Complainant

Respondent

Anonymised Parties

A Worker

A Butchers

Representatives

SIPTU

Mr. Emmet Carty B.L instructed by Kent Carty Solicitors

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-00010461-001

28/03/2017

The complainant claims that she was approached by her manager to accompany him to view CCTV footage of her at work on her previous working shift, where she claimed he accused her of stealing from the cash register. She claims that she was told to leave the premises and that the respondent’s owners will be in contact. There has been no contact from the respondent and she has not returned to work since.

The respondent said that it came to its attention that the complainant had stolen from it and that it handed the case over to An Garda Síochána to investigate the matter. It is satisfied that this was an act of gross misconduct.

The respondent owns a butcher shop and claims the complainant was employed with it since June 2012 on a part time basis. The respondent claims that the cash registers were not balancing for some time and the shop had CCTV installed as a security measure over its cash registers.

The respondent claims that on 6 October 2016 the complainant was working with another member of staff, Ms. A, when Ms. A noticed the complainant opening the cash register and placing one €50 note in and removing five twenty euro notes. Ms. A said that she was sure what she had seen. She said she took note of the time of the incident and reported it to her manager, Mr. B, so that he could study the CCTV at that exact time and witness the complainant’s actions.

The respondent claims that it viewed the CCTV footage and was convinced that the complainant had stolen €50 from it. The respondent claims that the complainant was on holidays until Friday 13 August and it waited to discuss the allegation with her on her return. The respondent said that it asked a security guard with 15 years’ experience to view the CCTV footage and it claims that it was also his opinion that she had stolen the money.

The respondent claims that on Friday 13 August at 10 am, Mr. B asked the complainant to accompany him to view the CCTV footage. He claims that he put it to her that the footage shows her stealing money from the cash register. Mr. B said that the CCTV confirms that she had stolen from them. It was Mr. B’s evidence that the complainant left the shop on her own accord, he did not tell her to leave. Mr. B said that she returned with documents from the Department of Social Protection for signature. Mr. B said that she rang later that day and asked for the shop owner’s mobile phone number.

The respondent claims that stealing was an act of gross misconduct and a criminal offence and it reported the incident to An Garda Síochána. The respondent claims that the complainant was not suspended on the Friday that she left the shop on her own accord. However, she was suspended later by way of a phone call and followed up by confirmation letter. The respondent claims that it had good evidence of the event and had passed it over to An Garda Síochána who, based on the same evidence decided to prosecute the complainant. The suspension was in place pending the ongoing investigation. No other internal investigation was held on the matter.

The respondent presented the arresting Garda as a witness at the Hearing and it was her evidence that the District Court Judge had said that the reason that he did not convict her was that the cash register receipt for the day in question balanced that there was no actual loss to the respondent.

The respondent’s owner said that he took a call from the complainant after the incident where she asked to meet him but he refused to meet her and said that it was with An Garda Síochána to investigate. The respondent claims that she did not come back to work.

The complainant commenced employment with the respondent in June 2012 on a 3-day- a week contract and she signed on with the Department of Social Protection for the remaining days of the week. She claims that she was paid €200 per week for approximately 20 hours’ work.

The complainant claims that she had been on a weeks’ holiday and on her return to work on 13 August 2016 at 10am she was approached by the respondent’s manager, Mr. B, who said that an incident had occurred on 6 August 2016, her last day of work, and asked her to accompany him to view CCTV footage of that day. The complainant claims that she viewed the footage and asked her manager what was she supposed to be looking out for. She claims that her manager proceeded to tell her that the CCTV shows her taking €50 from the cash register. She claims that fellow workers were also looking at the CCTV at the same time and one of her work colleagues Ms. A, accused her of stealing the money and became very abusive towards her.

She claims that she was told to leave the premises, that cover had been pre-arranged by the respondent, and she was told that the owners would be in contact with her in due course. The complainant claims that she made contact with the owner later in the day and he confirmed that as far as the CCTV evidence was concerned she had stolen from the cash register and the respondent were reporting the matter to An Garda Síochána for investigation.

The complainant claims that she changed two fifty euro notes for five twenty euro notes to pay for a number of different bills she had to pay over the following few days. She said that she did not steal from the respondent.

