Complainant

Respondent

Anonymised Parties

An employee

A Waste Management company

Representatives

Neil Cosgrave Cosgrave Solicitors

Darragh Whelan IBEC

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-00011080-001

2/May/2017

This dispute involves a claim by the complainant against the respondent that he was subjected to an Unfair Dismissal. The complainant referred his complaint against the above respondent under the Unfair Dismissals Act on the 2nd of May 2017.  The complainant has submitted that he was unfairly dismissed by the respondent on or about the 22nd November 2016 for what was alleged to be gross misconduct following allegations of theft of company funds and property from the ‘X’ Civic Amenity Site.   It is submitted that the complainants conduct did not amount to “gross misconduct” such that the Respondent was entitled to dismiss him.   It is also submitted that the disciplinary procedures used by the Respondent were unfair and / or inadequate and that the scope of the Respondent’s investigation into the alleged misconduct was too narrow, and thereby excluded potentially exculpatory and / or mitigating evidence.

The Company refutes this claim in its entirety as the Complainant was summarily dismissed for gross misconduct and the dismissal was both substantively and procedurally fair. The Complainant, a Supervisor on site, was determined to have misappropriated funds from his place of work, a matter which is treated as gross misconduct by the Company.

In July and August 2016, the Company undertook financial reviews of all Civic Amenity sites, in particular with regards to the returns for materials accepted on site. As part of this review, it was discovered that the returns for the ‘X’ Civic Amenity site were considerably less than other sites with similar tonnages accepted. It was found that there were not enough takings from the site to cover the cost of disposing/processing the material accepted. This formed the basis for further investigation into alleged theft of funds and property and so the Company reviewed relevant CCTV with regards to the waste acceptance procedure and cash handling procedures on site between 30 July and 11 August 2016. In addition the Complainant was seen to be allowing non-commercial vehicles on site of which money was accepted but no dockets were issued.

On 18 August 2016, the Company wrote to the Complainant by way of letter to inform him of the allegation against him and to suspend him on full pay pending the conclusion of an investigation. An investigation meeting was scheduled and the Complainant was afforded the right to be represented. A copy of the Company disciplinary procedure was attached to the letter. The Complainant attended the investigation meeting which took place on on 22nd of September 2016 and was accompanied by Mr A. The investigation was carried out by Mr G (Chief Financial Officer/Forensic Auditor), Mr J (Operations Manager), and Ms M was in attendance as note taker. At the meeting, it was put to the Complainant that there was not enough money or corresponding dockets to cover the number of customers that entered the site. When asked to explain this the Complainant responded “no, I can’t”. It was further put to the Complainant that there was an incident of money being put into the wallet and taken home. The Complainant outlined that he puts all the money in a wallet and would write up a docket for every transaction and never forgets to write up a docket. The Complainant claimed that he left the wallet in work in the evenings. The Company offered to show the Complainant the CCTV footage to which he refused.

DisciplinaryProcess

The Complainant was invited to a disciplinary hearing which took place on 3rd of November 2016 by way of letter. The allegation was outlined to the Complainant. The Complainant was also reminded that the issue was being treated as gross misconduct in accordance with the Company’s disciplinary procedure and that the outcome could be disciplinary action up to and including dismissal. The Complainant was afforded the right to representation at the hearing and was provided with a copy of the disciplinary procedure. The Complainant attended the disciplinary hearing and was accompanied by Mr A. The hearing was carried out by Mr D (Maintenance Supervisor). Mr S was in attendance as note taker. When questioned as to the financial discrepancies, the Complainant denied failing to charge customers and claimed that there were no discrepancies with the customers he deals with and that the vehicles must have been commercial.

The Company considered the responses given by the Complainant but deemed them to be unacceptable as no satisfactory explanation was offered as to why the number of dockets or money on site did not match the volume of customers that entered. The Company also did not accept that the vehicles that entered the site on the day in question were commercial vehicles. The Company took the decision to terminate the Complainant’s employment due to gross misconduct. The Company cited that the incident had resulted in a breach of the trust and confidence necessary for the employment relationship to continue. The Company afforded the Complainant the right to appeal the decision.

