ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009737

	Complainant	Respondent
Anonymised Parties	General Operative	Warehousing & Distribution Company

Representatives

Mark S Byrne B.L., Elaine Hickey TRACEY SOLICITORS

Conor O'Gorman IBEC, Rory Byrne, Niall Conroy, Ray Peelo, Clare McGrath

Marta Stachowiak Interpreter

Complaints:

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-00012700-001	21/07/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00012700-002	21/07/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00012700-003	21/07/2017

Date of Adjudication Hearing: 11/06/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Warehouse General Operative from 20th March 2006 to 10th March 2017. He was paid €722.80 per week. He has claimed that he was unfairly dismissed and did not get minimum notice. He has sought compensation.

The complaint CA 12700-003 Redundancy payments Acts 1967 was withdrawn.

The complaints under ADJ 9724 are duplicates under the incorrect named Respondent and is also withdrawn.

1)Unfair Dismissals Act 1977 CA 12700-001

Summary of Respondent’s Case:

The Complainant had a good employment record prior to the incident that led to his dismissal. On 14th February a Line Manager reported that he had witnessed the Complainant drinking a bottle of soft drink. He then reported this to the Complainant’s line manager and made a statement. This was regarded as a very serious matter and the Respondent appointed two managers to investigate the allegation. A preliminary investigation took place and he was represented by his Shop Steward. He denied the allegation and he was suspended on full pay to allow a full investigation to take place. A full investigation took place. Statements were taken from the Line Manager and the Complainant and CCTV footage was reviewed. The investigators upheld the allegation and the matter was escalated to a disciplinary hearing, which was held on 2nd March. He was advised of the potential outcome and his right to representation. He was given a copy of the investigation report. The Complainant continued to deny that he had taken the bottle and drunk the same. The outcome of the disciplinary hearing was issued on 10th March 2017 and he was dismissed with immediate effect. He was offered the right of appeal. The appeal was heard on 30th March 2017 and he was represented by his Shop Steward. The dismissal was upheld.

It is their position that he was dismissed by reason of his conduct in accordance with Sec 6(4) of the Unfair Dismissals Act. Following a thorough investigation, disciplinary meeting and appeal he was adjudged to have consumed and damaged product from the warehouse which was due to be delivered to a customer. A person with over ten years’ experience would fully understand that allowing damaged product to go to a retailer would have a significant effect on the relationship with the customer and the overall business. The relationship with the Respondent company had irrevocably broken down as a result of his actions. This amounted to gross misconduct. It is the Respondent’s position that any type of theft cannot be tolerated. In recent years five employees have been dismissed for theft. They cited the Employment Appeals Tribunal case Looney & Co V Looney UD843/1984 in support. His actions amounted to a breach of trust between the parties. When trust has been undermined the employment, relationship cannot be sustained. He was at all times afforded the benefits of fair procedure. He was at all times aware of the allegations made against him. He was given the right to defend himself. A full investigation was carried out before a decision was made. He was represented by his union. The decision took into account the representations made on his behalf. He was provided with the opportunity to appeal the decision. The dismissal was procedurally fair in all respects.

Summary of Complainant’s Case:

At the time of his dismissal he had developed a long-standing employment history of almost 11 years. The alleged incident is denied and the complaint made by the Line Manager is refuted. He denies any wrongdoing. He states that the Line Manager could not have seen the alleged incident from his vantage point. Matters were compromised by the Line Manager’s failure to intervene/intercept and/or engage the Complainant at the moment which alleges he saw the Complainant drinking a bottle of soft drink. The Line Manager’s actions has reduced the evidence capable of being used to being purely circumstantial. Shortly after the alleged incident was put to the Complainant. He denied any wrongdoing and was sent back to work until a preliminary investigation was conducted. This illustrates the Line Manager’s lack of certainty regarding what he witnessed. The investigation was procedurally flawed. The Respondent has no CCTV footage directly implicating or exculpating the Complainant. The Respondent is relying on pre- and post-loading condition of the case of soft drinks as the only evidence of any wrong doing. The evidential deficit is highly prejudicial. The re-enactment of the alleged incident was prejudicial to the Complainant in what he believes he witnessed. The Respondent involved the Line Manager in the re-enactment but not the Complainant. The Complainant has always denied any wrongdoing and has held the view that the Line Manager was mistaken. The person who carried out the appeal relied upon the re-enactment exercise to uphold the dismissal. The Respondent has also miscategorised the alleged behaviour of the Complaint as amounting to gross misconduct by reference to their own disciplinary policy. Even if the Complainant was to admit to the allegation, which he doesn’t then he was guilty of a minor breach of causing minor damage to property. If there is any doubt as to which category of misconduct the alleged behaviour falls into then the Complainant should receive the benefit of the doubt having regard to his 11 years of service. The monetary value of the damage to property must be a valid consideration when it comes to the Respondent’s assessment of what level of misconduct will be alleged against an employee. It was unreasonable for the Respondent to conclude that the bond of trust has been irrevocably broken given the circumstances of this case. If there was a doubt about what actually occurred then the Respondent should have considered his 11 years of service, which they did not. The Respondent failed to consider alternative sanctions which would have been more appropriate in the circumstances of this case. The Complainant was unfairly dismissed having all the circumstances.

