Complainant

Respondent

Anonymised Parties

Counter Assistant

Restaurant

Representatives

Self

Sara Jane Smyth, B.L. instructed by Julie Breen, Solicitor

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-00011345-001

16/05/2017

The complainant was employed as a counter assistant in a fast-food restaurant operated by the respondent. Employment commenced in April 2006 and was terminated on 19 December 2016.  The respondent dismissed the complainant following an investigation into an alleged theft that occurred in another retail premises in the town in which the respondent traded.

The complainant while shopping in another retail premises had picked up another person’s phone without initially realising this.

About a week later the complainant the complainant was called to a meeting with the owner of the respondent company who questioned her in relation to the matter.

The complainant initially denied knowledge of the incident but later admitted taking a phone and told the owner that she would replace it.

There was a dispute in relation to the value of the phone and the complainant refused to pay what was being requested.

In the meantime the owner went on holidays and the complainant was not rostered for work.

When the owner returned there was a meeting at which the complainant was told that the respondent did not want her working any further and was handed a letter dismissing her for lack of trust.

In late November Gardai called to the respondent’s restaurant in relation to the theft of a phone at a neighbouring retailer. They had photographic evidence which showed that the theft in the other retail premises was carried out by a person wearing the respondent’s uniform.

The complainant was called to a meeting about a week later because footage of the incident had appeared on social media and it was clear that the person was wearing the respondent’s uniform.

The complainant denied being involved and the owner decided to visit the other store and view the CCTV footage herself.

On Saturday 3 December the owner viewed the CCTV and was satisfied that the complainant was clearly identifiable as taking the phone. She spoke again with the complainant who still denied taking the phone.

On the following Monday the complainant called to the respondent’s premises and advised the owner that she had in fact taken the phone but would compensate the owner.   The complainant asked for her roster but the owner said she would have to consider this.

On Tuesday the complainant called and stated that she would not pay the amount of compensation being asked for by the phone’s owner.

On Thursday the owner advised the complainant that she was being suspended for a week to allow for further investigation.

A meeting was arranged for 19 December at which the owner explained that the behaviour of the complainant had resulted in a breach of trust between the parties and that the complainant was consequently dismissed.

The complainant’s actions and breach of trust were so serious that it amounted to a repudiation of the essential terms of the contract thereby justifying summary dismissal.

The background event in relation to this matter is that a phone was misappropriated in a retail outlet close to the restaurant where the complainant worked. The Gardai, as part of their investigation, called to the restaurant and showed a photographic image of a person they were seeking to speak to in regard to the matter. Whilst it was clear that the alleged perpetrator was female and was wearing the respondent’s uniform the image was not clear and it was mentioned that the person sought was of Romanian nationality. The respondent did not employ any females of that nationality.

About a week later CCTV footage of the incident was circulated on social media and the owner of the restaurant became aware that the complainant’s name was being mentioned as the person who took the phone. The owner met with the complainant who denied taking the phone. The owner, accompanied by the respondent’s accountant who also provided HR advice, went to the other retail outlet and requested to view the CCTV footage. The original footage was much clearer and it was obvious to the owner that the complainant had taken the phone. The owner had another meeting with the complainant who still denied taking the phone. Two days later the complainant came to the restaurant accompanied by her husband and said that she had in fact taken the phone by accident but had later panicked and thrown the phone away. There was a discussion about the complainant replacing the phone. It would appear that the owner of the phone requested €600 as compensation but that when the complainant’s husband spoke to the Gardai about the matter he was advised that the phone was worth about €200.   In any event the complainant advised the owner the next day that she would not be paying compensation.

The complainant was called to a meeting in the restaurant on 8 December at which the owner was accompanied by the accountant. According to the owner the complainant was handed a copy of the Staff Handbook which she refused to take. She was then advised that because of recent events she was being suspended with pay in order to allow further investigation of the matter. According to the complainant she was handed €200 but was not told that she was suspended with pay. The owner was going on a week’s holidays. The complainant stated that she subsequently presented herself for work but was told that she was not on the rota. The complainant said that she texted the owner about this to be told that there would be a meeting when the owner returned.

A meeting was arranged for 19 December. Both parties agree that this was a short meeting. The owner said that she told the complainant how disappointed she was at what had occurred and that the trust between them had been breached.   Because of that the owner informed the complainant that she had no option but to dismiss her. The complainant said little in response.

