ADJ-00006462

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00006462

Parties:

Complaint(s):

Date of Adjudication Hearing: 30/06/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Retail Sales Assistant with the Respondent from 23^rd March 2003 until her dismissal on 6^th June 2016. She was paid net pay of €345 per week, for an average of 28 hours per week.

The complainant alleged she was dismissed unfairly following a meeting held in June 2016 where she was informed that there were three customer complaints against her, and where the specifics of these complaints were not divulged to her, nor were the details of the alleged complaints.

The Complainant maintained that she did not believe she had an adequate explanation of the reason for the Respondent’s decision to dismiss her. The complainant maintained she was entitled to know the justification for her dismissal in light of her long-term employment which is in excess of 13 years.

She also maintained that she was not provided with a copy of her contract of employment despite her requests for same.

Summary of Respondent’s Case:

The Respondent maintained that the complainant was dismissed on 19^th June 2016 having received progressive disciplinary sanctions over the previous 12 month period for poor customer service.

The Respondent submitted that the complaints began during 2014 and where, following a number of customer complaints, the Store Manager met with the Complainant to focus on trying to assist the Complainant achieve the required standard. The Respondent maintained that at this time it cautioned the Complainant that disciplinary action could follow if her poor customer service did not improve.

The Respondent advised that on 6^th May 2015 the Complainant received a written warning for customer care complaints and for her attendance. On 1^st August 2015, the Store Manager accompanied by another manager met with the complainant again to discuss her overall work performance, including her customer service. The Complainant was again advised that a number of complaints had been received in relation to her poor customer service. At this time she was issued with a Final Written Warning where she was told that a full and substantial improvement was required, and where she risked further disciplinary action up to and including dismissal if she failed to improve. The Complainant was reminded that re-training was available to her and a Final Written Warning was issued by letter dated 5^th August 2015. On 20^th August 2015, the Complainant was re-trained on customer service.

The Respondent submitted that a further incident occurred on 23^rd November 2015 when the Store Manager had to speak with the Complainant again. At this time, the Respondent had received complaints from two separate customers where it was alleged the Complainant had flung the customer’s goods down the cashier belt, that the Complainant made not eye contact with the customer, and where the Complainant snapped a the customer that she would take the customer’s store card from her when she was ready. It was alleged that the customer reported to the store that she would never go to the Complainant’s check-out again as she had never been spoken to or treated with such disrespect. The Respondent submitted that when this complaint was discussed with the Complainant, the Complainant shook her head and laughed, adding that she did not understand what she was doing wrong. The Respondent further contended that when the Complainant was spoken to the she advised the Respondent that she found her job stressful, that she felt very enclosed and suggested she could be moved to the self-service check-outs where she would have more freedom to move around. The Respondent was not in a position to move the Complainant to the self-service check-outs as they were very demanding and where the level of customer focus required would likely be stressful for the Complainant. At that time the Respondent submitted that the Complainant had stated that the Respondent was not helping her. The Respondent advised the Complainant that her working hours had been reduced on her request and inferred it had been supporting the Complainant. The meeting concluded where the Complainant was reminded that the store could no longer accept poor customer service and warned that she risked suspension the next time a complaint was received. The Respondent therefore submitted that it had been very reasonable with the Complainant up to this point, had warned her, had provided training for her, and had reasonably supported her where it advised that should poor customer services continue it would be progressing matters.

The Respondent submitted that on 25^th January 2016 another complaint from a customer occurred where the customer reported that she was waiting at the queue in the complainant’s check-out area and where she was asked to move back away from the check-out. The customer then alleged that when it was her turn to be served the Complainant flung the groceries down the belt and when the customer gave the Complainant her store card on a fob that the Complainant scanned it and threw the keys and fob onto the checkout belt. It was also alleged the Complainant failed to make eye contact or to say please or thank you to the customer, and where the Complainant then proceeded to scan the next customer’s shopping and to push it down the belt while the customer was still trying to back her own bags.

The Respondent invited the Complainant to respond to this complaint. The Respondent submitted that when the Complainant was asked by the Respondent why she behaved in the manner alleged she replied that she was overwhelmed, that she did not feel well on the occasion, and she would have already explained this to the Store Manager. The Respondent stated that at this meeting the Complainant had mentioned previous concerns regarding a lack of support for her, but when the Store Manager attempted respond to this and explain the supports that it believed it had provided, the Complainant did not want to discuss these matters with her at the time. Notwithstanding, the Respondent maintained that the Complainant had been offered time off to attend a doctor or seek what help she needed. At the end of the meeting on 25^th January 2016 the Complainant was sanctioned with a three-day unpaid suspension for poor customer service, and where the sanction was confirmed in writing to her on 27^th January 2016.

