Complainant

Respondent

Anonymised Parties

A Worker

Agricultural Service Provider

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-00012103-001

23/06/2017

2.0       Summary of the Complaint

2.1       The claimant commenced employment with the respondent on 15 June 1998, in the role of store assistant.  

2.2       On 16 March 2017 a meeting took place between Mr.MOB, Retail Manager and the claimant. At this meeting the claimant was offered representation in the form of a shop Stewart but sought to delay the meeting by having the full time SIPTU union official Mr DG present. The preliminary meeting proceeded during which the claimant was informed of four issues of concern for the respondent to establish if there was a reasonable explanation. The following issues were briefly discussed:

a)    A roll of Center Feed Blue paper removed from the store on 28 February

b)    A pair of Armstrong boots removed on 02 March

c)    A bale of briquettes removed on 11 March

d)    A metal post removed on 14 March

The minutes of this meeting are attached .

2.3       Followingthis preliminary meeting, Mr.MOB decided to suspend the claimant on full pay pending an investigation in order to prevent interference with evidence or a repetition as all alleged instances were carried out before and after shop opening hours. On the next working day, 20 March a letter confirming the suspension was sent from Mr.MOB to the claimant. A copy of this letter is attached .

2.4       On 21 March Mr.SM was appointed to conduct an investigation into the matter and he wrote to the claimant and asked him to attend a meeting on 24 March in order to proceed with his investigation. The claimant was offered representation at this meeting. A copy of this letter is attached .On foot of this letter Mr.SM received a letter from Mr .DG of SIPTU alleging that the manner in which the investigation was being conducted was procedurally flawed and in contravention of the general principles of natural justice.   In this letter Mr DG mixes up the steps of investigation and disciplinary hearing. The meeting the claimant was being invited to was purely a fact finding investigation meeting and not a disciplinary hearing. Copy of Mr .DG’s letter and email correspondence attached.

2.5       On 24 March 2017 an investigation meeting took place where each of the four issues at 2.2 was examined in detail by Mr.SM with the claimant. The claimant was represented by SIPTU shop steward, Ms.NOC.

1. 1. The CCTV footage of 28 February showing the removal of the roll of Centre Feed Blue paper by the claimant was shown whereupon he indicated that the roll of paper was charged to a customer at later date. This was not the case. A different roll of A Tork paper had been charged to the customer.

1. 1. On the second point in relation to a pair of Armstrong boots, the claimant indicated that another customer had previously received the wrong size pair of boots and that he was changing them for the customer The claimant accepted that there was no paperwork initiated in terms of the transaction nor was it entered as a transaction on the respondent’s computer sales system.

1. 1. The Third issue concerned an incident on Saturday 11 March 2017 where the claimant was seen on CCTV removing a bale of briquettes. The claimant said that he completed the transaction on Monday 13 March. The claimant submitted that he had been distracted by a colleague JK at the time and that he had put the money it in later on during that day.         On checking the CCTV footage for that complete day Mr.SM found no evidence of the claimant putting any cash into the till on that day.

1. 1. The fourth issue concerned CCTV evidence relating to an incident on 14 March 2017 where at 8.34 a.m. the claimant placed a metal post in the boot of his car with no documentation having been processed on the computer system. The claimant stated that he had taken the post to get a bracket made for himself by a local metal fabricator and then decided to keep the post. The claimant accepted that there was no paperwork initiated in terms of the transaction nor was it entered as a transaction on the respondent’s computer sales system.

The minutes of the investigation meeting are attached .

2.6       On 03 April 2017, Mr.SM completed his investigation report and recommended that the matter should proceed to a disciplinary hearing. A copy of the investigation report is attached at Appendix 6.

2.7       On 04 April 2017 Mr.PI wrote to the claimant inviting him to a disciplinary hearing on the four issues of concern cited in the investigation report. In this letter Mr.PI indicated that the claimant was entitled to be represented by his trade union and that he would be given the opportunity to respond to each of the above charges. The claimant was also made aware that if at the end of this process, he is deemed to be guilty of serious misconduct, disciplinary action may be taken, up to and including dismissal. A copy of this letter is attached.A copy of the respondent disciplinary procedure is attached .

2.8       On 07 April 2017, a disciplinary hearing took place chaired by Mr .PI and the claimant was represented by Mr.DG, the SIPTU full time union official.  

