Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Visitor Facility

Representatives

Citizens Information Service

John Barry Management Support Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00012437-001

12/07/2017

The complainant had worked with the respondent since May 2010 and was an assistant in the respondent’s retail outlet.

The complainant was a till operator and a number of discrepancies in her end-of-day takings were observed.

The discrepancies came to a total of €220.00, comprising four amounts of on four days in April; €93.50 on the 11th, €78.00 on the 13th, €28.30 on the 16th and €24.00 on the 19th.

The respondent conducted an investigation which involved two meetings with the complainant.

It was difficult to get a clear response from her and she gave a number of explanations, such as that she had pressed the wrong button in error, that she had been tired, and that she had been affected by the prescription medication she was then taking.

The respondent felt that her explanations were unsatisfactory and instigated the disciplinary process, following which a decision was taken to terminate her employment on the grounds of gross misconduct,

She appealed on the grounds that the sanction was too harsh, that there had been insufficient investigation of other transactions by colleagues and that such mistakes were common.

The respondent rejects this latter contention.

She appealed but her appeal failed.

The respondent took account of the fact that she was an experienced till operator and the cluster of mistakes was not acceptable.

The complainant repeated the explanations given at workplace level; that she had been unwell, that it was attributable to human error and resulted from the simple mistake of her pressing the wrong button, the amounts were not significant and that the sanction was disproportionate.

The complainant says that the respondent dismissed the medical claim too lightly and should have taken further steps to have it validated. It was known that she suffered from epilepsy.

The fact that her medication had side effects including drowsiness was raised, and accepted by the investigator in the course of the investigation but no weight was attached to it. Indeed, they reported that the medical explanation ‘did not satisfy them’ even though they are not medically qualified to reach such a conclusion.

Also, despite a claim to the contrary it was submitted to the investigation that she had previous discussions with her managers about this.

This came up again at the disciplinary hearing where the respondent implied that she had not previously advised her managers of the condition but she made it clear that she had.

Video evidence clearly supported her claim that she pressed the ‘Card’ option on the till in error. The respondent has not been able to justify a claim of theft against the complainant but they have insinuated it.

The complainant at no stage sought to conceal her errors and all were reported in line with the procedure.

On one of the days, the discrepancy could be attributed to a power cut.

In order to justify the termination of employment the case against an employee should be conclusive; it is not in this case.

The complainant had seven unblemished years’ service. She has never even been reprimanded.

The sanction of termination is disproportionate in the circumstances.

The facts were not in dispute in this case.

The three pillars on which an unfair dismissals case is assessed by an adjudicator are; firstly, whether good grounds existed to initiate the disciplinary process. In other words, have the facts been properly investigated and do they represent grounds for a disciplinary process.

Secondly, consideration is given to the conduct of that process. Is it fair by reference to the well-established principles established by the courts and the employment rights tribunals over the years?

Finally, there is the issue of whether the sanction is proportionate; i.e. is it within the range of sanctions a reasonable employer would apply, taking all relevant considerations into account.

There are some grounds for concern in this case under all three of those headings.

The cluster of incidents, although they gave grounds for legitimate concern to the respondent were not significant in overall terms.

They were investigated and while it might be said that the complainant made a poor fist of providing an explanation, this may be because the explanation she offered was the best she could and a truthful one. It may not have satisfied the respondent, but that, in itself, will not be enough to justify the actions it took.

Her explanation relating to the medication was somewhat coldly brushed away on the basis that she had not informed the employer that it might have such side effects. She says she disputed this at several stages in the process. In any event, whether she had or not is a good deal less important than whether it provided a reasonable explanation when the matter arose.

The fact that she had worked six days in a row was ‘not a reasonable explanation’ either.

The alleged infractions were relatively minor, proximate in time and nature and there was no suggestion at the hearing that the complainant in any way profited from them (although I accept the complainant’s submission that this was insinuated by the respondent, and without any evidence to support it).

Turning to the disciplinary process itself the complainant was invited to a disciplinary hearing on May 23rd 2017 as the respondent was ‘not satisfied with your explanation as to why these discrepancies and irregularities occurred and why the cash received is unaccounted for’.

She was advised of her right to be accompanied and was sent a copy of the disciplinary procedures.

She was not given any indication of the possible range of sanctions which might ensue in the event of an adverse finding, although, according to the report of the disciplinary meeting, she was told this at the hearing.

