ADJ-00012348

Complainant

Respondent

Anonymised Parties

A retail worker

A retail chain

Representatives

Keith Pollard Mandate Trade Union

Ursula Sherlock, Ibec.

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-00016484-001

21/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016484-002

21/12/2017

The Complainant commenced employment with the Respondent on 7th August 2004 in the position of Customer Assistant. Her contracted hours were 30 – 35 hours per week with an hourly rate of €12.91.

She was dismissed from employment on 15th September 2017.

BACKGROUND TO THE CLAIM:

The Claimant commenced employment in the Respondent’s store on 7th August 2004 in the position of Customer Assistant. Her contracted hours were 30 – 35 hours per week with an hourly rate of €12.91. Terms and conditions of employment are shown and make clear reference in section 20 to disciplinary dismissal procedures contained in the employee handbook. As recently as 17 February 2014, the Claimant signed to confirm receipt and understanding of the Respondents Colleague Handbook. The Claimant also received specific training on the policies contained in the handbook including training in November 2012 on Company Honesty policy, Register policy and Disciplinary matters. Training records confirming this training are signed and accepted by the Claimant.

On Friday 7th July 2017 a Retail Security Officer approached the Store Manager to explain that the cigarette tracker which he had operated that week was showing missing packets of Silk Cut Blue 100s. He identified that three packets were missing in that week and one packet from the previous week. The Store Manager asked the Retail Security Officer to review the CCTV of the days in question to investigate further. On review of all the CCTV footage for the days in question the security officer identified irregularities with 3 transactions carried out by the Complainant.

Later that day, the Retail Security Officer showed the Store Manager CCTV footage of the Claimant on 6th July 2017 serving a customer at the Customer Service desk register two packets of Silk Cut Blue 100s. The receipt that matched the transaction showed only one packet had been scanned by the Claimant and she had only tendered cash to the value of one packet through the till. The Retail Security Officer found additional footage from 28th June 2017 on till 100 whereby the Claimant served a customer two packets of Silk Cut Blue 100s and again the receipt for the transaction only showed one packet being taken and paid for.

Further CCTV footage from 14th June 2017 showed a third occasion where the Claimant was working again on till 100 and she served a customer two packets of Silk Cut Blue 100s but the receipt for that transaction again only showed one packet being taken for and paid for.

The Claimants actions over the three transactions showed her scanning only one packet of cigarettes completing a sale for one packet but giving the customer two packets of cigarettes. The prompt on the till that the Claimant saw at the time she scanned the cigarettes and completed the transactions showed her that the value of the transaction was only for one packet of cigarettes. Furthermore, when she pressed the button on the till to tender the cash the till prompt said, “if this is the amount being tendered press yes”. The Claimant pressed “yes”. However, the Claimant had accepted cash from the customer for more than the amount tendered. In each transaction she did not give the customers their receipts for the transactions.

On 7th July 2017 in a meeting with the Store Manager the Claimant was suspended with full pay pending the outcome of an investigation in line with Company Disciplinary Procedures. The Claimant was accompanied by a colleague in this meeting. The allegations were put to the Claimant for her responses.   The Claimant responded at the meeting that she did not remember anything about the incidents. The Store Manager explained that this was not a formal disciplinary meeting and that a formal investigation meeting would be convened quickly with her union official present and she would be asked for her formal response to the allegations and that a letter would follow to confirm these arrangements. The Store Manager clearly counselled the Claimant that these were potentially allegations that could amount to serious misconduct.

A formal written notice of her suspension and the commencement of the investigation as issued to the Claimant and her Trade Union on 10th July 2017 with a copy attached of the Company Disciplinary Matters policy and the Company Serious Misconduct policy. The letter clearly explains that the Claimant can be accompanied by a colleague or a union official and warned that the process could result in disciplinary action up to and including dismissal and convened a meeting on 14th July 2017.

