Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

A General Operative

A Large Warehouse Outlet

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010129-001

08/03/2017

Representatives

Paul McNulty, Brooks & Company Solicitors

Ms Lorna Lynch , B.L Instructed by Vincent & Beatty Solicitors .

The Complainant is a Slovakian national who has been directly employed as a warehouse Selector with the Respondent since August 1, 2013 until his dismissal on 22 February, 2017. He worked a 30-hour week and received an annual salary of €32,306.79. The Complainant had not sourced work since his Dismissal and sought the remedy of compensation.

The Respondent submitted that the Complainant was not unfairly dismissed. They contended that he summarily dismissed for gross misconduct for his unauthorised removal and consumption of company property. The decision followed a comprehensive and fair disciplinary procedure.

The Respondent is a Food retail store and operates over 129 stores and has over 3,000 employees.

The Respondent submitted details of

1 The Contract of Employment

2 Grievance and Disciplinary procedures

3 Employee Handbook, incorporating the right of appeal from any disciplinary sanction.

The Respondent submitted an outline of the sequence of events which culminated in the dismissal at the centre of the hearing. the Respondent outlined that the Company had a” zero tolerance of theft”. Several tubs of “Celebration sweets “had been placed out of use in a Black Crate in the Company Warehouse.

On Sunday ,4 December, 2016, over the course of his night shift, the complainant took sweets out of a crate on three occasions and ate them. The Respondent discovered this event on a CC TV Footage sometime after the event and during an investigation into separate events which culminated in other Disciplinary matters. The crate served as a repository for the redistribution of damaged stock for charity, reprocessing or disposal purposes.

On January 11, 2017, the Complainants Section Leader met with him and informed him that he was being suspended with immediate effect to allow for an investigation into the allegation that he had taken sweets at work. He was informed that the investigation may lead to disciplinary action.

The Complainant was provided with copies of the CC TV footage, Contract, Statement of the Section Leader and invited to attend a disciplinary hearing on 25 January, 2017 where he was entitled to be accompanied by a friend or colleague. This meeting was rescheduled to February 6,2017 at the complainant’s request. The meeting was recorded in transcript.

The Respondent conducted the Disciplinary hearing, where the complainant chose not to be represented. He admitted that he had taken the sweets without permission. He went on to state that he presumed that he could take the sweets as they were in an unmarked box, which he presumed were for general consumption. He admitted that he had made a mistake, but denied that it was theft.

The Respondent referred to isolated incidents during Halloween 2013 and Easter 2014, where surplus stock was distributed to staff but this was not comparable to the instant case.

The Complainant was invited to an Investigation outcome meeting on 22 February, 2017.The Respondent addressed the mitigating factors raised by the complainant and notified him that the Respondent had decided to dismiss him on the grounds of gross misconduct. The Complainant was notified of the decision by letter of the same date, which incorporated in a right of appeal within 5 days of receiving the letter. No appeal was raised.

The Respondent received communication from the complainants Solicitor dated March 2,2017 with a stated intention of referral to the WRC.

The Respondent outlined that the Complainant was dismissed for gross misconduct for theft of company property on foot of his having removed and consumed stock without permission.

The Respondent submitted that the Complainant was on notice that any type of theft of company property, regardless of the value of the item in question, to be an extremely serious matter. The Complainants actions were in contravention of the terms of his contract of employment.

The Respondent contended that the Complainant had been afforded fair procedures when he was made aware of the allegation, provided with evidence and an opportunity to respond in full. The Investigation of the allegation and a consideration of the relevant evidence was carried out by Mr A as part of the Disciplinary procedure as set out in the company handbook. The facts were not disputed as the complainant had accepted that he had taken the sweets. Mr A had been a Manager since the plant opened.

The Complainants dismissal took place within the band of reasonableness of decision making for the Respondent and thus should not be interfered with by the Adjudicator. The Respondent submitted that the case should be judged on the facts as they arose at the time

Summary of Mr LM

Mr LM worked Nights with the Complainant in the Transport section. His role involved taking the stock coming back empty/damaged from the Trucks and arranging that stores are credited with damaged goods. The Transport Office was approximately 30 metres from the Ambient Office. He was familiar with the presence of a crate outside the Ambient Office every night for the attention of the Ambient Day shift.

