UDD1830

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Bowen is referred to as the Complainant and Aurivo Co-Operative Society Ltd are referred to as the Respondent.

Background

The Complainant commenced employment with the Respondent in 2008 he was initially employed in a different store. In 2014 he moved to the current store. On the 25^thJuly 2016 he was dismissed on the grounds of serious misconduct. The misconduct complained of was failure to follow the Respondents policy in relation to “card not present transactions”. At the time of the alleged incident the Complainant was on a final warning for another till related issue.

Complainant’s case

It is the Complainant’s case that on Friday the 24^thJune 2016 just before 6.00pm as he was finishing his shift he was summoned to a meeting with Mr Vincent O Kane, Area Manager and Mr Michael Henry Hr Manager. He was not advised in advance what the purpose of the meeting was. It was the Complainants evidence that at the start of the meeting he was asked if he wanted representation but at that stage he had not been told what the meeting was about so he agreed to go ahead without representation. He was then told that there was an issue in relation to his carrying out a “card not present transaction” the previous day contrary to company policy and in breach of an instruction from his manager Ms Doocey. The meeting only lasted five minutes then he was placed on suspension by Mr O Kane pending an investigation.

It is the Complainant’s case that he did carry out the transaction but was not aware that it was a breach of company policy and he did not recollect being informed of the policy by Ms Doocey. In the course of his evidence it was put to him that Ms Doocey had identified a specific incident which had occurred in the previous December /January which had prompted her to inform him of the policy. It was her evidence to the Court that at that stage she had brought the Company policy to the Complainants attention. The Complainant’s evidence was that he did not recall either the incident or the instruction. It was the Complainant’s evidence that if he received an instruction he would carry it out and he gave two examples of where he had received instructions and carried them out. The Complainant also referenced his final written warning and the fact that he had complied fully with the Company policy in relation to dealing with your own transactions since that incident. The Complainant stated that other staff were doing “card not present transactions” at the relevant time. The Complainant accompanied by his representative attended investigation meetings in July 2016. Following those meetings, he was circulated with a copy of an investigation report and invited to a disciplinary hearing on 21^stJuly 2016. This hearing was chaired by Mr O Kane who had initially suspended him and who had previously dealt with the final warning. Mr O Kane took a short break of approximately 15 minutes at the end of the hearing then he informed the Complainant that he had made the decision that he should be dismissed. The Complainant was advised that he could appeal the decision. The appeal was heard by Mr Tierney Chief Financial Officer who came to the conclusion that the decision to dismiss was fair.

Respondent’s case

The Complainant was on a final written warning which he had not appealed in relation to carrying out a transaction for himself. In that case the Respondent had decided to give the Complainant the benefit of the doubt and hence the final written warning. While he was on that written warning the Complainant in breach of company policy had carried out a “card not present” transaction. The Respondent had three witnesses. The first witness Ms Doocey was the Complainants manager at the time of the incident. Ms Doocey evidence to the Court was that she had received an instruction by email in September 2015 that staff were not to carry out transactions without a card present unless the store manager had approved the transactions. It was her evidence that she had verbally relayed this instruction to all staff. She accepted that the Complainant was not in work at the time she informed staff but it was her evidence that she clearly recalled an incident in December/ January where a card not present transaction was carried out by the Complainant and she verbally informed him of the policy and the reason why they now had that policy. Ms Doocey in her evidence stated that in June 2016 when she became aware that the Complainant had carried out a “card not present transaction” she did not speak to the Complainant but instead she contacted the area manager Mr O’ Kane. Ms Doocey accepted that under the Company procedures she could have dealt with the issue and could have placed the Complainant on suspension but she was aware that he was on a final written warming so she contacted Mr O’ Kane. In response to a question from the court Ms Doocey confirmed that the email containing the instruction not to process “card not present transactions” was not given to staff nor was it placed on any notice board. She felt it was sufficient for her to have given staff the instruction.