The investigation meeting was held on 14th July 2017 with the Investigation Officer, Store Manager XXXX. The Claimant was given her right to representation at this meeting and was represented by her Trade Union Official and continued to be throughout the process. The minutes of the meeting are signed by the Claimant. After the Investigation Officer introduced the meeting and confirmed that the Claimant was fit to proceed, he read details of the allegations to the Claimant and explained how stock is tracked. The Claimant had an opportunity to review the CCTV footage at the meeting and she was shown copies of all the receipts and stock reports.   When asked for her explanation, her Union Representative said that since the investigation started, the Claimant had been diagnosed with depression and relayed details of some particular personal circumstances. He further submitted that the Claimant had never knowingly engaged in misconduct or personally benefited from these incidents and that she had long service and that these were lapses in concentration due to ill health. He said that the Claimant understood that she would have to rebuild the trust of the Company. The Claimant herself explained how important her job was to her and she was normally very conscientious but was unable to offer any specific explanation for the three incidents under investigation. The Honesty and Register policy were discussed and referred to during the meeting. In addition, the Claimant was advised that if she made a “mistake” then the shorts and overs report would show the till was over by €11.50 on each occasion but this was not the case.

In a letter on 18th July 2017 the Claimant was invited in writing to attend an investigation outcome meeting with the Store Manager on 25th July 2017. Again, she was clearly advised of her rights and the potential consequences of the process.

The minutes of the Investigation Outcome meeting are signed by the Claimant. The Claimant was accompanied by her Trade Union Official.   At the investigation outcome meeting the Claimant was informed that the issue was proceeding to the disciplinary stage on foot of the Investigation Outcome report where the Investigation Officer concluded that “based on the information … I am satisfied that these incidents did occur on 3 separate occasions on the dates in question”. The Claimant remained on suspension with full pay.

In a letter on 27th July 2017 the Claimant was invited in writing to attend a disciplinary meeting on 1st August 2017. Again, she was clearly advised of her rights and potential consequences of the process.

A disciplinary meeting was held on 1st August 2017. A second disciplinary meeting was held on 17th August 2017 with the minutes for both meetings signed by the Claimant.

The Claimant accepted at the disciplinary hearings that the evidence does show that the register only shows payment for one packet while two packets are clearly served to the customers; however, she claimed she had no memory of the incidents and claimed that she did not know what cash was proffered. At the first disciplinary hearing she gave a different explanation to that which she had stated in the investigation meeting wherein she said that all she could think of was maybe on the day she hit the cancel button on the till. At the second disciplinary she gave another and different explanation wherein she stated that she did not know if she gave change back to the customers for one or two packets. However, she was informed that if this was the case, the tills would be over but the tills were not over. She was provided with the evidence to show this. She could not explain why the tills were not over if she had taken payment for two packets and again asserts that these were genuine mistakes and understands that she will have to rebuild the trust with the Company.   Submissions were also made regarding the Claimant’s health and personal circumstances and the consequences for the Claimant if she lost her job. She confirmed that she had been trained in the Honesty Policy. The Claimant’s representative submitted that personal gain or clear evidence of intent to be dishonest must be present to violate the Honesty Policy. She also confirmed that her medical diagnosis happened after the process had started.

A disciplinary outcome meeting ultimately took place on 15th September 2017. The Disciplinary Officer gave due consideration to the appropriate outcome. Fundamentally, as acknowledged by the Claimant and the Representative, this was ultimately a matter of trust and after all the evidence and submissions of the Claimant was considered, the Disciplinary Officer concluded that the trust in the employment relationship was damaged to the extent that his decision was that the Claimant was dismissed from her employment with immediate effect. This decision was confirmed in a letter dated 15th September 2017 given to the Claimant at the meeting. The Claimant was offered the right to avail of the internal appeals mechanism.