Appeal

The Complainant’s legal representatives wrote to the Company to appeal the decision. No grounds for appeal were furnished. The Complainant’s representative requested a copy of all minutes of meetings and all documentary evidence furnished to the Complainant throughout the course of the investigation and disciplinary processes as well as a copy of the CCTV footage and Company policies. The Company responded to inform the Complainant that the CCTV would have to be anonymised and would therefore take a number of weeks. Once all information was compiled, the Complainant was invited to an appeal hearing and was afforded the right to representation of his choice. All relevant information was sent to the Complainant at this time.

The Complainant attended the appeal hearing and was accompanied by his legal representative. The appeal was chaired by Mr D (Operations Director) and Ms B (HR Manager). The Complainant queried if any other employees had been dismissed for theft in the Company to which Mr D responded that 5 employees had been dismissed for theft in the last 8 years. With regards to the CCTV footage, the Complainant outlined that he refused to watch it as he was concerned his recently deceased brother would appear in the footage. The Company outlined that all sites are clearly marked with having CCTV in use.   The Company took the decision to uphold the original sanction of dismissal. The Complainant was provided an opportunity to put forward his grounds of appeal but failed to provide any evidence to mitigate the circumstances. The Complainant did not raise any concerns with the process or with the proportionality of the sanction.

The respondent submits that the Complainant was dismissed by reason of his misconduct. Accordingly, his 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 meeting, the Complainant was adjudged to have committed an act of theft by removing funds from the Company site. This offence is specified in the Company’s disciplinary procedure, of which the Complainant was aware, as being a summarily dismissible offence. Having considered the facts of the case, the Company did not consider the response or explanation of the Complainant to be a reasonable one or mitigate the extreme seriousness or his actions. The Company contends that this sanction is proportionate in light of the offence committed.

The Complainant’s actions amounted to gross misconduct. It represented a fundamental breakdown in the trust relationship between the employer and employee. In light of the level of responsibility bestowed on the Complainant in a Supervisory position, he was trusted to handle Company cash diligently and honestly. His actions destroyed the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee.

When considering what sanction to apply the Company had regard to the seriousness of the allegations and also to the representations made by the Complainant within the process itself. The Complainant failed to provide any reasonable explanation as to why discrepancies may have occurred.

In relation to the sanction imposed by the respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is 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.”

It is clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Company did.   At the core of any organisation is the need for satisfactory standards of behavior and conduct. If the Company had not disciplined the Complainant appropriately, it would have given the impression to other employees that such conduct was not viewed by the Company as incorrect. As such the Company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

Following the Complainant’s dismissal in November 2016, the takings for the site exponentially improved. The takings for Quarter 4 of 2015 were €13,000 as opposed to €23,000 in the same Quarter of 2016. Similarly, the takings for Quarter 3 of 2016 were €22,000 as opposed to €31,000 in the same Quarter of 2017.

The actions of the Complainant destroyed the Company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that:

“[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

A similar stance was taken by the High Court in Carvill v. Irish Industrial Bank [1968] IR   325 in which the Court observed:

                “Another implied term of the contract of service between an employer and an employee is that the employee will act honestly towards his employer and that the employee will not take or misuse the employer’s property or divert to himself profits or property which belong to the employer”

In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the Company’s established policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegation against him. He was afforded the right to representation. He was further provided with a fair and impartial hearing, at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. In light of all of the above, the Company believes it to be clear that the dismissal of the Complainant’s to be procedurally fair in all respects.

The Company contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Company’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015.   This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978 where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

In conclusion, it is the Company’s position that the dismissal of the complainant was both substantively and procedurally fair having regard for all the circumstances.   In light of the arguments adduced, the Company respectfully requests that the Adjudicator finds in favour of the Company and this claim be rejected.

The complainant submits that

He has been employed by the respondent since 2001 at a Recycling Centre where he worked as Site Supervisor. The current respondent took over the management of the centre in or around 2008.

He was unfairly dismissed by the respondent on or about the 22nd November 2016 for what was alleged to be gross misconduct following allegations of theft of company funds and property from the ‘X’ Civic Amenity Site. He submits that his conduct did not amount to “gross misconduct” such that the Respondent was entitled to dismiss him.  

The Complainant had a previously unblemished disciplinary record with the Respondent, and had proven himself to be a reliable employee who went out of his way to be of assistance to the Respondent. It is further submitted that the disciplinary procedures used by the Respondent were unfair and / or inadequate and that the scope of the Respondent’s investigation into the alleged misconduct was too narrow, and thereby excluded potentially exculpatory and / or mitigating evidence.  

