Complainant

Respondent

Anonymised Parties

A Team Leader

An Airport

Representatives

O'Gorman Solicitors

Arthur CoxSolicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00022927-001

30/10/2018

The Complainant commenced his employment with the Respondent in 2002. He was dismissed on 1^st June 2018.

The Complainant referred his complaint to the Director General of the WRC on 30^th October 2018 alleging that he was unfairly dismissed.

The Respondent submits that the Complainant was not unfairly dismissed. The Complainant was dismissed by reason of gross misconduct. The relationship of trust and confidence that must exist between an employee and an employer was fundamentally breached as a result of the Complainant's misconduct.

Prior to the Complainant's dismissal, the Respondent undertook a full disciplinary process, including an investigation, disciplinary hearing and appeal hearing in accordance with the Respondent's Disciplinary Procedures Policy.

For the reasons set out below, the Respondent disputes the Complainant's claim and requests that the Adjudication Officer rejects the complaint in its entirety.

BACKGROUND
The Complainant commenced employment with the Respondent on 2^nd September 2002 in the Catering Department. His employment was confirmed as permanent on 12^th August 2006. In 2007 the Complainant was redeployed to the Respondent's Retail Department on 20^th June 2007. At the time of his dismissal the Complainant held the role of Team Leader in the Respondent's duty-free shop.

The Complainant, as a Team Leader, was responsible for maximising the Respondent's retail profits and supervising, managing and organising a retail team. The duty-free shop is a location of prime importance for the Respondent as it is key to the Respondent's branding and it represents a significant source of revenue for the Respondent. Accordingly, the Complainant was an employee in whom a very high degree of trust and confidence was reposed.

In 2017, the Respondent's retail management became concerned by a series of till discrepancies and a pattern of unusual customer refunds. These concerns were heightened by stock variances that were identified through routine stocktaking inspections. There was no obvious explanation as to why these unusual occurrences persisted, so the Respondent's retail management decided to carry out a focused, short-term surveillance operation. A camera was installed in an open corridor area leading to the stock room within the back-of-house section of the duty-free shop. The selected area was not accessible by the public. A third-party security company was contracted to install the camera technology, record images, withdraw the camera, and to analyse and present any unusual findings. This surveillance took place during a limited period between late November 2017 and early January 2018 and was carried out for the specific purpose of investigating the stock variances.

On approximately 10 occasions between 3^rd December 2017 and 20^th January 2018, the Complainant was recorded removing stock from the stockroom corridor area and placing the stock items into his personal bag/rucksack and/or his personal locker. The relevant stock items included perfume, whiskey, brandy, cigarettes and chocolate. The Respondent decided to carry out an investigation on the basis of the reported stock variances, unusual refunds, till variances and camera footage.

INTERNAL INVESTIGATION, DISCIPLINARY PROCESS AND OUTCOME

On 19^th February 2018, an initial meeting was held with the Complainant. Head of Commercial (HC) and Human Resources (AB) informed the Complainant of the Respondent's concerns, including the till discrepancies, the unusual pattern of refunds, stock variances and the unusual activity undertaken by the Complainant that was recorded on camera. The Complainant was told that he was not being asked to respond to the concerns at the meeting and he was handed a letter. The Complainant was invited to attend a meeting on 20^th February 2018, at which the matter of his work status during the investigation process would be discussed. The Complainant was given an opportunity to consider the matter of suspension with pay and to make any observations or representations in this regard.

On 21^st February 2018 the Respondent received an email from the Complainant's solicitor, confirming that he would provide legal representation to the Complainant in the course of the investigation. On 22^nd February 2018, the Respondent acknowledged the solicitor’s email and confirmed that the Respondent would suspend the Complainant with pay.

The initial investigation meeting was held on 26^th February 2018. The Complainant attended with his solicitor. HC and AB represented the Respondent. The Respondent's concerns were formally put to the Complainant at the meeting and he was provided with supporting information and a copy of the relevant video images. Following an adjournment, the Complainant's solicitor requested a tour of the facility and locker area in order to aid his understanding. The Respondent acceded to this request and also facilitated his subsequent request for a copy of the floor plan of the area in question. The Respondent sent the Complainant's solicitor a note summarising the investigation meeting by letter dated 1^st March 2018.

