Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Grocery Retailer

Representatives

Sarah-Jane Comerford, BL

Killian O’Reilly, Solicitor

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-00017796-001

06/03/2018

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

CA-00017796-002

06/03/2018

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

CA-00017796-003

06/03/2018

The complainant commenced employment as a sales assistant on October 11th 2013. She generally worked for around 40 hours a week. She was dismissed on September 12th 2017, when she sold alcohol to a minor acting on behalf of the Garda Síochána in a test purchase. She claims that her dismissal is unfair and that she did not receive notice or pay in lieu of notice.

Sale of Alcohol

In his submission on behalf of the respondent, Mr O’Reilly outlined the responsibilities of retailers regarding the sale of alcohol. The sale of alcohol to minors is a criminal offence that carries a serious sanction for the shop assistant who processes the sale as well as the retailer. If a license-holder is convicted of selling alcohol to an underage person, the Courts have no discretion and must impose a temporary closure order on the premises as well as a fine. Mr O’Reilly said that the respondent operates one of the most stringent systems for the sale of alcohol in the retail industry in Ireland. It also follows the code of practice promoted by the Responsible Retailing of Alcohol in Ireland. Store staff are trained in the legal requirements of alcohol sales and in the strict control governing the sale of alcohol to minors.

The policy operated by the respondent is called “Challenge 25” which requires sales staff to ask for identification from any person purchasing alcohol who appears to be under 25. In this way, a seven year “buffer” is in place between the age of 18, which is the legal age at which a person can purchase alcohol and the age at which identification will be requested. The complainant was trained in the Challenge 25 procedures in September 2016.

Colour signage is in place in the store in the aisle where alcohol is sold, in the canteen and at the tills, to remind staff about the age restrictions on the sale of alcohol.   In addition, each till is equipped with a prompt feature to prevent staff from overlooking the Challenge 25 requirement. When an alcoholic drink is scanned at the till, a prompt appears on the display to remind the cashier to ensure that the customer’s date of birth is checked.

Events Leading to the Complainant’s Dismissal

The Complainant sold alcohol to a minor in a Garda alcohol purchase test at 7.29pm on July 25th 2017. An investigation meeting was held on August 2nd 2017 and, although she was advised that she could be accompanied, the complainant attended on her own. She was able to recount the correct procedure for selling alcohol and she acknowledged that that in retrospect, she should have asked the teenager to whom she sold a six-pack of beer for identification. She was shown CCTV footage of the transaction and she recalled her encounter with the Garda who approached her after the sale. She said that she was afraid that the store would be closed down, confirming that she was aware of the serious consequences of her failure to follow the correct procedure.

The investigator’s report concluded that the complainant had a case to answer and on September 4th 2017, she attended a disciplinary meeting. She was again advised that she could be accompanied by a colleague, but she attended on her own. At the meeting, she was given an opportunity to explain what happened and to defend her actions. She said that, on the evening in question, she was busy on her till and she was trying to finish up and close because she had jobs to do before she finished her shift.   She said that she told customers that two other tills were opening, but they kept coming to her till. When she sold the alcohol to the young man, she said she thought he was over 25 years of age and she didn’t ask him for identification.

On September 12th, the manager who conducted the disciplinary meeting called the complainant to a meeting to confirm the outcome. He informed the complainant that she was being dismissed for gross misconduct and a letter to this effect was issued on the same day.

The Respondent’s Submission that the Dismissal of the Complainant was not Unfair

The respondent’s case is that the dismissal of the complainant was not unfair because she was trained in the alcohol sales procedure and she knew what to do. She admitted not following these procedures.

In respect of the disciplinary procedures that resulted in the complainant’s dismissal, for the respondent, Mr O’Reilly went through the process that was followed by the investigating manager and the manager who conducted the disciplinary meeting and he submitted that the respondent acted reasonably. The complainant was invited to appeal the decision to dismiss her, but she did not do so.

Clause 13 of the complainant’s contract of employment states that:

“Your employment may be terminated without either notice or payment in lieu of notice in the case of gross misconduct. The following are examples of gross misconduct…

(g) serving alcohol to anyone who is or appears to be under 18 or any other offence under the licensing law in place from time to time.”

