ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003643

Parties: 27.03.17

	Complainant	Respondent
Anonymised Parties	Pharmacist	Retail Pharmacy

Representatives

David Miskell Mandate Trade Union

Aisling McDevitt Ibec

Parties: 30.05.17

	Complainant	Respondent
Anonymised Parties	Pharmacist	Retail Pharmacy

Representatives

David Miskell Mandate Trade Union

Aisling McDevitt Ibec

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00005261-001	17/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00005262-001	17/06/2016

Date of Adjudication Hearing: 30/05/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

A series of further statements were exchanged between the parties following the hearing with the final correspondence received on the 18th.Dec. 2017 from the claimant’s representative.

Summary of Complainant’s Case:

The claimant was employed as a Supervising Pharmacist with the respondent in September 2011.The claimant was aggrieved in relation to a disciplinary sanction of demotion which was imposed on her as a result of products bought by her on line under a staff discount scheme in December 2015.It was submitted that the company operated a Christmas Blockbuster promotional offer on certain products whereby if a customer bought certain products in a particular range along with a second qualifying product by that brand, the original product would be sold at a reduced price.In this case an error had occurred on line resulting in the incorrect level of discount being applied which far exceeded their staff discount entitlement of 12.5%.

7 transactions took place over a 5 day period – the claimant had been alerted to the discount offer by other staff in the store who had also availed of the offer.It was submitted that the claimant had no reason to expect any issue or to suspect a website glitch.

When the company became aware of the issue they circulated an internal memo – it was submitted that the claimant was advised by the Store Manager that according to Snr Management “ staff were going to be in trouble either way regardless of whether they returned the stock or paid the difference”.

Ultimately an investigation ensued , the claimant was disciplined by way of demotion , the removal of the discount card for 5 years and withdrawal of her Christmas bonus. The claimant appealed the matter internally and the deciding officer reduced the bar on reapplication for the Supervising Pharmacy grade to 12 months with a phasing in of the reduction in salary arising from the demotion.

It was submitted that the series of transactions were carried out in good faith by the claimant who believed them to have been a promotion and it was contended that the company position that the claimant should have second guessed the manner in which the website applied the discount was an unsustainable position. It was submitted that the respondent failed to take account of the fact that the claimant’s store did not stock the products involved .It was contended that an examination of the schedule of discounts revealed that special promotions are allowed for , that the pricing is dependent on the promotion and that an awareness of staff discount does not logically imply an absolute knowledge of what might be considered excessive when there is such a scope for variation in how it might apply.It was submitted that in issuing the sanction the company was seeking to exonerate themselves entirely for a website error that was outside the control of the claimant.

It was advanced that there was no justification for the conclusion that the claimant identified and exploited a website glitch to gain excessive discount.It was submitted that the claimant did not report the matter to management as she did not believe there was anything to report and it was argued that this assertion was consistent with the narrative of dishonesty that the company had manufactured throughout the process.It was argued that it was unreasonable to conclude that the claimant was guilty of gross misconduct in circumstances where the definition of gross misconduct implies an intention on the part of the employee to wilfully and in full knowledge breach procedures.It was submitted that the claimant remained in situ for 4.5 months while the process was ongoing and that it was illogical to suggest that she could not be trusted to remain in this position.It was submitted that the Security Rules for Store Employees which was furnished to the claimant as part of her training made no reference to online purchases or to second guessing website errors.The claimant had no responsibility for general store management.

It was submitted that the process was prejudiced from the beginning when the claimant was advised by the store manager that “ she would be in trouble either way “ regardless of whether she paid for or returned the stock.It was submitted that such comments demonstrated that the process was predetermined from the outset.It was submitted that the respondent failed to observe their own procedures by giving the claimant notes of the disciplinary meeting and by disclosing comments made by the claimant at the disciplinary hearing to other parties.

It was contended that the respondent’s document “Guidance on Briefing the Rules and Dealing with the Rules”provided that “ If the breach was inadvertent and no dishonest action was intended a formal warning and removal from the discount privilege for 5 years may be a more appropriate penalty than summary dismissal”.It was advanced that notwithstanding the claimant’s denial of wrongdoing that this was a more proportionate and balanced sanction.