By letter dated 16^th March 2018, the Respondent informed the Complainant's solicitor of arrangements for a follow-up meeting. On 23^rd March 2018, the Respondent and the Complainant attended this follow-up meeting with the same representatives present as before. The Complainant presented a document which contained responses to the concerns that were put to him at the initial investigation meeting. This document outlined the Complainant's case that problems with stock barcodes led him to put the relevant stock in his bag and in his locker. HC and AB agreed to review the responses in detail. The Complainant was offered the opportunity to make further oral submissions or comments at the meeting but he declined this offer.

On 28^th March 2018, the Respondent outlined its response to the document that the Complainant had presented at the meeting of 23^rd March 2018. The Respondent confirmed that the investigation had concluded and that it had decided to commence the disciplinary process.

On 29^th March 2018 the Respondent invited the Complainant to attend a disciplinary meeting. The Respondent noted that the matter under review may or may not result in disciplinary action being taken, up to and including a finding of gross misconduct resulting in the termination of his employment with the Respondent. As the Complainant's solicitor was unavailable on the suggested date of 10^th April 2018, the Respondent acceded to a request to reschedule the disciplinary meeting. The disciplinary meeting was held on 13^th April 2018, with the Complainant in attendance with his solicitor and the Managing Director (MD) and Human Resources (XY) representing the Respondent. At the start of this meeting, a preliminary matter arose as to whether the meeting was a "hearing" or a "meeting." The Complainant's solicitor disputed the categorisation of the meeting again by letter dated 16^th April 2018. The Respondent's solicitor addressed these concerns by letter dated 19^th April 2018 and invited the Complainant to attend a reconvened disciplinary meeting to take place on 26^th April 2018.

By letter dated 23^rd April 2018, the Complainant's solicitor submitted that the Respondent's Managing Director should not be involved in the process. Following an exchange of correspondence between both parties' solicitors, they agreed a new meeting date of 23^rd May 2018.

The reconvened disciplinary meeting was held on 23^rd May 2018, with the Complainant attending with his solicitor and MD, XY and the Respondent’s solicitor attending on behalf of the Respondent.

By letter dated 1^st June 2018, MD informed the Complainant of the Respondent's decision to terminate his employment on the ground of gross misconduct with immediate effect. MD noted:

"it continues to be the case that your explanation for doing this is that you identified barcode issues with the product(s).Your explanation lacks any credibility and I am of the view, on the balance of probabilities, that you placed these items in your locker/rucksack in order to misappropriate them. Trust is a fundamental implied term of any employment contract and your actions and explanations have led me to conclude that you have broken the bond of trust between you and [the Respondent]"

The Complainant subsequently lodged an appeal of this decision under the Respondent's Disciplinary Procedures Policy by letter dated 7^th June 2018. The Respondent informed the Complainant that his appeal hearing would take place on 29^th June 2018 and asked him to confirm the availability of himself and his legal representative by letter dated 13^th June 2018. Following a request by the Complainant's solicitor to outline the proposed format of the Appeal by letter dated 22^nd June 2018, the Respondent's solicitor confirmed the procedure by letter dated 25^th June 2018.

At the Complainant's appeal hearing of 29^th June 2018, the Complainant attended with his solicitor and the CEO of the Respondent (CEO) and the Respondent’s solicitor attended on behalf of the Respondent.

On 1^st August 2018, the CEO informed the Complainant that he had decided not to uphold the appeal and outlined his justification for same. In his letter, the CEO explained;

"In considering the entirety of the matter before me, you have not addressed to my satisfaction the fundamental issue in relation to why you placed a large amount of [the Respondent’s] retail goods into your personal locker and personal hold all bag in December 2017 and January 2018. You received copies of the camera images showing ten separate occasions where you placed goods in your locker. During the entire process your one and only explanation for your actions — that you decided to put aside the items for the purpose of rectifying barcode issues lacks any credibility."

LEGAL SUBMISSIONS

The termination of the Complainant's employment was not unfair. The Respondent relies on Section 6(4) of the Acts as follows:

"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:-
b) the conduct of the employee.”

The Respondent relies on the Employment Appeals Tribunal's decision in Noritake (Ireland) Ltd v Kenna UD88/1983 where the relevant test to be applied for determining whether a dismissal for alleged misconduct is fair was stated to be as follows:

1.       did the company believe that the respondent misconducted himself as alleged? If so

2.       did the company have reasonable grounds to sustain that belief? If so

3.       was the penalty of dismissal proportionate to the alleged misconduct?

