ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006718
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| Complainant | Respondent |
Anonymised Parties | Sales Assistant | Retailer |
Complaint:
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-00008992-001 | 06/01/2017 |
Dates of Adjudication Hearing: 31/07/2017 & 04/12/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 Sales Assistant for over 18 years to 18th July 2016. She was paid €379.00 per week. She has claimed that she was unfairly dismissed and has sought compensation. |
Summary of Respondent’s Case:
On 29th March 2016 information came to the attention of the owner that the Complainant may have breached food regulations including tampering with Deli Counter products. A CCTV footage investigation was undertaken and it showed apparent instances of theft. On 4th April 2016 the Complainant was suspended on full pay pending an investigation. On 19th April she met with the company with her representative. She did not communicate with the company. On 20th April 2016 details of the matters put to her were given to her and her representative. As a result of the investigation the matter was escalated to a disciplinary investigation conducted by an independent, external person. A hearing was held on 13th May 2016. This meeting was then postponed to 17th, to 18th and to 23rd at her request. Her representative then advised that she would not take part as it would prejudice her as there was a complaint to the Gardai. She would not take part while criminal charges stood. The meeting proceeded. She did not co-operate with the investigation. CCTV footage shows her taking goods on 23rd, 24th ,28th ,29th ,31st March with no evidence of paying. Staff were asked and till rolls examined and no payments were made for the goods taken. 23rd March : Items totalling €5.34. There was no evidence of payment, she admitted to an oversight in not paying. 23rd 2nd incident, €7.74; she does not work in the Deli, she had no reason to be there. Staff must pay for everything, there is a staff button on the tills giving a discount by another staff member. Newspapers returns must be done early in the mornings otherwise credit is not given, she suggests that she returned the papers even when she was on a late shift, this does not make sense. 24th March value €7.74; Paper was placed in the medicine section, they were being position to take them, papers are in the coffee shop area for customers. There was no evidence of payment for the goods taken. 28th March value €9.24; She had no comment, no evidence of payment for the goods taken. 31st March value €5.51; No evidence of payment for the goods taken. Disciplinary findings were given to her on 15th June 2016. She was called to a meeting on 16th June but she would not attend. Her representative advised that she would not attend. The meeting was postponed to 18th June. The Respondent again postponed the meeting to 20th June 2016 to allow her an opportunity to reply but she declined to attend. She was then called to a meeting on 6th July 2017. On 18th July 2016, she was advised that her employment was terminated for gross misconduct. This decision was proportionate and reasonable. She had representation throughout the process. She was given the right of appeal. She was given an extension to the time to appeal, however she did not lodge an appeal. This dismissal was fair both substantively and procedurally. She had a contract of employment which contained a grievance and disciplinary procedure, she also had a staff handbook which sets out what constitutes gross misconduct.
She accepted that items were taken but she alleges an intention to pay for them. There was no evidence of any payments. The Gardai got the CCTV footage and they showed it to her. The union official at the investigation never asked to see the footage. She knew the policy on staff purchases. Dismissal was reasonable, she took items, put them in a bag and removed them without paying for them. The Respondent didn’t know about the Court case. It is the State’s decision whether to prosecute or not. There is a different burden of proof in criminal cases to civil cases. The criminal standard is “beyond reasonable doubt”, whereas the civil standard is “on the balance of probability”. If the Respondent had relied upon the criminal court case it was struck out and potentially could be restarted. It would be wholly unreasonable to suspend an employee on full pay pending criminal case outcomes. While values are reasonably low in these individual issues the activity was systematic. The reasons that she gave at this hearing are at odds with what she said earlier. She would have seen the footage if she had taken part in the disciplinary investigation. None of the investigator’s findings have been challenged. The Respondent was reasonable to act as it did. This dismissal was fair. This complaint is rejected. |
Summary of Complainant’s Case:
Preliminary points
At the first hearing on 31st July 2017 the Complainant’s representative presented preliminary points 1)Deferral of this investigation until criminal matter concluded Her representative advised that the incidents were reported to the Gardai. Criminal proceedings are pending. This case should be deferred until the Court case has concluded. In fact this case should be struck out because she was compromised by the Court proceedings. 2) Non-disclosure of the CCTV footage He stated that she and her representative had not been given a copy of the CCTV footage. He requested that they be given an opportunity to view and prepare their defence. She has been denied natural justice, reliance is placed on the Budd J. case. 3)Investigation Officer not independent or impartial The Handbook provides for an independent person to investigate. He stated that the person appointed by the Respondent to carry out the investigation was a retailer friend of the owner and so could not be impartial or independent. This investigation is subservient to the Criminal proceedings. She would compromise herself if she took part in the investigation. The substantive matter does not need to be opened. Substantive matter 2nd hearing Her representative stated at the second hearing on 4th December 2017 that the Criminal charges were struck out therefore this case should be struck out also. He stated that her original union representative also sought that the case would be struck out. He cited the EAT decision in Cousins v Brookes Thomas Ltd UD 45/1988 in support. The Respondent proceeded to carryout and conclude its investigation and disciplinary investigation without giving the Complainant a copy of the CCTV footage. She had through her representatives stated that she could not compromise herself by partaking an internal investigation while a criminal investigation was ongoing. The investigator was not impartial or independent as the company policy provides for. She has worked in this business for over 19 years without incident for most of the time. There was a transfer of undertakings which raised some issues that were resolved. The new owner then tried to reduce her hours which resulted in a referral of a complaint to the Labour Relations Commission, which she won and there is an outstanding €1,000 award owing. The new owner clearly did not see her fitting in and there were concerted efforts to make her quit her job. She encountered two robberies which had an impact on her. When these efforts did not succeed in getting her to leave they reported matters to the Gardai. She did not participate in the investigation or disciplinary investigation because she didn’t want to incriminate herself. 