Complainant

Respondent

Anonymised Parties

Store Assistant

Supermarket Operator

Representatives

Tony Kelly, Unite the Union

Killian O'Reilly, McDowell Purcell Solicitors

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-00008138-001

11/Nov/2016

The complainant was employed as a store assistant by the respondent having commenced employment in November 2006. During this period the complainant had been promoted to Deputy Store Manager but had stood down at her own request. The gross pay was €2,516.00 per month. The respondent terminated the complainant’s employment following an investigatory / disciplinary process in relation to discount procedures.

The complainant disputes the allegation that some items to which she applied a discount did not have discount stickers on them.

Till sharing is a common practice amongst staff when the store is busy.

The complainant requested that she be represented by her trade union but this was refused. The actions of the respondent were in breach of the relevant Code of Practice (S.I. 146/2000).

The sanction of dismissal was disproportionate and unfair.

The complainant was fully trained in the standards expected of her and in the relevant procedures.

The complainant was the subject of a full and objective investigation and was given a right of reply, a right to be accompanied and a fair hearing throughout the disciplinary process. She was also given the right to an appeal hearing.

The complainant was dismissed on the grounds of gross misconduct.

Dismissal was the appropriate sanction having regard to the breach of trust created by the gross misconduct such that the employment relationship cannot be restored.

The respondent’s Sales Operations Manager began an investigation in March 2016 following concerns raised as to the level of discounts applying in the store in which the complainant worked. These were the highest in the region for which the Manager was responsible. The company had a specific policy in relation to non-food items which were discounted. Such an item must have been on sale at full price for at least 7 days, there must only be 3 items or less in stock and it must have a value of €20.00 or less. These items then had a discount sticker applied to them.

The documentary investigation indicated that discounting in contravention of these rules had occurred on the till operated by the complainant. The manager then had an informal meeting with the complainant regarding discounted items. The Manager subsequently viewed CCTV footage and could not see the discount stickers on a number of items to which the complainant applied a discount.   One other item had a sticker but this item had been in stock for less than 7 days.

On 25 May 2016 the complainant was invited to a formal investigation meeting and advised that this could lead to disciplinary action. She was also advised of the right to be accompanied by a work colleague.   A further investigation meeting took place on 4 June at which the complainant was shown the CCTV footage that the respondent was relying on as part of the evidence of breach of discount policy. The issue of till sharing which involves a breach of till procedure was also discussed at these meetings. Three specific transactions were highlighted. In the first the customer was a friend of the complainant, in the second the customer was the complainant’s husband and in the third the complainant was served by a colleague who was using her till drawer (till sharing). As regards the transactions, the complainant stated that she was sure that on the first occasion there were discount stickers on the items and that the CCTV did not show all sides of the item when they were scanned. As regards the second occasion, the complainant could not recall same but again believed that there was a sticker on the item. In the third transaction a sticker is visible and the complainant stated that she had noticed that it was a single stock item and had applied the sticker and then purchased the item herself. The till-sharing was explained as a time-saving matter. The Manager concluded his investigation and stated in his report dated 8 June 2016 that there was a case to be answered and that the matter should proceed to a disciplinary hearing.

The complainant was invited to attend a disciplinary hearing to take place on 22 June 2016 but this was postponed and the complainant was absent on sick leave.   The disciplinary meeting therefore took place on 2 September 2016. The meeting was conducted by the Sales Operations Executive. In the letter giving notice of the hearing the complainant was again advised of her right to be accompanied by a work colleague.   The investigating Manager presented his report and then took the minutes of the meeting. The issues of the discounts and till-sharing were gone through with the complainant giving similar explanations to those advanced at the investigation hearings. At the conclusion of the meeting the complainant was told that she would be advised of the decision within 7 working days. It should be noted that the complainant, in evidence, stated that she had raised the question of being represented at the disciplinary hearing by an official from her trade union with the Executive conducting the meeting but had been refused. The Executive stated that he had no recollection of such a request. The minutes of the disciplinary hearing presented at the hearing do not mention such a request but it is accepted that they do not form a verbatim account of everything said at the meeting. The complainant further stated that she had spoken on the telephone with a HR Manager in this regard but without success.   The HR Manager named by the complainant has since left the company and therefore was unavailable to give evidence on this point.