2.9       Prior to commencement of the disciplinary hearing Mr .DG proceeded to read a 13 page submission into evidence. A copy is attached at Appendix 9. Mr.PI then went through each of the four allegations asking the claimant to account for his actions.

a.    On first item in relation to the roll of blue feed paper the claimant accepted that the goods were still in his house and indicated that he had brought it to his house to complete a customer order from a previous date and his wife must have put them into the shed and he must have forgotten about them. In the preliminary meeting of 16 March, the claimant said he had taken the paper for his own use.

b.    On second item in relation to a pair of Armstrong boots, he accepted again that there was no paperwork for the boots being removed from the premises or any invoice created on the system for them.   When asked why this did not happen the claimant indicated this sort of thing has been “done for years”. Mr. PI stated that Mr.MOB had asked all staff on 15 March if any stock had left the store without being recorded and why did the claimant not inform him in respect of these four issues.  

c.     On the third item in relation to the removal of the bale of briquettes the claimant was adamant that he had paid for the goods yet he was not able to say when he had paid for them.

d.    In terms of the removal of the steel fencing post from the store the claimant indicated that he had taken the post to get brackets made on 14 March. The claimant accepted that on 15 March Mr.MOB had asked if any stock had been taken out of the store that was not charged and the claimant had not responded. The claimant accepted that he had not brought the post back and indicated to Mr PI that he had decided that he decided to keep it.

A copy of the minutes of the disciplinary hearing is attached .

2.10     On 11 April 2017, Mr PI wrote to the claimant asking him to attend a meeting in a hotel on 14 April to hear the decision in relation to his disciplinary hearing. At the meeting on 14 April Mr.PI indicated that in the ensuing period he had spoken to some customers in relation to the allegations and dropped the charge in terms of the Armstrong boots. A copy of this letter is attached .

2.11     In respect of the issue concerning the blue feed paper roll Mr .PI had spoken to both Mr F&SMcG, the customers, who the claimant said he had taken this paper roll for.   Both   stated they knew nothing of the claimant’s version of events relating to the paper and Mr.SMcG said they wanted nothing to do with it and that they paid for any goods they got. Mr SMcG further said that the claimant had approached him and asked him to sign a piece of paper saying he had received the roll of paper.

2.12     Taking into account the investigation report and the evidence presented at the disciplinary hearing Mr.PI indicated that he believed that these were three very grave acts of serious misconduct and that he had considered all options but concluded that the only appropriate and proportionate outcome was to dismiss the claimant with immediate effect due to the serious nature of the offences and that this fact would be confirmed in writing at a later stage.

            Minutes of the meeting of 14 April 2017 are attached .

2.13     On 14 April 2017 a letter of dismissal for serious misconduct was sent to the claimant by Mr PI.

2.14     On 20 April the claimant appealed his dismissal to Mr AF and he received an invitation to an Appeal hearing.

2.15     On 02 May an appeal hearing took place with Mr.DT, Chief Financial Officer and Mr.RV as note taker for the Company. Mr DG again arrived with a 14 page submission and proceeded to read it into evidence prior to any appeal hearing taking place.  

2.16     The minutes of the meeting indicate that no new evidence was presented at the appeal hearing but that on procedural ground Mr .DG of SIPTU was challenging Mr.DT’s authority to hear the appeal stating that the CEO should hear the appeal in accordance with the terms of the Company/Union agreement. Mr.DTstated that he had heard 5 appeals on behalf of the respondent since 2012 and this was the first time that this issue was challenged. M.DT said that the submission from SIPTU was very detailed and that he would give it due consideration and revert with a further meeting. Copy of minutes of Appeal Hearing 02 May attached at Appendix 16.

A second meeting was conducted on 12 May where again each of the 3 issues were put to the claimant to respond to.   The claimant repeated the version of events as presented to the disciplinary hearing. Copy of the minutes of the Appeal Hearing meeting for 12 May attached.

2.17     Mr .DT gave due consideration to the minutes of both appeal meetings and the SIPTU submission and wrote to the claimant with a detailed response on all matters on 19 May 2017 going through each of the claimant’s points of appeal one by one in detail. Mr .DT upheld the decision to dismiss for serious misconduct in the form of theft. A copy of this letter is attached .

