ADJ-00004704

Complainant

Respondent

Parties

A Receptionist

A Hairdressing Chain

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-00006700-001

30/08/2016

The Complainant acknowledged that she had erred in relation to issues concerning the computerised appointments system and in relation to the Family Member discount scheme. However the reaction of the Respondent Employer was completely disproportionate. The total value lost to the Respondent was approximately €125 Euro.

The Complainant was dismissed because she had on going interpersonal issues with her Manager and the computerised appointments system errors were a convenient excuse to get rid of her. She had requested a meeting, in February 2016, with HR to discuss a possible Bullying Complaint against her Manager.

The investigation and disciplinary process was overshadowed by this and the dismissal in March 2016 was a completely disproportionate and unjustified action by the Respondent.

The initial origins of the Complaint lay in early January 2016 when a member of the public, a customer, contacted the Respondent Head Office regarding some gratuities that had apparently gone astray. The Respondent initiated an investigation. In the course of the investigation it was discovered that the Complainant had made a number of improper entries/adjustments to the computerised appointments system and had allowed non authorised persons to avail of free services in the Salon.

The matter was the subject of a full Disciplinary Investigation and subsequent Appeal Hearing. All rights of Natural Justice regarding Representation, Evidence and Procedures were followed without fault.

The Complainant admitted the false entries /manipulations on the computer system.   Suggestions of a penalty less than Dismissal were considered but were not available. The Complainant is not a qualified stylist and an Apprenticeship was not available. There were no other Receptionist openings available at the time. The decision to dismiss was taken after considerable care and consideration. The Complainant had lost the trust of the Respondent and the deliberate manipulation of the computerised Appointments system was gross misconduct warranting dismissal.

3:1   The Law:

There are two principles that are worth noting in this case; Firstly the need for Natural Justice and Secondly the concept of the Band of Reasonableness.

3:2   Natural Justice: It is now well accepted Law that in a case of Unfair Dismissal the precepts of Natural Justice have to be paramount.

In Frizelle v New Ross Credit Union Ltd, ( Unreported Irish High Court July 1997) Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

SI No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures Order 2000 set out in detail the necessary procedural steps and safeguard that have to be applied to ensure that Natural Justice is applied.

Having carefully reviewed all the correspondence and heard the oral evidence from the parties I was of the opinion that no faults could be applied , on the grounds of natural justice , to the process as set out

3:3     Band of Reasonableness

The Band of reasonableness essentially means that a dismissal decision has to fall within the Band or range of decisions that a reasonable employer might take in the circumstances.

It is not the remit of the Adjudication Officer or the EAT to substitute an alternative finding save in cases where, as set out above, the basic rules and procedures of natural justice are completely breached.

In this case and from a consideration of the oral and written evidence it was clear to me that the decision to dismiss was carefully arrived at and alternatives were considered. The final Appeal Hearing had been comprehensive and again carefully considered.

In oral evidence and in reviewing correspondence the issue of whether or not extraneous issues in particular the alleged interpersonal differences and the eventual Bullying complaint was considered by the Adjudication Officer. However I was not convinced that they had a material influence on the Dismissal decision.

Taking the Band of Reasonableness argument I was satisfied that a similar employer or employer in the relevant industry would have arrived at a similar decision. The admitted wilful manipulation of the computerised work/appointments system was a fundamental breach of trust in the business concerned.

3:4     Conclusion

Accordingly having considered the two legal precepts above I came to the conclusion that the Dismissal was not Unfair. The claim is dismissed.

Act

Complaint/Dispute Reference No.

Formal Decision / refer to Section 3 above for reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006700-001

Claim is dismissed.