Complainant

Respondent

Anonymised Parties

A Complainant

An Employer

Representatives

In Person

Peninsula Group Limited

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-00008750-001

13/12/2016

The complainant was employed as a shop manager (per complainant) or shop assistant (per respondent) in the period from April 2014 (per complainant) or 23rd of June 2014 (per respondent) to 25th of July 2016. He was paid €563.20 and worked 60 hours per week. The parties made written and oral submission to the hearing. Further submissions were sought and provided post hearing.

The respondent submits that it’s business is that of a fishmonger and fish wholesaler. The complainant was invited to an investigation meeting on the 17th of June 2016 to consider issues which were of concern to the respondent viz. changing prices of product on the till, use of personal mobile during working hours, the presence of a member of staff at the shop without making a purchase, doing wholesale deliveries during working hours in the knowledge that it is forbidden to remove stock from the shop and offering cheaper prices to wholesale and regular customers. A second investigation meeting was conducted on the 20th of June to facilitate the viewing of CCTV footage and present further allegations. There were in total 15 allegations put to the complainant (details provided) covering the period from 30th of April 2016 to the 30th of May 2016 covering 9 specific days and totalling approximately €105. The complainant’s response to most of these allegations was that he put the shortfalls into the till but the respondent was unable to identify any such occasions on the CCTV footage. He was subsequently suspended with pay pending a disciplinary hearing. He was advised of his rights and cautioned. At the disciplinary meeting held on the 11th of July in response to the allegation in relation to giving discounts he explained that he would either return the money or the customer would leave the money in later. He admitted topping up the till from the change bag at the hearing. He was summarily dismissed by letter of the 25th of July 2016. His subsequent appeal which took place on the 27th of September and followed by a further written submission was unsuccessful. The respondent cited legal authorities to justify the dismissal. The respondent submits that there was a partnership offer dependant on the complainant investing in the business. He did not do so and stated in an email that it would be better that he become an employee solely.

The complainant submits that he started working in the shop in April 2014. He was solely in charge of the shop and his position was to programme the till until he trained his colleague to do so. He would do stocktakes with her on Mondays and would be in touch with herself and the boss by text and email from his mobile phone constantly. He was not offering cheaper prices but rounding down in keeping with the competition and never benefitted personally. Explanations were offered in all cases (details provided). He was not provided with an opportunity to review CCTV footage in advance. He argues that he was in partnership with the boss in the business and that he (the boss) and the accountant were inappropriately involved in the disciplinary process. He was not advised of his rights in advance of the process.

I am satisfied that the complainant held the position of shop manager. There were no changes in his terms and conditions mentioned at hearing. It may have been that his position was eroded somewhat over time and that issues not within his control dictated the same.

That said I find that the herein dismissal lacked procedural fairness and that in view of the complainant’s position as manager he was entitled to have a certain discretion in circumstances where he had exercised it in the past. I note that the respondent adverted to its instruction in the matter previously. I am satisfied that his response to the specific allegations were such as to preclude dismissal as a sanction in the circumstances.

In find that the dismissal is unfair on both substantive and procedural grounds.

The complaint is well founded and the appropriate remedy is compensation in the amount of €8,500 (say eight thousand five hundred euro), which amount the respondent should pay to the complainant for breach of this Act.