The complainant appealed the sanction on 5^th February 2016 but the sanction was upheld by another manager on the basis the sanction had been issued due to the Complainant’s overall poor customer service, where the Complainant had a poor record in this regard, and where previous issues had been documented and discussed with the Complainant.

The Respondent maintained that another incident occurred on 28^th May 2016 where a further complaint was received from a customer in relation to the Complainant’s conduct. In this incident, it was alleged a customer tried to pass by the Complainant asking to be excused three times when she was working at her register box. The customer complained that the Complainant ignored the customer, and where the Complainant jumped up and said “I will when I am ready” to the customer. The customer reported being stunned by the Complainant’s attitude, and where the Complainant walked away when the customer advised the Complainant there was no need to speak to her like that as she was only asking to get by.

The Respondent submitted that this issue was brought to the Complainant’s attention during a meeting on 30^th May 2016 and where the Complainant denied the incident had occurred, and stated she had no recollection of such an incident. The Complainant was suspended with pay pending a further investigation.

At an investigation meeting on 2^nd June 2016 the Complainant said she could still not recall the incident and the investigation was therefore suspended to allow the Respondent talk to other witnesses, namely other check-out operators who were present at the time of the incident.

On 4^th June 2016, a further meeting took place where the Complainant could still not recall the incident. The Complainant was advised the incident on 28^th May 2016 had been witnessed by another check-out operator and where the Respondent advised evidence from that operator confirmed she had heard the customer asking the Complainant to move a couple of times, and where the evidence corroborated that the Complainant had stood up and said something to customer aggressively and had stared at the customer.

At the Disciplinary Hearing the Respondent advised that the Complainant maintained that she had never been given any help from the store manager, that she was finding her hours difficult as she was feeling run down, and she had asked if anything could be done in relation to reducing her hours. The Respondent advised the Store Manager would have reminded the Complainant that she would have approached her manager on many occasions to reduce her working hours at short notice and where her manager never refused any of those requests. It was also highlighted to the Complainant that her working hours had been reduced to facilitate sufficient rest between shifts. The Respondent also advised the Complainant that they had offered to remove the Complainant from the checkouts to the shop floor but that the Complainant did not take up this option and asked for things to be left as they were for the time being.

Based on the evidence the Respondent had gathered regarding the customer complaint of 27^th May 2016, the history of complaints raised against the Complainant, and the fact the Complainant was on a final written warning for a similar complaint, the Respondent decided to terminate the Complainant’s employment for poor customer service. The Respondent notified the Complainant of her dismissal in a latter on 6^th June 2016, and in this letter the Complainant was advised of the right to appeal. The Respondent maintained that the Complainant did not invoke her right of appeal.  

The Respondent therefore maintained that the Complainant would have been advised of the basis of her dismissal during the meetings of 30^th May, 2^nd and 4^th June 2016; and whilst there was no formal written complaint from the customer the details of the complaint were explored with the Complainant at the meetings following the event and where the Complainant had been provided with oral evidence provided by a colleague who would have witnessed the incident on 27^th May 2016. The Respondent further maintained that the Complainant had been spoken to on no less than nine occasions over the previous two years in relation to her poor customer service, and where she was subjected to a progressive discipline for her poor customer service including a Written Warning on 6^th May 2015, a Final Written Warning on 1^st August 2016, a 3 day unpaid suspension on 25^th January ’16.

The Respondent maintained that Section 6 (1) of the Unfair Dismissals Act, 1977 provides that (a) Subject to the provisions of this Section, the dismissal of an employee should be deemed, for the purpose of this Act, to be unfair dismissal unless, having regard to all the circumstances, there were substantiated grounds justifying the dismissal.

The Respondent maintained that there was substantial grounds justifying the termination of the Complainant’s contract of employment, and that the dismissal was reasonable and fair under the circumstances. The Respondent further submitted that the decision to dismiss in light of all the circumstances was within the band of reasonable responses with regard to the Complainant’s conduct.

The Respondent argued that it was not the role or function of the Adjudicator to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. In this regard, the Respondent referred to Foley V Post Office (2000) ICR 1283. It further argued that the Court of Appeal found that the Employment Appeal Tribunal did not have jurisdiction to substitute its view of the appropriate sanction for that of the employer. It again referred to the Band of Reasonable Responses Test and cited Iceland Frozen Food versus Jones (1983) 1 ICR 17 and the decision of the Court of Appeal in J Sainsbury’s PLC versus Hitt (2003) 1 ICR 111. Accordingly, the Respondent submitted that the decision to dismiss was within the Band of Reasonable Responses available to the employer, and was fair.