He recalled that Halloween sweets (marshmallows) were sanctioned for staff by the Section Leader. There was no permission for staff to access stock for personal use or permission to consume product in the warehouse.

He was shown CC TV footage in early January 2017, the complainant was in his truck and observed to have taken sweets from a container on three occasions over one shift.

A meeting was called in the small meeting room, where the discovery was put to the complainant. He was notified of his being placed on suspension. The Complainant said he was waiting for this. He told Mr LM that he was going to use the same lawyer as a colleague and obtain 50,000 euro. He approached the vending machine, pointed at his credit balance due for refund and said goodbye to a colleague on the floor. The Complainant compiled a report of this encounter and it formed an integral part of the Investigation process.

During  cross examination, Mr LM confirmed that the crate was larger in scale than a shopping basket. There were chocolate sweets in the crate. Food Stock was not left out for staff. Where staff had received product in the past it had been inside not on the warehouse floor.

He confirmed that he had not gone through the entire CC TV footage. He had been shown 3 clips. He wasn’t part of the team who were reviewing the CC TV. The footage was not retained on back up.

He confirmed that he had not explained how the footage had come about, just the facts as they arose. The Black crate was not subjected to a log of items deposited.

Mr LM confirmed that the Complainant had validated his Vending card balance in front of him and he found that strange.

Summary of Mr A evidence:

Mr A had been Section Manager for 9 years. The Complainant had transferred on July 16, 2016.He outlined the company procedure surrounding the management of damaged product in a warehouse setting. Staff would put damaged product in a basket during the night for processing by the ambient staff   from 6 am onwards.

He submitted that he had never seen any product left for staff consumption. He referred to an oversupply of Halloween marshmallows in 2013/2014 which were redistributed to staff via the Section Leader where staff were meant to take home. He had not seen anyone eating, nor did he allow staff to consume food in the warehouse. He had only seen stock in the staff canteen.

He became involved in the case when the CC TV footage of the complainant came to his attention.

He conducted the Disciplinary hearing. He met with the Complainant on 6 February ,2017 following a deferral request from the complainant. The transcript of the meeting was submitted in evidence.

Mr A confirmed that the complainant had refused representation. The Complainant outlined that he had taken random sweets from the crate. He had been given surplus products in the produce dept. in the past and he had not broken a seal on a box. He stated that he had not approached his manager for permission as he was too busy. the Complainant had indicated that he had seen crates marked “do not touch” and this had not been the case with the crate.

Mr A concluded the hearing and walked the warehouse to see if he could identify signage such as the complainant had described. He walked into the “Fresh section”, the complainant’s old department, but could not identify the signs .1:10 or 20 pallets would have a sign. He considered the CC TV footage in terms of the three reported incidents involving the sweets.”

Mr A confirmed that he had not considered any alternative sanction to dismissal. He confirmed that he had not accepted that the complainant was confused. He outlined that from day 1 at the company, a uniform instruction of no eating and no taking product was the order of the day. In addition, there was no facility for leaving money to pay for product later. There was a “zero tolerance “policy.

In response to his Counsels questions, Mr A confirmed that had he been presented with exceptional circumstances , would he have taken them into account .He relied “ If there was, I didn’t see it “ He went on to say ,if the complainant had asked a Manager and permission had followed, I don’t believe he would have been dismissed” .The Company had put a lot of work into the complainant and they were disappointed to lose him .He was a great worker without a sick/lateness record .

During cross examination, Mr A confirmed that he had found out about the complainant’s episode of “sweet taking” from another section manager on December 28, 2016.

He confirmed that MR LM had not investigated and the 11 January was the first day that both the Complainant and Mr LM were available together.

Mr A confirmed that he followed the procedures in the company handbook. He interviewed Mr LM and the complainant. He confirmed that he had personally walked the “Goods In “section of ambient area. He confirmed that he had asked other loaders general questions but had not put this to the complainant as he didn’t see the need for it. He confirmed that there were no documentary records of what goes into the black crate.