Case Law Precedents

In support of the respondent’s position, Mr O’Reilly referred to the following precedents:

Ann Marie Lynch v Dunnes Stores, UD 461/2015

The Employment Appeals Tribunal (EAT) found that the sanction of dismissal was not unreasonable in response to a finding that Ms Lynch sold alcohol to a minor. Ms Lynch had 11 years of service with Dunnes Stores. She asked the customer for identification and, when he failed to produce it, she proceeded with the sale.

Anna Perenc v Dunnes Stores, UD 441/2013

The President of the Circuit Court, Mr Justice Groarke, overturned the decision of the EAT in this case and upheld the decision of Dunnes Stores to dismiss Ms Perenc because she sold a bottle of wine to a teenage girl.

McGee v Beaumont Hospital, UD 136/1984

The reference to this case is to support the respondent’s position with regard to the reasonableness of their decision to dismiss the complainant. Here, the chairman of the EAT said that its task is,

“…not to consider what sanctions the Tribunal might impose but whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses.”

Mr O’Reilly closed his submission by saying that the respondent relies on the cashiers to be the “first and only line of defence.”   Considering the potential for serious criminal sanctions, the community repercussions of selling alcohol to a minor, the commercial impact of a store closure and the potential impact on the Respondent’s reputation, Mr O’Reilly argued that dismissal falls within the range of reasonable responses available to the respondent.

Evidence for the Respondent

The CCTV footage of the young person appointed by the Garda to purchase the alcohol on the evening of July 25th 2017 was shown in evidence.

The human resources executive for the region where the complainant worked outlined the company’s policies regarding the sale of alcohol and he gave details of the Challenge 25 training. He said that the complainant attended training in October 2013 as part of her induction and she also attended refresher training in September 2016.   The incident which led to her dismissal occurred 10 months later in July 2017. In response to questions from the complainant’s counsel, the HR executive said that the induction training and the refresher training on the alcohol policy takes between 15 and 30 minutes.

Ms Comerford remarked that there is no guidance in the training that indicates what features are to be considered by staff to assess if a customer is over the age of 25.   The witness agreed that no specific identifiers were suggested and he said that if a person looks under 25, cashiers are supposed to ask for ID. Ms Comerford also referred to cultural differences between Caucasian and Asian people and she asked if this was considered as part of the investigation.   The HR executive said that the complainant didn’t raise any cultural issue as an impediment to her ability to assess if someone was over 25.

The sales operations manager who carried out the investigation also gave evidence. I will refer to this witness as “Manager 1.”   He said that on July 26th 2017, he got a telephone call from the deputy manager in the store where the complainant worked who informed him that the store had failed an alcohol test purchase the previous day. Manager 1 said that he attended a meeting in the Garda station at which he was informed that the store would not be prosecuted on this occasion, but that the Gardaí would not tolerate a further breach.

Manager 1 said he conducted an investigation and he had a meeting with the complainant, who attended on her own. The minutes of this meeting were submitted in evidence and they show that the complainant answered questions about what occurred on the evening of July 25th 2017. When she was asked what she looked for to determine if someone is over 25, the minutes show that she said that she looks at how tall they are, what their face looks like and how they are dressed. She said that when looking at a person’s face, “it can be hard to see, but I try to tell if they are young or old.”

Referring to the screen prompt, the complainant said that it was “very easy” to use. She was shown the CCTV footage of the incident and she was asked if, just before the young person approached, she was speaking on the internal communications system for staff. She said that she wasn’t speaking on the system but that she was trying to direct customers to other open tills so that she could do her lodgement. She agreed that she may not have been paying attention due to having jobs to do in the last 20 minutes of her shift.

Manager 1 remarked to the complainant that she barely looked at the customer when she sold him the alcohol, but she said that she saw him in the queue before he got to the till. She said that she was not used to all the different faces and that it was hard for her to judge the ages of people, as she is a foreigner. In his evidence, Manager 1 said that the transaction was too quick for the complainant to make a decision about the customer’s age.

Manager 1 concluded this meeting by asking the complainant if, “in future, do you think you’ll be looking at customers longer?” She replied, “Yes definitely. I am a foreigner so it’s harder for me to guess ages. I have learned that I need to ask for ID more often now.”

In response to questions from Ms Comerford, for the complainant, Manager 1 said that the complainant was a diligent employee with a “great attitude” and a that she was a positive addition to the team in her store. He agreed that in her 2017 appraisal, she received an A rating and that she was an exemplary employee. At the meeting he conducted with her on August 2nd, Manager 1 said that the complainant was honest in the way she answered questions and that she agreed that she should have asked the customer for ID.

Ms Comerford referred to the “identifiers” that the complainant said she used to assess if someone was under 25; height, face and clothes. Manager A suggested to the complainant that a beard, grey hair and wrinkles might be a better identifier and Ms Comerford asked why these identifiers were not used in the training programme. Manager A said that the complainant agreed that she would look at a person’s face, but he said that what she considered identifiers were not appropriate.

Manager A said that he completed his report on the investigation on August 13th 2017 and he decided that the complainant had a disciplinary case to answer. He attended the disciplinary meeting on September 4th and he said that this was a standard part of the company’s procedure.

The manager who made the decision to dismiss the complainant was the final witness for the respondent. I will refer to this witness as “Manager 2.” He said that he chaired the disciplinary meeting and that Manager 1 read out the notes of the investigation meeting that took place on August 2nd and the report of the investigation dated August 13th. Manager 2 said that, at the meeting, the complainant correctly summarised the process for assessing if a customer was over age 25. She agreed that a sale could not be processed until the age prompt button “1” is pressed. In answer to a question from Ms Comerford, Manager 2 said that the disciplinary meeting lasted 20 minutes.

Following the disciplinary meeting, Manager 2 said that he reflected on what the right outcome would be and he considered the possibility of issuing a verbal warning, a written warning, a final written warning or, that the complainant should be dismissed. He said that, because the store and the complainant could have been convicted of a criminal offence, he decided that the appropriate decision was that the complainant should be dismissed. The complainant was invited to a meeting on September 12th 2017, at which she was informed of this outcome. Her dismissal was confirmed by letter on the same day.

Responding to Ms Comerford, Manager 2 said that he understood that dismissal was the “nuclear option” and he agreed that there was no intention on the part of the complainant to sell alcohol to a minor.   He said that he did not consider the complainant’s previous good conduct or the fact that she had been an exemplary employee. He said that he considered the fact that the incident on July 25th involved a possible criminal offence.

In response to my question about what, in his view, was the reason why the complainant was dismissed, Manager 2 said that she was dismissed because “she did not follow the process set out” for determining if a person is over the age of 25.

Sale of Alcohol to a Minor

It is the complainant’s case that she sold a six-pack of beer to a minor because she mistakenly thought that he was over 25. For the complainant, Ms Comerford said that “there is an inherent discretion for employees to decide whether or not they believe the customer is over the age of 25 years.” The complainant genuinely believed that the customer was over 25.

At the investigation meeting on August 2nd, the complainant gave an honest account of what occurred and she explained how she came to be of the opinion that the person was 25 years old. At the disciplinary meeting on September 4th, the complainant again answered the questions she was asked and she admitted that she made a mistake. At the hearing, Ms Comerford raised concerns about the fact that the manager who conducted the investigation appeared to take charge at the disciplinary meeting. The company rejected this assertion. The complainant was dismissed on September 12th and she did not lodge an appeal because, having been through the investigation meeting and the disciplinary meeting, she said that she thought that an appeal would have been pointless.

Definition of Gross Misconduct

In her submission, Ms Comerford referred to clause 13 of the complainant’s contract of employment that was referenced by Mr O’Reilly:

“Your employment may be terminated without either notice or payment in lieu of notice in the case of gross misconduct. The following are examples of gross misconduct…

(g) serving alcohol to anyone who is or appears to be under 18 or any other offence under the licensing law in place from time to time.”

Submitting that the kind of conduct that meets the definition of “gross misconduct” is characterised by motivation which is intentional and deliberate, Ms Comerford referred to the following precedents:

Vitalie Vet v Kilsaran Concrete, Kilsaran International Limited [2016] ELR 237

In its determination on this case, the Labour Court referred to summary dismissal as being the “nuclear weapon of the employer’s arsenal of disciplinary sanctions.”

Lennon v Bredin, M160/1978

Here, the EAT referred to “serious misconduct” as,

“…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 serious category.”

Doyle v JJ Caron & Company Limited, UD 236/1978

In this case at the EAT, the chairman concluded that gross misconduct presupposes intentional and deliberate misconduct.

The Decision to Dismiss

For the complainant, Ms Comerford said that the employer’s decision to dismiss must be reasonable in respect of all the circumstances. She referred to section 6(7) of the Unfair Dismissals Act which provides that regard must be had to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal and the extent of the failure of the employer to comply with a standard dismissal procedure. In this respect, she referred to two precedents:

Dunne v Harrington, UD 166/1979

Here, the EAT declared that,

“…where an employer investigates personally, it must do so in a fair and reasonable manner, ie, as fully as is reasonably possible, confronting the ‘suspected’ employee with ‘evidence,’ checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings / confrontation.”

Once it has been established that an employee has carried out the offence, Ms Comerford said that a disciplinary sanction should relate reasonably to the offence. It was submitted that there is an objective standard of fairness, and there should be proportionality between the offence and the sanction.

In the case of An Employee v An Employer, ADJ-0000381, the adjudicator stated:

“The decision to dismiss is the ultimate decision an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, where no other sanction is possible or suitable.”

The Complainant’s Submission that her Dismissal is Unfair

The complainant’s case is that the sale of alcohol to a minor in circumstances where she was required to make a judgement call and exercise her discretion regarding his age, cannot amount to gross misconduct. Gross misconduct pre-supposes that there was an element of intent and it is evident that the complainant did not intend to contravene the alcohol policy and in fact, she exercised the discretion afforded to her in a reasonable manner. Ms Comerford argued that, if the respondent wishes to remove the discretion from employees in relation to asking for identification, then identification should be sought regardless of the customer’s age.

Ms Comerford said that it was unfair for the manager who conducted the investigation to be present at the disciplinary hearing. She said that this is contrary to fair procedures and is the reason why the complainant decided not to appeal against her dismissal.

Ms Comerford submitted that, on finding that the complainant had breached the company’s alcohol policy, the decision to dismiss her was unreasonable and disproportionate. The complainant had an exemplary record and in 2017, she received a performance rating of “A,” the highest possible rating.

The complainant was trained on the alcohol policy only twice; the first time at her induction in 2013, and the second time in September 2016, 10 months before the incident for which she was dismissed. In the case of Lorraine Fitzpatrick and Dunnes Stores, UD 196/2012, the EAT found that Ms Fitzpatrick was unfairly dismissed. She received one to one alcohol sales training every six months. In the case we are considering here, the complainant received just two group training sessions in four years.

Concluder her submission for the complainant, Ms Comerford said that the complainant co-operated fully with the investigation into the incident on July 27th 2017, she was honest throughout the process and she had been an exemplary employee for almost four years. These mitigating factors, in addition to any cultural issues which may have led her to believe that the person to whom she sold the alcohol was 25 years old were not considered by the manager who reached the decision to dismiss her.   It was submitted that dismissal was a disproportionate response and a more appropriate sanction would have been a warning and / or additional training and a change in policy so that all customers purchasing alcohol are required to produce identification. In this way, the requirement for employees to use their discretion is removed.

Evidence of the Complainant

In her evidence, the complainant said that on the evening of July 25th 2017 around 7.20pm, she was finished at her till and she went to the office to prepare her lodgement. She said she was called back on the till, as the store was busy. Four people were in the queue at her till and she said that the customer who bought the alcohol, the minor, was the last person she served that evening. She said that she observed that he was tall and tanned and she thought he was over 25.   When she processed the sale of the six pack of beer, she closed her till and she intended going back to the office to do her lodgement. The Garda then asked to speak to her. She said at that stage, she was at the end of a four-hour shift without a break.