23rd March Incident The scallion mix that she was accused of taking was miniscule. It was a couple of spoonful’s only. It has been the practice of the previous owner and new owner that staff can take a small amount of deli products for their lunch. This was viewed as a perk of the job. She has no recollection of not paying for them. If it happened it was an oversight. 24th March Incident Staff regularly read papers on their breaks. Sometimes papers are taken home and returned the next day. This was well known to the previous owner and current one. She had a severe headache and took Panadol and washed then down with the lemonade. She has no recollection of not paying for them. The catering pan was out of date and would be thrown out. 28th March Incident The scallion mix was minuscule and worth about 0.50c. She had pain and took a Panadol rather than going home sick. She didn’t realise that her employer had a problem with her taking an out of date packet of crisps. The newspaper was returned the next day. 29th March Incident No comment on that incident 31st March Incident She rejects vehemently any reference to a purse. She was taken short and had to take a personal hygiene product, she had no intention of not paying for it. She accepts that items were taken but there was always the intention to pay. She has stated that she was unfairly dismissed. She has applied for 15 positions since her dismissal without success. She is still out of work. She is seeking compensation. |
Findings and Conclusions:
Date of dismissal I find that the Complainant was notified of the termination of her employment on 18th July 2016, that is the date of dismissal. Therefore, I find that her complaint is within the time limit allowed. Decision on preliminary points. CCTV footage It was decided by the Adjudication Officer to grant an adjournment to allow the Complainant and her representative to view the footage and prepare a defence. Once that was provided the Adjudication Officer intended to hear the substantive matter of the dismissal. Compromised/Prejudiced by Criminal Case I note that the Complainant’s representative sought to have the matter adjourned as there was a criminal case pending and then to have it struck out following the trial where that case was struck out. I find that this matter is an employment matter whereas it is the State’s responsibility to decide whether to prosecute or not. I find that the standards/burdens of proof are different in both cases. The criminal standard is “beyond reasonable doubt” whereas the civil standard is “on the balance of probability”. I find that the Respondent was obliged to investigate alleged theft and breach of hygiene standards and bring these matters to a conclusion. I find it wholly unreasonable to have to await the outcome of a criminal case to which they have no input whatsoever and face the possibility of having to place an employee on paid suspension pending the outcome of that process. Likewise, it is not reasonable that employment matters are dealt with in a forum which is not an employment forum and not subject to the same standards of proof and of which the employer has no input. Therefore, I find that Respondent was correct in completing its investigation. I find that the Complainant could not possibly compromise herself by telling the truth. I find that the Complainant should have taken part in the investigation and disciplinary investigation. I find that the Respondent was obliged to continue in the absence of her input into the in-house process. Substantive case |
I find that the CCTV footage clearly shows a number of instances where products were taken and there is no evidence of payments.
I note that the Complainant has accepted that goods were not paid for but she asserted that she had no intention of not paying for them.
I found that her answers were not believable.
I found no evidence to support her assertion that staff take items without paying for them and pay at some stage in the future.
I note that she accepted that there was a policy on staff purchases.
I note the Respondent’s evidence that all items must be paid for.
I note the Respondent’s witness’s evidence that all items must be paid for.
I found a systematic pattern of taking products without payment.
Therefore, I find that the Complainant committed acts of gross misconduct that warranted dismissal.
I find that the dismissal was substantively fair.
Procedural fairness
I note that the Complainant was represented at all stages either by her union official or solicitor.
I note that her union official advised her not to cooperate with the investigation.
I note that the CCTV footage was given to the Gardai.
I note that the Union official did not request to see the footage.
I note that by not participating in the investigation no defence was produced by the Complainant.
I find that the Respondent should have given the Complainant and her representatives a copy of the CCTV footage.
I understand that she was shown it by the Gardai, but her representative did not see it.
I find that it appears that she didn’t wish to cooperate in the investigation and her representative appears to have advised her so. I find that her defence was not to cooperate.
I find it somewhat disingenuous on the one hand in refusing to cooperate with the investigation and then accuse the Respondent of not providing evidence.
I have formed the view that her representative at that stage did not want to see the CCTV footage.
I find in all other matters the Respondent offered fair procedure.
Nevertheless, the footage should have been given to her and her representative.
I find that this was procedurally incorrect.
This must be considered in the context of the Complainant declining to co-operate with the disciplinary investigation.
Therefore, I find that not showing her the CCTV footage in itself does not render the dismissal procedurally unfair.
I find that she has contributed 100% to her dismissal by her actions of gross misconduct.
Mitigation of loss
I note that she has only applied for 15 positions in 17 months.
I note that the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.
I find that she has not made a concerted effort to mitigate her loss.
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.
For the above stated reasons, I have decided that the dismissal was not unfair.
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Dated:10th April 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair Dismissal |