UDD1835

For ease of reference the parties will be referred to as they were at first instance, Waterberry Limited as the Respondent and Ruth Burke as the Complainant.

In a decision dated 20^thJuly 2017 the Adjudication Officer decided that the Complainant had been unfairly dismissed and awarded her the sum of €10,000 in compensation.

Background

The Complainant commenced employment with the Respondent on 3^rdMay 2012 as a beauty therapist. Her contract of employment was terminated by the Respondent on 4th March 2016 by reason of gross misconduct.

The Respondent, in the letter of termination of employment, set out that the Complainant had accepted clients as friends on Facebook in contravention of the company’s social media policy, had removed company property from the premises without authorisation in contravention of company policy, had discounted treatments without authorisation in contravention of company policy and thus caused a loss to the business and had brought her own products on to the company premises and had given or sold such products to a client notwithstanding that the Respondent sold similar products on the premises itself.

The dismissal of the Complainant followed an investigation and disciplinary process. Following the disciplinary process the Complainant was advised of the termination of her employment and was advised that she had the right of appeal of that decision to a named individual within a specified timeframe. The Complainant did seek to make an appeal of the decision but did so outside of the timeframe of seven days prescribed by the Respondent. The appeal was ruled out of time and no hearing of an appeal took place.

Summary position of the Respondent

In May 2015 the Complainant requested that she reduce her working hours to two days per week so that she could run her own business. This was agreed to by the Respondent on the strict understanding that the Complainant’s business would not interfere with the business of the Respondent.

On 16^thJanuary 2016 the Complainant was invited to an investigation meeting in respect of allegations that she was selling her own products on the Respondent premises, that she was not recording sales transactions correctly, that she removed products from the Respondent premises without authorisation and that she had contact with clients on social media in contravention of the Respondent’s social media policy.

The policies of the Respondent forbid the removal of product from the Respondent premises without prior permission of management. In addition, the policies of the Respondent forbid interaction on social media with clients. Similarly, the policies of the Respondent forbid the sale of external products or services to clients of the Respondent within the Respondent premises.

The Complainant contended at the disciplinary meeting that she had social media contact with clients before the introduction of the company’s social media policy but that was not accepted by the Respondent. At the disciplinary meeting the Complainant did not dispute that she removed product from the Respondent premises without authorisation. The Complainant accepted at the disciplinary meeting that she had discounted treatments to clients without authorisation. The Complainant accepted at the disciplinary meeting that she had brought her own products into the Respondent premises and had given that product to a client of the Respondent. The Complainant denied that she sold such product, which competed with product of the Respondent, but the Respondent, based on witness evidence from other staff, formed the reasonable conclusion that the Complainant had sold competing product on the Respondent premises.

The Respondent, following the conduct of a fair procedure, came to a decision to dismiss the Complainant. All matters were thoroughly investigated, she received all evidence in advance of the disciplinary meeting, she was advised at all stages of her right to be represented and was provided with two opportunities to put forward her version of events.

In the course of the investigation and disciplinary meetings the Complainant admitted to most of the allegations put to her. The Respondent, noting that many of the actions were admitted, concluded that the conduct amounted to gross misconduct.

Dismissal in those circumstances was within the range of responses of a reasonable employer.

The Complainant was afforded the right of appeal but she failed to make that appeal within the time provided which was seven days. The Complainant did appeal the decision to dismiss her on 18^thMarch which was 14 days after the decision to dismiss her was made and conveyed to her.

Summary testimony on behalf of the Respondent

Ms SAC, a director, manager and therapist of the Respondent, gave evidence that she held an investigation meeting on 16^thJanuary 2016 wherein she provided the Complainant with statements from two other staff and the Complainant’s line manager. These statements alleged that the Complainant had sold her own product to a client on the Respondent’s premises, that she had removed the Respondent’s product from the premises, that she had not recorded till transactions properly and that she had contact with clients on social media.

A social media policy was introduced in 2013 following a period of negative publicity for the Respondent. That policy forbids client contact by staff on social media. The Complainant stated at the investigation meeting that she had allowed client contact at the time of receipt by her of an ‘Image’ award. That award event occurred in 2014 which post-dated the issuance of the Respondent’s social media policy and its communication to all staff.

The Complainant accepted at the investigation meeting that she had given her own product to a client but did not accept that she had sold such product to the client.

She accepted that she had removed product from the premises but said that it was a widespread practice to do so. She also accepted at that meeting that she had carried out transactions in a manner other than the standard manner but she asserted that she understood that this was the way to conduct such transactions.

Ms SAC formed a reasonable conclusion, on the basis of witness statements and the result of her investigation, that the Complainant had sold external product to a client on the premises as well as having removed the Respondent’s product from the premises. She concluded that the Complanant had maintained contact with clients on social media and recorded till transactions at a discount contrary to the Respondent practice and procedure. On the basis of these findings Ms SAC suspended the Complainant on pay and determined that a disciplinary process should take place.