The Trade Union lodged an appeal by letter dated 19th September 2017. The Claimant’s appeal was heard on 6th October 2017.   The Appeal Officer reviewed all of the documents and evidence and questioned the Investigating Officer and the Disciplinary Officer on the process to ensure that it was fair and reasonable. On the specific points of the appeal the Appeal Officer concluded the following:

The Trade Union on the Claimants behalf claimed that during the course of the disciplinary meetings it was outlined to the Claimant that she had been found to be in breach of the Company Honesty Policy only. He claimed it was never stated that the Investigation Officer found the Claimant to be in breach of the Company Register Policy.

The Appeal Officer found that the Claimant was aware from the time of the investigation meeting that her actions were in breach of the Register Policy and the Company Honesty Policy as contained in the meeting records of the investigation meeting on 14th July 2017. The Store Manager also confirmed this in the disciplinary hearing on 17th August 2017. The Disciplinary Officer went on to explain why there was a breach of the Register policy. Therefore, to say that the Investigation Officer did not find her actions were in breach of the Company Register Policy is simply not credible.

The Trade Union on the Claimant’s behalf stated that the sanction is severe and unfair given all the circumstances and her health was not taken into consideration. He stated that there was no personal gain from the transactions that the Claimant completed.

The Claimant’s actions resulted in a stock loss to the Company. This is not in dispute. She was unable to provide any plausible explanation to support her actions during the three transactions. The Appeal Officer agreed with the Disciplinary Officer that it was reasonable to conclude that these transactions did not represent simple mistakes. During each transaction, she was prompted on two occasions to the fact that she had scanned only one packet of cigarettes instead of two. To say that this was a mistake when it occurred on an identical basis on more than one occasion is not credible. In addition, the Claimant has confirmed that she became ill after the investigation into her actions commenced which the Disciplinary Officer took into consideration.

The Trade Union on the Claimant’s behalf claimed that the Disciplinary Officer did not consider other sanctions available to him. This is simply not the case. The Disciplinary Officer came to the conclusion that her actions were so serious that the bond of trust was broken beyond restoration. The Company Honesty Policy clearly provides that (as in retail generally) unacceptable loss as a policy provision is regardless of the monetary value and can lead to dismissal.   The Store Manager took into account all other sanctions that could be applied in line with Company Policy. However, he was satisfied that the appropriate sanction in this case was to dismiss her from her employment on the grounds of serious misconduct; a conclusion which the appeal officer felt was a reasonable one.

The Trade Union on the Claimant’s behalf took issue with the length of time it took to conclude the disciplinary process. The Appeal Officer found that although the process had taken some time, it was clear that there were multiple meetings and that at times it was difficult to co-ordinate the attendance of all parties and that the Union Representative had been kept informed including by the Appeal Officer by phone of the efforts to convene meetings.

An Appeal Outcome meeting was arranged for 21st November 2017. The Appeal Officer accepted the evidence from the Representative that the Claimant had been diagnosed with a depressive illness since the process started and also considered the submissions on her work record and service but concluded that the Disciplinary Officers decision was a reasonable one in the circumstances. The Claimant was informed of the outcome that the Appeal Officer upheld the Disciplinary Officer’s decision to dismiss the Claimant on the ground of serious misconduct. This was confirmed in a letter given to the Claimant dated 21st November 2017.

COMPANY ARGUMENTS:

The Respondent places trust in colleagues to do the right thing for customers and the business.   As a business that involves dealing with cash it is important that this trust is maintained throughout a colleague’s employment. This was not the case for the Claimant as her actions caused a breach of the bond of trust the Respondent had placed in her which throughout the course of the investigation and disciplinary process was accepted by the Claimant and her Representative.

The Claimant was dismissed by reason of her own actions which were not denied and were considered as serious misconduct. Accordingly, her dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977 (as amended). Following a thorough investigation and disciplinary meeting, the Claimant was adjudged to have committed a breach of the Company Honesty policy and the Company Register policy which are both considered as serious misconduct by the Company. This breached the trust and irreparably undermined the employee/employer relationship leaving the Respondent with no option but to dismiss the Claimant.

The principles to be applied in cases of serious misconduct have been clearly established over time and the test as set out in Looney & Co Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged”.