It was submitted that the sanction resulted in a significant financial loss for the claimant , significant additional travel time to work , that it was prejudicial to her professional reputation and injurious to her career prospects.Removal of the sanction was sought as well as compensation for the claimant’s ongoing loss.

In her direct evidence the claimant was adamant that she had been told by her manager Ms.AS that “ we are going to be in trouble either way “ from the outset when she was first briefed about the alleged irregularity.At the first hearing the respondent submitted that if this was said the manager had said it of her own record and was not representinig the company .In later correspondence submitted by the respondent , Ms.AS asserted that she never told the claimant that “ she was in trouble either way”- she contended that the claimant had the options of returning the goods or paying the balance - she stated that the claimant was “ determined not to do this and that she had done no wrong”. The area manager submitted as follows in a post hearing submission on behalf of the respondent- “ I would have explained that the discount applied was not correct and therefore as per our communications we as a business were requesting the items be returned or the correct price be paid for the products, to the best of my recollection given the lapse in time the claimant did not choose to comply with this request she wanted to wait for the outcome of investigation.

The claimant did not request details from me regarding a copy of the transactions. I had no such conversation with [the claimant] about being "in trouble either way".

In a later submission the claimant clarified that she had never attributed the statement about being in trouble to the area manager – she asserted that she had always said that this statement was made by her store manager Ms.AS and the assistant store manager Ms.SOL “ and whether or not she was briefed on this from head office or not , it greatly affected my reaction to the situation”.

The claimant stated that when she was approached by her manager and asst manager , she did not know what she should do. She was clear in her recollection that she was told it did not matter either way if she returned the goods or not and that she was going to be disciplined anyway.

The claimant’s representative suggest the investigator’s (Ms.GB) line of questioning lacked objectivity and that on the basis of the evidence given at the hearing , it was clear from the outset that she believed before she commenced the investigation that the claimant had done something wrong.In her direct evidence , the investigator said that she believed the claimant should have known that the discount was excessive and should have reported it to her manager.The claimant’s representative asserted that the claimant was entitled to be trusted by the company and that the respondent had failed to acknowledge their own error.He argued that the sanction imposed on the claimant was as damaging as dismissal.He submitted that the respondent’s approach was inconsistent in questioning the claimant’s integrity while continuing her in the employment of the company.

Summary of Respondent’s Case:

The respondent submitted that the claimant’s demotion was attributable to her online purchases of products and the excessive discount received.The company set out the arrangements that apply for Blockbuster deals.It was submitted that arising from the online error , employees received discount at a level which far exceeded their 12.5% entitlement and that rather than reporting the error to management the claimant made several purchases over a number of transactions benefiting from discounts of over 90% in some cases.It was submitted that the total amount paid by the claimant for 10 items was €231.29 while the correct amount payable was €716.63.One particular item that retails at €22 was processed as 15c.

The respondent set out a chronology of the investigation and disciplinary process that ensued.It was submitted that when questioned on the level of discount she received the claimant stated she thought it was “a fantastic promotion” for staff and that if during a customer transaction an item scanned through at such a discounted price , she would realise it was incorrect and contact a manager “ indicating her knowledge of the correct procedure she should have followed”.When it was put to her “ getting something for 25c would surely raise an issue “ she responded it “didn’t even enter her head”.It was submitted that this was not credible in the circumstances. Screenshots of the display for online offers was submitted into evidence.

It was submitted that an employee initiative giving 90% off the price of an item – which was the level received by the claimant on some items , was unprecedented and unrealistic.It was submitted that “ at no point did the claimant offer any credible rationale as to her alleged assumption that , for whatever reason , a different price was payable , or a different discount was applicable , in this instance .She merely stated she thought it was good value”.