Mr A re-affirmed that the Complainant had admitted to taking the sweets, he had not implicated anyone else and he had not availed of the appeal offered.

Mr A confirmed that he took a two-week period to make the decision which led to the complainant’s dismissal.

Mr A submitted that the complainant knew that his job was at risk from his contract of employment. He recalled that the complainant was very calm on receiving the news of his dismissal. He was quiet. He did not ask questions, just how to conclude the employment relationship. He gave back his Uniforms.

Summary of Evidence of Mr B

Mr B is the Section Leader of the” Fresh Section” of the warehouse. He submitted that he was involved in considering the entire CC TV footage in the case of another selector when he came across the complainant on CC TV footage taking sweets from the crate during his night shift. Clips of the scenario were created. The footage was stored for 28 days and there was no external monitoring.

Three Operatives were captured on the footage taking sweets from the tray. One Operative subsequently resigned and the others, including the complainant were dismissed.

During cross examination, he confirmed that he wasn’t given a name of any operative. Cameras were in the security office and Security do patrols. He received the CC TV footage of the Complainant on 28 December, 2016.

In her closing remarks, Counsel for the Respondent submitted that the Dismissal was undertaken in accordance with the provisions of Section 6(4) of the Act, as a direct result of misconduct. The Company had forewarned all employees that theft of the smallest amount was prohibited by Section 9(d) of the company handbook. The monetary value was irrelevant.

The Company demanded a level of trust from their large number of employees and there was a zero-tolerance policy in place regarding product.

The Complainant has knowledge of his colleague’s case. Counsel disputed the application of Reilly as all three suspensions were consistently applied in this case. The contract provided for the express power to suspend.

The Respondent contended that “dismissal was a reasonable outcome in the case. Counsel took issue with the evidence on mitigation and loss stating that the complainant had not satisfied the threshold of meaningful attempts to secure work and had made theoretical attempts to find work.

The Respondent re-emphasised that the Complainant had not exercised his right for an internal appeal to an Appeals Officer who had treated him favourably in the past.

The Complainant commenced work with the Respondent as a Warehouse Operative on 6 May 2009, as an Agency worker. The Complainant became a direct employee on August 1, 2013 and moved to a newly opened warehouse on September1, 2013.

On two occasions over the course of the Complainants night shift on December4, 2016, the complainant took several sweets from a crate outside the ambient office. The crate contained an assortment of sweets from a variety of labels.

The Complainants Solicitor submitted that any stock that was damaged or required to be returned to the supplier was placed in a designated area with signs saying “do not touch” and “to be returned to the supplier”. He also referred to a transcript of the Disciplinary hearing which referred to stock left in the Canteen.

The Complainant understood that this stock was open for his consumption as he had previously received sweets during the holiday periods of Christmas, Halloween and Easter and this was enabled by Policy. The Respondent would place the said stock in the canteen and outside different offices.

The Complainant was called to a meeting with his line manager without prior notice on 11 January, 2017.At this meeting, the complainant heard his line manger put allegations of theft of company stock from a crate outside the Ambient Office. He was subsequently suspended without vision of the CC TV footage. The Complainants representative submitted that it took a month from the date of the incident on 4/5 December until January 11, 2017 to inform the complainant of the allegation against him.

The Complainant attended an investigation carried out by Mr A who also conducted the Disciplinary hearing and dismissal. The Complainant was accused of theft instead of being allowed to put forward his version of events.

The Complainant provide an explanation for taking the sweets but the Respondent had not made any attempt to determine the veracity of his explanation. The Complainants Representative outlined that the Investigation had not encompassed whether stock had previously made available.

The Complainant was subjected to a pre-determined outcome in having already determined that the complainant was guilty of theft.

The Complainant was dismissed on 22 February, 2017. He submitted evidence of mitigation but had not secured work from the date of dismissal.