2.18     The claimant submitted a complaint to the WRC on 23 June 2017. A copy is attached .

3.0       Company Position

3.1       The respondent submits that they had a reasonable suspicion that the claimant had been involved in actions that if found to be true would have amounted to gross misconduct. SI 146/2000 allows that “an employee may be suspended on full pay pending the outcome into alleged breaches of discipline”

3.2       The respondent will rely on Pacelli v Irish Distiller, UD57I/2001, in examining the reason for an investigation, the right to form a suspicion to be followed up by an investigation,   and arguments with respect to the value of goods concerned.

3.3       SIPTU alleged breaches of the claimant’s rights in terms of the principles of natural justice. The respondent is fully aware of such rights and dealt with the issues reasonably in terms of their disciplinary process. On 16 March 2017 a preliminary meeting was held with the claimant to determine if there was a reasonable explanation for these issues.   This was not a disciplinary hearing and there was no disciplinary outcome to this meeting.

3.4       At the subsequent investigation meeting held on 24 March the claimant was represented not by Mr.DG, as requested at the first meeting, but by shop steward Ms.NOC.   During this meeting the claimant presented detailed stories protesting that his actions had been reasonable.

3.5       The respondent submits that the claimant’s actions amounted to a serious breach of the trust necessary in the operation of a cash business. Any one of the issues concerned may have been explained by one of the elaborate stories the claimant presented in defence, however when viewed in totality the respondent had no option but to terminate the claimant’s employment.as the disciplinary process established that he had dishonestly appropriated goods belonging to the respondent without their consent and with the intention of depriving the respondent of it.   During the course of the investigation, disciplinary hearing and appeal hearing the claimant failed to provide a satisfactory explanation for the deficiency.

3.6       The respondent submits that they acted fairly, properly and justly in reaching a decision to dismiss the claimant.   The test of “reasonableness” was set out in Noritake (Irl.) Ltd v. Kenna (UD 88/1983), namely:

1. Did the company believe that the employee misconducted himself as alleged: If so,

2. Did the company have reasonable grounds to sustain that belief? If so,

3. Was the penalty of dismissal proportionate to the alleged misconduct?

3.7       In examining what is required of an employer in terms of fair procedures the respondent relies on Coughlan V MMG Irl Ltd UD 820/2006 quoting Barrington J. in the Supreme Court in Mooney v An Post [1998] 4 I.R 288 at p. 298 and Laffoy J. in the High Court in Maher v Irish Permanent plc [1998] 4 I.R 302 at p. 298 interpreting Barrington J. in Mooney v An Post

            “It was pointed out by Barrington J. in   Mooney v An Post [1998] 4 I.R 288 that what the justice of a particular case will require will vary with the circumstances of the case, for example, in a case involving a contract of employment, whether it stipulates the procedure to be followed when dismissing an employee for misconduct or not. If no procedure is stipulated the employee is entitled to the benefit of fair procedures but what these demand will depend upon the terms of his employment and the circumstances surrounding his proposed dismissal. The minimum an employee is entitled to is to be informed of the charge against him and to be afforded an adequate opportunity to rebut or attempt to rebut them.”

3.8       There is a body of case law which lays out that substantive issue often outweighs any procedural deficiencies. The respondent submits that no such procedural inadequacies existed in the conduct of the investigation, disciplinary hearing and appeal however should the Adjudicator so find the respondent relies on the findings in the cases of Walls Leisure v Said Belarbi UD492/2008 where the EAT found that “These were clear deficiencies in the company’s procedures. However simply because there was a flaw in procedures does not automatically mean that a dismissal was unfair. When the Tribunal weighs the procedural deficiencies against the substantive issue…. the Tribunal considers that this matter outweighs the procedural defects”.

and the case of Patience August Ugwomaju V Primark UD 444/2007 the EAT found that “In the main the respondent adhered to correct procedures. However, the claimant should simply have been asked to attend an initial investigation meeting rather than an impromptu meeting in the storeroom. However, on balance, the procedures were substantially adhered to and given the weight of the evidence against the claimant and the seriousness of the incident we find that dismissal was appropriate”

3.9       In a very useful judgement in Frizzel v New Ross Credit Union Ltd [1997] IEHC 137, Flood J. neatly summarised a number of principles considered fundamental to the practices of employment law:-

(i) There is a bona fide complaint unrelated to ulterior motive or agenda;

(ii) The complaint was presented in a clear factual manner without implicitly recommending or accepting a given conclusion;

(iii) The alleged wrong-doer was interviewed and a record taken of his answer to the complaint;

(iv) The complaint and the answer to that complaint were presented to the adjudicator at the same time and without comment or recommendation;

(v) The adjudicator assessed the facts and explanations presented and decided the matter on the balance of probabilities;

(vi) a decision to dismiss took account of whether dismissal would be a disproportionate response relative both to the nature of the complaint and to the effect dismissal will have on the wrongdoer.

The respondent submits that in dealing with this matter they adopted the procedures as agreed in the company Union agreement, as they have done historically in dealing with such issues without change. The respondent further submits that in making allegations of procedural discrepancies the claimant ids attempting to deflect from the substantive issues which were found against him both at the disciplinary stage and at appeal.

3.10     The respondent submits that the complaint against it is therefore without merit and the claimant’s dismissal should not be deemed unfair as it was based solely on the conduct of the employee which falls within the scope of Section 6 (4) of the Unfair Dismissals Acts 1977 to 2015.

Adjudicator, for the foregoing reasons we ask you to find in favour of the respondent.

Introduction

1.    Adjudication Officer, the case before you today concerns the dismissal of   the claimant by the respondent on 14 April, 2017 and is referred under the Unfair Dismissals Acts.

Background

1. 1. The respondent provides agricultural/hardware products to its customers through retail outlets .
   2. The claimant commenced employment with the employer on 15 June 1998 and at the time of his dismissal worked as Senior Sales Staff on a contract of indefinite duration in the Employer’s store at ( R) with five other members staff members.
   3. At the time of his dismissal the Store Manager was suspended from work at the store so the claimant was in most respects acting, in effect, covering most of the duties of the store manager in (R) – this is not to suggest that his colleagues at the store did not also similarly contribute in trying to make up for the absence of a store manager at the time, but most of the burden would have fallen to the claimant , given his seniority.