The decision from the disciplinary hearing was sent to the complainant by letter dated 12 September 2016. The conclusion was that the complainant had breached company procedures and rules in respect of non-adherence to cash management procedures and till procedures.   The letter went on to state that “there has been a fundamental breakdown of trust in the working relationship between (the company) as the employer and you as our employee.” The letter further stated that “your contract of employment will be terminated with effect from 10 October 2016.   As per clause 14 of your contract of employment you will receive 4 week’s pay in lieu of notice.” The complainant was also advised of her right of appeal.

The complainant lodged her appeal by letter dated 16 September 2016 in which she also formally requested that her union official be allowed attend the meeting. The respondent replied advising of the arrangements for the appeal hearing and informing the complainant that “all internal matters are strictly confidential hence no third party will be permitted to attend this meeting.” The complainant’s right to be accompanied by a work colleague was again advised to her. The appeal hearing was conducted by the Regional HR and Administration Executive on 4 October 2016. The outcome of the appeal which was contained in a letter dated 12 October 2016 was to uphold the decision to dismiss the complainant.

Section 6(4) of the Unfair Dismissals Act, 1977, states:

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 kindwhich 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 his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

It is clear that the respondent had concerns in relation to the level of discount that was being applied in the store and that the Sales Operation Manager for that area carried out a meticulous examination which caused him to focus on the actions of the complainant. It should be noted that the investigation not only relied on CCTV footage but also looked at till records and stock movements that showed that the items in question did not fall within the parameters of the respondent’s discount policy. It must also be noted that the complainant admitted serving family and friends and agreed at the disciplinary hearing that this was against company policy.   The respondent, however, did not cite that as a reason for the dismissal.

I accept that the complainant was involved in actions that deprived the respondent of revenue and which benefitted either the complainant’s friends or family or indeed herself. I note the point made by the respondent that the complainant should be familiar with these rules, having been in the position of Deputy Store Manager for some years. The complainant at the meetings attempted to minimise her actions based on the small value of the transactions involved but this is disingenuous. Her actions were a justifiable cause of serious concern to the respondent.

The point of disquiet that I have in relation to the investigation is that the Manager convened what he termed as “an informal meeting” with the complainant without prior notice as to its content and with no warning as to its possible consequences. An account of that meeting was included in the final investigation report which then formed the basis of the disciplinary hearing.

The other area of concern, which was raised by the complainant, is the question of adherence to the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000). Paragraph 6 of the Code states:

The procedures for dealing with such issues reflecting the varying circumstances of enterprises / organisations, must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed

That details of any allegations are put to the employee concerned

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

That the employee concerned has a right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

There is a conflict of evidence as regards to whether the issue of representation by a union official was raised by the complainant at the disciplinary stage. The Executive who conducted that hearing said he had no recollection of such a request while the complainant said that she had made the request at the hearing and had spoken on the phone to a manager in the HR Dept. in that regard also. What is clear is that the respondent’s policy is that a person in the complainant’s position can be accompanied by a work colleague but that that colleague cannot act as a representative at the hearing or speak other than to request a break. The complainant said that she declined to ask a colleague to accompany her as, in her experience, staff did not want to be involved in such matters. There was a formal request both from the complainant and from the union official to be allowed represent the complainant at the appeal hearing but this was refused by the respondent. These procedures fall short of the general principles of natural justice and the right of representation set out in the Code of Practice. It would appear to me that if a company has a policy of excluding the type of representation specifically alluded to in the Code then they must be able to demonstrate that the alternative allowed under their policy is in line with the principles enshrined in the Code. This has not been done by the respondent in this case.

A further factor to be considered is whether alternative disciplinary sanctions were considered.   The Executive who conducted the disciplinary process stated that he decided on dismissal as he did not believe that further training would be of any benefit. He also felt that demotion was not an option as the complainant had stepped down to Store Assistant level some time previously. It should be noted, however, that the complainant was not suspended at any time during the process and continued to work normally, apart from the period of sick leave, which may have led to her expectation that a sanction less than dismissal would apply. The date of dismissal appears to be the date of the rejection of the complainant’s appeal.

Bearing in mind the deficiencies identified above, I must conclude that the procedures utilised by the respondent in the dismissal of the complainant were flawed and that the dismissal is therefore an unfair dismissal. I have also concluded that the actions of the complainant contributed significantly to the decision to dismiss. I also note that the complainant secured a similar position with a retailer at the end of December 2016 albeit at slightly less pay.

Section 7(2)(d) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had 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 subsection (1) of Section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e)    the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal

For the reasons set out above I find that the dismissal was an unfair dismissal but that the complainant contributed significantly to the dismissal. I therefore order the respondent to pay to the complainant the sum of €1,250.00 as compensation in that regard.