Act, 1973 – 2015 CA-0000

I find that the Complainant was entitled to payment of Minimum Notice of 6 weeks. I do not accept the argument of the Respondent that the dismissal of the Complainant falls within a limited category of cases where instant dismissal is warranted without the requirement to engage in any form of process. I direct the Respondent to pay the Complainant his minimum notice entitlements of €5323.71, net, within 42 days of the date of this Decision.

Dated:   20 November 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: