Complainant

Respondent

Anonymised Parties

A Manager

A Service Station

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-00016059-001

29/11/2017

The Complainant was employed by the Service Station as a sales assistant in 1997. She was promoted to the position of store manager on 2nd June 2016. A transfer of undertakings took place on 18th January 2017. She worked 39 hours a week and was paid €450 gross. She claims that she was unfairly dismissed on 29th August 2017 and she is seeking compensation in that regard. The Respondent denies the claim.

The Respondent is a retailer which operates a number of service stations. The Respondent submits that it purchased the outlet in questions in January 2017 in an overnight deal that was necessary to save the store. The Respondent took over the Complainant’s employment at the date of the transfer of undertakings on 18th January 2017. The Respondent denies that the Complainant was unfairly dismissed and submits that the Complainant was fairly dismissed on foot of a finding of gross misconduct which was arrived at following a full and fair investigation, disciplinary and appeal in line with the Respondent’s policies. When the Transfer of Undertaking took place in January 2017 the Complainant’s employment

transferred and the Respondent implemented its standard operational policies and company

handbook. In February 2017 the Complainant received seven days’ training from Ms B, the

Respondent’s trainer. This training included, specifically, training on the Respondent’s policies

and procedures relating to: non-payments, local accounts, account payment, cash procedure,

safe check, and float check before each shift. The relevant processes and procedures were

available in store to review as necessary.

On 12th April 2017, on foot of a number of issues that had arisen in relation to store standards at

the store, the Complainant had a meeting with the regional manager, Mr JF.

The minutes of that meeting note that Complainant undertook to complete the following tasks:

‘1. [The Complainant] will train all staff to do scanning by end of next week.

2. Other staff will be trained to do orders within the next two weeks.

3. All staff will be made aware that they can only use their own tills and no one else’s

4. Ms M will receive 3 training sessions of 2 hours on how to do the cash lodgement and paper work to head office

5. Mr C will be trained to do the cash lodgement once Ms M is trained

…

12. [the Complainant] will start a cleaning schedule to cover, forecourt, pumps, windows and the

general shop’

These minutes were conveyed to the Complainant by email dated 21st April 2017. At the end of

that email Mr JF wrote: … In the meantime if you need any help just give me a call.’

The Complainant did not implement the tasks that were requested of her. In view of these ongoing issues Mr JF gathered information from various parties in relation to the problems with reports and compliance experienced with the service station. Various persons supplied information on issues they were having and these were discussed with the Complainant at a meeting on 12th July 2017.

Also at that day two new operational policies were brought into effect – ‘Coffee and Deli

scanning controls’ and ‘Deli margin and pricing controls’. The Complainant signed her name on Coffee and Deli scanning controls policy under the declaration which provided: ‘I the

undersigned have read and understand the above statement’. She did not sign the latter one.

In addition to support from Area Manager Mr JF, the Complainant also received 14 visits

from retail manager Mr D O’N. Both were also available to give phone support at any time.

On 2nd August 2017 the Complainant submitted a cash sheet that was short €427.65 with no

explanation. Ms G (Financial Accountant) noted this to the Complainant by email dated 8th August 2017 and requested an explanation as soon as possible. On 10th August 2017 Mr JF carried out an informal investigation meeting to try to get to the bottom of the store’s issues. Ms SC, fresh food manager, was present to take notes. In the course of that meeting the following items were discussed:

a. The missing money

b. That case control procedures note being followed

c. The Complainant admitted to not checking till sheets before sending to head office

d. That tills were not being counted at the start and end of shifts

e. That no extra person had been trained to cover the tills

f. That the staff were not cleaning the forecourt

g. That staff were taking food and drink from the store without paying for it.

h. That till staff did not get breaks because there were not enough staff trained on tills to allow them to take breaks

i. That 736 coffees were unaccounted for in 16 days

j. The Complainant admitted to giving away free coffees to [named courier] drivers

k. Mr JF instructed the Complainant to stop giving fuel credit to lorry drivers unless she had permission. He noted that he had already given this instruction weeks ago and the Complainant replied that ‘They were good customers and she did not want to lose the business.’

Following the investigation meeting, on 10th August Mr JF emailed Mr DO’N expressing his grave concerns and recommending a disciplinary action against the Complainant in relation to her failings as a manager. On 14th August 2017 Mr JF emailed his findings from the investigation to Mr DO’N and Ms C (HR Manager).

Following the meeting of 10th August it was decided that it may be necessary to discipline the

Complainant and a further investigation meeting was convened. The Complainant was contacted on 21st August 2017 and advised that an investigation meeting would be held the following day.

After this meeting the Complainant was suspended on full pay pending an investigation.

The facts found during the investigation meeting disclosed certain matters of concern which, if

substantiated, would be considered gross misconduct. It was therefore necessary to convene a

disciplinary meeting. On 24th August 2017 the Complainant was invited to the disciplinary hearing which was scheduled for 28th August 2017. The matters of concern were listed as:

“1. Alleged missing monies amounting to €427.30 on 02.08.2017. It appears that you failed to explain the missing cash and that you failed to follow procedure in relation to missing cash.

2. It appears that you failed to update the Shop Float Analysis with the introduction of 2 new floats.

3. It appears that you failed to follow direct instructions from your Regional Manager to implement internal company policies and procedures in relation to the till systems including float counts at the beginning and end of shifts

4. It appears that you allegedly continued to give out free cups of tea and coffee to customers, when you were instructed on 10th August 2017 by your Regional Manager to stop this practice

5. It appears that you have allegedly continued to give fuel on credit to customer and failed to follow direct instructions from your Regional Store Manager to stop this practice.

6. It appears that you have allegedly failed to train staff on adequate standards as instructed by your Regional Manager

7. It appears that you have allegedly failed to follow all management instructions as directed by your Regional Store manager following your meeting on 10th August 2017.

The Complainant was provided with a copy of the investigation meeting summary notes of 22nd

August 2017 and the Respondent’s disciplinary rules and procedures. She was advised of her right to be accompanied to the meeting. She was also specifically advised of the following: ‘These matters are regarded as potentially gross misconduct which may result in the summary termination of your employment if you are unable to provide a satisfactory explanation to the matters put to you.’

The disciplinary meeting proceeded as planned.

The findings in relation to each of the allegations were provided by letter dated 31st August 2017. The Complainant was summarily dismissed due to gross misconduct. She was informed of her right to appeal the decision. The Complainant exercised her right of appeal. By letter dated 11th September 2017 the Complainant was invited to an appeal hearing which was scheduled for 18th September. The appeal meeting took place as planned and a decision to uphold the dismissal was issued by letter dated 26th September 2017.

The Respondent submits that subsequent to the Complainant being placed on suspension the number of cups of coffee sold per week increased by around 200 cups per week.

Company’s Disciplinary Procedure

In the Company’s disciplinary procedure the following matters are given as examples of gross

misconduct: ‘gross insubordination and/or continuing refusal to carry out legitimate instruction

…

Any action, inaction or wrongdoing committed by you during the course of your employment that would result in a financial loss to the Company’

The Complainant admitted to behaviours which caused financial loss to the business and admitted to repeated failures to carry out legitimate instruction.

It is submitted that:

a. The dismissal of the Complainant resulted wholly from her conduct, specifically her behaviours which caused financial loss to the company and her repeated failures to carry out legitimate instruction.

b. There were substantial grounds justifying the dismissal, specifically her behaviours which caused financial loss to the company and her repeated failures to carry out legitimate instruction.

It is further submitted that the sanction of dismissal was reasonable in all the circumstance and

that the procedure followed was fair. It is submitted that the dismissal was within the range of

reasonable responses that were available to a reasonable employer.

Redress

If the Adjudication Officer accepts the Complainant’s case and finds that she was unfairly dismissed, the Respondent respectfully requests that the Adjudication Officer have regard to section 7(2)(f):

In the instant case the employee’s conduct was the sole reason for her dismissal. Specifically

her ongoing failure to perform the tasks that she was asked to perform by management resulting

in significant financial loss to the company.

Four members of the management team of the Respondent gave evidence at the hearing.

Ms PC, HR Manager confirmed that a copy of Handbook was delivered by post to every site. She was uncertain whether it was also emailed to the individual staff members. In cross-examination she confirmed that no structured training was offered to the Complainant but there was an “open invitation” in respect of the support offer.

The Regional Manager, Mr JF in his evidence stated that there were no major concerns immediately after the transfer. However, as the issues arose he had a conversation with the Complainant in April 2017. A number of issues were identified and an action plan was agreed upon. He offered his assistance to the Complainant. He had another meeting with the Complainant on 12th July 2017 and the policies in respect of the deli were communicated to all staff members. Following shortage of €427.30 on 3rd August 2017 another meeting with the Complainant was held on 10th August 2017 when all the concerns were discussed with the Complainant and clear instructions were given to the Complainant is respect of her further actions. At this stage Mr JF recommended disciplinary action against the Complainant. There was a further investigation meeting held on 22nd August at the end of which Mr JF put the Complainant on paid suspension. The disciplinary process followed.

Mr DO’N, Retail Manager who conducted the disciplinary hearing in his evidence emphasized that the Complainant was given training and written procedures but did not follow them. He stated that trust was broken, the Complainant was given instructions and did not follow them. He got the feeling that it was not going to change. He did not consider demotion as it would lead to someone else being let go or hours reduced. Ms DC who heard the appeal added that the Complainant was given ample opportunity to acknowledge her errors and undertake to follow the instructions but she did not do so. For that reason, Ms DC felt that a warning or re-instatement would not be appropriate.

The Complainant submits that she was not properly informed or informed at all in advance of the disciplinary meeting held on the 28th August 2017. The Complainant was not aware in advance that the meeting was in relation to disciplinary issues/concerns nor was she aware of the agenda for the meeting or the nature of the allegations against her. The Complainant was not aware she could have someone present during this disciplinary meeting; The Complainant was not clearly informed of exactly why she was being suspended and she was not aware her job was in jeopardy following this apparent disciplinary meeting. The Complainant submits that she was suspended following this meeting on the 28th August 2017. The Complainant submits that she was falsely accused of giving 'credit' when in fact she was holding card payment details for a short period of time of customers she was acquainted with while the internet card payment facility was malfunctioning/ internet down. The Complainant asserts that she did not receive adequate training for the new processes/procedures/ standards introduced by the Respondent.

The Complainant submits that she never received a copy of the employer's grievance or disciplinary procedure. The Complainant was wrongfully accused of giving out 700 free coffee cups. The Complainant was reprimanded for cleaning fuel pumps when the floor staff were too busy to do it. The Complainant was wrongfully and unfairly accused of being a risk to the business. The Complainant was not aware or was ever informed that her manner of managing the shop was incorrect or tantamount to misconduct. The Complainant never received a verbal or written warning in relation to her management practices. The Complainant was wrongfully accused in relation to missing money. She was deemed to be unable to offer an adequate explanation for the missing money at the disciplinary meeting but she was not expecting such an accusation. The money was subsequently found at the side of the safe and no loss was suffered by the Respondent. Other members of staff were instructed not to talk or communicate with the Complainant or her husband.

The Complainant submits that she was informed that she was guilty of gross-misconduct by not following procedures and not training staff and putting the 'profit of the company at risk'. The Complainant was reprimanded for doing deli meal promotions (which had always been done historically) and giving a complimentary tea/coffee with a large bulk fuel purchase (also always done historically); The Complainant was not given the opportunity of taking up more training in order to meeting the Respondent’s expectations/ new processes/ new standards. The Complainant submits that she had an unblemished record, she was an employee at that service station for over 20 years prior to her dismissal.