I note that the respondent produced a copy of the complainant’s contract. The contract is dated 22 June 2014 but is unsigned by either party. The respondent also produced a copy of the Staff Handbook. The complainant said that she had never seen this document prior to being offered a copy at one of the meetings that she attended prior to her dismissal. The respondent stated that the Handbook had not been issued to staff but that a copy had been placed in the staff room and employees advised accordingly.

Section 6(1) of the Unfair Dismissal Act, 1977, states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) 0f the Act states:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following:

(a)   The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b)   The conduct of the employee….

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)   To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

An initial matter for consideration is the fact alluded to by the complainant at one of the meetings, that the event at the heart of the matter occurred outside the respondent’s workplace and therefore should not be a matter for investigation. The EAT in UD1153/2014 (Crowe v An Post) considered this matter and stated:

The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company.   The test is: has the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business? If it has then the employer has a right to institute disciplinary procedures.

In this case the CCTV footage showed a person wearing the respondent’s uniform carrying out what appeared to be an unlawful act and members of the respondent’s staff advised the owner that it was the complainant.

It appears to me that the owner commenced the investigation on the basis that she accepted the denial of the complainant that she was the person in the CCTV footage but that it was also clear that that person was wearing the respondent’s uniform.   It was with some surprise and disappointment that she realised that it was the complainant that was involved in the incident. The owner, in my view, was therefore justified in commencing an investigation of the complainant’s behaviour.

   The owner then initiated a series of meetings with the complainant. The complainant, however, was not advised whether these meetings were investigatory or disciplinary in nature. The complainant was not advised that the subject of the meetings could ultimately lead to a decision to dismiss. Some of the meeting were held on days that the complainant was not rostered to work.   At the meeting held on 8 December 2016 the complainant was handed a copy of the Staff Handbook which she refused to accept. I am satisfied that a copy of the Handbook had not been issued to the complainant prior to this and that she had never seen the contents of same. The respondent’s submission stated that the complainant had been suspended with pay at this meeting to allow for further investigation. In evidence, however, the accountant said that the €200 given to the complainant was for wages owed to her and that it appeared that the complainant was not in fact paid for the week of her suspension. The complainant denied that she was told of her suspension and texted the owner when she was not rostered to work. It would also appear that no further investigation took place as the owner was on holidays. No minutes or notes were taken of any of the meetings.

The complainant was verbally summoned to the final meeting on 19 December 2016. As noted the complainant was not advised as to the status of the meeting. The Handbook was again offered to the complainant and declined. The complainant was then handed a letter which had been prepared beforehand and informed that she was being dismissed.   There was no mention of the right of appeal. The Staff Handbook states “the employee may be dismissed without notice or pay in lieu of notice but only after the consideration of other possible disciplinary action including (but without limitation to):

Demotion

Loss of seniority or pay: and

Suspension without pay

The Handbook goes on to advise that an employee has the right to appeal against any disciplinary sanction. No evidence was given in relation to considering alternative sanctions and the complainant was not told of their right of appeal. I also note that the main reason given by the respondent for the dismissal was the breach of trust that had occurred as a result of the behaviour of the complainant. At the hearing, however, it was stated that had the phone been replaced by the complainant the outcome may have been different.

In view of the above I have to conclude that the procedures utilised by the respondent in deciding to dismiss the complainant were significantly flawed and were not in accordance with the principles of natural justice or the Code of Practice on Disciplinary and Grievance Procedures, S.I. No. 146/2000.

I am also of the view that the actions of the complainant and her behaviour in initially denying her involvement in the incident contributed significantly to the circumstances that led to her dismissal. The complainant said that she had not been employed since her dismissal. The complainant did not produce much tangible evidence of her attempts at mitigation.

Complaint No. CA-00011345-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons set out above I find that the procedures utilised by the respondent were flawed and consequently I find that the complainant was unfairly dismissed. Section 7(2) of the Act requires that I consider the measures adopted by the employee to mitigate their loss and the extent to which the conduct of the employee contributed to the dismissal.Taking all these factors into account I order the respondent to pay to the complainant the sum of €4,500.00 as compensation in this regard.