In referring to, Bank of Ireland V Reilly [2015] IEHC 241, the Complainants representative submitted that a decision resulting in suspension of an employee ought not to be undertaken lightly. He stressed the “band of reasonableness “which should accompany a decision taken to dismiss an employee.

The Complainant cited several Adjudication Decisions and referred to a determination of the EAT. He referred to Cassidy v Shannon Castle Banquet [1999] IEHC 245, where an investigation was carried out by a person who made the decision to dismiss the Plaintiff.

The Complainants Solicitor submitted that the decision taken to dismiss strayed out the sanction which reasonable employer would make and was disproportionate. The Complainant worked for the Respondent for 5 weeks before being placed on notice of the events of December 4, 2016.The Respondent did not express a difficulty with him during this period.

Mr A carried out the investigation, disciplinary hearing and dismissal and was a judge in his own cause. The Complainants representative argued that this was not a proper investigation as no witnesses were interviewed. He argued that the Dismissal was procedurally unfair.

The Respondent failed to carry out a fair and impartial investigation, as set out in Module Abdullah V Tesco Irl UD 1034/2014 into the allegations. The Respondent had determined that a theft had taken place and did not investigate the exhalation put to it by the complainant.

The Complainants representative submitted that it was not unreasonable for the complainant to assume that a crate of mixed stock left outside an ambient office was for consumption as the said stock had not been placed in the designated area where stock was to be returned to the supplier .The Complainant had previously received surplus stock in a number of settings .He contended that the complainant was lured into a false sense of security and in all the circumstances the dismissal was disproportionate and excessive. He pointed to a departure from the provisions of S.I.146/2000, Code of Practice on Disciplinary procedures.

The Complainant believed that he had the consent of the owner to take the sweets, therefore Section 4(2) of the Criminal Justice (Theft and Fraud) Act,2001 had not been contravened.

On Day 1 of the hearing, the Complainant put forward that there would be two witnesses, the Complainant himself and a work colleague. Evidence was adduced by the complainant alone in the case.

Summary of the Complainants evidence.

The Complainant outlined his commencement at the Respondent warehouse. He commenced on “picking “product and hoped for some promotion. He was involved in returns from stores. He recalled receiving surplus stock around Easter, Halloween and Christmas every single year and he understood that the loose sweets in the black crate were for general consumption on the night of December 4, 2016.

He recalled being approached by Mr LM in January 2017 and being told to follow him to a meeting where he saw himself on CC TV. He was suspended immediately but not given a copy of the CC TV footage. He subsequently met with Mr A on February 6, 2017 where he was confronted by an allegation that he was caught on CC TV taking stock without permission and consuming the product from a crate left next to the ambient office. He confirmed that he had not opened a sealed box and stated that returns were the responsibility of the morning shift.

The Complainant confirmed that he didn’t have permission to unload trucks and it was the Drivers who placed the products on loaders. On occasion, the crate would contain other items, like broken glass with a “do not touch sticker”. He confirmed that the stickers weren’t a permanent feature in repacking.

He recalled the meeting of 22 February, which resulted in his dismissal. He was not given any alternative to dismissal. He recalled being calm. He confirmed that he believed that lodging an appeal of the dismissal wouldn’t have made sense. He compared this to an incident at work in 2015/2016 where he hit his leg on a pallet and sustained some scratches. He felt that this had been ignored and submitted an appeal which was upheld.

He recalled having marshmallows and other sweets previously in the warehouse canteen. The Complainant gave evidence of loss and mitigation and stated that he had not received favourable consideration to his job applications.

During cross examination, he confirmed that he had previously been given marshmallows from the company in a sealed box for consumption during the years 2013-2016.When pressed by Counsel why he hadn’t raised this sequence of events during the Disciplinary procedure, he replied “maybe yes or may be not “He submitted that he may have omitted this information.

The Complainant stated that he remembered the Halloween marshmallows given to him by another Manager. They were left in black crates and in the Canteen also.

He confirmed that he had seen loose sweets from damaged containers on occasion, he stated that he supposed they were available for eating.