In her direct evidence the Complainant denied misappropriating any money from the Respondent. The parties confirmed that the missing money was located beside the safe. The Complainant stated that although the Respondent’s trainer was on the site for a week she was not devoted to her and trained another manager. She submits that in total she received 20 hours of training. The Complainant asserts that she was with the station for over 20 years and to keep the customers it was nice to offer them a cup of coffee. She categorically denies giving out 700 cups over two weeks. She confirmed that the Handbook was in the office but claimed that she had never read it and has had no disciplinary issues before. She was never trained to train staff.

The Respondent submits that the Complainant was dismissed due to gross misconduct. 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 consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted. It is well settled that the role of WRC adjudicators is not to determine what happened, but to consider whether the employer had reasonable grounds for whatever conclusion they reached. I refer to O’Riordan v Great Southern Hotels (UD 1469/2003) and to Hennessy v Read   & Write Shop Ltd (UD192/1978). 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. (EAT – UD690/2012).  

There is no dispute that a number of issues arose following the transfer of undertakings in January 2017. The Respondent introduced their own policies and procedures and it became apparent to the senior management that the Complainant was prone to making mistakes and did not follow clear instructions. The Regional Manager met with the Complainant in April 2017, July and August 2017. A number of shortcomings in the Complainant’s performance were identified, particularly in respect of the missing money, the Complainant’s ability to manage the shop, to get the staff to follow her instructions and the lack of control which presented the risk to the business. This led to a disciplinary action being initiated by the Respondent. I am satisfied that there were sufficient grounds for the Respondent to initiate disciplinary action against the Complainant. The Complainant was invited over the phone on the 21st August 2017 to an investigation meeting on the 22nd August. The Complainant was not provided with a copy of the complaint against her. The Complainant was placed on a paid suspension following that meeting. The records presented by the Respondent show that the Complainant was notified of the disciplinary hearing by letter dated 24th August 2017, which was also sent by email to the Complainant. The letter outlined the nature of the allegations against her, the right to representation and the seriousness of the matter. At the outset of the disciplinary hearing the Complainant confirmed that she received the letter and a copy of the notes attached to it. She confirmed she was aware of her right to representation and was happy to proceed without it. The decision to dismiss the Complainant from her employment was communicated to the Complainant the day after the disciplinary hearing over the phone. It could be argued that the decision to dismiss was communicated somewhat quickly to the Complainant. The Complainant was informed of and exercised her right to appeal. She attended the appeal hearing with a friend. At the appeal the Complainant denied that she received any correspondence in relation to the disciplinary meeting or any notes. She claimed that she was not aware her job was on the line. In that regard, I note that the letter of 24th August 2017 clearly invites the Complainant to “a disciplinary hearing”. The letter states that the Complainant may be accompanied and that “these matters are regarded as potentially gross misconduct which may result in the summary termination of your employment”. The Complainant has received copy of the Grievance and Disciplinary Procedures (copy of signed Contract confirming same dated 2nd June 2013 was exhibited at the hearing). The Complainant disputed the level of training in respect of the Respondent’s procedures and claimed that the designated trainer spent up to 20 hours out of the week’s long training with her. However, she has not reported this matter to the Respondent nor did she request any further training. Moreover, she signed documents entitled ‘Staff Training Brief’ and ‘Tougher Oil Safe Check Procedures’ confirming that she received the training from Ms B. I note the Complainant assertion that she was not aware or was ever informed that her managing of the shop was incorrect or tantamount to misconduct and she has never received a verbal or written warning. It was not denied that the Respondent held at least three meetings, in April, July and in August 2017 when the Complainant managing methods and decisions were discussed. Although, no verbal or written warning was given to the Complainant she was made aware of the shortcomings of her performance. I would have some concerns about the fact that the Regional Manager formed his opinion on 10th August 2017 that a disciplinary process should be initiated but the Complainant was not made aware of that until 22nd August 2017. I also agree with the Complainant that she should have received the details of the allegations against her prior to the investigation meeting on the 22nd August 2017.

