ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00016079

Parties:

	Complainant	Respondent
Anonymised Parties	A Bookseller	A Bookstore

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00020855-001	30/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00020855-002	30/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00020858-001	30/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00020858-002	30/07/2018

Date of Adjudication Hearing: 12/10/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will also take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and Having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.

In addition, I have been asked to make a decision in relation to a contravention of section 7 of the Terms of Employment (Information) Act, 1994

Background:

It is noted that there are two Workplace Relations Complaint Forms but that the Complaints raised in each are the exact same so that it is clear that the Complainant wishes to bring one complaint under the Industrial Relations Acts and one complaint under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant was retained as a member of the Respondent bookstore staff in and around September of 2017. The Respondent ‘s employment was terminated in July of 2018.

Summary of Complainant’s Case:

The Complainant says he was unfairly treated by the Respondent in the manner of his Dismissal. The Complainant says he was wrongly accused of and found guilty of a theft of a book in the workplace. The Complainant says this was done without an admission of guilt on his part, without a proper investigation and in circumstances where the Complainant proffered perfectly reasonable explanation.

Summary of Respondent’s Case:

The Respondent states that it operates a zero policy in relation to theft. Once it was established that the Complainant was exiting the building with an unpaid for book hidden in his bag the Respondent stated that it could not trust the Complainant again. The Respondent was equivocal about whether or not it accepted the Complainant’s admission of having made a genuine mistake.

Findings and Conclusions:

I have carefully considered the evidence adduced. I accept that the Complainant set off an alarm in the workplace when he was exiting the retail premises with a book in his bag. The book was an item of stock and had not been paid for. The value of the book was about €13.00. The Complainant says the mistake was genuine and that he had mistakenly put the book in his bag in a moment of distraction but that he always intended paying for it. I did not find the Complainant’s excuse to lack credibility but I must weigh that against an employer’s need to have the utmost trust in an employee. On balance I accept that the mistake eroded the trust which the Employer must be expected to enjoy in a member of staff. This might be particularly true where the same staff member is also expected to operate a till. I accept therefore that the Employer did not act unfairly when it suggested through its general Manager that a resignation might be preferable to a Garda prosecution. The General Manager denied this amounted to a Summary Dismissal but I would suggest that that is exactly what this was. I note that the Employer claimed to have a Zero Tolerance policy but when asked it was not actually an available policy and more theoretical. I understand this will be remedied.

Regarding the second claim. I accept, and indeed the Employer accepts, that the Complainant was never provided with a written statement of his Terms and conditions. The Employer’s evidence provided by the General Manager was that this was an oversight and that the Complainant was fully aware of the Terms of his employment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint under section 7 of the Terms of Employment (Information) Act, 1994.

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

I make no recommendation under the Industrial Relations Acts.

I find in favour of the Complainant under the Terms of Employment (Information) Act, 1994. I award €100.00.

Dated: 17/10/18

Workplace Relations Commission Adjudication Officer: Penelope McGrath