Reference was made to the company’s Double Discount Scheme which occurs in October and it was submitted that there was no reason for the claimant to presume a further initiative was underway or that it would apply to Blockbuster items.The outcome of the disciplinary process was a finding of gross misconduct , the company opting not to dismiss the claimant but demote her in addition to the other sanctions outlined above.The appeal resulted in a phased reduction in the claimant’s salary and a reduction of the time frame on the prohibiton on applying for promotion .

It was submitted that the claimant’s actions represented a fundamental breach of trust and confidence , that they go against the spirit of the Company Security Rules which provide “ Discount ….may only be given on qualifying goods to persons authorised to receive such discount”.They also provide that concerns relating to security should be reported to management.It was contended that the claimant’s actions in profiting from a computer error were inconsistent with the behaviour expected of a company employee.It was contended that the sanctions were proportionate and the provisions of the EAT determination in Moore v Knox Hotel supported that contention.The claimant did not return the items or repay the difference until after the disciplinary sanction had issued.It was advanced that the claimant can apply for promotion from March 2017.

It was submitted that the claimant was at all times afforded her rights under natural justice and fair procedures.

The respondent’s witnesses were adamant that there had been no prejudging of the claimnat’s conduct and that the investigatory and disciplinary process had been fair and objective.An account was given of the conduct of the investigatory and appeal stages of the process.Mr.M was challenged on why he did not question the claimant’s manager in relation to the claimant’s assertion that she was advised that she was in trouble either way.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]

I have reviewed the evidence presented at the hearings and in the post hearing submissions from both parties.I have noted as follows :

The source of this problem was a systems failure on the part of the respondent’s IT system and it was acknowledged by the HR manager that the company had learned from the error .

The respondent did not investigate the allegations made by the claimant that she was told from the outset that she was in trouble either way – in her direct evidence the claimant indicated that based on this information she formed the view that she was going to be disciplined no matter what.The failure to investigate this allegation which was raised by the claimant at her disciplinary meeting , gives credence to the claimant’s representative’s assertion that the investigation and disciplinary process may have lacked objectivity. Additionally I found the claimant’s representatives contention that the accusatory as opposed to an open line of questioning adopted by the respondent throughout the investigation and disciplinary process was indicative of a predetermined outcome , to be convincing.

Inferences of dishonesty on the part of the claimant and lack of credibility feature throughout the respondent’s submission and in the evidence of the respondent’s witnesses at both hearings.This attitude however is entirely inconsistent with the allegations of breach of trust by the claimant in circumstances where she continued in work over the entire period and continues to this day as a pharmacist with the respondent.Trust between the parties is fundamental to the employment relationship.If the respondent distrusted the claimant’s integrity , it is inconceivable that she would continue in employment during the entire disciplinary process and thereafter.

The admission by the HR manager that the companies policies and procedures have been changed to cater for on line transactions indicates the respondent was not in a position to identify any specific breach of procedures prior to the incorporation of amendments to the policy to cater for online transactions.

I note that in the notes of the disciplinary meeting the respondent makes reference to a “ reasonable person “ test. Throughout the investigation and at the hearings the claimant was consistent in her position that along with her other colleagues in the store she thought she was the recipient of a great bargain and that it never entered her head that the discounts arose from a computer glitch.

I find that the respondent failed to give due regard to the claimant’s unblemished record with the company and her protestations that she would not do anything to put her job at risk . I have concluded that the respondent failed to take account of the undisputed contention by the claimant that the products were the subject of open discussion amongst the staff at the store – supporting the claimant’s arguments that there was nothing covert or malevolent going on. Having reviewed the entirety of the evidence I find that it was not reasonable for the respondent to conclude that the claimant was guilty of gross misconduct and that she failed to provide “ a satisfactory reasoning for her actions”. I find the respondent has failed to present any compelling evidence to support their contention of dishonesty or mal fides on the part of the claimant. Accordingly I am upholding her complaint.

I recommend that the respondent recoup the financial losses incurred by the claimant through her demotion and relocation – I recommend the parties meet with a view to agreeing on those losses. .I recommend that the claimant be restored to her position as a Supervising Pharmacist at a mutually acceptable location.I recommend that all references to this dispute be expunged from the claimant’s records.

Dated: 26th March 2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea