Complainant

Respondent

Anonymised Parties

Retail Assistant

Retail Store

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-00013311-001

25/08/2017

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

CA-00013311-002

25/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013311-003

25/08/2017

The Respondent is satisfied it followed fair procedures and afforded the Complainant natural justice during the investigation, disciplinary and appeal processes all of which were in compliance with its procedures and applicable law. The Respondent offers optional insurance on its products for an additional cost. Customers who avail of this are required to sign up to it in writing. If a customer opts to pay in instalments they must do so with a valid debit or credit card. In or around early February 2017 the Respondent became aware that the Complainant may have been fraudulently processing insurance cover to customers without their knowledge. Unsigned mandates were found in the till and there were customer complaints. An informal investigation meeting took place on 14th February 2017 with the Assistant Manager. A formal investigation then was undertaken by the General Manger with the Complainant and several employees, forensic examination of till information, contacting customers and viewing CCTV footage. During this investigation, the Complainant acknowledged that he had not followed the correct procedure when processing the insurance cover and that this was fraudulent. He was suspended on full pay on 2nd March 2017. A disciplinary meeting took place on 20th March 2017 and was conducted by the General Manager of another store. At this meeting the Complainant acknowledged that he failed to follow the correct procedures when processing the insurance sales. The Complainant’s actions constituted a material breach of the Respondent’s internal policies and could have resulted in major legal and PR implications for the Respondent. His actions resulted in him having a direct personal gain as he received a commission payment when he reached his target. This together with the fact that he showed no remorse for his actions it was decided to terminate the contract for actions of gross misconduct, with effect from 20th March 2017. He appealed this decision, despite that fact that he was one month outside the allowed time limit. The appeal was heard by another Store General Manager. He was again afforded an opportunity to explain his actions. He failed to provide any reasonable explanation for them. The decision to dismiss was upheld. His actions constituted gross misconduct and his employment was terminated accordingly.

Final Points

There were substantive reasons to dismiss. He acknowledged that he didn’t get customers to sign the authorisation and he acknowledged that he used gift cards to process insurance cover. The dismissal was procedurally fair. The Respondent carried out investigations and then escalated the matter to a disciplinary hearing and then granted the right of appeal. All notes of meetings were signed. He was shown CCTV footage. He did not ask to speak to any witness. The Team Leader was very clear in evidence he did not instruct this practice. The decision was made to dismiss, he was given the right to appeal and it was independently found to be fair. His behaviour was misconduct. He knew how to process these transactions correctly and incorrectly. These actions had serious repercussions for the company.

This claim should be dismissed.

The Complainant had commenced working in the warehouse but was unilaterally transferred to the sales floor in June 2016.The sales role was fundamentally different and he was not given formal training. On 2nd February 2017, he was spoken to by the General Manager about insurance agreements that were processed by him but not signed by the customers. It was pointed out that having contacted these customers they confirmed that they had not consented to a credit agreement, nor did they wish to pay a monthly charge. He acknowledged that he had processed the transactions but believed that he had obtained the customers’ consent. The General Manager told him that he needed to be clear with the customers and he assumed that this was the end of the matter. On 14th February 2017, he was pulled off the sales floor unexpectedly by management and they spent 50 minutes investigating the incidents discussed on the previous 2nd February. He was then told that the next meeting would be a disciplinary meeting. On 2nd March 2017, he was invited to a disciplinary hearing set for 7th March, however that day another investigation meeting took place with the General Manager and a colleague. He had a colleague as a witness. The purpose of this investigation concerned the use of gift cards for processing credit agreements. He stated that he and his colleagues were instructed by his Team Leader to use gift cards to purchase one month free insurance. The witness confirmed that this was true. He was then suspended but not given reasons for the suspension. On 6th March a third investigation meeting took place with the General Manager and a colleague. He was advised that interviews conducted with other staff members did not support his position. She stated that these witnessed confirmed seeing him using gift cards to process insurance but they did not do so. These people were not present and no witness statements were provided. He repeated that he acknowledged using gift cards but that he was instructed to do so by his Team leader. There was only one team using gift cards and that was that particular Team Leader. He stated that he did not know all the policies and procedures as he was less than one year on the sales floor. He was very good at sales and so there was no reason to use gift cards. Following this meeting the General Manager confirmed that the matter was being escalated to a disciplinary hearing for failure to follow the correct procedure. He was advised in writing of the disciplinary hearing on 20th March but there was no mention of dismissal being a possible outcome. A disciplinary hearing took place on 20th March conducted by a General Manager. There were two allegations; processing credit agreements without customer signatures and using gift cards to do so. He acknowledged the actions but denied any fraudulent behaviour as he had acted on instructions. He was advised that the Team Leader had made a statement denying this but the Complainant was not given a copy of that statement. There were no witnesses and there was no mention of one employee who acted as a witness and who had corroborated his evidence. He was dismissed with immediate effect. He was told that he would be paid in lieu of notice and he was given the right of appeal. He appealed the sanction and the hearing took place on 17th May 2017 and it took 37 minutes. It was conducted by another General Manager. No witnesses were called and no statements read out. He continued to assert that he was doing what he was told. The dismissal was upheld. He did not receive any payments in lieu.

His representative cited case law in support of his position. They stated that in the interests of fair procedure and natural justice demanded that an oral hearing take place where evidence is presented directly and he has a chance to challenge it. What actually occurred was the Complainant was heard in person but those making the allegations were interviewed separately. In the recent High Court case Lyons v Longford Westmeath ETB [2017] IEHC272 Eager J. found that procedures adopted by the Respondent during investigation of the Claimant were flawed, both because they excluded legal representation and because they excluded cross examination on behalf of the employee. The Court focussed particularly on the right to cross examine, stating that where an investigative process can lead to dismissal; cross examination is a vital safeguard to ensure fair procedures. The Court went even further to state that fair procedures themselves “manifestly” include the right to confront and cross examine the individual who has made allegations against an employee.

It is submitted that the Respondent’s investigations went beyond a mere fact finding exercise in so far as conclusions were drawn and adverse findings made before the formal disciplinary process had been invoked. The Complainant had no opportunity to cross examine those who made these allegations. During the investigations, the General Manager referred to his actions as fraudulent without having ascertained his motive or intention. During the third investigation meeting the General Manager accused the Complainant of lying.

In the case NM v Limerick and Clare ETB [2017] IEHC 588 the Court distinguished between information gathering and fact finding investigations. The Court found that a mere information gathering investigation would not trigger the right to cross examine witnesses at that stage. However, this was expressly premised on the entitlement to cross examine the witness at the disciplinary stage. Therefore, this case the authority for the proposition that a full right to refute all allegations and cross examine those making them is a requirement of fair procedures in a formal disciplinary meeting with potential sanctions up to and including dismissal.

In Burns and Hartigan v Governor of Castlerea Prison [2009] 20 ELR 109 outlined the factors to be considered by an employer in deciding whether legal representation was necessary. These included:-

1.       The seriousness of the charges and the potential penalty

2.       Whether points of law are likely to arise

3.       The capacity of the particular employee to present his own case

4.       The need for fairness

2) Sales Training

I note the conflict regarding this training

I find that the Respondent management gave evidence that he received sales training and one to one training. I note the documentary evidence that he received training. I note that he was an excellent sales person, in the top three in the store, so I find that on the balance of probability he received adequate sales training.

3) Team Leader told him to do it

I note that the Complainant has accepted that he did what he was accused of. However, he asserts that he was told to do so along with two others. I note the Teal Leader’s denial of this. He advised that all instructions are for all the staff and not done on a one to one basis. I note the witness statements that they saw the Complainant doing it but they did not. I find it most unusual that only three operated this practice. Therefore, on the balance of probability I find that the Team Leader did not tell them to do it.

4) Commission on cover plan

I note the conflict of evidence on this matter.

I find that the Respondent management team have asserted that information on cover plan commission is covered in induction, there are details on the notice boards and its part of sales training. On the balance of probability, I find that he was aware of commission on the cover plan.

5) 2nd February 2017 meeting

I note it was pointed out to the Complainant that they had found a number of unsigned authorisations for cover plan. I note that he ceased this practice as and from that date. However, I note that he continued to use the gift card to affect cover plan transactions.

I find that having been alerted to the problem with unauthorised cover plans he continued to use gift cards to affect cover plans sales.

Overall on the balance of probability I find that the Complainant was aware of what he was doing. I find that he deliberately implemented cover plan sales through unauthorised customer signing and then used the gift card to continue this practice.

I find that he breached the company policy and procedure and by doing so it has led to reputational damage to the company.

I also find that he was generating commission for himself against company policy.

I find that this amounted to a breach of trust.

I find that the dismissal was substantively fair.

Procedural matter

I note that the Respondent carried out an investigation and established that the Complainant had a case to answer and that the matter was escalated to a disciplinary investigation.

I note that The Complainant was not given a copy of the Team Leader’s statement.

I note that the Complainant was not given an opportunity to confront his accusers, either the Team Leader or other witnesses. I appreciate the company policy but I am informed by case law in this matter, in particular Governor of Castlerea Prison and the Longford Westmeath ETB cases as cited by the parties at the hearing.

I note that the evidence of the Complainant’s witness who corroborated his statement was not heavily relied upon.

I note that the Complainant was not advised in writing that the process embarked upon by the Respondent could lead to his dismissal.

I note that alternatives to dismissal were not considered because of the position taken by the Complainant and by him showing no remorse.

I find that aspects of this case showed a lack of fair procedure as set out above.

I find in particular the Respondent’s failure to allow the Complainant to confront his accusers and the Respondent’s failure to provide for legal representation when there was a possibility that this would lead to his dismissal.

I note that the company policy allowed for representation by a colleague. In this case the Complainant was not a union member and there was no knowing if a colleague would have the wherewithal to adequately represent him in a case where his job was on the line.

Consequently, I find that this has rendered the dismissal procedurally unfair.

I note that the Complainant has sought the redress of compensation.

I note that he made reasonable attempts to mitigate his loss. Also, I note that he was unfit for work for five weeks.

I find that compensation is the appropriate redress.

I have found that the dismissal was substantively fair and so this must be reflected in the quantum of the award.

He was entitled to two weeks’ notice or payment in lieu of notice according to his contract of employment. The Respondent in writing assured him that he would receive notice payment in lieu. He is seeking two week’s pay.

The Respondent submits that it was entitled to terminate the employment without notice or payment in lieu of notice in cases of gross misconduct in accordance with his employment contract and the Respondent’s disciplinary procedure.

I note that in the letter of dismissal the Respondent confirmed that they would pay in lieu of notice.

I note that they have subsequently asserted that as the dismissal was a summary dismissal he was not entitled to notice.

I have found that the dismissal was rendered unfair by the procedural flaws in it.

I also take into consideration that the Respondent confirmed in writing that they would pay the notice.

I find that the Complainant is entitled to two weeks’ notice as per the terms of the Minimum Notice and Terms of Employment Act.

Unfair dismissal, minimum notice