Complainant

Respondent

Anonymised Parties

A Retail Supervisor

A Retail Chain

Representatives

Donal O’Riordan BL instructed by Behan Barry Solicitors

Mary O'Brien Williams of Tom Smyth & Associates

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-00018105-001

22/03/2018

The dispute concerns the alleged Unfair Dismissal of the Complainant, a Retail Supervisor by a Retail Chain.

The Complainant commenced working for the Respondent in May 2015. On or about the 19th November 2017 a customer entered the retail premises seeking to return a set of Christmas lights. She did not have a receipt or any other proof of purchase as required by the Respondent’s returns policy.  The Complainant explained Company policy regarding returns to the Customer. The Customer became irate and subjected the Complainant to an alleged tirade of abuse.

The Customer subsequently sent a complaint to the Respondent. This initiated an Investigation process by the Respondent. The Complainant was suspended following the Investigative process. This was most unjust and displayed a completely negative bias by the Respondent towards the Complainant.

The Complainant was then subjected to a Disciplinary process which was flawed and manifestly unfair. The Complainant was dismissed on the 15th December 2017. An Appeal Process was allowed but the Dismissal decision was Upheld.

In final summary the Complainant alleged that

·         The Investigative Process was manifestly unfair.

·         The Disciplinary process was unfair in that no formal warnings of possible Dismissal were given in advance, no examination of witness was allowed and the correspondence, particularly the letters concerning the suspension displayed a clear pre-determined bias,

·         The Appeal process was fundamentally unfair and was extended to include matters such as her demeanour during the Process which were completely outside of its remit and accordingly unfair.

·         Notwithstanding the above points the sanction of Dismissal was completely disproportionate and unreasonable in all the circumstances.

The Respondent is a retail business dependent on good customer relationships. The customer interaction on the 19th November 2017 regarding the allegedly faulty Christmas lights was totally inappropriate. The Complainant displayed a completely wrong attitude for a Retail Supervisor and her actions made the situation worse.

The calling over to the discussion between the Complainant and the Customer of a retail junior Ms. XA to act as a witness was an error of judgement on the Complainant’s part. The suggestion that the Complainant would have to “call the Guards” was equally bad customer relations.

A detailed statement was provided by Ms.AX which corroborated much of what had been alleged by the Customer. The Complainant had alleged that two versions of this statement were produced. The Respondent pointed out that the second version was simply the typewritten copy of the first handwritten statement.

Two Investigative meetings took place on November the 28th and the 5th December. These were largely carried out by the former HR Manager Mr. XD. The process was comprehensive and completely professional. The Complainant was afforded every opportunity to state her version of events.

Following these meetings, a Disciplinary meeting was arranged for the 15th December 2107. The Meeting was chaired by a Director/Manager Mr. XB.  At this meeting the Complainant was unapologetic and defensive in all her answers. The Manager advised her that, having reviewed the evidence and heard from the parties, her behaviours had been gross misconduct. She displayed a distinct lack of judgement in dealing properly with the Customer complaint.

Furthermore, the distinct lack of remorse or contrition by the Complainant made the Company fearful of a repetition of this type of behaviours. The Complainant was dismissed after this meeting and a letter confirming the dismissal was issued on the 21st December 2017.

An Appeal was offered and following some exchanges was heard on the 24th January 2018. The Appeal was heard by Director Mr. XC.  A most comprehensive Appeal process was followed, all evidence was considered and the Complainant given all opportunities to state her case. After most careful consideration the Appel was not upheld.

The Complainant remained unapologetic and continually refused to accept that her behaviour on the 19th November was completely inappropriate. The Respondent had no wish to dismiss the Complainant but her behaviour had been gross misconduct warranting Dismissal as per the Company handbook.

3:1        The Relevant Law.

The relevant Law is the Unfair Dismissals Act,1977 supported by SI No 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures and a considerable body of Legal precedent & case law.

The overall guiding principles are those of Natural Justice and Mr. Justice Flood has set this out clearly and I quote below.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In SI 146 of 2000 referenced above expands on these principles. At Point 7 of the Statutory Instrument it states

“These principles may require that the allegations or complaints be set out in writing. that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.”

Legal Precedent would clearly indicate that in a Dismissal station the evidence being relied upon by the Employer has to be presented to the Employee and that they are given full opportunity to challenge it and present their own version of any disputed events.

Decision Makers must be clearly free of any perceived prior bias and the Dismissal decision must be related to the events in question, unrelated as stated by Mr. Justice Flood, to any other agendas.

An Appeal decision maker must be truly Independent of the previous Investigative and Disciplinary process.

It is also a well-accepted practice that the function of an Adjudicator or formerly the EAT is not to rerun an investigative/disciplinary process ab intio but rather to satisfy themselves that Natural Justice and Fair Procedures were followed.

Any Decision, particularly a Dismissal, must be seen to be reasonable - falling within what is termed the “Band of Reasonableness” for an employer in a comparable situation or industry.

However, notwithstanding the Legal issues referenced all cases must be considered primarily on their own evidences and particular situation.

3:2       The Evidence considered.

A considerable body of written and oral evidence was presented in this case. A number of potentially key witnesses were no longer available especially the former Personnel/HR Manager Mr. XD and the oral witness evidence of Ms. XA - the retail junior was not taken although her written statements were available.  Ms. XA was, at the time of the hearing, on a student programme in the USA

Certain key points became clear.

Although disputed as to its origin (an alleged misunderstanding with the former HR manager Mr. XA being given as the cause) the Disciplinary decision maker wrote to the Complainant on the 12 December 2017 (prior to the Hearing on the 15th December) and stated that

“I can confirm as a result you are being suspended with immediate effect with pay until further notice. This type of behaviour constitutes serious misconduct, is totally unacceptable and will not be tolerated under any circumstances”.

The Respondents denied ever issuing this letter and maintained that it had been an error on the part of the former HR Manager that it had ever issued, if at all. The Respondent maintained that a much less expansive letter had issued which was simply an invitation to a Disciplinary meeting. Regardless of the question of the issuing/non- issuing of the letter it certainly displayed a large element of pre- judgement on the part of the Respondent.

In neither letter was any reference made to the Disciplinary meeting having the possible consequences of the Complainant losing her employment. Good practice, supported by legal precedents, indicates that any invitations to Disciplinary Proceedings must make it clear to an employee that their job is at risk.

The role of the former HR Manager Mr. XD appeared ambiguous. It was claimed by the Complainant that he had advised the Complainant that she had nothing to fear from the process and at worst would be given “more training”. It appeared that these reassurances left the Complainant exposed, certainly in terms of approach and representation, at later stages in the process. Mr.XD was not available to give direct evidence as he is no longer in the Respondent’s employment.

Much of the Disciplinary process relied on witness statements both from the aggrieved Customer but in particular Ms. XA -the retail junior. I could not see any evidence of the Complainant being afforded an opportunity to cross examine or to seriously challenge, face to face, the evidence being relied upon here.

In the Appeal Hearing decision letter of the 19th February 2918, it was stated that the Appeal Chairman had spoken to witness

“From my meetings with M, D and S I conclude that you were given ample time to answer questions and that you simply refused to engage in the meetings and were dismissive of the questions asked”

There was no evidence of any minutes or records of these witness meetings by the Appeal Chairman or of the Complainant being afforded an opportunity to challenge their assertions.

Furthermore, in the Appeal Hearing decision letter of the 19th February 2018 the statement was made

“having spoken to M and having read the notes and statements can confirm that this was due to your insubordinate behaviour during the whole disciplinary process up to and including your Dismissal meeting. You state that you were not abusive or threatening but you left out insubordinate, which was the misconduct you were dismissed for. The dismissal can be for any or all these types of misconducts,”

Basic Natural Justice would indicate that an employee needs to be informed in advance of what the charges or indictments he or she is facing. Nowhere in extensive notes and minutes could I find any concrete evidence of “Insubordination” being the charge that the Complainant faced.

As regards the issue of “Gross Misconduct”, the issue referred to in the Dismissal letter, the Labour Court has considered this issue in DHL Express (Ireland) Ltd v Michael Coughlan {2017)

The Court referred to the case of Lennon v Bredin M160/1978 and the Gross Misconduct exemption to an employer to pay any Minimum Notice. This is referred to at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC 1996) where the Tribunal is quoted as saying regarding Gross Misconduct

“We have always held that this exemption (Gross Misconduct) applies to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the (employment) relationship for a minute longer. We believe the legislator had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.”

It was not clear to me how a Customer dispute, albeit one that had got heated, over the returning of a set of Christmas lights fit this classification.

As regards the “Reasonableness” argument the case of Hennessy v Read & Write Shop Ltd UD 192/1978 is useful for its definition of how “Reasonableness” can be determined. It is arising from (a) the nature of the inquiry carried out and (b) the employer conclusions reached.

Dismissal from employment is a very major, the ultimate, sanction. It was not clear to me why a lesser section could not have been utilised

Overall in this case it appeared that there were a number of procedural flaws and issues of Natural Justice (issues of proper notification of job at risk, cross examination of witnesses, statements made in advance by decision makers etc) in the Investigative & Disciplinary Hearings. Individually these lapses were probably not fatal to the Respondent case but when seen cumulatively they were a fundamental problem in seeking to rebut the Unfair Dismissal claim.

As regards the Complainant the evidence indicates that she may have been brusque and somewhat dismissive of the Respondent Investigation, Disciplinary and Appeal processes. It appeared that her lack of a contrite approach and demeanour were ultimately factors in her Dismissal.

The key issue here being that an Unfair Dismissal case is about the facts of the incidents leading to the Dismissal decision. The lack of a contrite manner by the Employee or a fear that there might be a future repeat incident should not be issues, under Natural Justice, influencing the Dismissal decision maker.

3:3         Conclusions

Taking the Natural Justice and normal procedural standpoints I had to find that there were flaws in the Respondent’s approach. In addition, considering “reasonableness” I could not see why the ultimate sanction of a Dismissal was the only remedy available.

Accordingly, and having considered all the evidence both written and oral I had to find that an Unfair Dismissal took place.

Act

Complaint/Dispute Reference No.

Summary Decision /refer to Section Three above for reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018105-001

Unfair Dismissal claim is found to be sustained.