It is submitted that the appeal decision fails to adequately address the matters raised by the Complainant’s Solicitor at the appeal and that no regard was had to whether the Complainant had received specific training in relation to the alleged misconduct. It is further submitted that no regard and / or insufficient regard was had to the mitigating factors in the Complainant’s case and that the sanction of dismissal was disproportionate, with no evidence of a lesser sanction being considered prior to dismissal. It is further submitted that the Complainant provided a perfectly reasonable explanation of his handling of money as part of a savings club and this was completely dismissed by the Respondent who refused to entertain or even consider his explanation as their Decision had been pre-judged.

BACKGROUND

The Complainant was employed by the Respondent since 2008 as a Site Supervisor. His manager since 2015 was Ms R. The Complainant submits there were no clear policies and procedures in place for the day to day running and management of the centre. The Complainant submits that he was essentially left to his own devices to manage the centre as he had always done in the past. This can be evidenced by the system which he devised for the recording of cash lodgements. The Complainant would record in hand-writing on a sheet of paper the daily amount of money taken in and then record the amount lodged and any other outgoings that may have been discharged and including PPE (Personal Protective Equipment), Petty Cash and “Other”. Whilst this system may have served its purpose, it would not have been the type of stream-lined and sophisticated accounts system that one would expect of a large company operating at least 15 sites on behalf of local authorities throughout the country. Despite its crude nature, the system continued to be employed by the Complainant under the sanction and approval of his line manager, Ms. R who never at any point raised any issue with it or attempted to introduce any different or better system.

The complainant accepts that he did receive a copy of Procedure in respect of “Opening and Closing Procedure” in December 2015 but apart from this procedure there were no clear rules or regulations. It is the Complainant’s case that the Centre was managed in ad hoc manner and that management direction was at best described as “minimal” and at worst described as a shambles.

The Complainant at all times acted in accordance with the standards which were sanctioned and approved by his direct Line Manager, Ms. R but for reasons unknown to the Complainant, the Respondent refused to involve her in the process despite his request at both the disciplinary and appeal stages of the process. There is no evidence of any statement ever being taken from Ms. R at any stage of the proceedings despite the fact that it would have been entirely exculpatory. Notably, the Complainant was only furnished with the Company’s Disciplinary Procedure by letter dated the 16th August 2016 by which point the procedure was well under way.

It is submitted on behalf of the Complainant that the Respondent herein enjoys a range of penalties in disciplinary matters, including matters which are alleged to constitute “gross misconduct”. Furthermore, it is apparently the Respondent’s policy to consider alternative sanctions prior to dismissal (based on the aim of being “corrective” as opposed to “punitive”).

The Complainant was the subject of a protracted and unfair disciplinary process which commenced on the 16th August 2016 and which was not concluded until 12th April 2017, almost 8 months after it commenced. Despite the lengthy period which elapsed, the Company failed entirely to gather all of the evidence necessary to make a fair and fully informed decision and proceeded to take a decision to dismiss the employee and then uphold the decision on appeal without taking into consideration any of the submissions made on behalf of the Complainant and without ever furnishing the CCTV which appeared to form the main basis of their decision to dismiss.

Disciplinary process

The Complainant explained that the only cash he ever removed from the premises was cash he had collected as part of a savings club and he will give further evidence of this club and how his colleague Robbie would give him €120 each week towards a Christmas Savings Club and that this was the only money that was ever removed by the Complainant.

The Respondent wrote to the Complainant by letter dated the 22nd day of November 2016 indicating that it considered that the Complainant's conduct amounted to "gross misconduct" and dismissing the Complainant from his employment as of the 22nd day of November 2016. Two particular features of this letter are noteworthy:

(a) It states that he was given a full opportunity to respond, even though he was never furnished with the CCTV footage; and

(b) The letter states that “by reason of gross misconduct….dismissed from the firm”. As such, there is no evidence of any consideration of a lesser sanction by the Respondent whatsoever.

Appeal

On the 25th November 2016, the Complainant solicitor wrote to seek an Appeal from the Respondent's decision to dismiss the Complainant and to seek the CCTV which was never furnished in advance despite repeated requests and incredibly was not made available at the Appeal Hearing despite a request at the hearing by the Complainant Solicitor. It demonstrates clearly that every possible effort was made by the Complainant solicitor to obtain the CCTV in advance but these requests were not accommodated despite the lengthy period of almost 5 months which elapsed between the letter invoking the appeal process and the appeal itself. Both the Complainant and his solicitor were astonished that no CCTV was available at the Appeal and the Solicitor specifically requested to view it at the beginning of the Appeal.

