Complainant

Respondent

Anonymised Parties

A Customer

Assistant

A Large Retailer

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-00016345-001

15/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016347-001

15/12/2017

This dispute involves a claim by the complainant against the respondent that she was subjected to an Unfair Dismissal. The complainant referred her complaints against the above respondent under on the 15th of December 2017. The complainant has submitted that she was unfairly dismissed by the respondent on the 5th of October 2017, a decision which was confirmed on 11 December 2017 after her appeal was unsuccessful.   The Claimant also alleges she did not receive her minimum notice entitlement on the termination of her employment or payment in lieu thereof.

The reasons stated for her dismissal were a breach of the company Honesty Policy, a breach of the staff purchases Policy and a breach of the reduced to clear policy.

The Respondent refutes these claims in their entirety. The respondent submits that the Claimant’s employment was terminated on 5 October 2017, a decision confirmed on appeal on 11 December 2017 on the grounds of serious misconduct following fair and impartial investigatory, disciplinary and appeals processes.

The Respondent contends that this instance was one of serious misconduct and therefore, the Claimant is not entitled to minimum notice or payment in lieu thereof.

The Claimant commenced employment in the Respondent’s store on 28 April 2009 in the position of Customer Assistant.   Terms and conditions of employment were provided to her and make clear reference in section 20 to disciplinary and dismissal procedures contained in the employee handbook. As recently as 4 April 2012, the Claimant signed to confirm receipt and understanding of the Colleague Handbook. The Claimant also receives ongoing training on company policies and procedures including training in November 2012 on the Cash Register Operating Procedures, in October 2015 on the procedure for reducing stock prices to clear and on all elements of counter compliance and training in August 2014, on the honesty policy , the staff purchases policy and disciplinary matters policy. These training records are signed and accepted by the Claimant.

The Claimant s duties included covering both the meat counter and the deli counter. Before that she worked for some years on tills and was very familiar with till operations and procedures. The meat counter provides a service akin to a traditional butcher shop to supplement the prepacked meats available to customers from the self-service fridges. At the meat counter both prepacked and open meat products are available for sale and are served to the customers “over the counter”.

On the meat counter at the times of the incidents, and relevant to the case, there were two regular employees, the Claimant and one other (Mr S who was interviewed as part of the process).   It would fall to whichever of the two colleagues were available at the time to reduce the price of meat from the counter at as it approached the date beyond which it could not be sold and to make that stock available to customers marked as “reduced to clear”. The reduced to clear stock is popular with customers and is an efficient way for the store to manage stock. The procedure for reduced to clear products clearly sets out that first thing every day checks should be completed on stock by date and by a WIBI assessment (Would I buy it) to identify products for “reduced to clear”.

Once the reduced to clear stock is identified, the stock should be labelled with a “reduced to clear price label” and placed in “the reduced to clear bay to be sold in the store”. It also clear that “reduce to clear products cannot be returned to the counter for sale or be kept in chiller areas”. The Claimant also worked on the deli counter and the deli procedures for meat traceability also make it clear that “any reduced meat product that are reduced must be filled in on a Traceability Sheet and displayed in the reduced to clear bay where the reduced meat will be sold from. Reduced to clear products cannot be sold from the meat counter”.

On the meat counter, the Claimant or her colleague would process some of the stock identified as “reduced to clear” on the meat counter scales and produce the appropriate new price label; however, there were some particular products that required the use of a general store stock handheld machine to process and produce the labels. The meat counter generally closes at 8 pm every evening. Reduced to price activities should happen for the meat counter while the meat counter is open and generally would be performed by meat counter staff.

Apparent stock and till discrepancies and potential breaches of several company policies including the honesty policy, the staff purchases policy and the reduced to clear policy involving the Claimant were identified on dates in May and June 2017 and Ms T (Personnel Manager) commenced an investigation. The incidents came to the attention of management when suspicious transactions were identified by the store electronic stock and till monitoring system called “Target”. The Target Report from security staff that prompted this investigation was submitted.

It was alleged that on several occasions the Claimant had not paid for goods; or knowingly purchased goods at an incorrect lower price by reducing the price on goods and in some instances serving herself those goods. The allegations upheld by the Investigation were that;

-on 3 separate occasions the Claimant did not pay for an item of pre-packed meat

-on 2 separate occasions she paid for less stock than that which she had presented for payment

-on 2 separate occasions she reduced the price of meat and held large amounts of meat back for herself to purchase and did not follow the correct process in reducing the price of meat and putting the stock into the reduction bays for the customers to purchase.

