UDD1861

Background

The Complainant commenced employment with the Respondent on 19^thNovember 2013 however she had worked in the shop since 1998 under a different owner. Her employment came to an end by way of dismissal on 6^thJuly 2016. Dismissal is not in dispute.

Respondent’s case.

It is the Respondent’s case that information came to his attention on the 29^thMarch 2016 regarding allegations of breaches of food regulations including tampering with Deli Counter Produce. The Respondent in his evidence to the Court indicated that himself and Ms Byrne who had brought the issue to his attention undertook a review of CCTV footage and discovered apparent instances of theft. It was his evidence that he spent several days going through the CCTV footage. On the 3^rdof April 2016 he contacted the Guards in relation to the issue and at their request provided the CCTV coverage. On the 4^thApril 2016 the Respondent met with the Complainant and advised her that she was being placed on “paid suspension with immediate effect and that there was currently a criminal investigation into an alleged theft” at the shop. This was confirmed in a letter dated 4^thApril 2016. The Respondent in his evidence to the Court confirmed that the Complainant had not been advised in advance of the purpose of the meeting or that she could bring a representative as provided for in the employee handbook. The Respondent also confirmed that the Complainant was not shown the CCTV footage of the alleged incident at that time.

By letter dated 14th April 2016 hand delivered to her home on the 17^thApril 2016 the Complainant was invited to attend a meeting on Tuesday 19^thApril 2016 at 10.00 am. The meeting was described in the letter as “formal disciplinary reviewunder the disciplinary procedure”. The nature of the complaint was set out and details of the specific issues were attached. The letter also indicated that the Complainant could bring a representative to the meeting. The Complainant attended the meeting with her Trade Union representative who requested all CCTV visual and audio and copies of the documents being read out. No response was given to any of the issues other than that a response would be given in due course. The Respondent advised the Complainant’s representative that the CCTV was with an Gardai and he therefore was not in a position to give it or a copy of it to them. A further letter issued on 20^thApril 2016 seeking a response to the issues raised by 4pm on the 22^ndApril 2016. Further correspondence ensued. The findings of the investigation carried out by the Respondent were issued on 5^thMay 2016 and recommended that the Complainant be disciplined in accordance with the Company’s handbook.

By letter of the 27^thApril 2016 the Complainant via her representative was invited to attend a disciplinary hearing. The Complainant’s representative responded by re-affirming that the Complainant was co-operating with an Gardai in their criminal investigation and re-iterating their request as set out in their letter of 22^ndApril 2016 to be provided with a copy of the CCTV. On the 21^stMay 2016 in response to a letter of 18^thMay 2016 the Complainant’s representative confirmed that the Complainant was not prepared to attend a disciplinary hearing on the 23^rdMay 2016 while the on-going criminal investigation continued as in his view it could prove prejudicial to the criminal trial.

The disciplinary meeting proceeded in her absence. On the 15^thJune the disciplinary findings were furnished to Complainant with a request to attend a meeting on the 16^thJune 2016. Further correspondence ensued.

On 1^stJuly the Complainant was notified of a meeting to issue disciplinary action. She did not attend and the meeting proceeded in her absence. On the 18^thJuly 2017 the Complainant was notified of the termination of her employment and furnished with a P45 and payments by cheque. The Complainant was afforded an opportunity to appeal the decision, but no appeal was ever lodged.

In response to a question from the Court the Respondent confirmed that he had received the CCTV footage back from an Gardai in and around the 18^thMay 2016. He had not forwarded same to the Complainant or her Representative nor had he informed them that it had been returned. It was his evidence that if the Complainant had attended the disciplinary hearing on the 23^rdMay 2016 they would have gone through the CCTV footage with her then. It was the Respondents position that the taking of stock was extremely serious and that they could have summarily dismissed her but instead they had afforded the Complainant due process. In terms of considering options other than dismissal it was his evidence there was no other appropriate role the Complainant could be moved to.

Complainant’s case

The Complainant has worked in retail for 18 years and had an unblemished record. The value of the items she is alleged to have taken is €35.57. The Respondent reported these alleged thefts to an Gardai and then suspended the Complainant. He then instigated an investigation where he states in the report that he relied on the CCTV footage and the statements of four witnesses. The Complainant was denied the opportunity to view the CCTV footage that was being relied on. While the Respondent in evidence stated that the Complainant had the statements of the witnesses read out to her at the meeting on the 19^thApril 2016 two of the witness statements that are relied on in the investigation report post-date the 19^thApril and therefore could not have been put to the Complainant. No explanation was ever given as to why the Respondent involved the guards in advance of an internal investigation taking place. The Complainant’s representative on more than one occasion requested sight of the CCTV footage and that the process be put on hold pending the resolution of the criminal matter.

The Respondent by letter of 25^thApril 2016 suggested that the Complainant could go to the Garda station to view the CCTV if she wanted to. The Respondent never responded to the request to suspend the internal process pending the outcome of the criminal case. It is the Complainants case that when she was invited to attend the meeting on the 4^thApril she was not advised that she could bring a representative or that the issue to be discussed was serious nor was she given the specific details of what was alleged. It was the Complainant’s case that she did not attend at the meetings or respond to the issues raised on advice from her representative and because she did not want to incriminate herself in circumstances where there was an ongoing criminal case.

The law

“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.”

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) ..........

Section 6(1) states

“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.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

Both parties provided the Court with copies of the case law they sought to rely on all of which were reviewed by the Court. However, the facts in this case are not complex the Respondent does not dispute that he relied on the CCTV footage in terms of deciding to commence an investigation and following the investigation in coming to the conclusion that the Complainant should be disciplined. The Respondent also confirmed to the Court in his evidence that when he received the CCTV footage back from the Guards he neither provided access to the Complainant nor advised her that he had possession of same. In the interest of fairness, the Complainant was entitled to have access to all the material that the Respondent was relying on before being asked to respond to the allegations. Taking these issues into account the Court cannot see how this dismissal could be deemed to be fair.

Remedy

Section 7 of the Act states

• 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong she has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000.

The Decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
4 December, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.