Summary of Complainant’s Case:

The Complainant argued that she had not been given the basis of the complaints against her in writing, she was told they were confidential, and only at one stage was she ever given a Customer’s name.

She advised that in relation to the complaints that led to a written warning on 6^th May 2015 that a complaint in writing was never provided to her and nor were a copy of the manager’s notes of the Disciplinary Meetings at the time. The Complainant also argued that there were a number of issues raised against her by her manager which included how she wore her hair and where she was told to have clips in her hair. She maintained that other staff with long hair extensions would not have been asked to address the issues in a similar manner. She said she was brought to account on a range of matters including her lipstick and her hair decorations, and no matter what she done she could not do right in the eyes of the Respondent.

The Complainant advised that in 2014, out of desperation of the way she was being treated, that she would have reported her concerns in writing to a manager in head office. The Complainant maintained that her store manager brought her into the office following raising these concerns and advised that issues should be dealt with in the store and not to head office. In relation to the customer complaints in 2014, the Complainant argued that there was no acknowledgement of the Complainant’s account of matters at that time, and her eleven year’s standing in the organisation. She maintained there was no value or credit given to her word, and where a review of her annual performance reviews would indicate there was no issues about her customer care at that point. The Complainant further argued that in relation to a complaint in October 2014 where she received her first verbal warning that this related to a cash back matter, and not a customer service complaint.

The Complainant also argued that the minutes of disciplinary meetings with management would attribute words to her that were never said by her, and she had not received copies of the meeting notes with regard to the disciplinary meeting. She therefore maintained that the meeting notes should not be relied upon.  

The Complainant argued in relation to the incident that occurred in May 2016 that she had no recollection of being rude to a customer and that she would not have received copies of the complaint in writing. She further submitted the notes from meetings were incorrect and she maintained that she would not have been provided with an opportunity to provide her own input to the meeting notes. She maintained that the complaints against her were based on hearsay and where in reality she did not know the basis of the complaints and therefore the process had been unfair.

The Complainant also argued that a letter she received on 5^th August 2015 from the Respondent regarding disciplinary matters also referred to her absenteeism and her time keeping and that she was placed on a Final Written Warning on 5^th August 2015 for all these matters.   The Complainant argued that reference to her absence was unfair, and where the Respondent was misquoting her level of absence.

The Complainant did not challenge the issues in relation to the complaints about her in January 2016.

The Complainant argued that in deciding to dismiss her in June 2016, the Respondent had failed to consider the improvements made by her, and where her performance reviews would indicate over the years that she had demonstrated an excellent presentation and appearance, that had an excellent attendance record with above average attendance, and where she was noted as being a good team player and very helpful with customers. The Complainant therefore argued that the Respondent failed to consider these matters, and also failed to consider the fact that the Complainant had sought support externally from head office but that these requests went by unaddressed. The Complainant further advised that when she requested a move from the cashier role she was advised that she could return to the shop floor, but this would require more hours of work and accordingly this option did not address her specific needs.

The Complainant further argued that that some of the customer’s complaints were motivated due to the fact that the Complainant would not sell two packets of paracetamol to the customer and it was following that issue that a complaint had been raised against her. The Complainant argued that what she was alleged of doing with regard to customer service that led to her dismissal was not how she would have behaved, and that she could not see what she was doing wrong. She advised that there would have been CCTV evidence of the alleged issues but this was not relied upon by the Respondent.

Therefore the Complainant maintained that the disciplinary process which led to her dismissal was unfair in that the previous disciplinary procedures that led to her final written warning were conducted unfairly; that the Respondent had considered issues such as the Complainant’s attendance record but the customer complaint that led to her dismissal was not associated with her attendance; that she was not provided with any written statements from witnesses that were interviewed and therefore was denied the ability to respond to the actual allegations; that she did not know which customer had complained about her as there was no written complaint from the customer; and that her own responses, particularly that in accordance with the Respondents policy the Complainant had refused to sell two packets of paracetamol to the customer, were not properly considered by the Respondent.

The Complainant advised that since her dismissal she was unfit to work and did not seek employment immediately following her dismissal. She had circulated her CV to a number of small retailers without success, albeit she did not submit to the hearing any record of actively seeking employment. In light of her experience she has decided to embark on a different career path and has participated in voluntary work and is completing a FETAC qualification for an alternative career.