It is well established in case law that in defending an unfair dismissal claim, an employer is not required to establish that the Adjudication Officer would have made the same decision to dismiss or indeed that every employer would have done so. In the Circuit Court in Allied Irish Banks plc v Purcell [2012] 23 ELR 189, Judge Linnane accepted that when considering whether or not it was reasonable for an employer to dismiss an employee, an employer needs only demonstrate that a reasonable employer would have made the same decision in the circumstances. The Respondent must demonstrate that the decision it took was within the band of reasonable responses. The Respondent's decision in this case clearly falls within such band.

The Respondent relies also on Callaghan v Enable Ireland Disability Services Limited UD355/2012, where the Employment Appeals Tribunal concluded that the employer had acted reasonably in the circumstances and that he had not been unfairly dismissed.

In the present case, it is submitted that a reasonable employer, acting reasonably, would have made a decision to dismiss the Complainant for gross misconduct. It is further submitted that the Respondent acted in accordance with fair procedures at all stages of the investigation, disciplinary meeting and appeal hearing.

The Respondent had a legitimate interest in protecting its property and to investigate the suspected theft of its stock, which is a criminal offence. The Respondent considered the risk of theft and carefully considered its employees' right to privacy. It decided to place the CCTV cameras in a confined corridor containing the employees' lockers, a location where the employees could not have had any reasonable expectation of privacy, and then hired a third-party security company to install CCTV cameras for a short period of time. This was a proportionate response by the Respondent to a very concerning series of events.

It goes to the core not only of an employee's employment, but also of the Complainant's specific role as a Team Leader, that he must lead by example and protect the legitimate interests of the Respondent as his employer. By its nature, the role involves a very significant investment of trust and confidence on behalf of an employer, which must be adhered to and preserved by an employee. The Complainant's conduct involved gross misconduct sufficient to justify a sanction of dismissal.

The decision to dismiss an employee is not something which the Respondent takes lightly. The Complainant has at no point, whether at the investigation stage, at the disciplinary stage or at the appeal stage, offered an adequate explanation for the fact that the Respondent's footage clearly showed him placing the Respondent's property in his locker/rucksack in order to misappropriate them.

The decision to dismiss the Complainant was entirely reasonable in the circumstances. The Respondent carefully considered the appropriate sanction and took into consideration the Complainant's period of service. Given the seriousness of the Complainant's conduct, the Respondent found, after considering all alternatives, that the relationship of trust and confidence with the Complainant had irreparably broken down, and therefore the only appropriate sanction was summary dismissal.

The Respondent understands that An Garda Siochána are in the course of investigating matters, which are the subject matter of this claim.

MITIGATION

The Complainant has a statutory duty under Section 7(2) of the Acts to mitigate his loss. Strictly without prejudice to the Respondent's position that the Complainant's dismissal was fair, the Adjudication Officer must consider the attempts made by the Complainant to seek alternative employment and the Complainant's actual loss to the date of the hearing.

CONCLUSION

The Respondent submits that its decision to dismiss the Complainant was a reasonable, proportionate and appropriate response. Having completed a thorough investigation and very carefully considering the information available, the Respondent concluded that the actions of the Complainant constituted behaviour amounting to gross misconduct. Throughout a series of exchanges with the Complainant over the protracted period of the investigation, he failed to offer any objectively credible explanations for his actions. He did not adequately address the fundamental question at hand in this case — why he placed large amounts of retail stock in his personal bag/rucksack and personal locker over a sustained period of time. The bond of trust between employee and employer was irretrievably broken.

The Respondent was entitled to take a very serious view of the Complainant's conduct which amounted to gross misconduct. It is a core duty of any employee in a retail unit to promote and protect the sale of goods and to prevent their misappropriation. Moreover, as a Team Leader, the Complainant was in an enhanced position of responsibility.

The Respondent at all times applied fair procedures to the investigation, disciplinary and appeal stages. The Complainant's allegations of bias are unsubstantiated and the Respondent has not received evidence to support this claim.

The above submissions are without prejudice to the obligations of the Complainant to prove that he has mitigated his loss. The Respondent has no information in relation to whether the Complainant suffered any financial loss arising from his dismissal.

For the reasons set out above, the Respondent respectfully requests that the Adjudication Officer reject the Complainant's claim.

Further to the Complainant’s direct evidence, the Respondent noted that at the disciplinary process, the Complainant refused to comment on the CCTV footage beyond the video number 5 of 15^th December 2017. Therefore, anything presented at the adjudication hearing in respect of other videos is new information to the Respondent.  MD made the decision based on the explanation provided at the time and it related to videos 1-5 only.

Evidence of HC, Head of Commercial

HC outlined his broad experience in retail, the reporting structure within the Respondent and the Complainant’s role.
HC said that in the summer of 2017 the Respondent started to notice some discrepancies that were unusual. He acknowledged that some errors and discrepancies would always happen due to human error etc. However, the type of discrepancies such as the frequency and the type of refunds, cash register not balancing, and larger variance of stock takings were getting bigger and were outside the industry norms. HC described some of the unusual activities such as a purchase made at 10am and refund made later during the day, which would be unusual for a duty-free shop. A lot of refunds of cigarettes purchase, which again is an unusual occurrence as, in general, it is a planned purchase.

HC said that, to understand the problem and to answer the question where these changes in pattern come from, a suite of things must be looked at normally over a period of a month. As there was still no understanding of what was happening, attention was moved towards a corridor leading to a stock room and warehouse. HC described the corridor in question in detail. It was half-way between the stock room and the shop, where large amount of stock was temporarily stored on the way to the shop floor. It was identified as a weak area where significant number of people were passing, and a large amount of stock was kept. In conjunction with the HR, it was decided to engage a third party to install CCTV in the corridor.

The third party accumulated footage of the Complainant they wanted HC to look at. HC observed the Complainant taking stock from the pallets and putting into his locker or a bag.
On the basis of the footage, the Respondent decided to conduct an investigation.
The CCTV footage was presented at the hearing, and HC described what he believed it represented.

HC outlined in detail the process that followed in respect of the investigation. This is outlined above in the Respondent’s submission.

HC discussed the Outcome of Investigation Report which he issued on 28^th March 2018. HC noted that the Complainant did not answer in an adequate way why did he put the items into his locker. His explanation in regard to the barcode was illogical as the barcode issue can occur only when an item is scanned (either when it is received from the supplier or/and at the till when it’s being sold) and not when an item is transited to the stockroom. HC said that any issue with a barcode at the shop floor should be reported to a manager.

HC said that one of the items put in the locker (video of 4^th December 2017) was a specific brand of a chocolate bar. HC pointed out that the profile of product sold by the Respondent does not change much and the bars are already in the store and sold all the time in large quantities. They all have the same barcode and therefore, it is unlikely that an issue would arise. In any event, by putting bars into the locker, the problem would not be resolved. On 15^th December 2017, the Complainant is seen taking a product (a bottle of liquor) from the trolley, putting it into his locker and exiting with the trolley and the rest of the product to the shop floor. Similarly, on 20^th January 2018, the Complainant is seen putting cigarettes boxes in his locker and then bringing the remaining boxes toward the shop floor. They all would have the same barcode.

HC said that nobody else reported any issues with barcodes. He said that a new system was installed in 2014 and any issues with barcodes were resolved in late 2014 / early 2015 but it was a miniscule amount.

HC said that the Report concluded his involvement in the process.

In cross-examination HC confirmed that the Complainant was a good employee. HC disputed the Complainant’s characterisation (“not professional”) of the company which installed the new IT system in 2014. He acknowledged that there were some issues at the start, but these were resolved by mid-2015. HC rejected that Complainant’s assertion that difficulties continued up until 2017. HC rejected the Complainant’s assertion that shop renovation resulted in stock damage, “travel-wear” and barcodes damage. He also rejected the assertion that the change of supplier in 2014 could result in barcodes issues in 2017. It was put to HC that it is not uncommon that the scanning of promotional items in the shop would cause the till screen to “disappear”. HC agreed that at time issues of that nature can occur, albeit they are very unusual and occur in the shop system. HC rejected as highly implausible the assertion that a sticker on a barcode would interfere with the code.

HC explained again how the decision to install CCTV was arrived at. He confirmed that the locker area is used by the staff but he rejected the contention that it would be used for personal, private activity.  He said that the area consists of stairwell, corridor, stock park area etc. and it is opened to all staff, including staff of other companies based in the building. There is a separate staff canteen and bathrooms for the staff.

It was put to HC that he had no evidence that there was anything missing from the premises, the Complainant was never searched. HC said that from the CCTV footage he was satisfied that he did not understand why the Complainant was doing what he was and was satisfied to proceed on the basis of CCTV. HC said that he spent 7 months investigating the matter, he did not rush the judgement and considered all eventualities. He confirmed that while he informed the MD towards the end of January of the outcome of his investigation, he worked independently and the MD had no input. The Complainant probed HC’s knowledge in relation to the disciplinary process but HC confirmed that he had no involvement after he had issued his report.