Ms. T informed the Claimant of the investigation in writing on 12 July 2017 and invited her to a preliminary investigation meeting on 13 July 2017 where the Claimant was accompanied by a colleague, Ms. M. Minutes of the meeting were provided to the hearing.

The investigation reconvened on 14 July 2017 where the Claimant was accompanied again by her colleague Ms. M. At the second meeting she was informed that she was suspended on full pay pending the outcome of the investigation. The suspension was confirmed in a letter on the same date which also counselled the Claimant that the outcome of the process could potentially be dismissal, that she was entitled to have a colleague or trade union representative when the investigation reconvened on 18 July 2017 and enclosed a copy of the company disciplinary policies including the Serious Misconduct policy.

Ms. T continued to review stock and till reports, CCTV and interview witnesses, and there were further investigation meetings on 18 July, 21 July and 28 July 2017 so that the Claimant could consider and respond to all the evidence including witness evidence, review the relevant CCTV footage and answer the allegations. The Claimant was accompanied by Mr H Mandate official at these meetings.

During the investigation, the particulars of the incidents were considered as follows;

On 25 May 2017, the Claimant can be seen going to the self-scan till with a trolley which contained 5 pre-packs of reduced price meat along with a large volume of other meat items. The Claimant stored all the meat items that she was purchasing in the chillers behind the meat counter against procedure (staff purchases must be picked from the shelves or served by a colleague as if they were a normal customer). The Claimant scanned through her shopping on the self-serve till and then she picked up a tray of what looks like pre-packed steak. She runs it over the scanner and from footage it is clear that she is looking at the screen, the item doesn’t scan, and she placed it into the bagging area i.e. as if it had been scanned. The till prompt on the self-scan alerted the self-service assistant. The alert happens when the weight of the items placed in the bagging area (i.e. scanned items) does not match what the system is expecting from what has been scanned or when the barcode cannot be read. The self-scan attendant cleared the till prompt. The Claimant proceeded with her shopping and did not scan the steak again. She left the store with her shopping and without paying for the tray of steak.

When that self-scan attendant was interviewed he said that as the Claimant was a staff member, he just cleared the prompt as she had a lot of items in the bagging area. During the investigation, in response to this allegation the Claimant admitted that she did reduce the price of the meat for herself and it was common practice to store items behind the counter for colleagues to purchase. Upon investigation it was found that this was not the practice and the line manager had just two months previously retrained colleagues on the correct process.

In relation to the non-payment of the steak she claimed that she was not aware there was anything wrong when the colleague cleared the till prompt and did not realise that she had not paid for the steak. The Claimants admitted behaviour was in breach of the reduced to clear policy and the investigator also concluded that the non-payment of the meat item was a breach of the honesty policy.

On 26 May 2017, again the Claimant stores a large volume of meat items in the chiller behind the counter for purchase. The volume of meat required the Claimant to use one of the returnable plastic crates suppliers use to deliver goods to the store which she lifts from the chiller into a trolley. The investigation considered if the Claimant had reduced the price of meatballs herself before purchase. The Claimant could not remember whether she reduced the price on the meat.

The investigating officer did not come to a conclusion on the allegation regarding the reduction in price; however again the Claimant is clearly in breach of policy by storing her purchases in the chiller and not making them available to customers to purchase.

On 31 May 2017, the Claimant purchased a primal tray of meatballs that was not priced at the correct price. A primal tray is the tray we receive from our suppliers, it is not for sale to customers or colleagues. It is to be opened and displayed on the meat counter. A Primal tray is packed meat where products such as mince, burgers or sausages are packed into an open container or tray and covered with a film for delivery from a supplier. The tray is opened and relabelled for display and sale and the customer can then to choose to order a number of items or a particular weight of meat from the tray. The whole tray is not offered for sale; rather the tray itself is for the purpose of display and storage. As part of her training on counter compliance, the Claimant was trained on the correct handling and labelling of primal trays as they are prepared for display on the counter including adding the correct pricing and date codes along with clear instruction that primal packs are never sold as a single item as they arrive from the supplier; they are relabelled and displayed for sale as individual items.

In the tray in question for the incident on 31 May there were 24 meatballs i.e. as they arrived from the supplier. The offer price for customers for the meatballs is 10 for €2.50. The Claimant purchased 24 meatballs for €2.50 (as evidenced by the receipt for that date). The Claimant said at investigation that she could not remember if she repriced the tray but accepted that she bought it against procedures.