Despite the deficiencies of the disciplinary process, I have given careful consideration to the substantive complaint of unfair dismissal. Consideration must be given to whether the sanction emanating from such a process falls within what might be considered a range of reasonable responses by the employer.

The Respondent’s Handbook lists examples of gross misconduct as, inter alia: “... n. gross insubordination and/or continuing refusal to carry out legitimate instructions;… r. Any action, inaction or wrongdoing committed by you during the course of your employment that would result in a financial loss to the Company;…”

The Labour Court in DHL Express (Ireland) Ltd v Michael Coughlan (UDD 1738) noted the following: “The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

·         There is no dispute that the basis for the disciplinary action related to the alleged missing monies (I note the discrepancy in the submission. However, it is not of particular importance whether the missing sum was €427.30 or €427.65), which were subsequently located beside the safe; failure to update the Shop Float Analysis and failure to follow direct instruction from the Regional Manager in respect of a number of policies and procedures. Various instructions in relation to these allegations were given to the Complainant repeatedly over the previous months. I note that in Brewster v Burke and the Minister for Labour [1985] 4 JISLL 98 the High Court stated: “It has long been part of our law that a person repudiates his contract of service if he willfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.” However, as has been pointed out in such cases, it is necessary to examine the reason for the refusal to follow the instructions.

·         The evidence before me suggests that the Complainant was promoted to the manager’s position in June 2016 after 19 years’ service as a sales assistant. The Complainant informed the hearing that she has no formal qualifications, she joined the station’s team straight after finishing school. The managerial position carried some responsibility in so far as the Complainant was expected to manage staff as well as organise the administrative and financial affairs of the enterprise. The Complainant’s role was a significant one. The Complainant has developed her own management style, which she thought was suitable for the type of enterprise she has managed. Throughout the disciplinary process the Complainant insisted that her decisions were made with the sole purpose of keeping existing customers and that she trusted the staff members. It appears that she believed that her local knowledge prevailed over the management instructions. I do not find anything in the evidence available to me to the contrary. In fact, the reason the Complainant found herself in this situation appears to be that she made all efforts which she believed would keep the customers, even if these actions conflicted with the management instructions. Although, this does not provide any excuse for the Complainant’s actions, they do not, in my opinion, fall within the category of ‘very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’, as described above. In any event, the issues at the heart of the dismissal came to the attention of the management shortly after the transfer of undertakings but the Complainant was allowed to run the store for a number of months before she was suspended. I am therefore of the view that the behaviour of the Complainant cannot reasonably be considered to amount to gross misconduct and the sanction of summary dismissal imposed was disproportionate and unwarranted given the circumstances.

·         Mr DO’N of the Respondent confirmed at the hearing that that he did not give due consideration to imposing an alternative and more proportionate sanction on the Complainant. Following the disciplinary meeting he telephoned the Complainant on the next day to inform her of the dismissal. Ms DC who conducted the appeal noted that she didn’t feel any other option would be appropriate.

Having regard to the totality of evidence adduced by the Parties at the hearing I find that the dismissal was unfair. However, the Complainant’s own conduct significantly contributed to the dismissal.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and compensation is the appropriate redress in this case.

The Complainant informed the hearing that she secured a new employment as of 4th December 2017. She received no benefits between the date of the dismissal and October 2017 but was in receipt of illness benefit from the Department of Employment Affairs and Social Protection thereafter until December 2017. She applied for two positions and one of them resulted in the current job, which pays her €50 gross less weekly.

Having considered all the evidence adduced I find that the complaint well founded. In making my award I am taking into consideration the Complainant’s contribution to her dismissal, her limited effort to mitigate her loss and her unavailability to work due to illness. However, I am also taking into consideration an element of ongoing loss. I consider it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €2,250 which is approximately five weeks salary.

Unfair dismissal, contribution to dismissal, failure to follow instructions