ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011161

Parties:

	Complainant	Respondent
Anonymised Parties	Sales Assistant	Retail Store

Representatives

Bruen, Solicitor

eninsula Group Limited

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00014907-001	10/10/2017

Date of Adjudication Hearing: 06/09/2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Summary of Respondent’s Case:

The Respondent is a small chain of jewellery shops retailing new silver jewellery. The Complainant was employed in 2006 as a Retail Assistant. She was dismissed on foot of a finding of gross misconduct by way of letter dated 5th April 2017 and received by the Complainant on 6th April 2017. The Respondent raises a preliminary point as follows: The Complainant was dismissed effective immediately on 5th April 2017. The complaint was received by the Workplace Relations Commission on 10th October 2017, that is outside the six months time limit provided for in the legislation. While it is accepted that the Complainant’s P45 records a date of cessation of 15th April 2017, a P45 is not conclusive proof of date of dismissal (National University of Ireland Maynooth v Ann Buckley FTD 1015). The factual case is as follows: On 6th February 2017 the Manager of the shop noticed that the Complainant had taken company property in breach of staff sales policy and when she was spoken to about this, the Complainant gave two alternative dates on which she had taken the earrings. On 15th February 2017 it came to the Manager’s attention that the Complainant had breached company exchange policy that is that she exchanged used jewellery for new without a receipt. On 25th February 2017 the Manager discovered a box of gold jewellery which had belonged to an elderly customer. The Complainant said that the customer said that she did not want the jewellery and maybe it could be melted down or given to a Goldsmith in part payment for a repair. The Complainant was suspended on full pay pending investigation. On 1st March 2017, after speaking to the elderly owner of the gold jewellery, the Respondent returned it to her. The Complainant was invited to a disciplinary hearing which was scheduled and then rescheduled to take place on 10th March 2017. At that hearing three allegations were put to the Complainant, namely that she was accused of (a) unauthorised possession of money or property and as per the company handbook, this was considered gross misconduct, (b) that she did not follow staff sales policy when she had not paid for earrings, and (c) she breached the returns policy when she exchanged an item without receipt. The Complainant was accompanied at this hearing by an ex trade union official who was extremely disruptive and who took away from the meeting the Complainant’s original contract of employment and never returned it. Various arguments were put forward by him and the Complainant as to why she breached company rules. The Complainant was certified sick between 27th March and 10th April 2017. She was dismissed by letter dated 5th April which letter was received by her on 6th April 2017. She was informed of her right of appeal but did not appeal the outcome of the disciplinary. The letter of dismissal summarised the matters of concern from the employer’s point and the replies from the complainant’s point. At the hearing the complainant’s explanations were that there was no evidence of theft, she forgot to pay for the earrings and she did not realize that exchanging goods which cannot be resold causes the company financial loss. The dismissal letter outlined that having considered the circumstances and the responses of the Complainant, the Respondent decided that the Complainant’s conduct resulted in a fundamental breach of her contractual terms which irrevocably destroyed the trust and confidence necessary to continue the employment relationship and that summary dismissal was the appropriate sanction. The Complainant was afforded the right to appeal and details of where to send her appeal were given. The Complainant’s solicitors wrote to the Respondent on 12th April 2017 informing them of the intention to take a claim under the Unfair Dismissals Act. It should be noted that the Complainant failed to appeal the dismissal and the Labour Court in Aryzta Bakeries and Vilnis Cacs UDD1812 found that there is an obligation on the Claimant to exhaust available internal procedures. After the Complainant’s dismissal a number of further issues relating to her conduct came to light, including advising members of the local community not to shop in the store, and generally calling the Respondent’s reputation into question.

It is argued that in accordance with Section 6 (4) of the Unfair Dismissals Act 1977 the dismissal of the Complainant should not be deemed to be an unfair dismissal as it resulted wholly from the conduct of the Complainant. It is further contended that the dismissal was not an unfair dismissal as there were substantial grounds justifying the dismissal as provided for in Section 6 (1) of the Act and that the Respondent followed full and fair procedures in carrying out the dismissal.

Summary of Complainant’s Case:

It is submitted, in relation to the preliminary point raised, that the date of termination and cessation of the Complainant’s employment with the Respondent was 15 April 2017. This is set out in her P45.

In relation to the substantive complaint, it is submitted that on 28 February 2017 the Complainant was informed that she was being presented without notice with serious allegations of theft or unauthorised possession of money, failure to follow staff purchase procedures and failure to follow company procedures and she was asked to provide a statement immediately in relation to these allegations. Pressure was put on the Complainant to sign a statement. She was asked to return keys to the shop and was put on suspension. The Complainant was devastated and felt she had been treated like a criminal and was already summarily dismissed. The word “theft” particularly left her in no doubt that the Respondent had orchestrated a plan to dismiss her. In Ryan v CIE UD 27/84 the E.A.T. held that

“Whatever the seriousness of the allegations made against an employee there is a duty on the employer to:

Fully investigate the circumstances surrounding the alleged offence.

Complete such an investigation prior to taking disciplinary action.

Offer the employee and his union or legal advisor the opportunity of defending the charge.

Create an environment of parity between the employee and his accusers at any oral hearing of inquiry.