The company’s action in taking the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances. The facts presented before the employer were that the Claimant had committed an act of dishonesty in one of the Respondent’s stores. In light of the breach of trust due to the nature of the act, the Respondent’s decision to dismiss was justifiable in the circumstances.

The Claimant’s actions amounted to a breach of the trust between the parties to the employment relationship. It is imperative that the Respondent can trust its employees to act with integrity and in accordance with policy.

The importance of trust to the employment relationship has been emphasised on many occasions in case law. For example, in Audrey Burtchaell v Premier Recruitment International Ltd t/a Premier Group, UD 1290/2002, (although different circumstances to the case today) the Tribunal stated:

“Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the claimant could no longer be retained by the respondent. Accordingly the claim fails”.

When trust has been undermined, as it has been in this case, the employment relationship cannot be sustained. When that breach of trust comes about by virtue of the employee’s actions then it is fair and reasonable in the circumstances for the company to take the decision to dismiss.

The claimant was at all times afforded all benefits of fair procedure, in line with the Respondent’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.   In particular

-          The claimant was aware at all times of the allegations against her.

-          The claimant was provided with an opportunity to respond to those allegations and to present her version of events.

-          The matter was investigated fully before a decision was made.

-          The claimant was represented throughout the process by a colleague.

-          The assessment of the facts and the decision made took into account the representations made by the employee and was an impartial determination.

-          The Claimant was provided with and utilised the opportunity to appeal.

In light of all of the above, the Respondent believes it to be clear that the dismissal of the Claimant was procedurally fair in all respects.

The Respondent relies on section (8) of the Minimum Notice and Terms of Employment Act (1973) in its defense, which states:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

A breach of the Honesty Policy and Register Policy is clearly listed in the Serious Misconduct Procedures as a breach liable to dismissal. The Claimant was on clear notice of the seriousness that the Respondent viewed dishonesty. Furthermore, her actions were not denied. It is clear that the breach of trust involved in the three breaches of the Honesty policy and Register policy resulting in specific loss to the Respondent and can be considered as misconduct which is sufficiently serious as to deprive the Claimant of her right to Minimum Notice.

CONCLUSION:

The fact that the incidents occurred is not in dispute. The Claimant was found based on her actions to be in breach of the Respondent’s Honesty policy and the Respondent’s Register policy both of which are considered as serious misconduct.   Furthermore, the bond of trust placed in her by the Respondent was broken to such an extent that it is beyond restoration.

The Respondent adhered to their own policies and principles of natural justice and fair procedures at all times. Specifically, the investigation, disciplinary and appeals processes were conducted by separate and impartial managers. The Claimant was notified in writing of the allegations against her and afforded a full and fair opportunity to consider and respond to those allegations. The Claimant was afforded the right to representation at each stage of the process, which she utilised.

The Claimant was provided with the right to an internal appeal, which she utilised, and this appeal was heard by an independent senior manager who found no substantial grounds to overturn the original decision of dismissal.

It is the Respondent’s position that this claim under the Unfair Dismissals Act 1977 to 2015 is not well founded. The Respondent respectfully asks that the Adjudication Officer finds in favour of the Respondent.

The Complainant commenced employment with the Respondent on 7th August 2004, as a Sales Assistant. The Complainant was employed on a 30 / 35 hour contract band and was paid €15.19 per hour, with a weekly gross income of €455.70 per week.

The Complainant had an exemplary record with the Respondent and had never came to the attention of her previous Employer in an adverse manner throughout her employment.

The Complainant was brought to a meeting on Friday 7th July 2017 with the Store Manager and was suspended with pay pending investigation into the allegation regarding the selling of cigarettes.

The Complainant was invited by way of correspondence dated 10th July 2017 to attend an Investigation Meeting with the Store Manager on Friday 14th July.   The Store Manager opened the meeting by reading a copy of the allegations against the Complainant.   It was alleged that on 3 occasions, 14th June, 28th June and 6th July that the Complainant served customers 2 packets of Silk Cut Blue 100s but only 1 packet on each occasion was scanned through the till. It was also stated on all 3 occasions that the Complainant failed to give the customers a receipt but on each occasion change was given to the customer.

It was outlined to the Company that the Complainant had attended her General Practitioner on Monday 10th July 2017 due to the stress and anxiety caused by her suspension from work and imminent investigation. After a lengthy consultation the Complainant was diagnosed with clinical depression, which she in the view of her General Practitioner had probably been suffering with for the previous 4 years. The Company were informed that the Complainant had been prescribed anti-depressants and had been referred to a local charity for counselling.

The Store Manager clearly stated in the meeting “I don’t believe its collusion as the customer pay”. This quite clearly demonstrates that the Store Manager did not believe there was any malicious wrong doing or intent on the Complainant’s part.

Furthermore, the Store Manager read the Company Honesty Policy to the Complainant and it was submitted to the Company by the Trade Union Official that the Complainant was not in breach of the Company Honesty Policy as the Store Manager had even accepted that there was no collusion.

The meeting concluded with the Complainant apologising for her mistakes to the Store Manager. The Complainant was invited by way of correspondence dated 18th July 2017 to an Investigation Outcome Meeting on Tuesday 25th July 2017. At the Investigation Outcome meeting on 25th July 2017, the Store Manager read out his findings and informed the Complainant that the matter would be sent forward for a Disciplinary Hearing. It was not stipulated which policies or procedures the Store Manager had found the Complainant to be in breach of.

There are a number of unsubstantiated findings in the Investigation Outcome report, namely:

“You still charged the customers for 2 packets of cigarettes and the change given was relative of this”.

This conclusion was arrived at by the Store Manager without any supporting evidence to suggest that to be the case. It was not raised, demonstrated or proven during the Investigation Meeting of 14th July that the Company believed the customers were charged for 2 packets of cigarettes and the change given was relative to this.

Furthermore, the Store Manager concluded:

“You could not give me any reasonable explanation as to why you carried out these transactions or why you gave customers 2 packets of cigarettes, only tendered one packet on the till and gave the customer change that showed they paid for 2. Each till should have showed an average of €11.50 following these transactions but failed to do so on each day”.

There is no evidence available to support the findings that the customers were charged for 2 packets of cigarettes and in fact with the tills showing no overage it would support the opposite, in that, the Complainant through human error only scanned and took payment for one packet on each occasion.

The complainant was informed by way of correspondence dated 27th July that a Disciplinary Hearing had been scheduled for Tuesday 1st August 2017.   The Disciplinary Hearing took place on Tuesday 1st August 2017.

The Disciplinary Manager was asked by the Trade Union Official as to what policy the Complainant was alleged to be in breach of. The Disciplinary Manager clearly stated the reason for the Disciplinary Hearing was an alleged breach of the Company Honesty Policy. The Complainant when asked, stated that the only explanation she had been able to think of with regard to the transactions was she had pressed the cancel button rather than the quantity button on the screen and therefore, had only processed one pack per transaction rather than two. CCTV shows the Complainant touching the screen numerous times on each transaction which would support this explanation.

It was once again submitted and accepted by the Company that there was no collusion between the customer and the Complainant. It was submitted that there was no personal gain for the Complainant and it was outlined to the Company, that the Complainant could not be found in breach of the terms of the Company Honesty Policy, as she did not convert or attempt to convert to his/her own use or the use of another, any cash, goods or valuable thing.

Furthermore, it was submitted to the Disciplinary Manager for his consideration, that the Complainant was fully aware through her role as a Union Shop Steward of the location of the CCTV cameras and that the cigarettes were counted on a daily basis and these facts back up the Complainant’s explanation that this was a lapse in concentration and a genuine mistake.

The meeting concluded with the Complainant once again profusely apologising and explaining how much she loves her job and that she had never been dishonest.

A follow up Disciplinary Hearing was scheduled for and took place on 17th August 2017, under the heading of an alleged breach of the Company Honesty Policy.   It was once again outlined to the Company that these were genuine mistakes.

A Disciplinary Outcome Meeting took place on Friday 15th September 2017, where it was stated that the Complainant was found to be in breach of both the Company Honesty Policy and the Company Register Procedures. Despite the fact that the Disciplinary Manager informed the Complainant previously on two occasions that the reason for the Disciplinary Procedure was breach of the Company Honesty Policy.

The Complainant submitted an appeal by way of correspondence dated 19th September 2017 from the Divisional Organiser of the Trade Union.

The Complainant was informed by way of correspondence dated 28th September 2917 that her Appeal Hearing had been arranged for Tuesday 3rd October 2017. A Manager had been appointed to hear the appeal on behalf of the Company. The Appeal Hearing took place on Friday 6th October 2017. At the meeting all grounds for appeal were clearly outlined and explained to the Appeals Manager.

The Appeals Manager was asked to identify as part of this Investigation what part of the Honesty Policy the Complainant was found to be in reach of. Unfortunately, the Appeals Manager was either unable to identify or omitted to identify which specific part of the policy the Complainant was in breach of in his Appeal Outcome.

The Complainant further submitted to the Appeals Manager that she was a supervisor on occasions in the store who performed till checks, change runs, that she loved her job and would not put it at risk for cigarettes for strangers. It was also outlined that the Complainant was the sole income earner in her home. The Complainant described in detail the personal problems affecting her at the time of the transactions.

An Appeal Outcome meeting took place on Tuesday 21st November 2017, where the Appeals Manager informed the Complainant without reference to the serious procedural deficiencies in the Disciplinary Procedure, that he was upholding the decision of the Store Manager to dismiss the Complainant from her employment on the grounds of serious misconduct.

The Complainant having exhausted the internal proceedings applied for a hearing of the Workplace Relations Commission, Adjudication Services under the Unfair Dismissals Acts and the Minimum Notice and Terms of Employment Act, 1973.

UNION’S POSITION:

Throughout the Disciplinary meetings, it was outlined to the Complainant that the grounds for bringing the matter to disciplinary was a “Breach of the Company Honesty Policy”.   In the Disciplinary Outcome, it was stated that the Complainant had been found to be in breach of not only the Company Honesty Policy but also the Company’s Cash Register Operation Procedures. It is our contention that the Complainant’s right to Natural Justice and Fair Procedures were fundamentally breached by the Disciplinary Manager, by including the Cash Register Procedure as grounds to terminate the Complainant’s contract of employment, without outlining to her that these procedures were also being used by the Company as grounds for the disciplinary.

The Company Honesty Policy clearly identifies 4 areas that a member needs to adhere to in order to remain compliant with the policy. They are:

1.       Converting or attempting to convert to his/her own use or to the use of another, any cash goods or valuable thing or the property of another staff member without the permission of that staff member will be subject to dismissal and/or prosecution.

The Complainant as accepted by the Company, did not collude with any of the customers or other staff members, nor did she benefit personally from the transactions. Therefore, we contest that this part of the policy has not been breached.

2.       Converting or attempting to convert to his/her own use or the use of another, any cash goods, supplies or equipment regardless of monetary value, the property of the company (or in the company’s care) without authority, such authority to be granted only b store managers or colleagues more senior than store managers, if found guilty will be subject to dismissal and/or prosecution.

Once again, the Complainant as accepted by the Company did not collude with any of the witnesses or staff members, nor did she benefit personally from the transactions. Therefore, we contest that this part of the policy has not been breached.

3.       Assisting or attempting to assist others in the theft of staffs’ property or of company assets of any type, (or in the company’s care) regardless of value, if found guilty will be subject to dismissal and/or prosecution.

We contest that this section of the policy does not apply in this case.