She made clear to the Complainant at the outset of the investigation process that she was entitled to have a witness present during the process. That offer was not taken up by the Complainant.

Under cross examination she agreed that she had not notified the Complainant in advance of the fact of the investigation meeting taking place. The Complainant was advised of that fact only on the day of the investigation meeting. She confirmed that none of the matters under investigation had been raised with the Complainant before the investigation meeting and that witness statements which had been gathered by Ms SAC had been shared with Complainant only in the course of the investigation meeting.

She did, following the investigation and decision to suspend the Complainant, engage with Ms PH, who was to carry out the disciplinary process, and discussed the conduct and outcome of the investigation meeting.

She confirmed that the ultimate decision to disallow the complainant’s appeal of the outcome of the disciplinary hearing was jointly taken by Ms SAC, Ms PH and Mr JT, the person who was identified as responsible for the conduct of that appeal.

Ms PH, a director and owner of the business also gave testimony.

She confirmed that she conducted the disciplinary process in the matter and that this consisted of a hearing on 22^ndFebruary 2016. In advance of that hearing she was supplied with the witness statements gathered by Ms SAC as part of the investigation process. In addition she was briefed by MS SAC as regards her views on the matter following the conduct of the Investigation process.

She said that the taking of products home, other than samples or bonus products, by staff was a serious matter. She also said that self promotion by a member of staff was a serious issue. She said that she found that the company’s social media policy was drawn up and circulated to staff in 2013 and that the Complainant had developed social media connections with clients in 2014 in contravention of that policy. She said that in the course of the disciplinary process she had spoken to members of staff and got a sense of something else going on. In that regard she identified that the Complainant had been carrying out discounted till transactions which cost the business €3,500 in the period which was examined. The main concern however was that the Complainant had brought her own products, which were competing with products sold by the Respondent, into the Respondent premises and had given or sold those products to a client.

There had been, because of these matters, a breakdown in trust and consequently, although she considered other options, she decided that there was no alternative to dismissal of the Complainant by reason of gross misconduct.

Under cross examination she confirmed that she had been involved in the investigation process prior to the disciplinary process which she conducted. Specifically, she had conducted the inquiry into the records which revealed the conduct of transactions in an irregular manner by the complainant. She had also spoken to staff as part of that investigation process.

She confirmed that she did not speak to the client to whom the Complainant’s competing product was given or sold because she did not want to draw the customer into matters which were internal to the business.

She confirmed that she did discuss the matter with Mr JT, who was the person appointed to conduct any appeal and she confirmed that the decision to disallow the Complainant’s appeal was taken in consultation with the MS SAC and Mr JT.

Ms MG, a senior beauty therapist who was employed in 2006 and again from 2010 to 2016 by the Respondent gave evidence.

She said that she had seen the Complainant taking product home from the Respondent premises on one occasion.

She also gave evidence that she understood that it was not permitted for staff to remove such product from the Respondent’s premises.

Ms HO’N, a senior therapist with the Respondent, gave evidence.

Ms HO’N gave evidence that the Complainant was not, in her view, a manager. She also stated that it was not permitted to remove professional product from the Respondent’s premises. She said that staff could buy professional product at a discount and could take bonus product and product samples home.

Ms LW, Beauty therapist, gave evidence.

Ms LW gave evidence to the effect that she had received the Complainant’s product from the Complainant and later that day the Complainant had asked for the product back so that she could sell that product to a client of the Respondent.

Summary position of the complainant

The Complainant submitted that the Respondent had not followed fair procedure in taking the decision to dismiss her. Specifically, the Appellant submitted that the Respondent had not afforded her the right to be represented and had not afforded her an appeal of the decision to dismiss her.

In addition, the Complainant submitted that the decision to dismiss her was disproportionate and was an unreasonable response in all of the circumstances.

The Complainant had worked for the Respondent since September 2012 and had, since May of 2015 and with the agreement of the Respondent, worked part time in order to establish and operate her own business. That business did not compete with the Respondent’s business because it was geographically remote from the Respondent’s premises.

On 16^thJanuary 2015 the Complainant was called to an investigation meeting in respect of allegations of misconduct. Those allegations involved the selling of her own product on the Respondent premises, failure to record transactions correctly, removing product from the Respondent premises without authorisation and having contact with clients on social media in contravention of the policies of the respondent.

In the course of the investigation meeting she was provided with statements from MG, LW, and HO’N. She was called to a disciplinary meeting on 22^ndFebruary 2016 and was placed on paid suspension until that time.

In advance of that hearing she requested that she be allowed to bring a representative who was not an employee of the Respondent. That request was refused. The Complainant highlighted to the Respondent that her fellow employees had made statements against her and consequently she would be unable to identify a work colleague to bring to the disciplinary meeting with her.

The Complainant ultimately sought to appeal the decision to dismiss her but that appeal, made some days outside the time period prescribed by the Respondent, was disallowed notwithstanding the clear reasons supplied for the delay in the making of the appeal.

