UDD1866

In a decision dated 26^thJanuary 2017 the Adjudication Officer decided that the Complainant had been unfairly dismissed and awarded her €4,000 in compensation.

Preliminary Issue

The Complainant submitted that the Appellant had, evidently, not made an appeal until March 2018. Consequently, the Complainant submitted that the appeal was out of time.

The Respondent submitted that it had lodged its appeal with the Court on 7^thMarch 2017 and that it was clearly in time.

The Court established at its hearing that it had in fact received the within appeal on 7^thMarch 2017 which was within the period of 42 days allowed under the Act for the making of an appeal following a decision of the Adjudication Officer. The Court acknowledged to the Complainant that it was not notified of the appeal for a period of over 12 months after its receipt. This delay was the result of administrative error in the Court.

The case

On 13^thJanuary 2016 the Complainant was intercepted by a security officer after she had left the store. It was established that the Complainant had left the store with a bottle of wine in her bag which she had not paid for and which she had obtained in the store. The Complainant, on the day and at all times since, accepted that she had taken the bottle of wine but maintained that she had forgotten to make payment for the bottle as distinct from having deliberately removed the product without payment.

Following an investigative, disciplinary and appeal process the Complainant was dismissed on 29^thMarch 2016 on the grounds of (1) Breach of Company Honesty Policy, and (2) Breach of staff purchases policy and (3) on the basis that the bond of trust had broken down.

Summary position of the Appellant

The Appellant submitted that the matter giving rise to the termination of the Complainant’s employment was a clear case of removing product from the store without paying for same. The Complainant had been apprehended on leaving the store where she worked and had gone to the security office when requested to do so by the Appellant’s security officer Mr DF. She admitted to Mr DF that she had taken the wine without paying for it but stated that she had forgotten to pay as a result of having been upset at having met an acquaintance in the store who had endured a bereavement. The Appellant’s compliance manager, Ms AC, joined the complainant and Mr DF in the security office and, having listened to what had happened, placed the complainant on paid suspension pending an investigation. Both Ms AC and Mr DF wrote witness statements that day.

The complainant was, on 14^thJanuary 2016, invited to attend an investigation meeting on 19^thJanuary. That invitation advised the Complainant that she could be represented in the process and that the investigation may result in disciplinary action being taken, up to and including dismissal. That meeting was conducted by the store manager Mr DM. The meeting was attended by the complainant and her Trade Union representative, Mr R McN, and a minute taker Ms EMcH. CCTV footage of the events were available to all parties at that meeting. The complainant admitted at that meeting that she had taken the wine and had left the store without paying.

Mr DM subsequently met Ms AC an Mr DF on 21^stand 22^ndJanuary respectively.

On 26^thJanuary the complainant attended an investigation outcome meeting. At the commencement of that meeting she was handed notes of Mr DM’s meetings with Ms AC and Mr DF. She was advised that Mr DM found that she had taken a bottle of wine without paying and that this was a ‘breach of the appellant’s honesty policy, which is serious misconduct’. She was told that the matter would proceed to a disciplinary procedure which could lead to disciplinary action up to and including dismissal. The outcome was confirmed in writing to the complainant at the meeting of 26^thJanuary.

That meeting was followed by a disciplinary hearing on 5^thFebruary convened by Mr DB and the Appellant was represented by her Trade Union at that meeting. Mr DB subsequently met with Mr DF and MS AC. Mr DB ultimately issued a decision by letter dated 21^stMarch 2016 which dismissed the Appellant with effect from that date. The reasons set out for the dismissal were

• 
  •Breach of the honesty policy

  •Breach of the staff purchases policy.

An appeal hearing was held on 13^thMay 2016 by Ms MB. On 25^thMay an outcome letter confirmed that Ms MB had decided to uphold the sanction of dismissal.

The Appellant submitted that the Complainant had admitted to stealing a bottle of wine and that the employer had no alternative but to dismiss her. The bond of trust between employer and employee had been severed.

The Appellant submitted that the complainant was afforded natural justice and fair procedure at all stages of the procedure which resulted in her dismissal.

Testimony on behalf of the Appellant.

Mr DF gave evidence that he had observed the Complainant leaving the store with a bottle of wine in her bag which she had not paid for. He had asked her to accompany him to an office in the store. On the way in she said that she had a bottle of wine in her bag which she had not paid for. He said that on reaching the office he had asked her two questions which he had been trained to do. He asked if she had taken a bottle of wine and left the store and also asked her if it was her intention to take the item. He never said to her ‘you stole it didn’t you’.

He wrote a statement outlining the events immediately after the engagement with the Complainant. He did confirm to the Complainant that there would probably be an investigation. The Complainant was suspended by Ms AC and not by him.

Under cross examination he stated that he took the decision not to call the Gardai because the bottle concerned had a value of less than €20.

Ms AC, compliance manager, gave evidence that she had been called by Mr DF to attend at the security room on that day. He asked her to look at CCTV footage which she did. She saw, on the CCTV, the Complainant in the store holding a bottle of red wine and a bottle of white wine. She saw the Complainant talking to a lady in the store before taking the goods to the meat counter but she saw no evidence of upset. After the Complainant left the meat counter Mr DF asked the witness to go to the meat counter which she did and she confirmed to Mr DF that there was no stock behind the counter. She returned to the checkout area and saw Mr DF leave the store and speak to the Complainant. They both returned to the store and went to the security room where the witness also went. The Complainant admitted having left the store without paying. The Complainant was asked for the receipt for the material for which she had paid. The Complainant accepted that she had taken the wine without paying for it. Nobody said to the Complainant ‘Admit it you stole the wine’.

Ms AC said that, based on these events, she suspended the Complainant pending an investigation. She informed the Complainant that the Store Manager would be in contact with her and advised her to contact her Union.

Mr DM gave evidence as the manager who carried out the Respondent’s investigation into the matter. He said that, at his first of two meetings with the Complainant and her representative, CCTV footage was available to all parties and no issues were raised by the Complainant or her representative. He said that he gave the Complainant’s representative copies of notes of his meetings with Ms AC and Mr DF at the commencement of the second or investigation outcome meeting with the Complainant. He stated that he made a decision that the Complainant had removed the bottle of wine without paying for same upon his review of CCTV footage which took place before his first meeting with the Complainant. He stated that he did not, as part of the procedure he followed, supply the Complainant with a copy of the disciplinary procedure or any policy which she might be found to have breached. He stated that at the first investigation meeting he did not advise the Complainant that she was suspected of breaching any procedure or policy.

Mr DM stated that the outcome meeting amounted to his conveying findings of fact to the Complainant and that he made those findings of fact before conveying notes of his meetings with Ms AC and Mr DF to the Complainant. He found that allegations which had been made amounted to a breach of the Respondent’s honesty policy.

Mr DB gave evidence as the manager who conducted the disciplinary hearings arising from the outcome of the investigation process. He said that, at the outset, the Complainant had raised procedural issues and asserted that she did not have a copy of the policy she was alleged to have breached. He stated that he met the Complainant on two occasions. In between the first and second meetings he met with Mr DF and Ms AC. He stated that he concluded that the Complainant had breached the Respondent’s honesty policy and the staff purchase policy and that the ‘bond of trust’ had been broken. In evidence he stated that he could not recall what aspect of the staff purchase policy had been breached by the Complainant.

Ms MB gave evidence as the manager responsible for hearing the appeal of the Complainant from the decision of MR DB that she should be dismissed. She stated that she met the Complainant and also reviewed the CCTV footage and statements of Ms AC and Mr DC as well as reviewing notes of meetings which had been held as part of the investigatory and disciplinary procedures. She said that CCTV footage clearly showed the complainant removing a bottle of wine from the store without paying and that the footage showed no evidence of upset on the part of the Complainant following her conversation with an acquaintance in the store. She stated that she did not know that the decision to dismiss the Complainant had been based on a breach of two policies. She stated that she upheld the decision to dismiss.

Summary position of the Complainant

At approximately 5.45pm on the evening of 13^thJanuary 2016 when she was due to finish her shift at 6.00pm, the Complainant left her work station and proceeded to select some items of personal shopping including two bottles of wine. In the course of that activity she encountered an acquaintance who had had a bereavement and whose mother was unwell. She was upset by the encounter. At approximately 6.00pm the Complainant put one of the bottles of wine in her bag as she did not want to drop it. She proceeded to the check out and paid for her items and left the shop.

Having left the shop, she was approached by Mr DF, the security officer, who asked her to accompany her to the security office. The complainant accepted in the office that she had forgotten to pay for the wine in her bag.

The duty manager Ms AC arrived in the office and Mr DF suspended the Complainant until further notice.

She was invited to an investigation meeting which was held on 19^thJanuary and she was accompanied by her Trade Union representative. At that meeting her representative raised issues as regards being invited to the investigation without being provided with any evidence, statement or CCTV in advance of the hearing. She was then provided with statements of Ms AC and Mr DF. She attended an investigation outcome meeting on 26^thJanuary 2016. At that meeting she was provided with notes of meetings the investigating manager had held with Ms AC and Mr DF. The complainant’s representative made comments on this material.

At the conclusion of the meeting the manager handed the complainant a document which had been prepared previously and which set out that the matter would be the subject of a disciplinary procedure. The Complainant’s representative raised issues at that point as regards the fact that nothing which had been said at the meeting including commentary on the material supplied by the investigating manager to the Complainant at the meeting had been taken into account by the investigating manager in determining the outcome of his investigation as set out in a pre-prepared letter.

The Complainant submitted that the Respondent had not followed a fair procedure in the conduct of its investigation and disciplinary procedure in this matter. During the investigation the Respondent did not supply material in a timely manner and reached a conclusion without consideration of the complainant’s views on that material. In addition, she had not been afforded representation at the initial investigation by Mr DF and Ms AC into the events on the evening when they occurred.

She submitted that the Respondent did not act reasonably in this matter and failed to consider an action short of dismissal.

Testimony on behalf of the Complainant

The Complainant gave evidence to the Court which can be summarised as follows:

She stated that, on the evening in question she had met a friend who had suffered a bereavement and the interaction caused her upset. She did place a bottle of wine in her bag while she carried other goods outside of her bag. When she paid for her purchases she forgot to pay for the bottle of wine.

Mr DF stopped her as she left the shop and asked her to go to the security office. On the way to the office Mr DF asked her if she had wine in her bag and she replied that she did but that she had made a genuine mistake.

Mr DF told her to admit that she took the wine and Mr DF suspended her until further notice.

She said that she had made a mistake as a result of the upset that she had experienced when she met an acquaintance.

The Law


Section 6(1) of the Unfair Dismissals Act, 1977-2015 states:-

• 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.

• (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:
  • (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
  (b) the conduct of the employee,
  (c) the redundancy of the employee, and
  • (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Discussion and conclusions

The fundamental fact of this case is not in dispute. The Complainant did leave the Respondent’s store with goods for which she did not pay.

The Respondent carried out an investigation and disciplinary procedure throughout which the Complainant was represented by her Trade Union and ultimately dismissed the Complainant for breach of the Respondent’s Honesty Policy and the Respondent’s Staff Purchase policy and because the bond of trust between employee and employer had broken down.

Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment the Court finds that in the circumstances it was reasonable for the Respondent to treat the admitted removal of goods from the store without payment as being very serious. The Court is satisfied that the admitted action of the Complainant could be regarded as being sufficiently grave to justify consideration of dismissal. However, the Court also finds that the procedure employed to investigate the matter and determine an appropriate response had the potential to facilitate a full weighing of all the circumstances of the incident and to facilitate consideration against that background of proportionality of the Respondent’s response. That potential of the procedure places a requirement on all actors within it to operate with scrupulous attention to fairness.

The Court notes that the Complainant was not supplied with notes of meetings with Ms AC and Mr DF until the commencement of the second investigation meeting and also notes that the written statement of outcome of that process was drawn up prior to that second meeting. In that circumstance the Court must conclude that the Complainant was not given an opportunity to set out a response to the notes of the meetings with Mr DF and Ms AC prior to conclusion of the investigation or to have her response taken into account.

The Court notes that the Complainant was not, at any stage of the investigative or disciplinary process, supplied with a copy of the Respondent’s Honesty or Staff Purchase policies which she was contended to have breached. Indeed, it was not clear to the Court what was meant by the finding that the Complainant had breached the Staff Purchase policy or how she had done so. The manager who made the decision to dismiss was unable to clarify that matter to the Court in evidence notwithstanding that the alleged offence against the policy was one of the cited reasons for the Complainant’s dismissal.

The Court also takes particular note of what appears to have been a lack of clarity on the part of the manager who acted as the appeals person as to what aspects of the Staff Purchase policy the Complainant was found to have breached.

In all the circumstances in this case, the Court has come to the conclusion that the decision to dismiss the Complainant was tainted with procedural unfairness. However, the Court also finds that the Complainant contributed substantially to her own dismissal.

The Court has taken account of the losses suffered by the Complainant arising from her dismissal. The Court has also taken into account, as it is required to do by section 7(2)(b) of the Act, the extent to which the Complainant’s conduct contributed to the loss that she suffered. In that regard, the Court is satisfied that the Complainant, by her conduct, contributed to a significant degree to her dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.

Determination

The Respondent’s appeal is not allowed and the Decision of the Adjudication Officer is, for the reasons stated above, affirmed. The Court orders the Respondent to pay the Complainant compensation in the sum of €4,000.00.

The Court so Determines.



Signed on behalf of the Labour Court



Kevin Foley
13th December 2018______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.