• Over nearly 19 years - through to February 2017 – the claimant enjoyed a completely clean disciplinary record in the course of his employment with the Employer.
• At around 4,30pm on Thursday 16 March, 2017, the claimant was contacted by his Area Manager, Mr MOB, who advised that he wanted to meet with him at 5.30pm. The claimant said he wanted to be represented at the meeting and Mr.MOB agreed that he could take a Shop Steward with him. When Tom tried to get a Shop Steward he found that there was no one available at such short notice so he asked his Trade Union Official, Mr DG if he could attend. Mr DG advised that he would not be available at 5.30 but could get there by 8pm.
• When the claimant requested that the proposed meeting be deferred to 8pm so that he might be represented Mr.MOB denied the request and advised that he and the HR Manager would proceed with the meeting in any event, at 5.30pm. The claimant knew that he would be asked to answer some unstated allegation but was not given any detail of the matters that were to be discussed at the meeting, though he had asked for them to be made available to him prior to the meeting so that he might have a fair opportunity to respond. (Appendix 1, pp. 1 – 2)
• At this hurriedly arranged meeting on 16 March the claimant was asked to respond to allegations that he had left the store on four specified dates (commencing from 28 February) and had removed items which were not recorded as sales by him at the time (he had not paid for the items). The claimant gave the best account at the time, as far as he could recall.
• It may be helpful to outline the claimant’s explanation for the incidents at this stage as they were repeated and clarified to the employer at each subsequent stage of the processl:
• 28 February – Blue Feed Centre Roll; The claimant had been contacted by a regular customer, Mr FMcG, who requested ‘A Tork Paper’ (a higher grade than Blue Feed Roll) and as there was none in stock in (R). he claimant asked his colleague, Mr.SB if they could supply it from the( S) store. Mr.SB left the paper laying on a wall at the claimant’s home so that he could get it to Mr McG. The claimant’s wife put the paper into a shed and later that week, thinking that the paper had never been delivered to the customer, (as it he had noticed that the usual ‘inter store stock transfer had not been recorded) the claimant took the Blue Feed Roll home with him intending to get it to the customer in lieu of the A Tork paper. By the time it became apparent that the A Tork paper had actually been left off at his house and suppled to the customer he had all but forgotten about the €2 Blue Feed Roll.
• 6 March – Pair of Armstrong Boots; A customer (Mr V) had been sold this pair of boots by a colleague (BG) 0n 2 March, but they turned out to be the wrong size. The claimant had returned the size 7 boots and brought out the size 8 boots to his neighbour, Mr V. Though the investigator held that he could not find any evidence of the claimant’s innocence in this incident it was later dropped by the Employer at disciplinary stage.
• 11 March – Bale of briquettes; the claimant took a bale of briquettes as he was finishing up on this evening, intending to pay for them on Monday when he went back to work, which he did. The investigator held that the claimant had stolen the briquettes and not paid for them because he could not see (on cctv footage), “…any evidence of the claimant specifically putting the money for the briquettes into the til.” (Appendix 1. P. 27)
• 14 March – Metal Post; The claimant explained to the employer that he had gone to work early as he wanted to get a local welder (MH) to make a bracket for a galvanized hanging post for him (as he already had a galvanized post at home). In L the following day (15th, his day off) doing ground work on his property there the digger driver broke a post and, still having the post in his van, he decided to just use that one and charge it to his account. At work on Thursday he was busy so hadnt actually charged it by the time the meeting was being arranged – he told Mr .MOB and Mr H that he would charge it to his account there and then but by the time that discussion was over he was suspended.
• Mr DG wrote to the Employer on the 17th and then again on the 22nd March, setting out in detail the serious misgivings which both he and the claimant had with regard to the Employer’s handling of the matter; their trying to insist that a suspension could not be viewed as in any sense being indicative of a potential disciplinary matter being under consideration, and this in service to justifying their continuing determination to withhold any outline of the matters the claimant was being asked to respond to. Mr G submitted that the suspension was unfair and was prejudicial as it was unwarranted (given the decision in O’Reilly v Bank of Ireland). As Mr SM had by this time been appointed to conduct the formal investigation into the matter Mr DG found that he had again to write to him requesting notice of precisely what allegations/incidents were subject to investigation on 23 March, as Mr M had refused the initial request.
• Mr M did eventually forward an outline of the allegations on 24 March, “…for discussion at today’s Disciplinary Hearing.
• The investigation meeting took place on 24 March. Mr N.O attended as note taker along with Mr M and the claimant was accompanied by his Shop Steward, Ms NO’C. Select cctv footage was shown at this meeting for the first time and the claimant responded to the allegations (see above at 9). Mr M also raised a question about a battery the claimant had taken back to the store on a certain date but this was not subsequently followed-up.
• Mr M submitted his ‘Investigation Report’ dated 3 April 2017. It concluded that items had been removed from the store without being paid for or charged to an account – it made no reference to the defence put forward by the claimant in his explanation of events, only to interview one person (working in B) as to whether or not it was ‘common practice’ to take stock from the store without paying or charging for it. Witnesses that could have shed light on whether the claimant’s explanation of events was credible were not engaged and no witness statements of those who were interviewed were ever made available to the claimant.
• In a letter dated 4 April Mr PI (Sales and Procurement Manager) informed the claimant that he would hear the matter along with Mr MH (who had also participated at the initial meeting on the 16th March) at a Disciplinary Hearing on 7 April. (Appendix 2, p. 1)
• Mr DG made a substantial submission to the hearing of the matter at the disciplinary hearing, given the fundamental breaches of the principles of natural justice attending the Employer’s handling of the case to that point, along with breaches of agreed procedures and the failure to comply with the provisions of SI 146/2000.
• On 11 April Mr.PI wrote to the claimant advising that he had come to a conclusion on the Disciplinary matter and would deliver that decision on 14 April. The letter of confirming dismissal issued at that meeting. The Employer did not supply witness statements for the claimant to consider or respond to at this stage nor did they subsequently forward their notes of the Disciplinary Hearing itself.

• The dismissal decision was appealed and Mr DT was appointed to hear the matter at appeal and Mr RV attended as note taker. Two meetings took place on 2 and 12 May and Mr DG again made substantial submissions at this stage outlining the fundamental flaws attending the process from the outset, to the claimant’s extreme prejudice.
• The Employer did not supply witness statements for the claimant to consider or respond to at this stage (though they indicated that witnesses were engaged with) but they did finally provide the cctv footage referred to so that he could view it and forwarded the Employer’s record of the meetings.
• The decision to dismiss was upheld at appeal stage and this was communicated by letter dated 19 May 2017.