He stated that he did not remember talking to his colleague who also faced dismissal on the day before Mr LM approached him. He took issue with Mr LMs statement but did not raise it with Mr A as he hadn’t asked him about it. He stated that it was a long time ago.

He expected to see stickers on prohibited product but there were no stickers, so he thought he could eat them in the absence of red prohibitive wrapping.

In recalling the Outcome meeting, he re-affirmed that Mr LM was busy and he couldn’t ask him about the product. He confirmed that he took the product and wasn’t aware that he should not.

The Complainant submitted that he had decided not to appeal and when probed by Counsel on his past use of the grievance procedure. He confirmed that he had utilised the procedure to receive a 4.5 hrs payment due to him.

The Complainant then answered further questions from his own representative. He was unclear when the marshmallows referred to in evidence were left out for staff. He stated that he really didn’t know why he didn’t inform Mr A of this on February 9. He confirmed that he made a mistake in not telling him.

The complainant confirmed that glass was not present in the crate on Dec 4/5, 2016.He stated that he did not know that Mr LM was busy.

In his closing remarks, the Complainants Solicitor outlined his dissatisfaction with the procedural framework relied on in the dismissal. Mr LM had secured the Cc TV footage from Mr A, there were no witness statements and alternative remedies were not considered. He contended that Dismissal should be a last resort.

Mr A had walked the warehouse floor without feeding back to the complainant. The CC TV was the sole evidence in the case and this was not given to the complainant until January 18, 2017.He concluded that the Respondent had not followed SI 146/2000 as his client had not been heard and this constituted a breach of Section 6 of the Act.

I have considered the submissions and evidence raised by both parties in the case. In addition, I have had the benefit of viewing the “3 clip CC TV footage “as well as a helpful distribution of extensive maps and photos of the areas discussed within the warehouse. I also had the benefit of the company CC TV Policy and the Company Disciplinary procedure.

The question before me is whether the complainant in the case was unfairly dismissed? The burden of proof falls on the Respondent to establish reasons for the dismissal.

Section 6(1) of the Unfair Dismissals Acts 1977-2017 provides that a Dismissal will be considered unfair save for having regard for all the circumstances there were substantial grounds justifying the dismissal. The Respondent has submitted that their case is reliant on Section 6(4)(b) of the Act, such that the Complainants conduct was worthy of gross misconduct attracting the sanction of Dismissal. The Complainant has argued that this was both unreasonable and procedurally deficient which resulted in a disproportionate sanction.

I have taken some time to consider both submissions. I have also taken account of Section 6(7) of the Act on the reasonableness of the actions of the Employer.

I accept it is not within my gift to determine whether the complainant was guilty or innocent, my role in this case is to decide whether the decision to dismiss was within the band of reasonableness open to this employer in the set of circumstances.

In this, I am guided by the test of reasonableness delineated in Hennessy V Read and Write Shop UD/192/1978, where the nature and extent of the enquiry carried out by the Employer prior to the decision taken to dismiss came into sharp focus. This was followed by an analysis of the conclusions drawn in the wake of that enquiry.

In the instant case, I understand that the discovery of the information involving the complainant’s participation in the “sweets incident “was not anticipated on the Respondents behalf. I accept that there were two other incidents which prompted the CC TV footage disclosures. I agree that there was a delay between December 28,2016 and January 11,2017 before this information was put to the complainant. However, I also found the complainant’s reaction was unusual when he was approached with the footage. His response to the exhibition of the CC TV footage which captured the 3 clips of the “sweets issue” appeared to be met by a welcoming demeanour and a tacit acceptance rather than an apprehension, normally associated with such disclosures.

Based on Mr LMs evidence, the complainant accepted the veracity of the footage he, accepted the decision to suspend him, and followed this by a demonstration of his vending machine balance prior to saying an emphatic goodbye to a colleague on the floor. In his own evidence, the complainant disputed this sequence but agreed that he had not raised this objection during the Disciplinary procedure. I noted that the complainant accepted that he was not surprised to be faced by the CC TV footage and while he was unclear about his stated intention to move to litigate in the case, I accept the evidence of Mr LM in this regard .I found the described actions of the complainant more in keeping with an expected behaviour on conclusion of employment rather than on suspension pending investigation .