There is no evidence of any statement ever being taken from Ms. R at any stage of the proceedings despite the fact that it would have been entirely exculpatory. The Complainant was amazed that not only was the CCTV unavailable but that the involvement of his direct line manager was being entirely disregarded. On the basis of the foregoing, it is submitted on behalf of the Complainant that the Respondent’s disciplinary investigation into the Complainant was fundamentally flawed, procedurally and substantively unfair.   Mr. B at the end of the appeal meeting said that he was disappointed that the Complainant had not advanced any reasons why he should keep his job. His approach was essentially that the Appeal was an opportunity for the Complainant to beg for clemency rather than hear any Appeal.

The Complainant seeks to rely on (among others) the decision of An Employee v. An Employer UD 2028 / 2009, the Employment Appeals Tribunal held that the Claimant here had been unfairly dismissed for gross misconduct following a serious row with a shift supervisor. Notwithstanding, the Tribunal held that the Respondent had failed to properly investigate the incident in that "...[it] was incumbent on the Respondent to investigate and establish what happened and then to take appropriate action", and that while the "claimant behaved badly" it did not amount to gross misconduct and therefore the sanction was "disproportionate".

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 the complainant Mr. D was employed as site supervisor at its X recycling plant and that he was responsible for the opening and closing procedures as well as ensuring all cash handling procedures were undertaken correctly. In particular, the Complainant was entrusted with ensuring that all monies were accounted for and were reconciled with all dockets.

The complainant’s manager on site was Ms R. The respondent told the hearing that the complainant prior to Ms. Rs appointment had been managed in an ad hoc and loose fashion and had a lot of freedom in how he performed his job. The complainant at the hearing agreed that he was more or less left to manage himself prior to Ms. R’s appointment as manager.

The respondent advised the hearing that the complainant was responsible for opening and closing the site and for taking money into the site from customers. The respondent advised the hearing that it became concerned about the finances of X site when the manager Ms. R noticed that there were large discrepancies between the takings in the x site in comparison with other sites and also that the tonnage coming into the site was not reflected in the financial takings at the site.

Ms. R noticed that in some cases dockets were not being recorded or placed on file for non commercial vehicles and also that the tonnage did not equate to the money coming in.

In addition, the respondent noticed that the complainant Mr. D appeared to be constantly counting money throughout the day even though money was only supposed to be counted at the end of the day.

The respondent told the hearing that the CCTV for the site had showed the complainant counting money and then taking out his wallet and placing money in his wallet and putting the wallet back into his pocket at the end of the day. The Complainant when questioned by the respondent about this claimed that he left the wallet in work in the evenings.

The respondent advised the hearing that the discrepancies between the dockets on file and the money coming in was put to the complainant who could not provide an explanation for these discrepancies.  

The respondent told the hearing that a decision was then taken to progress the matter through its disciplinary procedure and the complainant was suspended pending the outcome of the investigation.

Disciplinary Hearing

On 16 August 2016, the Company wrote to the Complainant by way of letter to inform him of the allegation against him and to suspend him on full pay pending the conclusion of an investigation. An investigation meeting was scheduled and the Complainant was afforded the right to be represented

This letter advised the complainant that he was being suspended following allegations of theft of company funds and property it also advised him that an investigatory meeting was to take place on 22nd of September, 2016 and advised him that the outcome of this meeting could result in disciplinary action up to and including dismissal. This letter also enclosed a copy of the disciplinary procedure and advised the complainant that he had the right to be represented at this meeting and also advised him to exercise this right. On 22nd of September 2016 an Investigatory meeting took place with the complainant Mr. J the operations manager and Mr. G financial auditor. The complainant was accompanied at this meeting by his friend Mr. A.   The minutes of this meeting indicate that the respondent advised the complainant that the basis for the investigation was due to the fact that the financial returns from this site were a lot less than other sites when compared to the tonnages of waste accepted on site and that it was at the stage where there were not enough takings in the site to cover the cost of disposing the material accepted.