Union case  

1. 1. We submit that the claimant was unfairly dismissed on 14 April 2017, by his employer.
   2. We make this submission with specific reference to Section 6(3) of the Unfair Dismissals Act 1977 as amended by Section 5(6) of the Unfair Dismissals Act 1993, which states: “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 —to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…”
   3. We submit that - as per the grounds submitted at each stage (above) - the employer acted unreasonably by failing to adhere fairly to its own procedures, failing to give the claimant the opportunity to know the precise statements that the Employer relied on in arriving at the decision to dismiss, failing to provide any statements of any witnesses, failing to conduct its investigations with the requisite objectivity, failing to conduct an appropriately thoroughgoing investigation (in what the employer considered a ‘full investigation’), and electing to act throughout the process to effectively deny an employee of nearing 20 years’ service any presumption of innocence in the matter.
   4. The claimant , after 19 years’ of exemplary service, inexplicably (and singularly), found himself charged with allegations of theft, in effect, at an hour’s notice one evening in his workplace. He tried to explain that in the rural agricultural community in which he served his employer’s customers it was an occasional practice – in certain circumstances – where staff may drop off or pick up product without an actual sale being recorded at the particular time, this an aspect of the custom and practice which, through their service, staff cultivated goodwill among trusted, long standing customers in the community they worked in.
   5. The employer acted unreasonably and in breach of its own procedures in placing the claimant on suspension in circumstances where it was prejudicial to his position and wholly unwarranted.
   6. The employer could easily have tested the credibility of this defence but rather than conduct an investigation that engaged with those best placed to either support or refute the defence, they consulted only with one person, one who had not worked in that store for over three years, a Manager, and asked him clearly leading questions. The claimant acknowledges that the practice may be described as lax, and open to oversight giving rise to loss by the company, but if the employer wanted to eradicate the practice they should have set it out clearly to staff that it would no longer be tolerated. They did not.
   7. But regardless of whether the established (admittedly, perhaps lax) custom and practice at the store is accepted or not, what is beyond dispute is that the Employer failed to ensure that the protections of natural justice in fair procedures applied in their dismissal of the claimant         from his employment. That the claimant was denied effective representation at a critical stage of the process, that he was denied prior notice of the allegations made against him in the course of the process, that he was denied effective right to be heard through witness statements being withheld throughout the process (and thereby denied any right to challenge any aspect of their content) – these are facts of the process in this case.
   8. We cite the case of Gearon v Dunnes Stores Ltd UD 367/88 as authority outlining the requirements of the employer in relation to the right to have one’s defence adequately considered, where it states, “The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not in the gift of the respondent or this Tribunal…the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach.” [my emphasis] We submit that the Employer’s failure to ensure that that the claimant’s defence was effectively heard – through being tested objectively ( not selectively), - represents a fundamental and, therefore, unforgivable breach.

• The famous passage from Henchy J. in the Supreme Court case of Kiely v The Minister for Social Welfare is also instructive to consider on this point, and bears quoting at length:

This Court has held, in cases such as In re Haughey 19, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently allowed to act informally to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v. Duke of Norfolk 20, "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

Of one thing I feel certain, that natural justice is not observed if the scales of justice are tilted against one side all through the proceedings. Audi alteram partem means that both sides must be fairly heard. That is not done if one party is allowed to send in his evidence in writing, free from the truth-eliciting processes of a confrontation which are inherent in an oral hearing, while his opponent is compelled to run the gauntlet of oral examination and cross-examination. The dispensation of justice, in order to achieve its ends, must be even-handed in form as well as in content. Any lawyer of experience could readily recall cases where injustice would certainly have been done if a party or a witness who had committed his evidence to writing had been allowed to stay away from the hearing, and the opposing party had been confined to controverting him simply by adducing his own evidence. In such cases it would be cold comfort to the party who had been thus unjustly vanquished to be told that the tribunal's conduct was beyond review because it had acted on logically probative evidence and had not stooped to the level of spinning a coin or consulting an astrologer. Where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written and, therefore, effectively evidence on the other side has neither the semblance nor the substance of a fair hearing. It is contrary to natural justice.

1. 1. We submit that, in considering Henchy’s comments (above), it is of note that the claimant was held to ‘run the gauntlet’ at an hour’s notice, and that any and all witness’ evidence remained hidden from him, from that beginning right through to the finish, without any of it even being committed to writing.
   2. Even while acknowledging the wide discretion which an employer may exercise in making its own decisions as regards what may fall within the ‘band of reasonable responses’ to wrongdoing in the employment, this does not extend to decisions based on conclusions reached through processes or procedures that have run roughshod through fair procedures to arrive at objectively unreliable conclusions. The standard of proof is the civil standard but that is only applied on foot of conclusions reached that are worthy of confidence in the evidential enquiry in which they are founded.