I found Mr LMs account of what happened at the January 11 meeting to be cogent and clear. I found the complainant to be elusive on the topic of this meeting.

I accept that the Complainant was placed on a holding suspension on full pay to allow for an investigation. This case is distinguished from Reilly in that regard as the complainant in this case had been acquainted with existence the CC TV footage on January 11 and he was aware that the “sweets issue “was a problem for the Respondent.

The Company procedures do not specifically link suspension with a next step investigation. Best practice would indicate that a letter to that effect should have accompanied the suspension. I appreciate that the intention is recorded in the statement of Mr LM as record of his exchange with the complainant. Therefore, I am satisfied that the complainant was on notice of an impending investigation from January 11, 2017.This period was then extended to February 6, 2017 at his own behest. At that point the complainant had been advised of the allegations against him and had been given a reasonable time to consider his response. The Complainant was also afforded scope to seek or present his own documents in advance of the hearing. I also accept that the Respondent applied a consistent approach to the other two employees detected on CC TV.

I was concerned that the Complainant had chosen not to take a representative to accompany him through the company disciplinary procedures. S.I 146/2000 permits a colleague or a Trade Union Official as possible supports. The Company policy permitted a colleague or a friend. The Complainant stated on the transcript that he did not need a bodyguard, this was not disputed at hearing. I am satisfied that the Complainant was offered the facility at least for representation and this was not an issue between the parties .

In Frizzel V New Ross Credit Union [1997] IEHC 137, Flood J outlined the principles of natural justice that should apply in cases where misconduct is considered

1.A Bone fide complaint should be in existence.

2.Complaint should be stated factually and clearly and fairly without innuendo

3 Employee should be interviewed without comment

4 Decision should be made on the balance of probabilities proportionate to the gravity of the complaint and the effect of dismissal on the complainant.

The Code of practice on Disciplinary procedures SI 146/2000 stresses the need for a fair and impartial determination of the issues.

I found a blurring in the lines between the Investigation referred to in Mr LMs statement of the January 11 meeting and the meeting which eventually took place on February 6 ,2017 titled as a Disciplinary hearing. I accept that Mr A did undertake an Investigation into the events surrounding the night of December 4, 2016 under the heading of the company Disciplinary procedure and the complainant was invited to put his version of events forward through a series of open questions and clarifications. I found that process to have been a fair opportunity for the complainant to explain himself.

However, I found that the complainant seemed to respond to the questions asked in a rather detached manner, where he disputed that surplus stock was distributed in a controlled rather than “general release manner “. I found it unusual that he seemed to minimise the contractual concerns raised by Mr A during the hearing. He viewed the practice of “general release of stock for consumption ” as habitual but did not appear to expand on this outside re-affirming that he had not broken a seal on a product and that prior authorisation for consumption was not realised due to the Line Manger being very busy .I found this presentation in stark contrast to Mr As description of the complainant as a non-controversial hard worker without a sick or lateness record .It seemed to me to be a purposeful and   deliberate presentation .

I found that the Respondent adopted a fair approach to consideration of his submissions in that regard by allowing him time to put forward reasons for the “sweets issue”. I have found that the Respondent gave the matter some thought and did a further walkabout to verify whether prohibitive pick signage was visible on the shop floor. I found his feedback on these issues to the complainant in advance of his communication of the decision outcome to be reasonable. It is of note that the complainant did not respond to these points. When I watched the CC TV footage, I was struck by the co-existence of a worker driving a Fork lift on the clip, yet, the complainant did not proffer any witness evidence at the hearing.

The Complainants representative raised the matter of procedural impropriety, where Mr A undertook an investigation, disciplinary hearing and dismissal by himself and contended that this rendered Mr A a judge in his own cause. I have given this some thought. The Respondent is a large employer and save confirming the identity of a decision maker for a dismissal as a Personnel Lead, the company policy does not provide for different leads for each stage of a Disciplinary procedure. I have taken some guidance from the EAT case of:

Scislowski v Limerick Strand Hotel UD16/2016

While it is better practice for an employer to ensure that the disciplinary hearing is conducted by someone other than the person who conducted the investigation the failure to do so does not necessarily render the procedures unfair. The Tribunal is satisfied that the procedures in this case were not unfair. The Tribunal notes that the claimant was afforded a second appeal.