Asked about her induction training on the company’s alcohol policy when she joined the company in October 2013, she said that this took between 10 and 15 minutes.   She said that the refresher training in October 2016 took five minutes.

The complainant responded to a question about the fact that she is a foreigner, and, at the disciplinary meeting, she had said that it was hard for her to judge faces.   She said that she always asks for ID if she isn’t sure of a customer’s age when they are buying alcohol. She said that on the evening in question, she wanted to finish up and get back to the job of registering her lodgement in the office. She said she didn’t think too much, she just pressed the button for “1” to indicate that the person was over 25. She said that if it had been the policy to ask everyone over 25 for ID, she would have asked the customer for ID.

For the respondent, Mr O’Reilly remarked to the complainant that the CCTV shows the minor approaching the till, but that she hardly looked at him and the transaction was processed very quickly. The complainant repeated that she thought he was over 25.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

The respondent referred to Section 6(4)(b) of the 1977 Act which provides that;

“…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 …the conduct of the employee.”

It is the respondent’s case that the complainant was dismissed for selling alcohol to a minor on the evening of July 25th 2017, an offence in breach of the Licensing Acts 1833 – 2011 which exposed the respondent to the potential of a criminal conviction, a significant fine and store closure. It is also the respondent’s case that the selling of alcohol to an underage person is categorised as gross misconduct in the complainant’s contract of employment and is therefore subject to summary dismissal.

The Disciplinary Procedure

At the hearing of this matter, there was little dispute about the facts leading to the complainant’s dismissal. She said that she made a mistake when she sold a six-pack of beer to the Garda-appointed customer because she thought he looked over 25. The respondent said that the complainant was dismissed because she didn’t follow the correct procedure by asking the customer for ID.

From the perspective of fair procedures, Ms Comerford argued that it was unfair for Manager 1, the manager who conducted in the investigation, to attend the disciplinary meeting. While it seems to me that this is an uncommon practice, I am satisfied that the person who made the decision to dismiss the complainant was Manager 2.   However, it is my view that both managers collaborated at the disciplinary meeting and that Manager 2 was not impartial in his consideration of the complainant’s defence.

From a procedural perspective, I am concerned about the fact that the complainant attended both meetings alone. I note that in the letters requesting her to attend the meetings, she was informed that she may be accompanied by a colleague. For her own reasons, she didn’t bring anyone with her. At the hearing, it was apparent that, when she attended the disciplinary meeting, the complainant didn’t think she would be dismissed. The notes of the investigation meeting record the events that followed the test purchase when the Garda confronted the complainant and asked to speak to the store manager. When she brought the Garda to the canteen, she said that he told her that this was the first time this had happened in the store. Shen went on, “I was afraid we would be closed down, but he told me that no, I wasn’t to worry it would be okay, he wouldn’t close the store.” From this, it appears that the complainant got some solace from the Garda’s approach and his confirmation that the store wouldn’t be closed.

At the end of the investigation meeting, Manager 1 asked the complainant how she would behave in future and she said that she had learned that she needed to ask for ID.   By asking her what she had learned from the experience and how she would do things differently, the manager left the door open to the possibility that the complainant would not be dismissed. On this basis, she attended the disciplinary meeting, again without looking for anyone to accompany her.

The balance of power and resources in the employment relationship is on the side of the employer.   For an employee at risk of dismissal, the balance tilts even further in that direction and this is the reason why procedures are essential and recognised as so by Statutory Instrument 146/2000, the Code of Practice on Grievance and Disciplinary Procedures.   The complainant is a young Chinese person and it is evident from her record that she was positively disposed towards her employer. She was incapable of leveraging any advantage for herself during the disciplinary process. Her only strategy was to tell the truth, admit her mistake and commit to learning from the experience. It seems to me that there is an inherent unfairness in permitting a person to attend a disciplinary meeting on their own in these circumstances where the charge is gross misconduct and the possibility of dismissal is high.   Regardless of the fact that she decided to attend both meetings alone, I think that the respondent’s managers should have identified someone who could have accompanied her, at least at the disciplinary meeting.