Findings and Conclusions:

Having reviewed the evidence and submissions I find as follows:

The Respondent had cause on a number of occasions to discipline the Complainant specifically in relation to a series of customer relations issues, attendance, and time keeping. These disciplinary matters had been recorded and where the Complainant had been provided with the opportunity to appeal same. The issues that led to her final written warning had been appealed but upon appeal the final written warning remained on the Complainant’s record.

I am also satisfied that the evidence presented indicated that concerns had arisen in relation to the Complainant’s attendance and time keeping, however the issue that led to her dismissal related to a customer service complaint, and where the Complainant was on a final written warning regarding customer service complaints.

The evidence provided shows that customer complaint issues were raised with the Complainant in in 2014. On 6^th May 2015, following a disciplinary process, the Complainant was issued with a written warning regarding her customer service and her attendance. The Complainant was again subject to a customer complaint, attendance and time keeping concerns in August 2015, and following another disciplinary procedure the Complainant was issued with a final written warning on 5^th August 2015. The Complainant participated in customer care training on 20^th August 2015. The records show that a further customer care incident occurred on 11^th November 2015 and following a meeting with the Store Manager, the Complainant was advised on 23^rd November 2015 that she would be suspended if any further complaints were received. On 27^th January 2016, the Complainant was suspended from work for three working days following an investigation into a further customer complaint. This sanction was appealed but the disciplinary action was upheld on appeal. Then in May 2016 further customer complaints were raised and investigated which led to the Complainant’s dismissal on 6^th June 2016.

I am satisfied that the Complainant was on a final written warning at the time of her dismissal. The decision to dismiss the Complainant was based on a series of complaints since 2014, and where the Respondent had escalated the disciplinary sanctions, including a further warning whilst the Complainant was on a final written warning, and then a suspension before exercising the decision to dismiss the Complainant. I am also satisfied that the complainant had been provided with further training in relation to customer service following the previous disciplinary issues.   I am therefore satisfied that there was substantial grounds in relation to the Complainant, and the Respondent was entitled to conduct its disciplinary process with regard to the complaints in May 2016.

However, having reviewed the procedures adopted at the final disciplinary hearing I am satisfied that the Complainant was not provided with the actual allegations that were levied against her, or the evidence from the witnesses that was gathered by the investigation team. It is evident that the Complainant was asked to respond to complaints where the Respondent did not provide the Complainant with sufficient information it had at its disposal and therefore did not afford her a fair procedure to allow her an opportunity to respond in full to the complaints against her. There also appears to have been other evidence in relation to the background circumstances to what may have occurred on the day which does not appear to have been considered by the Respondent in making its decision to dismiss.

I therefore find that the investigation which led to the disciplinary procedure on 4^th June 2016 did not properly adhere to fair procedures by the Respondent and as such, based on the procedures adopted, that the dismissal was unfair. Clearly the Complainant was not afforded with the opportunity to test the information the Respondent was relying upon to dismiss her.

Notwithstanding I am satisfied that the employees recent history would have indicated that the Respondent had genuine concerns in relation to her customer services, and based on the general evidence provided that the Complainant has contributed to the decision to dismiss, albeit the investigation procedures adapted by the Respondent were not properly conducted.

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.

In view of my findings above and in accordance with Section 8 (1)(c) of the Act, I declare the complaint of unfair dismissal is well founded.

The Respondent did not comply with fair procedures and natural justice in relation to the Investigation Meeting of June 2016. Having carefully considered all the evidence adduced and the submissions in this case I have found that the disciplinary procedure adopted by the Respondent was flawed in its failure to live up to the rules of natural justice and provide the Complainant with specifics of the allegations it was relying upon, and thereby it did afford the Complainant with sufficient opportunity to make her response. Rather than furnishing the Complainant with the witness statements, or a written complaint, the Respondent only provided oral evidence to the Complainant, and where the Complainant did not have the opportunity to properly cross examine the complaint and evidence. By reason of the foregoing, I have decided the dismissal which was effected was unfair.

In determining compensation to be awarded to the Complainant I am taking account the failure of the Complainant either at the Hearing or post the Hearing to provide the Adjudication Officer with confirmation of Jobseekers Benefit from the Department of Social Protection from the date of her dismissal. The Complainant also failed to show how she had mitigated her loss as required by Section 7(2)(c) of the Act. Accordingly, having regard to all the circumstances, I direct the Respondent to pay the Complainant compensation of €4,500 under the Unfair Dismissal Act 1977-2007.

Dated:   24/10/17

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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