The investigating officer concluded that on the day in question she was covering another colleagues lunch break and that the Claimant had the opportunity to price the primal pack of meatballs incorrectly at €5.00 and then reduced them by 50%. On the day in question, there were two staff rostered on the meat counter. Although there was not clear evidence that the Claimant repriced the particular primal tray, she did cover the break of her colleague and had the opportunity to do so. The Claimant admitted that she would give more meatballs to customers and staff instead of pricing them individually. Her colleague when interviewed clearly understood the correct process for primal trays and for reducing price to clear and denied repricing this primal tray.

The investigating officer established through the investigation that this is not normal practice on the counter and the colleagues are aware that the meatballs should be priced individually. The Claimant by her own admission did give stock to customers and colleagues that were not priced correctly and also did purchase a Primal tray against procedure. The investigating officer felt that it was reasonable to conclude that it was the Claimant and not her colleague who repriced the particular tray and concluded therefore that the purchase was also in breach of the honesty policy and staff purchase policy.

The transaction at the till on 31 May 2017 where the Claimant bought the Primal pack raised another incident to be investigated. CCTV clearly shows that before making her purchase (including that primal pack) the Claimant again stores a large volume of meat items in the chiller behind the counter in a returnable plastic crate and again she takes the crate and places it in a trolley.

She proceeds to the customer service desk with a full trolley and her colleague on the till starts to scan the Claimants items. By this time the meat counter is closed. It is clear on the CCTV that the Claimant is quickly handing items to the till assistant to hurry matters along. Included in the items scanned were two pieces of meat which scanned in at full price. It is clear from the footage that there is interaction between the till assistant and the Claimant as to how two meat items had scanned. The Claimant requested the cashier to “store” the transaction. “Storing a transaction” occurs when a customer has realised after their items are scanned that they do not have money or payment card and need an opportunity to leave the store and return with payment. The transaction is stored so that the customer can just return and pay and not have to wait for all their shopping to be rescanned. Any stored transaction is automatically voided at the end of the day. In this case, at the Claimant request, her colleague did store the transaction.

The Claimant then puts all the items that had already been scanned back into her trolley (not bagged) and approached a stock control assistant who was carrying out her daily routine of stock price reductions for prepacked items in the chill department using the handheld stock device. The stock control assistant when interviewed said that the Claimant requested that she reduce 8 trays of meat from the meat counter as the Claimant said that Mr. S (meat counter colleague) was supposed to reduce the meat and did not do so.   The stock control assistant said that she was concerned by the request as the dates on the items did not appear to warrant being repriced as reduced to clear but proceeded with the request. She said that on reflection she was concerned   enough to tell a manager about it later in the week. Before her manager dealt with the issue, she was called to the investigation meeting.   CCTV clearly shows the Claimant approaching the stock assistant and the stock assistant repricing items using the handheld stock machine. The Claimant then returns to the   customer service desk and presents the repriced items to be rescanned and she pays the amended transaction amount. This is confirmed by till receipts.    

In response at investigation the Claimant stated that she did not reduce the price of the tray of meatballs. The Claimant did admit that she would sometimes   reduce the price at an earlier date than was indicated in the reduced to price process. When questioned as to why the meat was not reduced at the meat counter as the reductions for the meat counter are done at the counter scales, the Claimant said that the items didn’t reduce at the meat counter as there was a problem with some meats being reduced through the meat scales. Upon further investigation it was established that the meat that the Claimant requested the colleague to reduce could be reduced on the meat counter and did not specifically require the stock handheld device to do so. The Claimant could not provide a reasonable explanation as to why the meat was not reduced through the proper process or during normal working time or why she repriced meat that was still in date to be sold at full price; or her actions in storing a transaction and then seeking out the stock control assistant to reprice goods that had already been scanned at full price. The Claimant is clearly in breach of staff purchases policy by storing her purchases in the chiller and the investigating officer found that it was reasonable to conclude that the Claimants action in having goods repriced were a breach of the honesty policy and the reduced to clear policy.

On 2 June 2017 the Claimant purchased 21 items of meat listed at a reduced cost. CCTV shows the Claimant spending some time reducing the price of many items of meat in the morning and placing them into a reusable plastic crate and not out for sale to customers. Later that day the CCTV shows the Claimant moving a reusable plastic crate from behind the meat counter into a shopping trolley and going to the customer service desk. There is a queue of a number of customers at the customer service desk. The Claimant goes in behind the counter (skipping the queue) with a trolley of a large amount of items including the tray of meat items. From CCTV footage the investigating officer can see the Claimant handing the meat to the cashier to scan. The Claimant is handing the till assistant the items quickly and as they are scanned she moves them back to the trolley and reusable crate as there is very little room on the customer service desk as it is not supposed to be used for trolley shops.     It is clear from the footage that one bag from the meat counter in the reusable crate was not presented to be scanned for payment and was concealed in the crate as the Claimant repacked the crate with scanned items, covering the bag, meaning that that bag was not paid for in the final transaction.