The complainant claims that she contacted the respondent to find out her employment status and she was informed to stay away from work as she was suspended pending the ongoing investigation of the incident. The complainant said that An Garda Síochána made contact with her and decided to prosecute her for theft. The case went before the courts and she claims that the Judge found that there was no evidence of theft, that there were no proper CCTV images of theft, and ultimately that there was no money missing from the cash register when they were balanced at the end of the day in question. She said that the court case was dismissed.

The complainant claims that she contacted the respondent after the court case seeking her P45 to get a medical card for her son. She received her P45 and nothing more at that point or since.

The complainant maintains that she was not afforded the right to natural justice and fair procedures by the respondent. The complainant was summary dismissed for an offence that never occurred and she never returned to work there.

The complainant claims that the respondent did not engage with her to provide the necessary documentation for her to avail of State assistance with regard to the Department of Social Protection and Revenue.

The complainant claims that she has not been in a position to secure suitable employment since her dismissal except for limited hours here and there although she has applied for numerous positions.

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(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 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.”

At this point I also am mindful of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures and they include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

In considering this matter, I note some confusion as to what exactly happened on the morning of the 13 August 2016, it clear that there was much tension and drama. I am satisfied that the respondent had contradicted its own position as to how it viewed the status of the complainant from that point. This ranges from the complainant left of her own accord; to she was suspended pending the investigation; to that she was dismissed that day. The complainant remains consistent here where she believes that she was told to go and then was subsequently told she was suspended and the respondent has not engaged with her since. It appears that there is consensus that the case went to court but there was insufficient evidence to convict the complainant in the courts. I note there has been no interaction about her employment since.

It is clear that the respondent holds a belief that the complainant stole from it, that this amounts to gross misconduct and that it passed the investigation of this matter over to what it deemed to be the appropriate authorities. I note the case ended up in the courts, who have found in favour of the complainant, the cash register balanced on the day in question and the complainant remains in a state of permanent suspension akin to dismissal. Nothing has been done by the respondent to clarify the complainant’s work status and I expect that the onus is on the respondent to address that as it was the party which has placed the complainant on suspension.

The respondent had furnished me with its Grievance and Disciplinary Procedure. The complainant stated that she had never seen the document previously and was unaware of its existence. I have examined the document and I have carefully considered the manner in which the disciplinary procedure was dealt with in the case before me for consideration. I am satisfied that the respondent did not follow its own procedures as set out in the Disciplinary Procedure. I am satisfied that it failed to consider any procedures on the day in question when the complainant returned to work after her holidays. The first contact made following the complainant’s return to work was conducted in an open adversarial forum with other members of staff present and it would appear they were offering their opinion and commentary. The complainant was on her own, and it appeared that the meeting got totally out of control. There were no details of the allegations put to the employee concerned in advance, but rather the CCTV footage was displayed and the complainant was asked to defend her position without fully understanding the context of the allegations against her. The complainant was not given the opportunity to respond fully to the allegations. It is clear the complainant was not given forewarning. The complainant was not given the opportunity to avail of representation. There seemed to be little or no consideration of a right to a fair and impartial examination of the issues for investigation. It would appear the respondent’s decision of the complainant’s guilt was already made.

Heavy reliance was placed by the respondent on the day of the hearing on the CCTV evidence and the alleged theft. I am satisfied that evidence was examined by a district court judge and deemed to be, at best, inconclusive based on the degree of proof required in a criminal matter. I am satisfied that the issue of larceny is not in front of me for consideration. My jurisdiction under the Acts is limited to the fairness or not of the dismissal should I be satisfied that the complainant was dismissed.

The first issue for consideration in whether the complainant was dismissed. As noted above the respondent’s own evidence is very inconsistent here. It is clear that an email dated 18 August 2016 issued from the respondent saying that “pending the ongoing investigation [the complainant is] suspended and you will be informed on any developments”. I have heard that there was no other communication from the respondent of the matter since. I note the complainant’s evidence that she sought to meet with the owner and that was refused and she sought documentation from the respondent to put her financial affairs in order. She claims that the respondent has been less than helpful with this. The respondent has not commented on or denied this.