The minutes of the meeting indicate that the respondent went through the waste acceptance procedure with complainant and the procedure for payment by customers who bring waste to the site.   This also examined the procedure for writing up dockets for each transaction. The complainant indicated that he keeps some money in a wallet in order to give change to customers and that he sometimes accepts money from customers in the yard and puts it in his wallet until he gets back up to the office after which it is put in a safe.   The complainant advised the respondent at the meeting that he puts all the money in the safe overnight and then counts it in the morning.  The respondent asked the complainant if he ever removed cash from site to which he answered ‘No’. The complainant told the meeting that he sometimes takes the money and writes up the docket later if he is down the yard or if a customer doesn’t want a docket and that the customer copy later gets thrown in the bin. There was also a discussion about CCTV footage and the complainant was advised that the footage showed him counting money several times during the day. The respondent also indicated that the CCTV showed 9 trailers coming in one day and only 4 dockets were written up for that day. The complainant could not explain this discrepancy. The complainant was asked if he wanted to look at the CCTV footage to which he replied ‘No’. The respondent told the complainant that there is footage of money being put into the wallet by him at the end of the day and taken off the site. The respondent stated that there were also several incidents of trailers coming into the site and no dockets being written up.

On 4th of October 2016 the respondent wrote to the complainant to give him an update on progress. On 27th of October 2016 the respondent again wrote to the complainant advising him that a disciplinary meeting was to take place on 3rd of November, 2016 and enclosing the minutes of the investigatory meeting.     The respondent again advised the complainant of his right to representation at the hearing. The disciplinary hearing took place on 4th of November, 2016.   The disciplinary meeting was attended by the complainant and his friend Mr. A and was attended by Mr. B the respondent Maintenance Supervisor. The minutes of the meeting indicate that the issue of dockets not being written up for trailers coming on site was again brought up.   The complainant stated that he always takes account of these at some stage during the day.   The respondent asked the complainant if he ever removed cash from site to which he answered ‘only as a savings scheme’. The complainant then went on to state that he runs a savings scheme for Christmas and that another employee Mr. R sometimes gives him money in the yard which he puts in the credit union for him. The complainant stated that he sometimes puts this cash in his wallet and removes it from the site but that it is not money belong to the respondent but belongs to a savings scheme.  

When questioned as to the discrepancies, the Complainant denied failing to charge customers and claimed that there were no discrepancies with the customers he deals with and that the vehicles must have been commercial.   The Company considered the responses given by the Complainant but deemed them to be unacceptable as no satisfactory explanation was offered as to why the number of dockets or money on site did not match the volume of customers that entered. The Company also did not accept that the vehicles that entered the site on the day in question were commercial vehicles. The Company took the decision to terminate the Complainant’s employment due to gross misconduct. The Company cited that the incident had resulted in a breach of the trust and confidence necessary for the employment relationship to continue. The Company afforded the Complainant the right to appeal the decision.

The complainant was notified on 22nd of November 2016 that he was being dismissed following the allegations of theft of company funds from the x amenity site.   The complainant was also notified of his right to appeal this decision. The complainant’s solicitor wrote to the respondent on 25th of November, 2016 stating that the complainant wished to appeal the decision in respect of his dismissal and requesting a copy of the CCTV footage.   The respondent replied on 29th of December 2016 advising that a copy of CCTV footage could only be provided once third parties were anonymised and indicating that it will take a number of weeks to have this completed. The complainant wrote again on this issue on 20th of February 2017 to which the respondent replied on 23rd of February indicating that its CCTV suppliers were still working on pixelating the footage so as to anonymise other parties.   The complainant replied on 3rd of March 2017 and the respondent replied on 31st of March setting a date for the appeal hearing on 12th of April 2017. The respondent indicated that he complainant had been offered the chance to view the CCTV at previous hearings but that he declined to do so. The respondent made a distinction between allowing the complainant to view the footage and providing the complainant’s solicitor with a copy of the footage stating that providing a copy meant that they had to ensure that other individuals and car registrations etc were pixelated in order to ensure the anonymity of others.   The respondent indicated that this was being done by its CCTV company but that it was a time consuming process.   The respondent referred to the fact that the complainant had been offered to view the cctv in previous meetings but had declined. The complainant stated that the reason for this was that his brother who was since deceased may be on the footage and he did not want to see the footage for this reason. The complainant’s solicitor at the appeal hearing submitted that discrepancies in the takings could be due to different prices being charged to different customers.   The respondent indicated that there is a price list and that no one was authorised to make discretionary decisions about pricing to any customer. The complainant’s solicitor also raised the question as to why Ms. R the site manager had not been questioned in relation to the discrepancies.