During the investigation the Claimant confirmed that she did reduce the meat to purchase for herself and stored it in the back up fridge and did not put it out for customers. She said she had no recollection of not presenting a product for payment and concealing it in the crate. The Claimant is clearly in breach of staff purchases policy by storing her purchases in the chiller and by admission in breach of the reduced to price policy by reducing 21 items of meat for purchase by herself. The investigating officer also concluded that this incident represented a breach of the honesty policy and staff purchases policy.

On 18 June 2017, CCTV footage shows the Claimant at the self-scan till as part of a transaction including 13 individual items of reduced price meat. The Claimant lifted a large tray of pork chops and went over the scanner and looked at the screen. She then placed the product in the bagging area (i.e. as if it had been scanned) and holds up another item in her hand and waits for the self-service assistant to clear the prompt on the screen. The item that the Claimant lifted up for the self-service assistant to see was not the product that did not scan and it is clear from the CCTV footage that when her colleague sees an item in the Claimant's hand she clears the prompt. The Claimant had not scanned the actual item that was in the bagging area and so the tray of pork chops was not paid for (as confirmed by the receipt) and the Claimant left the store.

During the investigation the Claimant had no recollection of not paying for the chops or who reduced the price of the meat and said that she relied on her colleague at the self-scan to verify the purchases. The investigating officer concluded that that the non-payment of the pork chops was a breach of the honesty policy.

On 25 June 2017, from the CCTV footage and from receipts it can be seen that the Claimant purchased 2 trays of meatballs for €1.25 for each tray (primal packs). In each tray that the Claimant purchased it is clear from the CCTV that there are 13 meatballs in each pack and that the primal packs are priced for counter display not customer sales. These particular primal packs are delivered from the supplier with only 10 meatballs in each pack. The offer is 10 meatballs for €2.50 at full price. When this product is reduced by 50% the cost is €1.25 for 10 meatballs. CCTV footage shows that the Claimant did reductions on the meat counter that morning and that she had placed a reusable plastic tray of meat in the chiller which she later transferred to a trolley and went to the customer service checkout. During the investigation the Claimant claims that she does not know who trayed and priced the meatballs even though CCTV footage was shown which clearly shows the Claimant spending some time that morning repricing meat with no evidence of her colleague repricing meat.

It was the investigation officer’s conclusion that the Claimant trayed the meatballs with extra items to keep for herself to purchase when she had finished her shift, thereby gaining extra stock for a lower price than was authorised or allowed. The Claimant is clearly in breach of staff purchases policy by storing her purchases in the chiller and of the reduced to price policy by reducing items of meat for purchase by herself and not presenting the items for sale to customers. The investigating officer also concluded that this incident represented a breach of the honesty policy and staff purchases policy.

The Claimants responses to all the allegations remained the same throughout the investigation and disciplinary hearings. At every stage of the investigation, the Claimant was given copies of all the minutes and witness statements.   At the investigation outcome meeting with Ms. T on 11 August 2017 where the Claimant was accompanied by her colleague Ms. M , the investigation report was read to the Claimant which concluded that having considered all the evidence including CCTV, witness statements and the Claimants own responses, the Claimant was in breach of the Honesty Policy, the Staff Purchases Policy and the Reduced to Clear Policy for several occasions where she had not paid for goods; or knowingly purchasing goods at an incorrect lower price by reducing the price on goods and in some instances serving herself those goods. Investigation outcome documents are also submitted.

The investigation report addressed the Claimant’s explanations as follow; “In response to (the complainants)’ claim that it is normal practice for reduced meat to be held and kept for purchase, I can confirm that through interviewing all the counter colleagues that this is not normal practice, and not only that, but the Line Manager of the department reiterated this point when she became Counters manager, to ensure that no bad practice was carried out, this was as early as May 2017 that these conversations took place, so the complainant would have been aware that it was not authorised to hold meat out the back, or reduce it and keep for your own gain.

In response to the claim from the complainant that it is normal practice to give out extra stock sometimes to customers and staff, I found through my investigation that this is not normal practice and never was, the price is the price for the amount stated, no exceptions.     The complainant was spoken to by Mr. K and Mr. G Deputy Manager in relation to this (before the incidents under investigation)”. The new Counter Manager Ms. H confirmed in interview that when appointed some months before these incidents, she had reminded all of the staff about the reduced to price and staff purchases policy. This was confirmed by multiple staff witnesses.  

