Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Service Station

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-00014333-001

26/09/2017

This dispute involves a claim by the complainant against the respondent that she was subjected to an Unfair Dismissal. The complainant referred her complaint against the above respondent under the Unfair Dismissals Act on the 26th of September 2017.     The complainant has submitted that   she was unfairly dismissed by the respondent on 25th of April, 2017 for what it claims to be grounds for immediate dismissal following allegations against her of ‘unauthorised discounting’ having accepted ‘discounted goods’ from a colleague at the deli counter.   It is submitted that the complainant did not deny accepting ‘discounted goods’ and submits that it was common practice among the staff.

It is also submitted that the dismissal is unlawful as the complainant was not provided with a copy of the disciplinary procedures and the complainant was not permitted to appeal the decision.

The complainant submits that

She was employed by the respondent as a Sales Assistant since 4th of November 2014 firstly on a temporary contract and finally on a permanent contract when she was also appointed to a cash office position,

She did accept discounted goods from a colleague at the deli counter,

All staff engaged in such discounting,

The grounds for dismissal are vague i.e. it is not clear whether it is giving or receiving unauthorised discounts which it is alleged to be grounds for dismissal,

The complainant never received a copy of disciplinary procedures.

The respondent submits that

The complainant was employed by them as a Sales Assistant since 4th of November 2014 firstly on a temporary contract and finally on a permanent contract when she was appointed to a position of utmost trust in the cash office,

It is store policy that certain items are free to staff these are: tea coffee soup and porridge, all other items are charged at full price,

‘unauthorised discounting’ is considered a serious offence and is outlined in the contract of employment as grounds for immediate dismissal,

The complainant was observed on a number of occasions to be holding back in the queue before paying for goods and waiting to be served by a colleague, Ms. D who then provided her with discounted goods, the complainant accepts this,

The complainant was called to investigatory and disciplinary meetings after which she was suspended and later dismissed for engaging in ‘unauthorised discounting’.

The Unfair Dismissal Act, 1997 stipulates that: Section 6(1) ”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) “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 or more of the following: ...

(b) the conduct of the employee,…”

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) 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, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012).  

The respondent advised the hearing that the complainant Ms. S was employed as a Sales Assistant on the 4th of November 2014 on temporary contract the respondent told the hearing that the complainant was given a permanent contract a year later on 4th of November 2015 and was later appointed to a position of utmost trust in the cash office.

The respondent told the hearing that all staff are trained on the key aspects of retail with particular attention to the importance of honesty. As an incentive to employees it is store policy that tea/coffee is available to all staff both on their breaks and at other times during their shifts. Soup and porridge are also free at break times and no approval is required as these are self-service items. These items are free and all others are full price. This policy was known and accepted by all staff.   ‘unauthorised discounting’ is not permitted and is considered such a serious offence that it is clearly outlined in the contract of employment as being grounds for immediate dismissal. It is submitted that the store was built on honesty and it was known that management had zero tolerance for ‘unauthorised discounting’ and that there had been other occasions where staff had been dismissed due to dishonesty and ‘unauthorised discounting’.

The respondent told the hearing that it had been brought to the respondent owner, Mr. B’s attention on the 12th of March 2017 that the complainant Ms. S was holding back in the queue at the Deli counter until her friend Ms. D was ready to serve and that she was then accepting discounted goods from her colleague Ms. D.   Ms. S was on holidays from 13th of March to 19th and then Mr. B, owner, was on holidays for a week after that. Mr. B told the hearing that from the beginning of April 2017 he observed a number of occasions where the complainant was holding back in the queue at the deli and receiving discounted goods from her friend Ms. D. He stated that he observed that when the complainant s friend Ms. D was off or unable to serve her Ms. S paid full price for her goods demonstrating a knowledge of what was normal accepted procedure.

Mr. B at the hearing cited examples of the ‘unauthorised discounting’ which Ms. S had engaged in as follows:

On 12th of March it was brought to his attention that Ms. S had presented a label at the till and paid for a large sausage roll for €1 but when she returned to collect her food she was given a dinner tray by her friend Ms. D which contained a salmon meal which is priced at €6.99. Mr. B stated that he was concerned about this as Ms. S had recently been promoted to the cash office a position of utmost trust.

Mr. B advised the hearing that he witnessed a number of other incidents of ‘unauthorised discounting’ by Ms. S as follows

On 30th of March Ms. S paid €1 and received a cold meat salad which should have cost €5,

On 7th of April Ms. S paid €1 and received wedges and a cold meat salad which should have cost €5/€6,

On 12th of April Ms. S paid €1 and received a quiche and salad which should have cost €3/€4.

The respondent Mr. B told the hearing that following his observations he had held a meeting with Ms. D on Friday 14th of April and had also plannned to meet with Ms. S on that day but stated that Ms. S went home sick at 9.15 am so he had to wait until Monday to meet with her. Mr. B told the hearing that he had on Monday 18th of April requested the complainant, Ms. S to attend a meeting later that day to respond to allegations of ‘unauthorised discounting’. Ms. S was offered the right to bring a representative but she declined. At the meeting she was questioned re accepting discounted goods from her colleague Ms. D on a number of occasions. Ms S accepted the accusation and told Mr. B that she did take the discounted goods and that ‘everyone else did it’.   Mr. B told the hearing that he advised the complainant of the seriousness of ‘unauthorised discounting’ and how it was grounds for immediate dismissal as per her contract of employment, he stated that it amounted to larceny and collusion.

Mr. B also expressed his concern at the complainant working in her role in the cash office when she had breached the basic foundations of trust. Mr. B suspended the complainant for 3 days pending completion of the investigation. It was agreed that a disciplinary hearing would be held on the 25th of April, 2017. A letter was sent to the complainant confirming the suspension and giving details of the disciplinary meeting and advising her of the right to bring a representative with her, she declined this right again.

The disciplinary meeting took place on 25th of April and Ms. S was given an opportunity to explain her version of events and to offer any comments in her defence. Ms. S further declined to offer any explanation or to say anything in her defence. Mr. B advised her that having considered the facts and if she had nothing else to add he had no choice but to terminate her contract of employment. Mr. B advised Ms. S that moneys owed to her and her p45 would issue promptly. A letter confirming the termination followed stating that Ms. S was dismissed for ‘unauthorised discounting’ as per her contract of employment.

The complainant at the hearing did not dispute that she had engaged in the ‘unauthorised discounting’ as outline by the respondent.   The complainant told the hearing that everyone did it and stated that whether or not Mr. B was aware of it all staff did it.   The respondent reiterated that this was a matter which carried a penalty of immediate dismissal as per the complainant’s contract of employment.   It was agreed that the complainant had signed a number of contracts all of which contained the reference to ‘unauthorised discounting’ carrying a penalty of immediate dismissal.

It was submitted on behalf of the complainant that the wording of the contract was not clear and while it is accepted that it does state that ‘‘unauthorised discounting’’ carries a penalty of immediate dismissal, it is submitted that it is not clear whether it is the giving or receiving of unauthorised discounts which is not permitted. The respondent pointed to the fact that the complainant only engaged in the discounting when she could ensure she would be served by Ms. D thus showing that she was aware that this behaviour was not the norm and paying for her goods in full when served by any other colleague.     It was argued on behalf of the complainant that she was not aware of the consequences of ‘‘unauthorised discounting’’ as she had not received a copy of the respondent’s disciplinary procedure. However, the respondent pointed to the fact that ‘‘unauthorised discounting’’ and ‘Dishonesty of any Nature’ are both specified in the complainant’s contract as being grounds for immediate dismissal.   Both parties agreed that the complainant had signed contracts containing this clause on at least three occasions since commencing her employment with the respondent. The respondent added that the complainant had never attempted to apologise for or explain her actions or show any remorse for her actions apart from stating that ‘everyone else did it’. The respondent disputes this and states that it is prohibited in the contract and stated that staff members had in the past been dismissed for engaging in these activities. The respondent again referred to the fact that the complainant only engaged in this activity when she was being served by her friend Ms. D and not when served by any other staff member.

Having considered the totality of the evidence before me I find that sufficient grounds existed for the Respondent to initiate a disciplinary process.   In relation to the conducting of the disciplinary process, I am satisfied from the totality of the evidence adduced and having regard to the circumstances of the case that the Complainant was afforded a disciplinary process and was given an opportunity to explain her actions after being caught engaging in and admitting to engaging in an activity which she was aware carried a penalty of immediate dismissal.

It is also undisputed that the complainant was at every stage advised of her right to representation and she declined to exercise that right.

Taking all the above into consideration, I am satisfied that the disciplinary process was conducted in accordance with the requirements of fair procedure, due process and natural justice.

The final matter for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances.

I note that the respondent’s submission that the complainant’s contract of employment specified clearly that ‘‘unauthorised discounting’’ was grounds for ‘immediate dismissal’, I note the complainant’s submission that it is not clear whether this related to giving or receiving such unauthorised discounts and I accept the respondent’s clarification that the contract also states that ‘dishonesty of any nature’ is grounds for immediate dismissal.   Accordingly, I accept that it is clear that the complainant’s actions in seeking to be served by her colleague Ms. D in order to receive and accepting goods at a discounted price from her colleague Ms. D, is clearly prohibited by the respondent and is defined as grounds justifying immediate dismissal as per her contract of employment.

I note that the Complainant did not at any stage provide any reasonable explanation as to why she was engaging in ‘unauthorised discounting’ apart from stating that ‘everyone else did it’.

I am satisfied from the totality of the evidence adduced that the respondent has provided evidence to show substantial grounds justifying the Complainant’s dismissal, and I am satisfied that the complainant’s dismissal was “within a band of reasonable responses” given the circumstances of this case.

I find that the respondent has discharged the requisite onus/burden of proof of showing that the dismissal was fair and I have to conclude that the Complainant was fairly dismissed.

I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.