This question was also raised at the adjudication hearing and Ms. R who was present at the adjudication hearing stated that she had been the person who had noticed the discrepancies in the takings and had then reported them to management. Ms. R went on to state that she had requested to be kept out of the process after receiving threats from the complainant’s family and she stated that she was afraid to walk down the street after these threats.  Ms. R was visibly and genuinely upset when she spoke at the hearing and stated that she had remained silent throughout the hearing but felt she had to eventually answer the question as to why she had not been questioned following the financial discrepancies and why she had not been involved in the investigation process. Ms. R added that she had been kept out of the process due to concerns for her own safety.

Mr. R stated that she too was investigated and that she was able to provide all of the relevant dockets to support the takings in this regard. Mr. R stated that she had noticed that the money coming into Y site was twice as much as that coming into the x site eventhough the X site was taking in twice as much waste as the Y site. Ms. R also told the hearing that she had arrived at the X site on a particular day in January 2016 and was handed €507 by the complainant for a bulky trailer. Ms. R stated that the cost for a bulky trailer was €700 and that she had seen two bulky trailers come in that day which should have amounted to €1400.   Ms. R stated that she mentioned to the complainant that this didn’t add up and he became angry asking her “what are you saying? What are you implying? Ms R stated that she later reported the matter to Mr. B.

The complainant’s solicitor at the appeal hearing also raised an issue that the placing of cameras in the office was covert. The respondent advised that these cameras have always been on the sites and that the sites are clearly marked as having CCTV. The respondent stated that the cameras are in all areas apart from the bathroom and canteen areas and are there for the safety of everyone on site.

The complainant’s solicitor at the appeal hearing asked if any other employees had been dismissed for theft to which the respondent replied that there were approximately 5 thefts in the past 8 years where employees had been dismissed as a result.

The respondent advised the complainant by letter dated 5th May 2017 that his appeal had been unsuccessful and that it was upholding the decision to dismiss him.   The CCTV footage was provided to the complainant on 19/06/2017. The complainant at the WRC hearing did not raise any issues in respect of the content of the CCTV footage.

The respondent at the hearing provided financial details of the discrepancies in the takings between X site and others of similar size.   This was reported by Ms. R site manager and a review of the CCTV footage took place which revealed irregularities in the procedures being carried out at the site by the complainant. The complainant agreed that he did not always write out dockets straight away but stated that they were sometimes written up later on. In addition the complainant was seen to be counting money throughout the day even though procedures stated that this should only be done once a day. The complainant denied that he counted money at times other than first thing in the morning and also denied that he ever took money off the premises stating that he left the wallet on the premises while the respondent stated that CCTV showed the complainant putting money into a wallet and taking the wallet off site with him.  

It is not my role to determine the Complainant’s explanation or reasoning behind his behaviour but rather whether it was objectively reasonable for the Respondent to form the view that he had not provided a reasonable explanation for his 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 an ample opportunity to explain his actions.

It is also undisputed that the complainant was at every stage advised of his right to representation and was advised to avail of that right.

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.

The final matter for consideration relates to 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 x site was performing noticeably worse than other similar sites and the evidence that y site was taking in twice as much money for half the amount of waste. I also note the respondents evidence that the takings at x site increased considerably following the complainant’s dismissal.

I note that the Complainant did not provide reasonable explanations as to why he was breaching procedures by regularly counting money during the day and for failing to issue dockets for all waste being brought onto the site. The complainant was also unable to offer an explanation in respect of the discrepancies in the money coming into the site and the amount of waste being brought on site by customers and the fact that the site was not making enough money to dispose of the waste being brought into the site.   The fact that this site was performing badly when compared to all other sites of its size would also point to some irregularity in the site finances of which the complainant was in charge on a daily basis.

The respondent also advised the hearing that decisions in relation to site closures are made based on the financial viability of the individual site and stated that the x site could have been closed down due to the fact that its takings were so low thus putting the future of that site and the jobs of other employees at risk.

I am satisfied that the respondent has provided evidence to show 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 respondent has discharged the requisite onus/burden of proof of showing that the dismissal was fair and have to conclude that the Complainant was fairly dismissed.