Mr. K is the area stock loss coach. In his interview with the investigating officer, he explained that some time before these incidents, he had been in the store and had observed a plastic reusable crate in the chiller behind the meat counter with reduced to price stock. The Claimant was on duty and when he spoke with her he explained the correct procedures. Mr K informed the Assistant Manager Mr. G before he left the store about his conversation with the Claimant and the breach of procedure Mr. G approached the Claimant and repeated the explanation on the rules around reduced   to clear and staff purchases. Based on her training and these conversations with three different managers, the investigating officer was satisfied that the Claimant was fully au fait with the correct rules and procedures.

The Claimant was informed that the matter would proceed to a disciplinary hearing.   The Investigation report is submitted in evidence with a chronology of meetings including meetings with witnesses and details of the evidence considered during the investigation witness statements as well as the other evidence (till receipts etc.)   The CCTV footage was also presented at the WRC hearing.

The Claimant remained on suspension with full pay and was invited in writing to attend a disciplinary hearing on 15 August 2017 with Mr. P, Store Manager acting as the Disciplinary Officer. She was accompanied at the hearing by Mr. H, Mandate official.

At the outset of the Disciplinary hearing, Mr. H objected to the presence of a witness as a notetaker. The disciplinary officer explained that she would have no role in any decisions and was there purely as a notetaker and that they would have every opportunity to review the minutes and make alterations. The disciplinary officer read the investigation report, acknowledged that there was a lot of detail involved and so reopened the evidence to the Claimant and asked her if she wanted to make any further explanations. The disciplinary officer went chronologically through the evidence and asked for comment. The Claimant did not add any significant explanation or comment to what she had already said at investigation. She repeated the assertion that other colleagues did similar things such as reducing meat to purchase themselves and that it was common practice in the store. Her representative questioned at some points how conclusions were reached in the absence of CCTV.

The Claimant cited a colleague Mr. J as a potential witness. At the end of the meeting the Claimant made no comment on the minutes taken.   The disciplinary officer sought to interview the additional witness cited by the Claimant at the disciplinary hearing and met that witness on 24 August 2017. The witness, Mr. J stated that he could not remember the particular incident and could not remember any time that the Claimant had an issue with a self-scan till. He did say it could be difficult if a customer had a lot of items to verify what was the last item scanned and said that he would trust a staff member more if there was an issue with a self-scan till.   The disciplinary officer concluded that this did not affect the outcome of the investigation. After further adjournment and consideration, it was the disciplinary officer’s decision to dismiss the Claimant. He felt that overall the conclusions of the investigation were reasonable based on the evidence available and that the Claimant used her position to gain extra stock, reduce stock and hold stock for herself, therefore depriving the customers of the choice to purchase this meat. Non-payment was another way that the Claimant gained stock and defrauded the company of stock. The disciplinary officer came to the conclusion that her actions were so serious that the bond of trust was broken beyond restoration as he considered that the repetition of incidents, and in his expert opinion clear intent to defraud the company irreparably broke the necessary trust he needed in a colleague

The Company Honesty Policy clearly provides that (as in retail generally) unacceptable loss as a policy provision is regardless of the monetary value and can lead to dismissal. The disciplinary officer took into account all other sanctions that could be applied in line with Company Policy. However, he was satisfied that the appropriate sanction in this case was to dismiss her from her employment on the grounds of serious misconduct.

The disciplinary outcome meeting was held on 5 October 2017 where the Claimant was dismissed from her employment with immediate effect for breaches of the Honesty, Staff Purchases Policy and Reduced to Clear Policy.

The Claimant was offered the right to avail of the internal appeals mechanism which she exercised via a letter on 6 October 2017 from her representative which stated that the grounds for appeal was “on the basis that there is no evidence suggesting breaches of any of the said policies”.

The Claimant’s appeal was heard by Mr. C on 10 November 2017. The appeal officer is a store manager from a different store.   At the appeal hearing the Claimant’s representative said that it was not reasonable to reach the conclusions that the Claimant had marked down meat without CCTV evidence demonstrating that she had marked down price, that despite the level of detail contained in the investigation report that the dismissal letter was flawed because it generalised the allegations and that generalisation marked the investigation, that it was inappropriate that the Claimant was questioned on her understanding of the rules, policies and procedures during investigation meetings and pointed to the fact that the Claimant called staff when the problem arose on the self-scan till. Her representative maintained that the Claimant had given a truthful account of what happened and asked the appeal officer to review the CCTV in detail. The appeal officer indicated that he would review the footage and adjourned.

Following the appeal hearing the appeal officer considered all of the evidence in the case file including the CCTV, in light of the grounds for appeal put forward on behalf of the Claimant. As an experienced retail store manager, he felt that the conclusions of the investigation were reasonable considering the evidence available.

The minutes of the investigation and disciplinary meetings show that the Claimant was taken through each incident and asked for her response. On the specific points raised during the appeal, he felt that it was appropriate to test the Claimants understanding of the rules and was satisfied that the dismissal letter clearly referenced the policies and the investigation outcome, which was very detailed, such that the Claimant was on notice on what basis the disciplinary officer made his decision. The Appeal Officer upheld the Disciplinary Officer’s decision to dismiss the Claimant on the ground of serious misconduct as a reasonable decision in all the circumstances and informed the Claimant of such at an appeal outcome meeting on 11 December 2017.  

Company Arguments

The respondent trusts in colleagues to do the right thing for customers and the business. As a business that involves dealing with cash and valuable stocks it is important that this trust is maintained throughout a colleague’s employment. This was not the case for the Claimant as her actions caused a breach of the bond of trust the respondent had placed in her as a colleague.

The Claimant was dismissed by reason of her own actions which were not denied or explained adequately and were considered as serious misconduct. Accordingly, her dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977 (as amended).

Following a thorough investigation and disciplinary process, the claimant was adjudged to have committed a breach of the honesty policy, the staff purchases policy and the reduced to clear policy which are all considered as serious misconduct by the company. This breached the trust and irreparably undermined the employee/employer relationship leaving the Respondent with no other option but to dismiss the Claimant.

The principles to be applied in cases of serious misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer.

Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” The company’s action in taking the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances. The facts presented before the employer were that the Claimant had committed acts of dishonesty in one of the Respondent’s stores. In light of the breach of trust due to the nature of the act, the company’s decision to dismiss was justifiable in the circumstances.

The claimant’s actions amounted to a breach of the trust between the parties to the employment relationship. It is imperative that the company can trust its employees to act with integrity and in accordance with policy. The importance of trust to the employment relationship has been emphasised on many occasions in case law. For example, in Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002, (although different circumstances to the case today) the Tribunal stated:

“Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent. Accordingly the claim fails.”

When trust has been undermined, as it has been in this case, the employment relationship cannot be sustained. When that breach of trust comes about by virtue of the employee’s actions then it is fair and reasonable in the circumstances for the company to take the decision to dismiss.

In the Circuit Court Case of Hestor v Dunnes Stores Judge Clarke held that “the issue was not whether the appellant had actually stolen the ham or not, but whether in all the circumstances of the case, the respondent was justified in the dismissal for misconduct. The respondent had not acted unfairly nor without justification, since the appellant had been unable to offer a satisfactory explanation for her conduct which had given rise to deep suspicion and required a satisfactory explanation.”

The claimant was at all times afforded all benefits of fair procedure, in line with the company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.   In particular: - The claimant was aware at all times of the allegations against her the claimant was provided with an opportunity to respond to those allegations and to present her version of events

- The matter was investigated fully before a decision was made

- The claimant was represented throughout the process by a colleague

- The assessment of the facts and the decision made took into account the representations made by the employee and was an impartial determination

- The claimant was provided with and utilised the opportunity to appeal

In light of all of the above, the company believes it to be clear that the dismissal of the claimant was procedurally fair in all respects.

In conclusion, the Claimant was found based on her actions to be in breach of the honesty policy, the staff purchases policy and the reduced to clear policy, all of which are considered as serious misconduct. Furthermore, the bond of trust placed in her by the Company was broken to such an extent that it is beyond restoration.

The Respondent adhered to their own policies and the principles of natural justice and fair procedures at all times. Specifically, the investigation, disciplinary and appeals processes were conducted by separate and impartial managers. The Claimant was notified in writing of the allegations against her and afforded a full and fair opportunity to consider and respond to those allegations. The Claimant was afforded the right to representation at each stage of the process, which she utilised.

The Claimant was provided with the right to an internal appeal, which she utilised, and this appeal was heard by an independent senior manager who found no substantial grounds to overturn the original decision of dismissal.

It is the company’s position that this claim under the Unfair Dismissals Act 1977 to 2015 is not well founded. The company respectfully asks that the Commission find in favour of the respondent.

The complainant submits that

She has been employed by the respondent since October 2008 until she was dismissed on the 5th of October 2017. She submits that she was unfairly dismissed by the respondent for what was alleged to be breaches of the company Honesty Policy, a breach of the staff purchases Policy and a breach of the reduced to clear policy.   She attended disciplinary meetings on the 13th, 18th, 21st and 28th of July.  