4.       In his/her capacity, as a company colleague directly or indirectly soliciting from person, company supplier or group, anything of economic value as a gift, gratuity or favour will be subject to disciplinary action which may include dismissal if found guilty.

We contest that this section of the policy does not apply in this case.

Given all of the above, we contest that the Store Manager did not have grounds to find the Complainant to be in breach of this policy and therefore the Complainant’s dismissal to be unfair.

At no stage throughout the entire process was evidence provided to support the findings of the Investigation Manager that the Complainant had

“Still charged the customers for 2 packets of cigarettes and the change given was relative to this”.

Neither the Disciplinary Manager nor the Appeal Manager could provide any evidence or justification for this finding, despite both being asked to do so.

It was outlined at every stage of the Investigation, Disciplinary and Appeal that the Complainant had been diagnosed with clinical depression on 10th July 2017.   That the Complainant was also experiencing some very turbulent times in her personal life and offered this as some explanation for making genuine mistakes whilst in work. We contest that the Company did not take these mitigating factors into consideration nor did they take into consideration the fact that the Personnel Manager had to send the Complainant home on an occasion immediately preceeding the transactions due to the Complainant being uncontrollably upset whilst at work.

It was outlined and accepted by the Company on numerous occasions that there was no collusion with any of the customers and therefore, no personal benefit to the Complainant. Given this fact, we contest that there were other less punitive sanctions available to the Company and in line with the Respondents own Disciplinary Procedure that any action taken should be corrective rather than punitive in its nature. The Complainant was willing to accept re-training or movement to another department as part of the outcome.

The Respondent’s Disciplinary Procedure clearly states the following under the heading of “Our Approach”:

“Ensure that disciplinary action is only taken as a last resort and only consider dismissal as an option when all reasonable attempts to encourage improvement have failed or when a deliberate act of gross misconduct has been committed”.

Furthermore, the Disciplinary Procedure clearly states under the heading of “Purpose” that:

“The purpose of the disciplinary procedure is to: Remind staff of the required standards of work and conduct; Give staff an opportunity to remedy shortcomings in their performance or conduct; The objective of the company in applying its disciplinary procedure is that its action should be corrective rather than to seek to punish the individual”.

We contest that the Respondent did not take the contents of the Respondent Disciplinary Procedure into consideration when arriving at their decision to dismiss the Complainant and to uphold that decision. The Procedure clearly states that dismissal should only be considered when all attempts to encourage improvement have failed or when a deliberate act of gross misconduct has been committed. The Company have already accepted that there was no collusion and therefore no deliberate act of gross misconduct. We respectfully request that in our deliberations you take the contents of this document into consideration.

Furthermore, under the heading of “Serious Misconduct” the Company state:

“If a colleague is guilty of serious misconduct, the following may be incurred:

§  Final Written Warning

§  Suspended from Duty without pay

§  Demotion / Relocation

§  Dismissal

§  Combination of the above depending on the gravity of the situation

There were other less punitive sanctions available to the Company even if they believed that the Complainant was guilty of serious misconduct. As the Policy clearly states the action taken should be corrective rather than to seek to punish the individual.

The Complainant was the Trade Union Shop Steward for the Store who had on numerous occasions reason to represent members in disciplinary matters. She was fully aware of the CCTV camera locations, she was fully aware of the potential sanctions that could be imposed on her if she breached procedures and she was fully aware that cigarettes were subject to daily audits by the security staff. Therefore, we contest that given the above, the Complainant would not willingly put her position at risk for anything, especially for no personal benefit.

At no stage throughout the process did any manager take the Complainant’s exemplary record into consideration or afford her the benefit of doubt, that these were genuine mistakes made by a long serving, loyal, hardworking member of staff who was going through a very tough personal time in her life.

CONCLUSION:

Taking everything into consideration that has been submitted here today on behalf of the Complainant, we respectfully request that you find that the Company unfairly dismissed the Complainant from her employment with the Respondent and they did not provide her with the minimum notice of 6 weeks afforded to her under the Minimum Notice and Terms of Employment Acts 1973 – 2001.