Procedural impropriety does not automatically render a decision as unfair. I have found that the Respondent did comply with fair procedures in the Investigation, Disciplinary Hearing and in the decision taken to dismiss the complainant. The Complainant was provided with an expansive opportunity to respond fully to the allegations put to him, he declined representation and I found that the Respondent made an honest effort in seeking to understand the complainant’s reasons for taking sweets on three separate occasions during a period of 5 hours, but he did not establish a reason.

I note that Mr A told the hearing that if the complainant had secured prior authorisation from a Manager or had submitted mitigating circumstances, these may have impacted on the severity of the sanction. I found that this demonstrated the depth of Mr as efforts to understand what happened on the night of December 4. I was also struck by Mr as response to the way the complainant received the news of his dismissal, which was couched in a logistical discussion of the financial aspects of the termination which ran to 4 pages of the transcript out of a total of 6 pages. The Complainant did not ask for a lesser sanction nor did he show cause as to why the Employer should not dismiss him.

I noted that the company procedures provided for sanctions short of dismissal via warnings, demotion or transfer. I note that Mr A did not consider these options. Instead the Respondent referred to a breach of trust which followed the “sweets incident “arising from the contractual breach on:

Theft of merchandise even of the smallest amount, which is found to be company property or belonging to a work colleague.

The Respondent referred to the need for the company to preserve the integrity of all stock and viewed the “sweets issue” as a serious departure from that company imperative.

I am mindful of a 1978 EAT case of Harris V PV Doyle Hotel UD 150/1978, where it was determined that there was a duty on management to make clear to employees beyond doubt “house rules”, where such breach would result in automatic dismissal. I have found that there was a “zero tolerance policy “on theft incorporated in the complainant’s signed contract and handbook.

I am mindful of the complainants acknowledged access to the Vending machine and the staff canteen as approved locations. I am also mindful that he was not able to elaborate on his recollection of the general release of stock to staff in any meaningful detail. I found that it was reasonable that Mr A held an honest view that the “sweets in the crate” were company property and the complainant had taken them without permission.

In the case of Elton John Moran and Keeling’s Logistics Solutions UD 8281/2013, the EAT held that a dismissal concerning the consumption of two jam tarts in a Warehouse setting constituted a breach of the company zero tolerance policy and was thus found to be fair.

The Company in this case had a “zero tolerance” policy on theft and while I considered the complainant’s submissions that the “sweets issue “was not deliberate and had not veered outside standard practice at the warehouse. On balance, I must admit to preferring the Respondent viewpoint, where stock was taken without permission on three separate occasions.

I have found that the Complainants decision not to avail of the appeal offered to be fatal to his case. I accept that the Appeals Officer was known to him and had acted favourably towards him in a previous setting. I found the lack of recourse to appeal and the reasons advanced for this omission to be implausible.

Notwithstanding my comments on the slight blurring in the lines between investigation and the disciplinary hearing, I have found that the Respondent adhered to their own Disciplinary procedure, where the complainant was aware of the allegation, was permitted to respond in full, and where he accepted the occurrence as alleged. The Respondent then went on to make a fair and impartial determination of the issues .

I have considered the proportionality of the sanction and while admittedly harsh for a first offence on a blemish free record, I found that the Complainant was on proper notice of a zero-tolerance policy on theft (no matter the scale) and the Respondent held an honest belief that trust had been severed by this breach of Policy and contract. This is distinguished from the findings in the Labour Court case of Kilsaran Concrete and Vitalie Vet UD11/2016.

I have found that the Respondent has discharged the onus of establishing that there were substantial grounds justifying the dismissal. I have found the dismissal to be far in the circumstances.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found the Dismisal to be fair in the circumstances .

Unfair Dismissal