The Reasonableness of the Decision to Dismiss

At the hearing, we heard that the implications of a license-holder selling alcohol to a minor are significant; criminal sanction, closure of the store for seven days (up to 30 days for a second offence) and a fine, plus the reputational impact on the store and its status in the community. We were informed by Mr O’Reilly, for the respondent, that the company relies on its cashiers to be “the first line of defence” in the prevention of the sale of alcohol to under-age customers. Where the commercial and legal effect of a breach of the licensing laws is so severe, it seems to me that that the requirement for a cashier to use her discretion to manage this risk lacks robustness. Where a retailer promotes the sale of alcohol and offers it for sale at a discount compared to off-licences and other retailers, there is a risk that young people will buy it. The delegation of the management of this degree of risk to a cashier’s discretion doesn’t appear to treat the issue with the seriousness it requires. It is not my role to advise the respondent on the matter; however, I agree with Ms Comerford that the risk could be better managed if every customer purchasing alcohol was asked for ID, regardless of age.

I note that there was no dispute about the fact that, in the four years of her employment, the complainant received training on the Challenge 25 policy on two occasions, first at her induction in October 2016 and then in September 2016. According to the complainant, this second session lasted about five minutes. The training provides no guidance about how to assess a person’s age and lacks direction in how to exercise discretion. Under the heading, “How,” the Alcohol Policy instructs employees as follows:

§  “Smile and greet the customer.

§  Begin to process the sale as outlined under (the procedure).

§  Notice that the next product is an alcoholic product.

§  Assess the customer’s age.

§  Ask the customer for an official form of identification if he/she appears to be under the age of twenty five.”

When the alcohol product is scanned, a till prompt appears on the screen of the cash register. A photo of a screen was submitted in evidence by the respondent, taken on June 9th 2018. This requires the cashier to press 1 or 0 as “yes” or “no” in answer to the question, “DOB pre 08.06.2000?” The date on the screen is updated daily to take account of people born 18 years ago.   This is not the same as determining if a person is under 25, and it seems to me that there is a mixed instruction here. On the one hand, the register asks the cashier to determine a customer’s date of birth by subtracting 18 years from today’s date and, on the other hand, the policy asks cashiers to assess if a customer is over 25. It is my view that the failure to invest in robust and regular training and the confused instructions at the cash register present a paltry safeguard by comparison to the major impact of a breach. It appears that the designation of “gross misconduct” to the sale of alcohol to a minor is an attempt to fortify this gap.

Selling alcohol to a minor is indeed a serious offence. Intentionally selling alcohol to a minor is, in my view, gross misconduct.   The complainant said that she made a mistake, and I have no doubt that this is what happened. She had no intention to sell beer to the teenager sent in by a member of the Gardaí. There are several reasons why she made the mistake; it was the end of her shift and she was finishing up, she had already left her till and was doing her lodgement when she was called back to the till. The young man was the last in her queue and she obviously didn’t scrutinise his appearance. The complainant had an impeccable record, she got an “A” rating in her 2017 review and she was described by the manager who dismissed her as someone with “a great attitude.” The incident for which she was dismissed was the first time she made such a mistake and she said that she learned from it and she would always ask for ID in future.

The respondent’s procedure, like all procedures, provides for a staged outcome, from verbal warning to written warnings to dismissal. The objective is for the sanctions to have a remedial effect, so that an employee whose performance or conduct isn’t up to scratch is informed about what they must do to improve. The complainant made a mistake on July 25th 2017. Up to then we heard that she was an exemplary employee.

The complainant’s contract provides that the sale of alcohol to a minor is gross misconduct, and the disciplinary sanction for gross misconduct is dismissal. This categorisation is problematic because it takes no account of the possibility of a mistake in the exercise of discretion and it applies the ultimate sanction, the “nuclear weapon” as described in the Kilsaran Concrete case, to a first offence. This goes against the progressive objective of the disciplinary process, which is designed give employees an opportunity to improve so that dismissal can be avoided. It is my view that the decision to dismiss the complainant was disproportional to a first offence, albeit a significant offence, and that nothing was achieved apart from distress and financial loss.

