ADJ-00013402

Complainant

Respondent

Anonymised Parties

An Employee

A Retail Store

Representatives

CiaranCampbellMandate Trade Union

Ronnie Lawless, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00017617-001

23/02/2018

The Complainant commenced employment with the Respondent, a large retail chain, in October 2007.

On 27 August 2017, while the Complainant was working on a checkout in one of the Respondent’s stores, it was noted on CCTV, that when serving a particular customer, the Complainant failed to register three items and also registered three further items at reduced prices even though one was at full price.

On 30 August 2017, the Complainant was invited to a meeting to discuss the incident of 27 August. At this meeting, it was disclosed that the customer being served at the time was the Complainant’s sister-in-law. Following the meeting, the Respondent concluded that an alleged serious breach of the Respondent’s Company Honesty Policy had taken place. Consequently, the Complainant was placed on suspension with full pay and invited to a formal investigation meeting.

The investigation meeting took place on 31 August 2017. At this meeting, the Complainant stated that she could not provide a reasonable explanation for what was captured on the CCTV with regard to the incident of 27 August.

On 4 September 2017, the Complainant was informed that the matter would go to a disciplinary hearing, which took place on 6 September 2017.   Following this meeting, the Complainant was advised on 14 September 2017 that she was to be issued with a final written warning for failing to follow correct cash register procedure.

The Complainant then appealed the sanction and the Appeal Hearing was heard on 3 November 2017. Following the appeal, it was confirmed to the Complainant that the decision of a final written warning was upheld and would stand until 9 September 2018.

The Complainant submitted her complaint, under the Industrial Relations Act, 1969, to the WRC on 23 February 2018.

In submissions on behalf of the Complainant, her Trade Union representative presented the following mitigation of her performance shortcomings in relation to the incident on 27 August 2017:

1.       The Complainant was approaching her tea break and thus her thoughts were on were of that.

2.       The Complainant immediately accepted that she had made a breach but argues that it wasn’t intentional nor done with malice or as a means of purposeful theft or to advantage the customer she was serving.

3.       The Respondent’s disciplinary sanction is disproportionate and contrary to the Respondent’s disciplinary procedures.

4.       The Trade Union further argues that the Respondent had failed to honour the commitment to the procedures in that, at no stage, was the Trade Union official copied with correspondence, particular to the paid suspension and the final written warning. According to the Complainant’s representative, this is clearly in line with the disciplinary procedures but has not been applied this instance. It was further submitted that, as such, it is irreconcilable for the Respondent to issue a sanction against a staff member for performance shortcomings, whilst at the same time not fulfilling their own performance obligations particular to the very disciplinary process giving rise to the sanction.

In conclusion, it was submitted that the Complainant is fully aware that she made a mistake and that this was as a consequence of poor concentration, leading to a simple human error. It is further submitted that the Complainant is very apologetic for this, but she feels that she has been disproportionately sanctioned.

In this regard, the Complainant’s Trade Union representative made reference to the Labour Court case of DHL Express (Ireland) ltd -v- Michael Coughlan [UDD1738], which highlights, amongst other things, the high bar associated with gross misconduct and the requirement for employers to apply due proportionality or sanction to the disciplinary breach. It is further submitted that whilst the above quoted case related to an unfair dismissal, the Labour Court’s approach to the aforementioned is clearly generic with regard to employer disciplinary sanctions for employee poor performance and behaviours.

It was further submitted that the Court, in the above case, cited a previous EAT case which viewed gross 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”. The Court further queried if the employer had considered lesser sanctions or if the employee might had been asked to financially contribute to the cost of the damage that led to the particular employee’s disciplinary offence. It was submitted on behalf of the Complainant that the Respondent, in the within case, failed on these points and therefore the disciplinary sanction is, at best, suspect.

In summary, the Complainant’s Trade Union representative requested that her arguments be upheld and that a recommendation be made that the final written warning is appropriately expunged from her record and/or in the case that a disciplinary sanction is warranted, that it is of lesser severity.

Background:

With regard to the incident on 27 August 2017, it was submitted on behalf of the Respondent that the Complainant’s actions have resulted in a loss to the Company. It was further submitted that the customer involved in the transaction in question was a sister-in-law of the Complainant.

The Respondent also submitted detailed evidence in relation to the carrying out of the investigation/disciplinary process. The process included an initial exploratory meeting, following which the Complainant was placed on suspension with pay and invited to an investigation meeting. It was further submitted that following the investigation meeting, the Complainant was then invited to a disciplinary hearing and that, following the decision to apply a sanction of a final written warning, the Complainant was provided with and availed of the opportunity to appeal that sanction.

Respondent’s substantive arguments in response to the Complainant’s complaint:

It was submitted on behalf of the Respondent that, regardless of the circumstances, all employees have an absolute duty of care to the business, their colleagues and to the customers to behave and act at all times in an appropriate manner and in full compliance with the Company policy.

According to the Respondent’s evidence, the Complainant did not behave in an appropriate manner in her actions of not registering products and registering products at reduced prices. It was further submitted that this was a serious issue for the Company given the financial loss incurred and that a Final Written Warning was appropriate in the circumstances.

It was submitted by the Respondent that if an employee is guilty of serious misconduct that the following sanctions may apply:

a)       Final Written Warning.

b)      Suspended from duty without pay.

c)       Demotion/Relocation.

d)      Dismissal.

e)      Combination of the above depending on the gravity of the situation.

It was submitted on behalf of the Respondent that the Serious Misconduct Policy clearly outlines what is considered as serious misconduct and which could incur one or more of the sanctions listed above. The Respondent submitted that this includes the relevant breach of policy that the Complainant had engaged, i.e. “failure to observe the requirements of other policies in relation to colleague purchase/privilege card, right of search, register operation”.

The Respondent submitted that where the Complainant had received the appropriate training, but by her actions caused a financial loss to the store, the sanction she received was appropriate, in all the circumstances.

Conclusion:

In conclusion, the Respondent submitted that, based on the evidence presented, there was no fault in the process engaged in and the sanction was based on the fact that the Complainant’s failures constituted serious misconduct and resulted in a loss to the store.  In such circumstances, it was submitted that the Complainant could easily have been dismissed.

Consequently, the Respondent requested a finding that they acted reasonably in all the circumstances.

Having carefully considered all of the evidence produced in this case, I am satisfied that there is no dispute in relation to the facts surrounding the incident which led to the Complainant being issued with the sanction of a Final Written Warning. It is also clear that the Complainant accepts responsibility for what happened and is remorseful in that regard.

However, notwithstanding the above, the Complainant’s complaint is based on her contention that the sanction of the Final Written Warning is disproportionate in the circumstances.

The Respondent submitted evidence by way of their Company Honesty Policy.   This policy clearly sets out, inter alia, that employees who are found guilty of: “converting or attempting to convert to his/her own use or to 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….”  will be subject to dismissal and/or prosecution.

The Policy also goes on to state that: “any breach of this policy will be deemed a breach of honesty and will therefore be deemed as serious misconduct and may be subject to the disciplinary process up to and including dismissal”.

Having carefully considered the evidence presented in this regard, I am satisfied that the Complainant would have been fully aware of the above policy and the obligations placed on each employee, as a result. This view is based on the Complainant’s Training Record Card, which was presented in evidence by the Respondent and clearly demonstrates that the Complainant completed a refresher course on Cash Register Operations/Procedures in March 2016.

Based on the above and, given the undisputed actions of the Complainant on 27 August 2017 when she failed to register certain items for a customer and keyed other items at an unauthorised reduction, I am satisfied with the Respondent was well within its right to initiate the disciplinary process based on the alleged breach of the Company Honesty Policy.

With regard to the conducting of the investigation into the incident and the subsequent initiation of the disciplinary procedures, I am satisfied, from the evidence adduced, that the Respondent’s conducting of all stages of the process displayed all the hallmarks associated with the provision of fair and objectives procedures.

While I note the Complainant’s submission that failure to copy her Trade Union on correspondence which issued to her during the process constitutes a breach of the disciplinary process, I am satisfied that at all stages of the process the Complainant was clearly advised of her right to be represented at each meeting and that this included representation by her Trade Union.

Consequently, taking all of the above into account, I am satisfied that the Respondent conducted a fair procedure when taking the Complainant through the disciplinary process arising from the incident on 27 August 2017.

With regard to the proportionality of the sanction imposed by the Respondent, I am satisfied that, given the nature of the Complainant’s actions, which involved monetary loss for the Respondent and where the Company Honesty Policy is very clear in relation to the prohibited actions/behaviours and the consequences of engaging in same, I find that the sanction of the Final Written Warning was not unreasonable in the circumstances.  I find this to be particularly so in a context where the Respondent could have considered dismissal. It appears to me that in choosing the lesser sanction of a Final Written Warning, the Respondent may well have taken on board the arguments put forward by the Complainant in mitigation of actions/behaviour for which she was not in a position to proffer valid explanation.

Notwithstanding the above conclusion, I note that the duration of the sanction, when issued on 14 September 2017, was for a period of 12 months.  I also note the sanction letter refers to the warning as remaining live on the Complainant’s personnel file for a period of 12 months.  Consequently, as the period of the sanction has now expired, and it has been removed from the Complainant’s record, the matter is moot.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend that all parties accept that the application of the sanction of a final written warning, when issued, was appropriate in the circumstances, but now that it has expired and has been removed from the Complainant’s personnel file, it cannot, therefore, be referred to again in the future.

That concludes my recommendation.

Industrial Relations Act

Disciplinary Procedures

Final Written Warning