The allegations raised were in relation to breaches of the Company Honesty Policy and the staff purchases policy which are alleged to have happened on 6 separate occasions on 25th and 26th of May 2017, 31st of May 2017, and on the 2nd, 18th and 25th of June 2017. 6 allegations were the subject of the investigation but only 5 formed part of the Disciplinary Hearing.  

At the investigation meetings hypothetical questions were put to the complainant regarding what she would do regarding reducing meat and what was her understanding of the reduce to clear policy and various other questions which made it feel more like an exam than an investigation. When we asked that specific questions be put to her it was still in the realm of questions such as what are you doing there (referring to the CCTV footage) and why are you doing such and such.

The only evidence the company has in regards to these incidents is CCTV footage and when the complainant was asked to comment on each particular incident she did so in a convincing and truthful manner. She totally denied any wrongdoing on her behalf.

After four investigation meetings the investigating officer convinced herself that the complainant was in breach of the company honesty policy for the non-payment of company goods on three separate occasions.   She also found that the complainant was in breach of the company honesty policy and staff purchase policy for knowingly on four occasions taken meatballs at an incorrect price for the amount that she had purchased therefore receiving extra reductions on products.

She found that the complainant was in breach of company staff purchase policy in relation to reducing meat on the counter on 2nd of June 2017 and breaching the procedure for reduced to clear products by not placing meat in the reduction bay for customers to purchase.   This is all contained in the investigation report.

This led to a disciplinary meeting which took place on 15th of August 2017. This meeting again dealt with generalities and questions regarding what she was doing on the dates in question and failed to make specific charges regarding what they were accusing the complainant of doing on each date. Following this the complainant was dismissed on 5th of October 2017. This was followed by an appeals hearing which upheld the decision to dismiss as notified to the complainant on the 11th of December 2017.

In her letter of dismissal 5 dates were cited and her actions were deemed to be breach of policy in respect of are a breach of the company Honesty Policy, a breach of the staff purchases Policy and a breach of the reduced to clear policy.

All of these accusations deal in generalities and at no stage during the process was the company in a position to make specific claims in regard to the complainant’s behaviour on any of the dates mentioned and all of her actions were explained by the complainant as being perfectly innocent.

It must be understood that all staff are entitled to benefit from purchasing produce at reduced to clear prices and there is no limit on the amount they can purchase. The complainant took advantage of reduced prices on a regular and consistent basis.

Regarding the 5 dates mentioned

25/05- The only evidence was video evidence where it can be seen that the complainant is trying to purchase goods using the self-scan checkouts and a light went on indicating that there was an issue with the self-scan requiring a member of staff to resolve the issue.

31/05- The complainant was asked about reducing meatballs that contained more in a pack than there should have been. The complainant stated that she was not involved in pricing the meatballs that day as she had been working on the deli that day and was not involved in the reduction of stock on that day

02/06 - The only evidence was video evidence where there was an issue with a bag that was left in a crate and which had not been scanned. The complainant was unaware of this until she was shown it on the video. It is responsibility of the person scanning to ensure all items are scanned.

02/06- As part of her job that day the complainant had to reduce meat on the meat counter due to sell by dates there was no evidence that she had done this incorrectly but the respondent claimed that she had purchased some of this meat and should have made it available to customers to purchase.   The complainant states that it was common practice in the store for staff to put aside reduced product to purchase and the company accepted that they had to brief staff shortly prior to this to remind them of this.

25/06- the complainant had no involvement in the pricing of the meatballs she purchased so had no responsibility for the price on them.

It is submitted that the complainant did no more than take advantage of the few perks available to her in purchasing products that were approaching their sell by date or use by date at the same price that any other customer would have been charged.

Innuendo and generalisations were used to suggest that her actions were suspicious and dishonest but no evidence exists unless you include the fact that she purchased some meat on 2nd of June without putting it out for customers to purchase first which is at best a technical breach of procedure and was not what was common practice in the store.   There was no valid reason to dismiss the complainant and we are seeking her reinstatement.

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 irregularities in the complainant’s purchases had first come to light via the respondents inhouse monitoring system the Target system which highlighted the fact that the complainant was purchasing large amounts of reduced price meat on a regular basis.

The respondent has advised the hearing that it began an investigation into this matter and that it conducted five investigation meetings with the complainant as well as interviewing numerous witnesses reviewing CCTV footage and checking till receipts before calling her to a disciplinary meeting the outcome of which was her dismissal for breaches of the honesty policy, the staff purchases policy and the reduced to clear policy which are all considered as serious misconduct by the company.  The respondent has advised that this breached the trust and irreparably undermined the employee/employer relationship leaving the Respondent with no other option but to dismiss the Claimant.  