On June 1st, she was sent a letter terminating her employment.

This stated;

‘…it has been concluded that the explanations which you provided in relation to the incidents being investigated lacked credibility and that you deliberately concealed cash transactions by recording them as credit card transactions and the corresponding money was not found at the end of the day’.

This was deemed to be gross misconduct, warranting her dismissal.

This was the first occasion that I can find in either the documents of the evidence at the hearing where an allegation giving rise to a suggestion of dishonesty was levelled at the complainant.

It will be recalled that she was invited to attend the disciplinary hearing to discuss ‘discrepancies and irregularities’.

There is no evidence in the report of the disciplinary hearing that this escalation of the charges against the complainant was put to her at the hearing, or that she was given an opportunity to rebut them, specifically.

Indeed, the complainant was invited to sign what is admittedly headed ‘Minutes of disciplinary meeting’ but described above her signature as ‘minutes of an investigation meeting’, which they more closely resemble.

The respondent asserts that the complainant’s explanation ‘lacked credibility’. It has not explained the basis for this conclusion. It is possible after all, that the complainant’s explanation was the truth. The respondent failed to take sufficient steps to verify the medical explanation.

It certainly did not have a basis for the somewhat massive leap to its conclusion that she ‘deliberately concealed cash transactions by recording them as credit card transactions’ which is no more than supposition. No evidence was offered to support it the allegation that she ‘deliberately concealed’ anything.

The complainant is put in the quitter extraordinary position of justifying her innocence of charges which were never actually put to her.

Similarly, the introduction of the charge of ‘gross misconduct’ appears for the first time in the letter of dismissal.

The respondent’s own sample, non-exhaustive list of ‘offences’ constituting gross misconduct are along the usual lines.

They include theft, serious damage to property, intoxication or use of illegal drugs, fraud, violent dangerous or intimidatory conduct, criminal conviction, gambling or money lending on the premises etc.

Just ignoring briefly that the complainant was not put on notice at any time that she was facing a charge of gross misconduct, no reasonable person could conclude that the ‘discrepancies and irregularities’ in the amount of €220 with which she was charged fall into this category, or anywhere remotely near it. This is complete hyperbole.

The failure of the complainant to provide what was described on appeal as ‘any satisfactory explanation’ undoubtedly give rise to some concern for the respondent. The appeal decision paradoxically notes.

‘the fact that there were very few occasions when it was necessary to get back to you regarding discrepancies reconfirms your ability to manage and operate the till to an excellent standard’

However, it rejected the appeal.

I am very conscious of the well-established constraint on an Adjudicator in such cases as these.

in Looney and Co v Looney UD 843/194 the Eat stated reflecting the view of Dr Mary Redmond to the same effect that;

It is not for the EAT to e stablish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

I accept that this is the standard I must follow.

However, this is one of those cases where the handling of the matter by the respondent falls so far on the wrong side of what is required in terms of what ‘a reasonable employer’ in the respondent‘s circumstances would have done that I am required to make the exception contemplated by the formulation above and the general principle.

There are several reasons why.

The elevation of the ‘discrepancies and irregularities’ to gross misconduct and the failure to put the complainant on notice that she was facing that charge falls far outside the standard required, as does the failure to advise her at all of the likely range of sanctions in advance of the disciplinary hearing.

Related to this, the implication of deliberate concealment, and therefore dishonesty, theft even, which appears in the letter of termination had not previously been ventilated or put to the complainant. It is a very serious matter to accuse an employee of theft, or to imply she has been and it requires a modicum of evidence to support it. There was none in this case.

The respondent had little more than suspicions but they were more informed by speculation (or incredulity) than evidence.

The description of the disciplinary meeting also as an investigation meeting might be seen as a clerical error but it speaks to a shoddiness with which the respondent conducted a process which was fatally tainted with unfairness and disproportionality throughout.

The complainant had a clean disciplinary record, and as the letter rejecting the appeal paradoxically confirms she had a good work record.

In the circumstances the sanction of dismissal cannot be regarded as having followed a procedure which meets the well-established principles of required fairness and the dismissal is, as a consequence, clearly unfair.

The sanction is out of all proportion to the alleged offence and is likewise unfair.

That said, the complainant’s evidence regarding her attempts to mitigate her losses were not entirely convincing and I take account of that in making my award.

I uphold complaint CA-0012437-001 and award the complainant €7,500.00 subject to the usual statutory deductions.