Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retail Store

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00016421-001

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016421-002

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016421-003

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016421-004

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016421-005

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016421-006

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016421-007

20/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00016421-008

20/12/2017

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

CA-00016421-009

20/12/2017

The Complainant commenced her employment with the Respondent on 1st January 1997. She was dismissed on 31st July 2017. The Complainant referred a number of complaints to the Workplace Relations Commission (‘WRC’) on 20th December 2017. The Respondent rejects the claims.

Complaint CA-00016421-001 under section 24 of the National Minimum Wage Act, 2000 and complaint CA-00016421-008 under Section 39 of the Redundancy Payments Act, 1967 were withdrawn at the hearing.

The Complainant submits that she has never been compensated for work performed on Sunday. At the hearing the Complainant confirmed that it was unusual for her to work on a Sunday. She identified Sunday, 25th June 2017 as one she would have worked on from 9.30am to 6pm as a result of swapping shifts with a work colleague with the Respondent’s approval.

The Respondent submits that normally he or/and his spouse would work in the shop on Sundays. However, he did not dispute that it is possible that the Complainant could have worked on 25th June 2017 as a result of an agreement with a colleague.

There was no dispute that the Complainant rarely worked on Sundays. The Complainant identified Sunday 25th June 2017 as one she would have worked on. The Respondent did not dispute that. On balance, I find that the Complainant did work on Sunday 25th June 2017 and did not receive any compensation. The Complainant worked from 9.30am to 6pm. Records received from the Respondent show that the Complainant would have received a break of 1.5 hour.

Section 14 of the Organisation of Working Time Act applies. Section 14(1) of the Act states:   14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or(d) by a combination of two or more of the means referred to in the preceding paragraphs.

I find that a premium of 33% for working on a Sunday in this sector may be fair and reasonable.

Having considered the parties submission I find that the complaint is well-founded and I order the Respondent to pay €21.15 in respect of premium for work performed on Sunday 25th June 2017.

Preliminary matter: Time limit The Complainant submits that the alleged breach of the Act occurred on 13th June 2017. The Complainant referred her claim to the WRC on 20th December 2017, outside the requisite 6 months’ time limit. At the hearing, the Complainant made an application for extension of time in respect of her claim. It was submitted that the Complainant sent a data access request to the Respondent and was awaiting a reply, which led to the delay in submitting her claim.

Substantive matter: The Complainant submits that the Respondent made unlawful deductions from her wages of €80 per week for two weeks following an allegation against the Complainant in June 2017 and prior to her suspension with the Respondent. Insofar as the Respondent may claim that such deductions were authorised by the Complainant, it is disputed in circumstances where the Complainant was under duress from the Respondent.

At the hearing, the Complainant submitted that the alleged deductions were made from cash payments which the Respondent was allegedly supposed to make to her in respect of “extra hours” she worked. She claimed that she would have been paid €35 cash a week in respect of these hours (this statement was strongly objected to by the Respondent). The Complainant could not clarify how could €80 a week be deducted if she expected a payment of €35.

Preliminary matter: Time limit. The Respondent submits that the data access request has no bearing on the Complainant submitting the claim within the time limit. The Complainant was not precluded from referring her complaint to the WRC while awaiting the Respondent’s reply to her data access request. Furthermore, the Respondent submits that the Complainant had access to her payslips, the payment was made directly into her bank account and she had access to the business’ accountant.

In respect of the substantive matter the Respondent denies that any deductions have been made. The Respondent exhibited copies of payslips dated 2nd June, 9th June, 16th June and 24th 2017 showing that no deductions were made from the Complainant’s wages. The Respondent presented also a copy of named financial institution “Standing Order Details” document dated 23rd October 2017 showing a weekly payment of €220 from 9th June 2016 into a bank account in the Complainant’s name. The Respondent stringently denies the allegation that any payment was made to the Complainant in cash. The Respondent submits that the Complainant was paid directly to her bank account on a weekly basis for the hours worked. This arrangement has been in place for over two years following The Department of Employment Affairs and Social Protection investigation into the Complainant’s income.

Section 41 of the Workplace Relations Act 2015 provides:

(6) Subject to subsection (8) an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates…..

(8) An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7)( but not later than 6 months after such expiration)as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: - “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

I note that the letter of 4th August 2017 from the Complainant’s solicitor to the Respondent confirms that they act on her behalf. Therefore, the Complainant had the benefit of legal advice. The Complainant pursued a number of matters in the correspondence between the parties and in the letter dated 3rd October 2017 her solicitors inform the Respondent that “Please note because of the substantive list of issues we will immediately be submitting our complaint to the Work Place Relations Commissioner.” I conclude that the Complainant has failed to establish a causal connection between the factors relied upon by her and the delay in presenting the within claim. Accordingly, I must hold that the Complainant has failed to adequately explain the delay and provide a reasonable cause for the delay.

I find that the Complainant has failed to submit her complaint within the required time limit. Accordingly, I find that the claim is out of time and is therefore is statute barred.

The Complainant submits that she did not receive payment in lieu of notice of termination of her employment. The Complainant submits that she was entitled to 8 weeks’ notice.

The Respondent submits that, as the Complainant was dismissed for gross misconduct with immediate effect she was not entitled to minimum notice.

Section 8 of the Minimum Notice & Terms of Employment Act, 1973 stipulates as follows: “Right to terminate contract of employment without notice

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.”

In view of my decision in relation to the complaint of unfair dismissal (CA-00016421-007), below, I find that the Complainant was not entitled to minimum notice.

In view of my decision in relation to the complaint of unfair dismissal (CA-00016421-007) I declare this complaint not well founded.

The Complainant submits that she did not receive her breaks during the work day. She submits that she regularly worked by herself and was therefore unable to take breaks, notwithstanding that she was supposedly entitled to 1.5 hours break during the working day, the Complainant submits that she was not paid for working through her breaks. On the occasions when she worked with a colleague, they would take turns to leave the premises and pick up something to eat, and ate behind the till.

The Respondent denies the claim. The Respondent exhibited timesheets signed by the Complainant for period of two years confirming that the Complainant received her breaks. The Respondent submits that he and his wife live above the shop and they would have provided relief in order for the Complainant to avail of her breaks.

Section 12 of the Organisation of Working Time Act, 1997 states: (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

Organisation of Working Time (Breaks at Work for Shop Employees) Regulations, 1998 S.I. No. 57 of 1998 provides: “3. One hour break for certain shop employees

In relation to the following class of employee, namely, an employee—

(a) who is a shop employee, and

(b) whose hours of work as such an employee include the hours from 11.30 a.m. to 2.30 p.m., the minimum duration of the break to be allowed by the employer under section 12(2) of the Act to him or her shall be one hour and that break shall, unless its commencement between those hours would result in section 12(4) of the Act not being complied with, commence between the hours aforesaid.”

The Respondent has maintained detailed records of the Complainants working hours and/or breaks in accordance with the 1997 Act. The document includes the following statement: “I declare that the above information in relation to daily and weekly hours worked is correct and that I have received my statutory rest entitlements”. Furthermore, in a column entitled “Rest breaks” detailed information is given in respect of the breaks, e.g. ”Wed 30 min x 2, Tue, Fri, Sat 1.5 hours per day”. These records are signed by the Complainant. The Complainant confirmed that her signature figures on the document.

I find that the Respondent adduced evidence that rebuts the Complainant’s assertion in relation to the alleged breach of section 12 of the Act.

Having considered the parties’ submissions and such evidence as was tendered to me, I find that the complaint is not well-founded.

The Complainant submits that she never received a written contract of employment and / or written terms and conditions of employment.

The Respondent conceded that the Complainant was not issued with a written statement of her terms and conditions of employment.

Section 3 of the Terms of Employment (Information) Act, 1994 requires that:

“(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant should have been furnished with the written statement of Terms and Conditions of Employment.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €440.

The Respondent informed the hearing that the Complaint was a very close family friend for a long time. She was practically considered a member of the Respondent’s family and had its total trust.   She is a godmother of the Respondent’s child, they would have gone on holidays together.

The Respondent submits that on 13th June 2017 he found a sum of money on the floor in the shop. He reviewed the CCTV and later noticed that the money lodged at the end of the day did not match the takings. He spoke with the Complainant, she viewed the CCTV footage and admitted to having stolen €130 on that day. The Respondent submits that the Complainant admitted that she had been taking money from the till since December 2016. The Respondent submits that he was shocked to learn that, particularly taking the close relationship he and his wife had with the Complainant. He told the Complainant to come to work as normal.

On 15th June 2017 the Complainant advised the Respondent that she will pay €2,000 to the Respondent and suggested further payments of €100 per week to clear back what she has taken. She did not specify how much she had taken in total. The Respondent submits that he was aware of the Complainant’s personal circumstances and realised that €100 was unsustainable. They agreed that she would pay €80 a week. The Respondent drafted an agreement stating, inter alia:

“Following the revelation of [the Complainant] on Tuesday 13th June 2016 stealing large sums of money, it is agreed by [the Respondent] to not press charges, keep the incident inhouse and keep [the Complainant] on staff on her usual shift on the following terms and it is agreed by [the Complainant] to comply with same:

1.       [the Complainant] presents a full and accurate figure of money taken which must match [the Respondent] figure after his full investigation of shop records, cameras, accounts and stock.

2.       After [the Complainant’s] initial payment of €2,000 on 15th June 2017, a weekly amount will be agreed by both parties to be paid back until all the monies have been returned. This will be recorded weekly by both parties…”

Both parties signed the agreement. The Respondent submits that the Complainant took the document, read it and returned. She did not want a copy as she ‘did not want it around the house’.

The Respondent submits that on 24th June 2917 the Complainant’s husband, Mr A visited the Respondent disputing the Complainant’s entitlement to take €2,000 out of her children’s account. He looked for the money back. The Respondent submits that some threats were made by Mr A.

On 26th June 2017 a meeting was held with the Complainant, Mr A, the Respondent and his wife, Mrs B in attendance. The Respondent submits that Mr A became aggressive and it became apparent that any agreement was not going to be carried forward. The Respondent advised the Complainant that she is being put on suspension, a letter to that effect followed. The Complainant then went on holidays and there was no further contact.

The Respondent submits that a letter of dismissal was issued on 31st July 2017. The letter advised the Complainant of her right to appeal, which was not invoked by the Complainant. On 4th August 2017 the Respondent received a letter from the Complainant’s solicitor, no appeal was sought.

The Respondent denies that the Complainant was under duress to pay him €2,000. It was two days after the discovery of money missing that the Complainant brought the money to the Respondent without being asked for it. The Respondent argues that there was no element of panic the Complainant relies upon. The parties were very close friends. The Respondent at no stage put the Complainant under duress the repay the money taken. He did not put a figure to her. He did not threaten her with dismissal and did not intend to report the matter to the Gardaí. In fact, he allowed her to come to work in a normal fashion and hoped that the matter would be resolved by the Complainant repaying what she had taken. The Complainant had ample opportunity to discuss the matter.

The Respondent submits that the disciplinary procedures provide for summary dismissal. As the admission was made the duty to carry out investigation was removed. Nevertheless, the Respondent did carry out one.

In cross-examination, the Respondent informed that no formal record or contemporaneous notes of the meetings with the Complainant were kept. None were given to the Complainant. He also confirmed that, despite his efforts he was not able to save the CCTV footage of the events of 13th June 2017. However, he clarified that the footage showed the Complainant taking €130 and the Complainant did not dispute this. She admitted doing so in her statement to Gardaí on 1st May 2018 (copy of the statement was exhibited at the hearing). The Respondent told the hearing that he and his wife carried out the investigation. He confirmed that he never established the total amount of money taken by the Complainant and relied on her statement in that regard. He agreed that the investigation comprised of the Complainants’ admission. The Respondent stated that the Complainant admitted that she had been taking money and, having regard to the personal relationship they have had for years, he did not engage in the disciplinary process. The Respondent and his wife who attended the hearing with him pointed out that they were heartbroken by the events. They both put emphasis on the very close relationship they have had with the Complainant.

The Complainant submits that she was unfairly dismissed. The Complainant submits that she was denied due process, fair procedures and natural justice. Furthermore, the Respondent acted in contravention of its own policies and procedures. The Complainant submits that on or about 13th June 2017 the Respondent alleged that the Complainant had taken money from the till without his consent. The matter was discussed by the parties and, under duress, the Complainant paid a sum of money to the Respondent on 15th June, and for each of the following weeks and additional €80 was deducted from her wages. The particulars of the allegations and admissions allegedly made by the Complainant, which are denied, are in dispute between the parties. The Complainant continued to work over the following two weeks, with no further mention of the allegations. Subsequently, and without warning the Respondent purported to instigate an investigation into the aforementioned allegations and suspended the Complainant, without pay, effective from 28th June 2017. The Complainant was informed of this decision by letter dated 26th June 2017. The Complainant denies that, as suggested in that letter, she made any admission to the Respondent that she had taken in excess of €2,000. The decision to suspend the Complainant, without pay, was in direct contravention of the Respondent’s own investigation procedure which only provides for suspension on the basis of full pay. Furthermore, the Respondent asserted that the said suspension was imposed inter alia due to the Complainant’s alleged admission, which is denied, during the pre-investigation hearing that she has taken in excess of €2,000. The suspension was, therefore, punitive in nature and was indicative of the Respondent having come to a conclusion in respect of the allegation before the investigation process had even commenced.

The Complainant submits that the Respondent’s Disciplinary Procedures provide inter alia that:

-          Prior to commencing the disciplinary procedures, the employer will first investigate the complaint/allegation of misconduct in order to determine if there is a case to answer;

-          An independent and neutral person (where possible) will be appointed as the investigator. Where possible, this party will not have previously been involved in the matters giving raise to the investigation;

-          The investigation will be a fact-finding process;

-          When the investigation has been completed the investigator will review the facts gathered, witness statements and any documentary or other available evidence, and will provide a written investigation report and confirm whether there is a case to answer;

-          It is not the role of the investigator to determine whether or not the employee is guilty of misconduct but to decide whether there may be a case for the employee to answer in relation to the perceived misconduct;

-          At the conclusion of the investigation the employee will be provided with a copy of the investigation report. Where the outcome of the investigation is that a disciplinary process will commence, the employee will be furnished with all witness statements and any other relevant evidence which the investigator discovered during the investigation.

Notwithstanding that the Respondent informed the Complainant that she would be contacted by the investigator in due course, the Complainant submits that she remains a stranger to the investigator’s identity. She claims that she was not consulted or invited to participate in the investigation process prior to its conclusion. It is submitted that the Complainant was therefore denied the opportunity of: preparing for and/or participating in the investigation in any meaningful way, questioning and challenging the Respondent’s allegations, presenting any evidence rebutting the Respondent’s allegations, a fair hearing. The Complainant submits that by letter dated 31st July 2017 the Respondent informed her that the investigation had concluded. Reliance was placed on an admission allegedly made by the Complainant, during the course of the investigation, that she had been taking money from the till since December. The Complainant denies this and disputes that she was involved in any aspect of the purported investigation process which was instigated by the Respondent on 26th June 2017. The Complainant alleges that, in breach of the Respondent’s own policies and procedures, it is apparent from the letter dated 31st July 2017 that the investigator did not conduct a fair or transparent investigation and the Complainant was denied an opportunity to participate in the process. the Complainant argues that it is unclear what, if any investigations were carried out, what evidence was considered, and whether an investigation report was actually provided. The Complainant maintains that she was not furnished with copies of the report, witness statements, or other evidence taken into consideration by the investigator. Furthermore, the Respondent’s delay in commencing the said investigation was entirely prejudicial to the Complainant in circumstances where relevant CCTV footage was no longer available. The Complainant claims that the Respondent’s reliance on purported ‘pre-investigation’ hearing – the nature of which was not notified to the Complainant and at which no notes were taken by or on behalf of Respondent or agreed with the Complainant- in deciding to terminate the Complainant’s employment was entirely prejudicial and procedurally flawed. The Complainant also submits that, in further breach of fair procedures, due process and the Respondent’s own disciplinary procedures, the Respondent made a decision to dismiss the Complainant following the conclusion of the purported investigation, but without any disciplinary process having been instigated and/or conducted.

The Complainant submits that the Respondent disciplinary procedure provides inter alia that:

-          Where the outcome of the investigation is that an employee has a case to answer, the employee will be invited to a disciplinary hearing;

-          The employer will appoint a manager or supervisor or similarly qualified person to conduct the hearing;

-          The employee will be given an opportunity to present their case at the disciplinary hearing which includes posing questions to any witnesses whose evidence is being considered by the disciplinary chairman;

-          At the conclusion of the meeting the disciplinary chairman will review the additional evidence that came to light during the meeting and decide whether the employee was guilty of the alleged actions and if so whether those actions merit disciplinary sanction.

Therefore, the Complainant argues that not only was she denied an opportunity to respond to and/or address and/or challenge and/or rebut the Respondent’s allegations in the investigation process, she was also denied a disciplinary hearing. It is submitted that this is all the more egregious in the circumstances where the Respondent has put allegations in writing, which are denied by the Complainant, and has purported to rely upon meetings at which admissions were allegedly made by the Complainant, which are denied, and which said meetings were not noted by an independent party, or anybody, and the Complainant has been refused any reasonable opportunity to answer and rebut those allegations. It is submitted that the decision to terminate the Complainant’s employment was made prior to any investigation having been carried out. It is the Complainant’s case that the Respondent unilaterally breached and failed to adhere to and comply with his own contractual obligations, rules, policies and procedures. The Complainant submits that she has suffered financial loss as a result of the suspension and dismissal. The Complainant has submitted a data access request, and requested confirmation of the identity of the investigator and copy of their report. The Complainant has not, to date, been furnished the requested documentation and information.

In support of the Complainant’s case her Counsel cited: Dunne v Harrington AU166/1979, Bermingham v Marks and Spencer (Ireland) Limited UD601/2011, Hayes v Kinsella t/a Kinsellas of Rocklands UD690/2012 and O’Brien v Dunnes Stores UDD1133/2012.

In her direct evidence, the Complainant stated that she admitted to taking €130. She stated that she panicked and did not want her husband to find out about the issue and paid €2,000 to the Respondent. The Complainant stated also that she panicked and signed the agreement drafted by the Respondent but she did not agree to the weekly payments. She noted that she was not asked to account for other money missing, there was no more CCTV footage shown to her, no notes were given to her. In respect of the investigation, the Complainant pointed out that she has never received the report with outcomes of the investigation and was given no opportunity to address the allegations.

In cross-examination, the Complainant confirmed that the Respondent did not put a figure to her. It was put to the Complainant that, taking the very close relationship with the Respondent and his family she could have discussed the matter with him. She also confirmed that she had some two days to think about it before she brought the money to the Respondent. The Complainant confirmed that the Respondent made no threats of reporting the matter to Gardaí or of dismissal and he did not put her under duress. Rather, she stated, she did it herself.

Section 1 of the Unfair Dismissals Act, 1977 defines dismissal in the following manner: “dismissal”, in relation to an employee, means— (a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b)……

Section 6(1) states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4): “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent argues that the dismissal was warranted due to the Complainant’s conduct. In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Act including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as an Adjudication Officer is whether the Respondent’s decision to dismiss fell within the bands of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Food v Jones [1982] IRLR 91).

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

The Respondent submits that the Complainant was dismissed for gross misconduct, more specifically theft. I note that the Respondent’s Disciplinary Procedure lists examples of gross misconduct including the following:

·         “Theft or unauthorised possession of any property or facilities of the Employer’s

·         Any action which would lead the Employer’s to seriously question the employees trustworthiness and/or honesty…”

The parties confirmed that on 13th June 2017 the Respondent having found a sum of money on the shop floor reviewed the CCTV and noticed a discrepancy in the till money. He discussed the matter with the Complainant.The Complainant admitted and it was not in dispute that the Complainant took a sum of money from the Respondent without authorisation. The Respondent claimed that the Complainant admitted that she had been taking sums of money for some time, although she did not specify the amount taken. The Respondent submitted that on 15th June 2017 the Complainant offered to repay the money taken starting with €2,000 she took out of her children’s account. That was to be followed by weekly instalments of €80. The Respondent drafted an agreement to that effect and both parties signed it. The Complainant disputed the Respondent’s assertion that she admitted having stolen money on a number of occasions or taking in excess of €130. I note the Complainant’s assertion that she panicked and handed over €2,000 under duress. However, I do not find this explanation plausible. There was no dispute that the Complainant was a very close friend of the Respondent. Even if she did initially “panic” having been seen stealing a sum of money, it is my view that the Complainant had some two days to recover and assess the situation she found herself in. It is then that she approached the Respondent and offered the repayment of €2,000, a figure she arrived with. I note that the Respondent did not threaten the Complainant with any sanction at this stage, neither did he indicate reporting the matter to the Gardaí. Rather, it appears that for the benefit of the Complainant he was willing to resolve the matter in a manner that would save her from embarrassment and reputational damage. In fact, he agreed that she would return to work as usual. I am therefore of the view that it is unlikely that that the decision to give the Respondent €2,000 was a result of ‘panic’. In any event, the Complainant confirmed that she did take €130 on 13th June 2017 and admitted having done so to the Respondent. She also made a statement to that effect to Gardaí on 1st May 2018.