The Respondent held a disciplinary meeting on 10 March 2017. This was an intense and aggressive meeting where the Complainant felt that the Respondent had made a predetermined decision against her. It was clear there was no environment of parity.

The following allegations were put to the Complainant:

Alleged theft or unauthorised possession of money or property, irrespective of value, belonging to a third party, namely it is alleged that you took 8 items of jewellery from one of our clients, did not produce a receipt and left them on the premises.
Alleged failure to follow company procedures, namely it is alleged that you failed to follow staff purchase procedure on 8th February 2017.
Alleged failure to follow company procedures, namely it is alleged that you exchanged goods without a receipt on 11th February 2017.

The Complainant explained that the items of jewellery were left in a hurry and she did not have the opportunity to consider procedure and intended to consult with the Respondent in due course. A key point here is that an employee must know what is expected of them and what will happen if they fall below expectation. The Complainant accepts that she made an error of judgement when she exchanged goods without receipt on 11 February 2017 but it was in the interests of maintaining good customer relationships. She did fail to follow up with the staff purchase procedure due to an oversight on her part. It is submitted that at no stage could it be deemed to be reasonable to dismiss the Complainant in light of the circumstances. It is submitted that the Respondent failed to provide the Complainant with some witness statements. It is contended that the Complainant did not appeal the dismissal decision as she had no confidence that it would be dealt with in an impartial manner.

Findings and Conclusions:

Preliminary issue

The date of receipt of the complaint is 10th October 2017. If, as the Respondent contends the date of cessation of the Complainant’s employment was 5th April 2017 which date was cited on the letter of dismissal, or 6th April 2017 on which date she received the letter, then her complaint would be out of time. In considering the date of cessation of employment, Section 1 of the Unfair Dismissals Act defines ‘date of dismissal’ as:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act 1973, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates:

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973”.

Applying the definition in Section 1 of the Act, the date of dismissal is the date on which notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the earliest date it could have complied with the Minimum Notice and Terms of Employment Act 1973. In accordance therefore with the definition the period of notice as provided for in the 1973 Act is 4 weeks, bringing the date of dismissal to 4thMay 2017. The complaint therefore is in time.

Substantive Issue

The Complainant was dismissed on foot of serious allegations that she was alleged to have breached certain company procedures and policies and she was accused of alleged theft and unauthorised possession of money or property. While all of the allegations are serious, the latter is one which has the most serious ramifications for the person against whom the allegation is made. The Respondent is disingenuous to assert that the Complainant did not stand accused of theft as all of the correspondence to the Complainant states “Alleged theft or unauthorised possession of money or property” (two letters dated 1st March 2017), and “Theft or unauthorised possession of money or property” (letter dated 5th April 2017). In considering the substantive issue however, of whether the dismissal of the Complainant was fair or unfair, it is not for me to decide the innocence or guilt of the Complainant but rather to consider if the Respondent acted reasonably and fairly in all of the circumstances.

In Looney & Co. v Looney UD 843/1984, the E.A.T. found that it was not for the Tribunal “to seek to establish the guilt or innocence of the claimant” but to consider what a reasonable employer would have done.

Section 6 (7) of the Act provides:

“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 rights commissioner, the Tribunal or the Circuit 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”.

In deciding if the dismissal of the Complainant was unfair, I have considered the test of reasonableness which was set out in Hennessy v Read & Write Shop Ltd UD 192/1978, as to

“1. the nature and extent of the enquiry of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed”.

The concept of procedural fairness has been regularly emphasised by the Employment Appeals Tribunal, the Labour Court and the higher Courts since the Act’s enactment. In Frizelle v New Ross Credit Union 1997, Flood J. stated “put very simply, principles of natural justice must be unequivocally applied”.

In this instant case, I note that the Complainant was visited in the shop by the Manager on 28th February 2017 at the end of which she was suspended pending investigation into 3 allegations. There then followed a disciplinary hearing on 10th March 2017 the notes of which indicate an acrimonious atmosphere and I accept the Respondent’s evidence that this was exacerbated by the behaviour of the Complainant’s representative. I find that the procedures followed by the Respondent were flawed in that the Complainant was not given notice of the charges against her before the on site meeting which resulted in her suspension. Further, when the disciplinary meeting was being arranged, her right to be represented by her family solicitor was unfairly questioned by the Respondent. I note the Complainant was given the right to appeal and her failure to use that right is noted, but not fatal to her case. I find from the evidence that in the disciplinary process the Complainant’s explanations were not given serious consideration. When deciding sanction, the Complainant’s long service, which may have led to a lesser penalty, does not appear to have been taken into account. However, I find that the Complainant bears some responsibility for her situation, especially in regard to the inconsistencies in her dates regarding the staff purchase issue. In all of the circumstances, I find the dismissal of the Complainant was disproportionate and the Respondent did not consider a sanction such as written warning. I uphold the Complainant’s complaint that she was unfairly dismissed. Given that the employment relationship has irretrievably broken down compensation is the most appropriate remedy. I find that the Complainant contributed to the situation in which she found herself and I therefore find that the respondent should pay to the Complainant compensation in the amount of €3,000.

Decision:

The complaint is upheld and the Respondent should pay compensation in the sum of €3,000 to the Complainant.

Dated: 1 November 2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham