ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005503
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | Co-Operative Stores |
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-00007736-001 | 20/10/2016 |
Date of Adjudication Hearing: 03/05/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Summary of Respondent’s Case:
The respondent set out the claimant’s employment history – he was initially employed for 6 years in one store and subsequently moved to the current location in 2014. The claimant was issued with a final written warning relating to “ sales irregularities” in October 2015 and had not appealed this sanction. The sanction warned that any further instances of misconduct would be met with more severe “disciplinary action which could include dismissal”. Store managers were issued with a procedures document in Sept.2015 which stipulated that “Customers must be present with their card when paying by card.Card not present transactions are not permitted , except by the authorisation of the Branch Manager/Supervisor”. The company had incurred a substantial loss as a result of a card not present transaction. The respondent set out an account of an interaction that took place in December/January 2016 between the claimant and his manager during the course of which it was submitted the manager clarified the company policy on card not present transactions when it emerged that the claimant was unaware of the new policy. It was submitted that the claimant processed a card not present transaction on the 23rd.June 2016.The matter proceeded to investigation – the claimant was suspended from work on the 24th.June 2016.The investigating officer determined that there was a case to answer under the respondent’s disciplinary procedures; the claimant was invited to attend a disciplinary hearing to answer the charge that “ he had knowingly breached procedures on the 23rd.June 2016 by performing a card not present transaction for a customer , without seeking authorisation from his branch manager, in direct contravention to his branch manager’s instruction.” Ultimately the claimant was found guilty of serious misconduct and was dismissed on the 25th.July 2016.The claimant appealed the decision but the complaint was not upheld. It was submitted that the claimant was familiar with the respondent’s disciplinary procedures which state that the failure to carry out Managers/Supervisors instructions amount to serious misconduct. It was contended that the claimant’s denial that he received any instruction from his branch manager in his submission to the WRC was contradicted in his initial investigatory meeting. It was submitted that the claimant essentially changed his position from “ I can’t recall “ to “ the alleged delivery of instruction never happened”.It was submitted that this contrasted with the evidence of the claimant’s manager which was clear and consistent. The respondent asserted that it was entitled to dismiss the claimant and invoked the provisions of O’Halloran v Dunnes Stores Parkway (UD 1503/2009) and Molloy v Wincanton Ltd. UD 197/2011 in support of this position.It was submitted that the respondent had acted in accordance with their procedures and had observed the claimant’s rights under natural justice.It was submitted that dismissal was a reasonable response in all the circumstances. Evidence was given by the claimant’s store manager, the regional manager who conducted the disciplinary hearing and the appeals officer. The regional manager gave evidence of his conduct and processing of the appeals procedure – he asserted the matter was extensively investigated and he considered the previous disciplinary sanction that had already been imposed on the claimant – he indicated that as far as he was concerned the company had been lenient on that occasion – and asserted that having considered the entire matter he concluded that trust had been broken and dismissal was the only option for the company .Under cross examination it was put to the Mr.OK that he had been unable to answer a question that had been put by the union regarding what if any alternative sanctions to dismissal had been considered. The claimant’s store manager was adamant that she had communicated the revised policy to the claimant when she discovered he was unaware of it in Dec.2015/Jan2016.She asserted that she remembered the exchange in her head whether or not it had been documented. She presented her account of the previous disciplinary process and the outcome of same. She emphasised that at the time the claimant had failed to appeal the final written warning that had been imposed on that occasion. The appeals officer stated that he had delegated authority from the CEO to conduct the appeal.He stated that the claimant was on a final written warning and had been found guilty of serious misconduct. He stated that he did not think it was essential that the new policy should be written down .He asserted that he found the evidence of the store manager more credible than that of the claimant. He insisted that he considered alternative sanctions to dismissal and that he did not consider a transfer to be appropriate. |
Summary of Complainant’s Case:
The claimant’ s representative submitted that the dismissal was unfair on the grounds that no “ evidence of wrong doing was proven against him and he was not afforded fair procedures”. It was submitted that for most of the time the claimant was employed he had an excellent work record. The claimant did not agree with the final warning sanction imposed in 2015 and regretted not appealing same. The union set out an account of the processing of the allegations against the claimant - it was submitted that the claimant was confused at the initial investigation meeting and issue was taken with the letter issued to the claimant dated the 27th.June 2016 which “ reserved the right to change or add to this allegation as appropriate”.The union set out the exchanges between the parties throughout the investigation and disciplinary process.It was submitted that the first time the claimant saw the email relating to the revised