Summary testimony of the Complainant

The Complainant gave evidence that she could not recollect any conversation regarding the social media policy of the Respondent in 2013. She said that she won an award in 2014 and after that some clients friended her on Facebook and she never deleted those contacts.

Her skin was sensitive and she did remove product from the Respondent premises in that connection. She was never told that she could not do that.

Her practice of making discounted transactions on the till was well known to the Respondent and had been her practice throughout her period of employment. It was her understanding that this was a normal feature of the operation of the Respondent’s business.

She had provided her own product to a client. That client had assisted her with some domestic matters and she gave her a gift of the product as a gesture of gratitude. She did not sell any of her product to clients at any time during her employment.

Discussion and conclusions

The Court has considered the submissions and evidence tendered by both parties.

It is clear to the Court that the Respondent regards the activity alleged to have been undertaken by the Complainant as very serious matters. In particular the Respondent, for particular stated reasons, regards interaction between staff and clients on social media as unacceptable and so advised all staff including the Complainant. The Respondent similarly regards the supply of competing products by staff to clients as injurious to its business and unacceptable. The Respondent takes a similar view as regards the taking of product from its premises and the till practice of the Complainant.

The Complainant accepts that she had the alleged social media interaction with clients but contends that she was not aware of the social media policy of the Respondent at the time on initiation of that interaction. She contends that the practice of removing product from the premises was common amongst the staff and she contends that her till practice was known to the Respondent throughout her employment.

It is not for the Court to substitute its own judgement for that of the Respondent in this case. Rather, the function of the Court is to determine whether the response of the Respondent to the facts as established by it were within the range of responses one might expect from a reasonable employer.

It is essential that the Respondent, in coming to a conclusion on the matter by way of the exercise of an internal procedure, ensures that those procedures are fair and are conducted fairly.

The procedures employed by the Respondent in this case included an investigation, a disciplinary procedure and a right of appeal of the decision emerging from that disciplinary procedure. The Respondent is a small business and the Court can accept that the capacity of the Respondent to fully separate the conduct of the various stages of procedure is limited by the availability of personnel at an appropriate level.

However, in this instance, the Court notes that the person, Ms PH, who conducted the disciplinary phase of the procedure was an active participant in the process of investigation albeit the investigation was ostensibly being carried out by another person, Ms SAC. The Court also notes the degree of interaction following the investigation and throughout the disciplinary process between the investigator and the person carrying out the disciplinary process. Finally, the Court notes that, notwithstanding that a person external to the business was appointed to hear any appeal, the decision to reject the complainant’s appeal on time grounds was made in what was effectively a joint manner by the investigator, the person who carried out the disciplinary process and the person appointed to hear any appeal. That rejection of the appeal was communicated to the Complainant by the person who conducted the disciplinary process and not by the person appointed to hear the appeal.

The Court notes that the Respondent did not accommodate the Complainant’s request for external representation at the disciplinary stage notwithstanding that a number of colleague employees had made statements against her to the Respondent. While the fact of the Respondent not facilitating the presence of a person from outside the employment as a representative might not be fatal to the procedure in normal circumstances, the fact that in a small business a number of colleagues had made statements against the Complainant, elevates the significance of a decision not to allow external representation in the disciplinary process.

Similarly, a key feature of a fair procedure is the existence of a right to appeal a decision made as a result of the conduct of a disciplinary hearing. The Complainant was afforded seven days to appeal the decision to dismiss her. She made her appeal outside that time limit but tendered practical reasons which she contended inhibited her capacity to appeal within seven days. The fact that the consideration of whether to admit her appeal based was not confined to the person assigned to hear the appeal but rather was considered jointly by the investigator, the person who conducted the disciplinary process and the person appointed to hear the appeal, raises significant questions as to the independence of the appeal process from the other stages of procedure.

The Court takes the view that, taken together, the level of crossover and interaction between personnel at all stages of the investigation, disciplinary and appeal procedure has fatally imperilled the decision to dismiss the Complainant. That decision was ultimately appealed by the Complainant but the denial of that appeal was a decision which itself was contaminated by the fact that persons other than the individual responsible for the conduct of the appeal, participated fully in the decision to refuse the extension of time for the making of the appeal.

In all the circumstances the Court finds that the dismissal of the Complainant was procedurally unfair. The Court however also finds that the Complainant, through her behaviour, contributed significantly to her dismissal and this has been taken into account in considering redress.

The Court has received submissions as regards the Complainant’s earnings at the time of her dismissal, her loss arising from her dismissal and her efforts to mitigate those losses. The Court has taken account of these submissions and finds that compensation is the appropriate form of redress.

Determination

The Court determines that the complaint is well founded and that the dismissal was unfair. The Court however determines that the Complainant, through her conduct, was significantly responsible for her dismissal. The Court orders the Respondent to pay the Complainant compensation in the amount of €10,000.

For the reasons set out above the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
TH______________________
21 June, 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.