• In Georgopoulus v. Beaumont Hospital [1998] 3 IR 132, Hamilton C.J. stated that in the case of employment investigations the facts upon which allegations are based do not have to be established beyond all reasonable doubt and can be dealt with on the balance of probabilities ‘bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issues to be investigated’.

1. The ‘nature and gravity’ of the issues in this case are charges of theft giving rise to the loss of employment after 19 years’ service – the requisite degree of probability in the current case should therefore be viewed as being at the upper end of the spectrum. We submit that the Employer, through its procedural short-circuiting of fair procedures, failed to meet the requisite degree of objective probability. The recent case of Ikoro v Woodies DIY is instructive on the Court’s application of these fundamental principles in Unfair Dismissal cases (UDD 1739) (Appendix 5)
2. We submit that the Employer, by electing to characterise the claimant’s conduct as theft while treating the very same ‘offence’ (removing product from a store without having paid for it or charged it to an account) by a colleague as something other than that exposes the arbitrary authority they chose to exercise in the cliamant’s case.

Summary

1. We submit that the claimant was unfairly dismissed by his employer. We submit that – in light of all the facts and circumstances of the case – the employer acted unreasonably in determining to dismiss the claimant , this contrary to the provisions of the Acts.
2. We submit that, in remedy of his unfair dismissal, the claimant be reinstated to his position.

Mitigation

1. The claimant has not been able to secure employment since the time of his dismissal despite his best efforts. (Appendix 5)

Conclusion

1. We respectfully submit that the claim is well founded and request that you find in favour of our member’s position.

Mr.DG Siptu Official gave evidence of his involvement in the case and set out the chronology of events that arose the evening of the first meeting when no Shop Steward was available and he was not available until 8.p.m.that evening.He submitted that he advised the claimant to seek clarification on the allegations against him – in the event Mr.MOB proceeded with the meeting.He gave evidence of the written submissions he made to the respondent on the flaws in their procedures and submitted that the claimant was entitled to know the complaints against him and was entitled to reasonable time to respond to them.They gave explanations on all four incident’s to MrPI but asserted their submissions fell on deaf ears.He asserted that he was not furnished with the cctv footage until after the decision to dismiss was taken.

The claimant described his experience of stock procedures and in his direct evidence recounted how he would run out to the shed , lodge money , may not get back before 6.00p.m. but would stick the record on a bit of paper while acknowledging the transaction would not go back into the computer.He submitted that there were plenty of times where he would not record the transaction on the same day. He denied any wrongdoing with respect to the bale of paper and set out his version of the chronology of events relating to the paper .He recounted the events leading up to the acquiring of the post which was triggered when a digger/driver hit the post – he asserted that he forgot to record the transaction because he was busy that day.

When asked under cross examination if this failure to record transactions was a regular occurrence the claimant stated that he was late several evenings and he might not charge the transaction until the next morning – he confirmed he would not do the paperwork until the next day. He stated that he did not charge the post because he was returning it and confirmed he took it without leaving a note or telling another staff member. The claimant submitted that he paid for the briquettes later – he asserted that he did not go through the cctv footage of the till because he did not have the patience to do it and stated that Mr.DG did not either.The claimant asserted that he was denied representation and raised this matter at every meeting after the initial investigation meeting.It was put to him that the minutes illustrate that the claimant was given a good opportunity to put his case forward .In response to the assertion by the respondent’s representative that the claimant conducted these transactions without registering them   and whether or not that was wrong , the claimant replied not necessarily – he did not see it like that and would follow up the next day. He stated that he had been distracted by a colleague when he was doing the paperwork for the briquettes.