I wish to address the precedents submitted by the respondent in support of their decision to dismiss the complainant. In Ann Marie Lynch v Dunnes Stores, UD 461/2015, Ms Lynch asked the Garda test purchaser for ID and when he didn’t produce it, she sold him the alcohol. It is clear from this case that Ms Lynch knowingly failed to obtain proof of age from the customer. The finding of the EAT in favour of the complainant in the case of Anna Perenc v Dunnes Stores, UD 441/2013, was overturned in the Circuit Court in February 2016. Like the complainant in the case under consideration here, Ms Perenc is a foreign national and she admitted that she made a mistake when she sold a bottle of wine to a young girl. It was apparent that the girl, who was sent in by the Gardaí, did not look 18 years old. It is reported that Mr Justice Groarke commented that retailers of alcohol have a serious obligation to see that the law is applied with regard to the sale of alcohol to young people. With deference to the judgement in this case, it is my view that there must be a balance between the responsibility of the retailer and the capacity of a cashier to act as the “first and only line of defence.”

It is my view that there were procedural flaws in the way the respondent carried out this dismissal.   These relate to the collaboration of Manager 1 and 2 at the disciplinary meeting and the failure to ensure that the complainant was accompanied. More critically however, I find that the decision to dismiss the complainant was disproportionate in circumstances where she made a mistake, having had a previously perfect record. Finally, I find that the designation of gross misconduct to an offence resulting from a failure to exercise discretion is unfair. I have reached this conclusion because the task places an inordinate burden of responsibility to manage a serious risk on the most junior employee.    

The complainant gave evidence of her losses as a result of the incident on July 25th 2017.   From that date, until she was dismissed on September 12th, the complainant was not allowed to work on the tills. As a result, she was permitted to work only 30 hours per week for six weeks and her earnings were reduced. She was on holidays for two out of these six weeks and I estimate that during this period, her hours of work were reduced by a total of about 40 hours resulting in a loss of pay of approximately €750. In November 2017, the complainant got a new job with a fashion retailer but her shop closed in May 2018. She started a part-time job the following month. On the date of the hearing of these complaints, she was on an annual salary of €13,500. If she continues working part-time until the expiry of two years after the termination of her employment, Ms Comerford said that the complainant’s total losses will be just under €32,500. Unless she elects to continue to work part-time, I see no impediment to the complainant getting a full-time job and I estimate her losses over two years to be more reasonably in the region of €23,000.

I have decided that the dismissal of the complainant was disproportionate and unfair and that a more reasonable outcome would have been a written warning. I am satisfied that, if a warning had been issued, there would have been practically no risk of a recurrence of a similar incident and a committed employee would have been retained in the employment of the respondent. Taking all these facts these facts into account, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the respondent to pay the complainant compensation of €11,500 gross, equivalent to approximately 50% of her estimated loss.

This is a complaint that the respondent did not give the complainant notice of the termination of her employment and she was not paid in lieu of notice.

The respondent’s case is that the complainant was dismissed because of gross misconduct, and that, in accordance with its disciplinary procedure, dismissal for gross misconduct is without notice or pay in lieu of notice.

As I have concluded that the complainant was unfairly dismissed, I must therefore find that she was entitled to notice. As she was in the employment of the respondent for more than two years and less than five years, she was entitled to two weeks’ notice.

The complainant is entitled to two weeks’ pay in lieu of the fact that she was dismissed without notice. On the basis of the payslips from January to September 2017 that she submitted in evidence, I estimate that she earned €690 per week during that period. I decide therefore that the respondent is to pay her €1,380 gross, equivalent to two weeks’ pay.

This complaint under the Minimum Notice Act is the same as the complaint under the Payment of Wages Act which has already been adjudicated upon above. I decide therefore that this duplicate complaint is misconceived.

Sale of alcohol to a minor, unfair dismissal, disproportionate