card transactions procedures was at a meeting on the 21st.July 2016. It was submitted that the Claimant was not provided with the detail of the complaint against him prior to the initial investigation meeting on the 24th.June 2016.The claimant had no representation at the meeting and the respondent’s representative had already gathered information that was not furnished to the claimant. Had the claimant known details of the case against him he would have sought a deferral and arranged representation. The manager who was involved in the disciplinary process made the decision to dismiss. While the respondent’s procedures provide that the company CEO hears appeals, the claimant’s appeal was heard by the Financial Officer. It was submitted that the claimant had been kept in the dark while management gathered information against him and no consideration had been given to a sanction less than dismissal. It was contended that the card transaction policy was not properly communicated to staff and that in any event staff were allowed make up their own minds about what was acceptable or otherwise in the context of transactions.While the manager was adamant that she had delivered the information to the claimant regarding the change in the card transaction policy , her failure to clarify what indication the claimant gave that he understood her , supported his contention that he did not hear or understand her instructions. It was submitted that it was illogical that he would ignore an instruction in circumstances where he already had a final written warning on his file. The claimant did not stand to gain in any personal way from the transaction. It was submitted that the case against the claimant was immediately escalated to higher management – showing an intention to dismiss .Reference was made to the manager taking 15mins to decided to dismiss the claimant. The respondent’s initial letter which referred to “ change or add to this allegation” shows there was no intention to adopt fair procedures according to the union. It was submitted that the dismissal for a breach of policy was unfair – there was no evidence of the claimant having received or viewed this policy .It was contended that the claimant should not loose is job for managements failures with respect to communicating the revised transactions policies. It was submitted that while the claimant’s store manager had insisted she knew the claimant understood the new procedure she could not say how she knew he understood.The union asserted that the respondent were going to do what they could to get rid of the claimant and rather than approaching the claimant , they gathered information against him. It was submitted that if a worker were to loose their job for failing to observe a procedure , they should have advance notice of same.It was submitted that the claimant put his hands up – seeing nothing wrong with that as he had not been advised of the new procedure.It was contended that the claimant could have been dealt with in a less aggressive fashion and that the intention was to dismiss from the outset. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
I have reviewed the evidence presented at the hearing and taken account of the respective submissions and authorities being relied upon.
I note that at the initial meeting with the claimant on the 24th. June , when the claimant asked if he needed someone with him , the regional manager responded “Its up to you whether you want someone”. Later on in that meeting , the claimant was advised that he was being suspended pending the outcome of an investigation. To a significant extent the respondent has relied upon the exchanges at the meeting to justify what was described as inconsistencies in the claimant’s position with respect to the matter as to whether or not he was advised of the revised procedure for card not present transactions. In light of the foregoing and given the fact that the claimant was already on a final written warning , I find the regional manager’s response to the claimant was unreasonable and unfair to the claimant – the claimant should have been put on notice of the seriousness of the allegations against him.Furthermore I accept the union’s contention that the provision in the letter of notification of suspension to the claimant which provides for reserving “ the right to change or add to this allegation as appropriate in light of this investigation” was unfair to the claimant. I find the communication of the revised card not present transactions policy was adhoc and informal and accept the contention of the union that if non adherence to the policy could potentially result in a dismissal , that approach should have been documented and notified in unequivocal terms to the staff including the claimant. For these reasons I am upholding the complaint of unfair dismissal.
However, I must give consideration to whether or not the claimant contributed to his own dismissal. As the claimant did not give direct evidence of the exchanges with the store manager about the revised procedures, I am obliged to accept the store manager’s evidence in this regard. The claimant was already on a final written warning and was consequently aware of the company procedures and should have known without having to ask the regional manager, that it would have been appropriate to have representation at the initial meeting. While the union insisted that the respondent had failed to prove wrongdoing on the part of the claimant , as has been reiterated by the EAT in numerous determinations , it is sufficient for an employer to operate on the balance of probabilities and adopt a reasoned approach.The claimant did not appeal the final written warning and consequently the respondent was entitled to take this into account .For the reasons set out in this paragraph I find the claimant contributed to his own dismissal and this is reflected in the remedy set out hereunder.
I require the respondent to pay the claimant €12,500 compensation within 42 days of the date of this decision.
Dated: 25/09/17
Workplace Relations Commission Adjudication Officer: Emer O'Shea