The next witness for the Respondent was Mr O’ Kane Area Manager. In his evidence to the Court he stated that he had been the decision maker in relation to the 2015 incident and had decided to give the Complainant the benefit of the doubt in relation to that incident and give him a final written warning. On the 23^rdJune 2016 he was contacted late in the evening by Ms Doocy who advised that the Complainant had carried out a “card not present transaction” in contravention of the Company policy. He advised Ms Doocey that he would not get to the store till late the next day. He contacted HR to arrange for a note taker to be present at the meeting. When he arrived at the store he spoke to Ms Doocy then invited the Complainant to join them. This was about 4.30pm/5.00pm. The Complainant was not told in advance what the meeting was about. Mr O Kane informed the Court that it was his intention to get an understanding of the facts and to understand if it was an issue serious enough to warrant investigation. Mr O Kane did not dispute that when the Complainant was asked if he wanted representation that he had not at that time been told the nature of the meeting. It was his evidence that when it became clear to him that the Complainant had conducted the transaction he halted the conversation as he became aware at that point that an instruction had been broken. It was his evidence that the meeting lasted approximately five minutes and that he then suspended the Complainant pending further investigation. It was Mr O Kane’s evidence that other than asking Mr Varley to carry out a thorough investigation he had no input into the investigation. Theoutcome of the investigation was that there was a case for the Complainant to answer. The charge against the Complainant was that he had breached his manager’s instruction.

Mr O Kane confirmed in his evidence that he carried out the Disciplinary hearing. He advised the Court that he looked at the report carried out by Mr Varley. He discussed the facts with the store manager and he was satisfied that Ms Doocey had informed her team of the policy. He found Ms Doocey’s evidence to be credible. In relation to the Complainant his evidence was he couldn’t remember being told or maybe he did not hear the instruction. It was Mr O’ Kane’s evidence that he believed the Complainant got a fair hearing and was given an opportunity to explain why he had not followed the manager’s instruction. He felt that the trust had been broken. He had already given the Complainant the benefit of the doubt in the earlier proceedings. It was his evidence that he had considered an alternative role but had come to the conclusion that the Complainant was an individual that could not handle cash and that instructions were not getting through to him. Mr O’ Kane told the Court that he felt on the balance of probabilities that the Complainant would offend again, he confirmed under cross examination that the earlier warning did have an impact on the decision to dismiss. In response to a question from the court Mr O Kane confirmed that in the course of Mr Varley’s investigation it came to light that two other staff (out of a total of 6 fulltime staff) had also carried out “card not present transactions”. They had both received a first written warning as they had no previous live warnings.

The final witness for the Respondent was Mr Tierney Group CFO who heard the Complainant’s appeal. Mr Tierney held two meetings with the Complainant and his representative he read the report, he interviewed other staff and he listened to the Complainant’s evidence. He felt that Ms Doocey was quite clear that she had given the instruction but the Complainant’s position was changing from meeting to meeting. In his view if an instruction was given then it was a breach of company policy. Under cross examination Mr Tierney stated that it was his view that if Ms Doocey had not told the Complainant of the policy she could be dismissed but it did not cross his mind that Ms Doocey might be stating she gave the warning to protect herself. He had considered all options but the fact that the Complainant was on a final written warning was a major factor in his decision to uphold Mr O Kane’s decision. If the final written warning was not in place, then he would have considered dismissal to severe.

The law

Section 1 of the Act defines dismissal in the following manner

"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

The Complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss him does not meet the standard for fair procedure set out in case law.

In the case ofSamuel J Frizelle v New Ross Credit Union[1997] IEHC 137 the High Court set out the following legal principles to be observed:

• “Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

• 3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
  
  
  

  4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
  
  

  5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

  Put very simply, principles of natural justice must be unequivocally applied

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, including, the conduct of the Complainant the Court considers that the Complainant has suffered financial loss as a result of the wrong he 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 €12,500.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €12,500. The decision of the Adjudication Officer is upheld. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
5 June 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.