Complainant

Respondent

Anonymised Parties

A Complainant

A Respondent

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-00010362-001

22/03/2017

The respondent employed the complainant as a pharmacy superintendent responsible for the day to day running of the pharmacy. He was paid €80,000 per annum and worked 40 hours per week. Additionally, the complainant had a 10% shareholding in the Company. He commenced employment on the 1st of October 2006 and was dismissed by letter of the 10th of October 2016. The parties made written and oral submission to the hearing.

The respondent submits that the complainant had unfettered access to the respondent’s funds and accounts. Despite the oral agreement concerning his salary the claimant decided his own salary and paid himself €108,000 gross (€70,000 net) per annum. In or around 2007/2008 the complainant purchased a unit above the pharmacy to run his optician’s business and it was agreed between the parties that he would be paid only for the days that he worked in the pharmacy. No record was kept by him until 2015 at which point a legal requirement was introduced to maintain a duty register. The register reveals that the complainant only worked 70% of his normal working hours whilst drawing his full salary. Following a change of accountants in 2015 certain financial irregularities were brought to the attention of the respondent. The complainant was placed on paid suspension arising from these irregularities following a meeting between the parties on the 22nd of September 2016. The respondent wrote to the complainant on the same day confirming the paid suspension, inviting him to a formal disciplinary investigation, listing the matters requiring the complainant’s explanation, outlining the date and time and location for the investigation meeting, advising him of his right’s and possible outcomes and enclosing a disciplinary policy which it proposed to use. The complainant responded by way of solicitor’s letter on the 28th inst. He objected to the proposed disciplinary policy and refused to attend the meeting in the absence of an independent audit of the company and right to be legally represented at the meeting. In response the solicitor for the complainant was informed that this was an internal disciplinary process. On the 29th inst. the complainant was invited to a disciplinary meeting on the 3rd of October and informed that the investigation would proceed in his absence if he failed to attend. He did not attend and the disciplinary process was carried out in his absence. He was dismissed by letter of the 10th of October.

The complainant submits that he was dismissed unfairly on both substantive and procedural grounds. Only one dividend was paid to the complainant in 2007 and it was agreed therefore that in lieu of the same he “would be entitled to an increased salary and drawings”. He did purchase certain items on the company credit card with the consent of his fellow shareholder and a note was retained and provided to the book-keeper. A good working relationship existed between the parties until 2014 when financial pressures were experienced by the company (details provided). His fellow shareholder explained that there were other financial considerations outside of the business taking their toll. He alone was asked to take a pay cut but refused. The financial turmoil continued apace during 2015 and 2016. On the 22nd of September 2016 he was approached by his fellow shareholder and handed a letter of suspension in the presence of other staff and while the locks were being changed in the premises. He was asked in a derogatory fashion whether or not he had anything to say. The letter referred to financial irregularities which are completely explainable but must be judged against a chaotic trading situation and the fact that all debits and payments are clearly recorded and reimbursed as appropriate. He was accused of misappropriation theft and fraud. The subsequent directive to attend a disciplinary meeting was hand delivered by a retired member of the police force without proper agenda or reference to a right of appeal. He had never received a contract of employment or handbook. He was summarily dismissed in the absence of a proper hearing or right of appeal. The respondent failed to provide due process. He believes he was unfairly dismissed on foot of the financial pressures being experienced by the respondent. The allegations made against him fail to recognise the “quirky working relationship” he had with the respondent.

In coming to a decision in this matter I should point out that the auditor’s report provided specifically for the hearing was not put to the complainant prior to his dismissal and as such has no material impact on the case at hand. That said the substantive issue as outlined in the respondent’s letter of 22nd of September 2016 is extremely grave. It is a matter of undisputed fact that the allegations contained therein were never directly addressed by the complainant until now.

The letter of dismissal is instructive from a procedural perspective to the extent that the investigation officer outlines his conclusion that the complainant has acted in the absence of “uncontested, unexplained and uncontroverted evidence” in a grossly dishonest manner………. He then proceeds to impose the disciplinary sanction which of course sullies the process.

I am obliged to conclude therefore that this was an unfair dismissal and note that the complainant has not suffered any material loss.

The complaint is well founded and I hereby require that the respondent pay the claimant compensation in the amount of €500 (say five hundred euro) by way of redress in the circumstances.