His representatives stated that there was an obligation on the Respondent to act reasonably and cited Cox, Corbett & Ryan in Employment Law in Ireland (2009 Clarus Press at para 21.72)

He is seeking re-instatement or in the alternative a re-instatement date later than the date of dismissal or re-engagement or compensation.

He has not found work since despite many applications. He stated that he could find work but at a considerably lower salary, which he was not prepared to accept.

Findings and Conclusions:

I note the written and verbal submissions made by both parties.

Substantive Matters

I note the Line Manager’s statement that he observed the Complainant drinking a bottle of a named soft drink.

I note that 10 minutes later two managers observed a broken seal on a package of soft drinks and a half empty bottle of that named soft drink.

I note that the investigator checked the CCTV footage and nobody else other than the Complainant entered the truck where the pallet of soft drink was.

I note that they concluded that the only person that could have done this was the Complainant.

I note that the Respondent re-staged the pallet before and after the “opening incident” and it shows no tampering opening before, but tampering afterwards.

I note that the Respondent firmly believed that the Complainant took the bottle of soft drink and consumed part of it, despite his protestations of innocence.

I note the Respondent’s position that this action has constituted gross misconduct irrespective of the monetary value.

I note that the Respondent has formed the view that the bond of trust has been irrevocably broken thus warranting dismissal.

I have reviewed the positions of both parties and I have concluded that I accept the Respondent’s evidence.

On the balance of probability, I find that the Complainant consumed part of the bottle of soft drink as alleged.

I find that this amounts to gross misconduct irrespective of the value.

I find that this amounts to a breach of trust.

I find that the dismissal was substantively fair.

Procedural Matter

Reliance is placed on the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978 “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Also in O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

I note that a preliminary investigation took place and it was decided to carry out a full investigation to establish if the Complainant had a case to answer.

I note that he was suspended on full pay pending the outcome of the investigation.

I do not place any credence on the Complainant’s position that he was allowed to return to work pending the preliminary investigation.

I find that he was given an opportunity to view the CCTV footage and he received a copy of the report.

I note that he was made aware of the allegations made against him and his right to representation.

I note that the matter was escalated to a disciplinary investigation.

I note that he was advised of the potential outcome of dismissal.

I note that he was given the right of representation.

I note that he was given the right to defend himself.

Note that he was given the right of appeal, which he availed of and was represented by his union again.

I note the Respondent’s position that once they had concluded that he committed an act of gross misconduct they had no choice but to dismiss and so no alternative was possible.

I find that the dismissal was procedurally fair.

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 this claim should fail.

2)Minimum Notice & Terms of Employment Act 1977 CA 12700-002

Summary of Complainant’s Case:

The Complainant was unfairly dismissed and he did not receive minimum notice.

He has sought six weeks’ notice.

Summary of Respondent’s Case:

The dismissal of the Complainant was directly as a result of his misconduct. Therefore, he was not entitled to minimum notice as contained in the Act.

Findings and Conclusions:

I refer to the decision in the unfair dismissals case above CA 12700-001.

I have found that the dismissal was not unfair.

Therefore, I find that minimum notice does not apply.

I find that this complaint should fail.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that this complaint should fail.

3)Redundancy Payments Acts 1967 CA 12700-003

This claim was withdrawn

Dated: 27th August 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair dismissal and minimum notice