In summing up , the claimant’s representative submitted that the absolute fundamentals of natural justice had been tossed aside by the respondent. It was submitted that constitutional justice requires that one is given prior notice ; and that one is entitled to be aware of all evidence that is going to be relied upon .It was contended that these were fundamentals of natural justice.It was submitted that the claimant had acknowledged that he had broken company procedure but this had to be offset by the custom and practise of the community being served by the claimant. It was submitted that the claimant had explained his actions – it could be seen why the claimant used the post and it was understandable that he overlooked paying before 4.30p.m. It was submitted that account had to be taken of the claimant’s good service and the fact that he was trusted for 19 years.It was submitted that this could not be eroded over a bale of briquettes – this could have been dealt with by a properly warranted sanction at a much lower level than dismissal. The nature and extent of the enquiry by the respondent had to be examined ;   any sanction had to be proportionate to the gravity of the theft.It was submitted that the claimant categorically denies that he was a thief and that branding him a thief was extremely offensive.

Statements from 4 witnesses referencing the claimant’s diligence, courtesy, goodwill and honesty were submitted on behalf of the claimant and were not disputed by the respondent.Two of the statements referenced the practise of staff leaving items for collection outside the door of the shop after hours and customers paying for same the next time they were in the shop.

It was submitted post hearing that the claimant’s earnings from his agricultural interests amounted to €3,000 in the previous 12 months.

I have reviewed the evidence presented , the voluminous submissions and the authorities relied upon by the parties.

The union has argued that the procedure was flawed from the outset when the claimant was denied representation by his trade union official. In their submissions to the respondent the union argued that Mr.MOB and Mr.MH “ arrived armed with a prima facie case against the claimant without giving him due notice and denying him the right of representation”.The claimant asserted that he could not get a Shop Steward at short notice and consequently wanted his trade union official to attend who was available later that evening. He had sought details of the allegations against him prior to the meeting but was not furnished with same. I have considered the respondent’s own record of the meeting and note that no adjournment took place in the course of the meeting and Mr.MOB stated ..” there are serious issues here .I am going to have to suspend you on full pay pending a full investigation”. I note the company procedures provide for suspension in “ Instances of apparent serious misconduct”. The respondent’s representatives insisted that this was only a fact finding meeting while the Appeals Officer in his deliberations described the meeting as a fact gathering meeting. I am satisfied that at the very least this was a fact finding meeting given the outcome of suspension and that in circumstances where there was a backdrop of the manager of the store being suspended that it was not unreasonable for the claimant to seek to be represented by his trade union official given the unavailability of a Shop Steward. I further find that the union’s assertion that the suspension was predetermined having regard to the respondent’s own record of the meeting to be reasonable. I find the respondent ‘s failure to furnish the claimant with the detail of the charges against him to be unreasonable. This was compounded by the ensuing and very confusing correspondence from the respondent , denying any “ allegations” against the claimant.

Given that the claimant was ultimately dismissed for theft , I find the union’s instance that the claimant should have been furnished in full with all material and evidence relied upon by the respondent and given an opportunity to respond to same in advance of a decision to dismiss , to be compelling .I accept the union’s contention that the investigation carried out by the respondent and specifically the exchange with the previous manager to determine the veracity or otherwise of the claimant’s defence of   customary lax procedures was compromised and flawed by virtue of the rudimentary and leading questions put to the former manager .I am satisfied that the investigation fell far short of the comprehensive enquiry required to determine the invocation of the disciplinary procedure.

As set out in Bunyan v. UDT (Ireland)LTD [1982} ILRM 404 , the “Tribunal ‘s function is to determine the issue on the basis of what a reasonable , prudent and wise employer would have done having regard to the nature of the case……...”

The respondent had denied any procedural deficits and argued that if any were found they were remedied at a later stage in the proceedings. I am satisfied that the procedural inadequacies were of sufficient significance to render the dismissal procedurally unfair. While the boot issue was dismissed at the disciplinary hearing and the claimant’s defence on the paper roll was represented as an oversight on his part , the respondent arrived at the view that the claimant gained personally from the post and briquette bale transactions. When it was put to the claimant at the hearing if he had viewed – all be it belatedly – the CCTV footage of the till on the day he claimed to have paid for the briquettes , he responded that he did not have the patience to do so. The union has contended that the claimant would not have jeopardised his job for such minimal gain in circumstances where he knew   the cctv footage would record any fraudulent behaviour.I have considered all of the foregoing in the context of the question as to whether the dismissal was substantively unfair and find that the respondent’s conclusion that the claimant’s actions amounted to serious misconduct was , on the balance of probabilities , reasonable. In such circumstances , I have concluded that the claimant contributed significantly to his own dismissal. Consequently, I am taking this into account in the quantum of the award for unfair dismissal. I require the respondent to pay the claimant €13,156 compensation.