The complainant has submitted that the allegations levelled against her were generalisations.     She does not dispute the fairness of the investigation and disciplinary procedures followed by the respondent.

The respondent produced the CCTV footage which I reviewed at the hearing and the incidents which the complainant was accused of are identifiable in that footage.   The complainant does not dispute the respondents finding that she failed to pay for meat products on three occasions but submits that it was not her fault as two of the occasions involved incidents with the self-scan where she states she assumed the meat product had scanned through even though the till prompt alerts the self-scan attendant that there is a problem after the product is put in the bagging area and the other one involved an incident with a cashier not scanning a product which the complainant failed to remove from her trolley to be scanned and in circumstances where the complainant was handing items from her trolley to the cashier to be scanned and then returning them to the trolley with unscanned products.     I am satisfied that an experienced retail assistant and cashier would be well aware that the problem which caused the till prompt was due to an item being placed in the bagging area which did not scan and even if she wasn’t sure if that was the problem a quick glance at the screen would show her the last item scanned.

As regards the complainant keeping large quantities of reduced items for herself in the back chiller rather than putting them on sale to the public the complainant does not deny this or deny that it is wrong but submit s that everyone does it.  

As regards the respondent’s allegations regarding the complainant purchasing primal packs of meat which contain larger quantities than are usually sold to customers .   The complainant in response to this stated that she would equally have left the larger amount of meat in the pack if it were to be made available to be purchased by customers as she would not take out a few meatballs and reprice them individually and submits that where a pack contained three more meatballs than it was meant to she would also give them to a customer for the same price.  

It is not my role to determine the Complainant’s explanation or reasoning behind her behaviour but rather whether it was objectively reasonable for the Respondent to form the view that she had not provided a reasonable explanation for her behaviour and to proceed with the disciplinary process.     Having considered the evidence before me I find that sufficient grounds existed for the Respondent to initiate the disciplinary process.   In relation to the conducting of the disciplinary process, I have reviewed the evidence presented before and at the hearing and I am satisfied that the Complainant was afforded a comprehensive and thorough disciplinary process and was given ample opportunity to explain her actions.

It is also undisputed that the complainant was at every stage advised of her right to representation and availed of that right.   The complainant was also presented with all of the evidence including witness statements, CCTV footage and till receipts and was provided with opportunities to explain her actions.

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.

I must also consider 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 irregularities in the complainant’s purchases were first highlighted by the respondent target system and that this prompted them to investigate the matters further.

I note that the respondent held five investigation meetings and that the Complainant did not provide reasonable explanations as to why she was breaching procedures by regularly keeping large volumes of reduced products aside for herself without making them available for customers to purchase.     I also note that the complainant couldn’t say whether she had reduced products where she purchased primal packs containing larger amounts of products than the packets should contain but in any event she would have noticed from working on the meat counter that these larger packs were not what was usually sold at the stated reduced priced. In addition the complainant was found to have failed to pay for meat products on three occasions but submits that it was not her fault as two of the occasions involved incidents with the self-scan where she states she assumed the meat product had scanned through and the other one involved an incident with a cashier not scanning a product which the complainant failed to remove from her trolley.

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

I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate in the circumstances 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.

I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate in the circumstances 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.

The complainant submitted that she was dismissed without notice or payment in lieu of notice.

The Respondent relies on section (8) of the Minimum Notice and Terms of Employment Act (1973) in its defence, which states:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”

The respondent submits that a breach of the honesty policy, the staff purchases policy and the reduced to clear policy is clearly listed as Serious Misconduct and as a breach liable to dismissal. The Claimant was on clear notice of the seriousness that the Company viewed dishonesty. It is clear that the breach of trust involved in the breaches of the honesty policy, the staff purchases policy and the reduced to clear policy resulting in specific loss to the Company and can be considered as misconduct which is sufficiently serious as to deprive the Claimant of her right to Minimum Notice.

The complainant was summarily dismissed without notice.   The respondent submits that there is no entitlement to notice as the complainant was dismissed for serious misconduct due to breaches of the honesty policy, the staff purchases policy and the reduced to clear policy.

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that 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.’

I am satisfied that the complainant in this case was found to have breached the respondent’s honesty policy, the staff purchases policy and the reduced to clear policy which the respondent submits amounts to serious misconduct liable to summary dismissal.    I have also found that this dismissal was fair given the circumstances of the case.       Accordingly, I am satisfied that that complainant given the circumstances of her dismissal was not entitled to minimum notice or to payment in lieu of notice.

I find that this complaint is not well founded and does not succeed.

I find that this complaint is not well founded and does not succeed.