The Complainant seemed to go along with the agreed arrangement until her husband, Mr A learned of the issue and approached the Respondent. On 24th June 2017 Mr A requested the money back disputing the Complainant’s entitlement to take it out of her children’s account. Following a meeting with the Complainant and her husband on 26th June 2017 it was the Respondent’s opinion that any agreement would not be carried forward and he was uncertain that the Complainant would be of a good conduct. On that basis the Respondent made a decision to suspend and subsequently dismiss the Complainant. The Respondent wrote to the Complainant on 26th June informing her of the suspension and an investigation to be carried out. The Respondent confirmed that he carried out an investigation and decided to dismiss the Complainant. The decision to dismiss was communicated to the Complainant in writing on 31st July. In its letter the Respondent points out clearly that:

·         “You admitted to [the Respondent] that you had been taking money from the till since December 2016.

·         Due to the serious nature of your actions and your admittance to carrying out the actions, it is not now deemed necessary to carry out a disciplinary hearing.

·         Your actions in taking money from the till, which by your own admission was on a regular basis, constitutes an act of gross misconduct. Therefore in line with our disciplinary policy we are hereby terminating your position with immediate effect.”

The Respondent’s letter informed the Complainant of her right to appeal this decision, which the Complainant did not exercise.

There is no dispute that the Respondent did not adhere to the process as outlined in its Disciplinary Procedure. There is also no dispute that the Complainant admitted she stole the money on the 13th June 2017. I note that in “Redmond on Dismissal Law”[1] [16.14] pages 353-354 Dr D. Ryan states: “Where an employee admits to dishonest conduct self-evidently it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions. However, it will still be advisable to allow an employee the opportunity to show cause as to why the employer should not dismiss. This will enable the employer to form a view on the reasonableness of its decision to dismiss in the light of all the circumstances.” As a footnote to this paragraph the author cites the decision in The Royal Society for the Protection of Birds v Croucher [1984] IRLR 425a case of admitted, serious dishonesty concerning expenses by one of the directors of the Society. The EAT in John Lewis PLC v T.L. Coyne EAT/581/99 accepted that that is authority for the proposition that there may be cases of admitted dishonesty in which it is not incumbent upon the employer to give the employee a warning or carry out a detailed investigation before deciding that the employee should be dismissed. The EAT in detail reviewed the matter of dishonesty:” In summary, there are two aspects to dishonesty, the objective and the subjective, and judging whether there has been dishonesty involves going through a two-stage process. Firstly, one must first of all decide whether according to the ordinary standards of reasonable and honest people what was done dishonest? Secondly, if so, then one must consider whether the person concerned must have realised that what he or she was doing was by those standards dishonest. In many, but not all, cases where actions are obviously dishonest by ordinary standards, there will be no doubt about it.” It is my view that theft would be considered “dishonest” by any standard and a reasonable employer would be entitled to regard what the Complainant admittedly did as dishonest. I find that for the reasons outlined above it was reasonable for the Respondent not to adhere to the standard disciplinary procedure.

Trust and confidence is essential in all working relationships There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. The Respondent placed the highest level of trust and confidence in the Complainant. As a consequence of her actions the Respondent had every entitlement to lose confidence and trust in her. The Complainant was well aware of this trust and through her actions breached that trust with the Respondent. By way of background the Respondent informed the hearing that some two years prior to the event in question the Complainant was issued with a verbal warning in respect of theft. The Complainant did not dispute that but objected to the Respondent relying on it. The Respondent emphasized that it did not rely on the previous disciplinary matters when making the decision to dismiss the Complainant and the warning had expired before the process under consideration in these proceedings commenced.

The Respondent clearly had considered a lesser sanction than dismissal, or in fact no sanction but given the serious nature of what had occurred, it ultimately decided that the appropriate sanction was dismissal. I find that the Complainant acknowledged her wrongdoings. The Complainant had ample opportunity to state her case. However, even when giving evidence she did not deny that she had taken money from the till without the Respondent’s consent and did not provide any explanation for doing so.

I have carefully considered the evidence and submissions adduced by both parties in this matter and I accept the Respondent’s reaction is within the range of reasonable responses. I conclude that the sanction of dismissal was warranted.

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

The Complainant submits that she did not receive her entitlement of 8 weeks’ notice of the termination of her contract of employment.

The Respondent submits that the Complainant was dismissed for gross misconduct and therefore she was not entitled to notice.

Section 8 of the Minimum Notice & Terms of Employment Act, 1973 stipulates as follows: “Right to terminate contract of employment without notice

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 have found that the claim in respect of unfair dismissal has not succeeded. The Complainant was dismissed for gross misconduct and is therefore not entitled to minimum notice.

I declare this complaint not well-founded.

Unfair dismissal- employee’s admission- theft- minimum notice-breaks-unlawful deduction