Given the fact that the Complainant has been unable to secure meaningful employment on a permanent basis since her dismissal, we are respectfully requesting that you award full reinstatement from the date of dismissal and compensation for her loss of earnings in the interim.

Both parties presented comprehensive written submissions at the hearing.

The representative of the Respondent has included some relevant case law to support their case:

Looney & Co. Ltd v Looney. UD 843/1984.

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged”.

This very clearly outlines my role in this instant case and that is to look at the actions of the Respondent and given all the circumstances decide if their actions in dealing with this case fall within a band of reasonableness.

On Friday 7th July 2017 a Retail Security Officer approached the Store Manager to explain that the cigarette tracker which he had operated that week was showing missing packets of Silk Cut Blue 100s.   He identified that three packets were missing in that week and one packet from the previous week. The Store Manager asked the Retail Security Officer to review the CCTV of the days in question to investigate further.   On review of all the CCTV footage for the days in question the security officer identified irregularities with 3 transactions carried out by the Complainant.

Later that day, the Retail Security Officer showed the Store Manager CCTV footage of the Claimant on 6th July 2017 serving a customer at the Customer Service desk register two packets of Silk Cut Blue 100s.   The receipt that matched the transaction showed only one packet had been scanned by the Claimant and she had only tendered cash to the value of one packet through the till. The Retail Security Officer found additional footage from 28th June 2017 on till 100 whereby the Claimant served a customer two packets of Silk Cut Blue 100s and again the receipt for the transaction only showed one packet being taken and paid for.

At this point the Store Manager decided that an investigation should take place and the Complainant was advised of this fact and suspended on full-pay pending the outcome of any such investigation. The Complainant was also advised that the outcome of any such investigation could potentially lead to charges of serious misconduct. The investigation meeting was held on 14th July 2017, the Complainant was advised that on foot of the Investigation Outcome Report the issue would proceed to the disciplinary stage.

Two Disciplinary interviews were held with the Complainant, the first on 1st August and the second one on 17th August 2017, the minutes of both meetings were signed by the Complainant.

On the 15th of September 2017 a disciplinary outcome meeting took place. The Disciplinary Officer concluded that the trust in the employment relationship was damaged to the extent that his decision was that the Complainant should be dismissed with immediate effect, 15th September 2017.The Complainant was offered the right to appeal.

The appeal letter is dated 19th September 2017, the appeal was heard on 6th October 2017. The Appeals Officer reviewed all the documents and interviewed both the Investigation Officer and the Disciplinary Officer. “The Appeals Officer agreed with the Disciplinary Officer that it was reasonable to conclude that these transactions did not represent simple mistakes. During each transaction she was prompted on two occasions to the fact that she had scanned only one packet of cigarettes instead of two. To say that this was a mistake when it occurred in an identical basis more than one occasion is not credible”.

The Complainant’s representative claimed that during the course of the disciplinary meetings, it was outlined to the Complainant that she had been found to be in breach of the Company Honesty Policy only. He claimed it was never stated that the investigation officer found the Complainant to be in breach of the Company Register Policy.

From my reading of the hand-written investigation notes I see quite clearly that the Complainant was informed that there was a breach of the Company Register Policy.

The process started on 7th July 2017 and concluded with the Appeal Outcome letter dated 21st November 2017, a period of some 4.5 months – this is too long and is unfair.

Having considered all aspects of the case I find that the Respondent has acted in a reasonable manner throughout the entire process (apart from the duration of the process) and I believe that the bond of trust that has to exist has been irreparably damaged by the Complainant.

It is for this reason that I find in favour of the Respondent. The Complainant was not unfairly dismissed.

Minimum Notice and Terms of Employment Act 1973.

The Respondent relies on section 8 of the Act:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

I cannot disagree with this argument – the complaint under the Minimum Notice and Terms of Employment Act 1973 fails.

See above.

Unfair Dismissals Act,1977.