The complainant was very clear that she had not resigned and has not returned to work. The respondent has said that the complainant left herself, was suspended and on the day of the hearing said she was dismissed. Accordingly, I must then consider what the de facto position is. I note in Frances Meenan’s book, Employment law 1st Ed, 2014 - Chapter 20 - 68 where the author states “It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.”

I note from the facts in this case, the complainant is not working, she has sought engagement from the respondent, she appears to be on a permanent state of suspension and she herself has said that she has not left the respondent and simply has not been returned to work by the respondent. She has sought to determine her status and was told “… suspended and you will be informed on any developments” in August 2016, she tried to engage with the owner and she had been in contact about her P60 and P45. I consider the respondent’s decision is simply just not to engage with her. I am satisfied that the onus is with the employer to be proactive here and be conclusive as to the position of its employees, which it is not. I find that the facts of the case amounts to a dismissal.

I note the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978   “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Also, I note in O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

Finally, I see in Meenan, Employment Law 1st Ed. 2014 – Chapter 20 – Statutory Unfair Dismissal [20-135 to 20-137] where it relates to Theft or irregularities it states “Generally speaking, in a dismissal arising from an alleged theft, the value of the goods taken is immaterial, because if the employer has reasonable belief that goods were taken at all, there is a clear breach of trust. [...]

Even if an employer has CCTV footage of alleged employee dishonesty, the employer must still carry out a full and thorough investigation and not merely rely on the footage as grounds for dismissal. The use of CCTV must also be lawful in that employees should be advised that CCTV is being used and the reasons as to why it is being used along with the extent of its use. It must also be consistent with the Data Protection Acts 1988–2004.

If there are criminal proceedings pending, an employer should nonetheless carry out a full investigation, and not await the outcome of those proceedings. An employer can terminate employment on the reasonable belief that an employee committed the offence and does not decide the guilt of the employee. Of course, if an employee is acquitted by the courts, the employer may be in a difficult situation.”

I accept the complainant’s evidence that on the 13 August 2016 she was shown footage that, in essence, encapsulated the respondent’s entire investigation into the matter. I note the respondent has said that it considered the matter as a criminal matter and passed it over to An Garda Síochána. I have considered the respondent’s own established Grievance and Disciplinary Procedure, which it suggests were in place at the time.

Having examined the Grievance and Disciplinary Procedure it is eventually clear that the respondent has simply not followed its own procedure at all. It has a possible disciplinary matter to deal with. I note that the respondent had a full week, while the complainant was away of holidays, to carefully consider how it would deal with this situation. It is not like it was required to make a snap decision. It had a week to consider the substantial evidence in its possession. It had time to balance and consider the conflicting evidence, namely, the CCTV evidence, the witness accounts and the balancing cash register. The missing piece in the investigation was the complainant side of the story. However, it appears to have convinced itself that a robbery had occurred, and the events that followed from the morning of 13 August 2016 were not very professional to say the very least. The complainant has not since returned to work.

On balance, therefore, I find that the manner in which the respondent failed to conduct any investigation in line with its own disciplinary procedure fails to comply with fair procedures and natural justice. In the circumstances, I find that the complainant was unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is well founded.

In respect of mitigation of loss, the complainant submits some documentary evidence of seeking other various roles for employment. However, she claims that she has not found alternative employment. I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”. It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v. Superior Express limited UD 1227/2014 where the EAT held that the standard required is a high one. Taking all into consideration, I am not convinced that the complainant’s efforts are on the level required to fully mitigate her loss. Therefore, I must find that the complainant has not fully endeavoured to mitigate her loss.

On the basis of my findings above I declare the complaint is well founded. I direct the respondent to pay the complainant compensation of €6,000, which I determine to be just and equitable having regard to all the circumstances. This award of compensation takes into account all the facts of the case and the complainant’s failure to fully mitigate his loss.

I find that the complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Act.

In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation.

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 Acts.

On the basis of my findings above I declare the complaint is well founded. I direct the respondent to pay the complainant compensation of €6,000.00 (six thousand euro) within 42 days of the date of this Decision.

Unfair Dismissals Acts 1977 to 2015 - complaint upheld - compensation awarded