Following the Complainant’s direct evidence, HC addressed the matter of the barcodes on the cigarettes’ packs. HC said that if there was a risk of scanning a one pack barcode and give a double pack to a customer (ultimately giving one pack for free) it would create a huge issue and a global recall. It would not be limited to the Respondent only.

Evidence of MD, the Managing Director

MD confirmed that he was approached by HC in relation to the CCTV installation. MD felt that the Respondent had to give it due consideration.

Following HC’s report, a letter was issued to the Complainant on 29^th March 2019 inviting him to a disciplinary meeting. MD said that from the correspondence issued it was very clear that it was a disciplinary meeting and what the purpose of it was. MD believed that a disciplinary meeting and a disciplinary hearing are the very same thing, it was made clear to the Compliant that it was part of disciplinary process.

The CCTV footage was presented and MD described his understanding of what he saw.

Video 1 – 3^rd December 2017 at approximately 9.55pm
MD said that the Complainant placed 6 bars of chocolate in his bag/rucksack and some 5 into his locker, he broke down the box he had taken them from, put it aside, got his jacket, bag/rucksack and walked out exiting the video.
He said that he spent some time to hear what the Complainant had to say in explanation of what was recorded. He said that he was not satisfied with the explanation. For example, he noted that, even if there was an issue with a barcode, the barcode on each of the bars would be identical. It was not clear why the Complainant put 11 chocolate bars into his locker not one? In any event, putting a bar in a locker would not resolve the problem. The item should be brought to the till to check the barcode. MD said that the first port of call would be to contact a supervisor. There is no evidence or remedy to the barcode issue or of any issues reported in the system. MD also said that if it was an obscure item there would be some credibility to the Complainant’s argument but the items in question included chocolate bars, cigarettes, alcohol, textiles which are sold all the time. 

Video 2 – 4^th December 2017 at approximately 7:37am
The Complainant is seen bending over his locker, then he is seen putting his bag back into his locker. MD said that it can’t be seen clearly but one could argue that the Complainant is dealing with the items taken the night before. MD argued that it is not credible to say that there was a barcode issue and leave the items in a locker until the next morning.

Video 3 – 6^th December 2017 at approximately 7:48am
The Complainant is seen removing a bottle of what looks like aftershave out of a box which is probably ready to go on the shop floor and placing it into his locker.

Video 4 – 15^th December 2017 at approximately 9.12pm
The Complainant is seen looking up, there was alcohol in the corridor at the time.

Video 5 – 15^th December 2017 at approximately 9.39pm
The Complainant is seen placing an item (a bottle of whiskey) into his locker.

MD noted that at the disciplinary hearing, the Complainant refused to comment on further videos.

Video 6 – 9^th January 2018 at approximately 3.25pm
The Complainant is seen looking up and walking back and forth, then taking a bag/pouch out of his locker, dealing with a textile item (possibly scarf), putting the item in the locker and walking out.

Video 7 – 10^th January 2018 at approximately 7.28am
The Complainant is seen putting an item (possibly scarf) into his locker, going through a box with textiles. Again, it was not clear why, if there was an issue with barcode, did he not bring it to the shop floor. He put a scarf into his locker also the night before.

Video 8 – 11^th January 2018 at approximately 6.22am
The Complainant is seen handling a small item, a bottle(s) of perfume or aftershave.

Video 9 – 20^th January 2018 at approximately 9.03pm
The Complainant is seen putting 2-3 boxes of cigarettes into his locker.

Video 10 – 20^th January 2018 at approximately 9.14pm
The Complainant is seen putting the items (cigarettes) into his rucksack.

MD said that at the disciplinary meeting, the Complainant refused to comment on any videos after the video of 15^th December 2018.

MD said that the decision to dismiss the Complainant was a difficult one to make and in reaching it he tried to be fair and balanced.

In cross-examination, MD confirmed that he did not know where the items ended up. However, because of the lack of explanation of the Complainant’s actions and due to his position as a supervisor the trust was broken.
He noted that while the matter of refunds, including overnight refunds became an issue, stock variances were the biggest concern and the requirement for CCTV was identified. He said that initially he was made aware of some concerns but no individual was named. Only when he was to take over the disciplinary process was he informed of the details.

It was put to MD that the Complainant raised an issue of pre-determination. This was in the context of whether the meeting on 13^th April 2018 was a “meeting” or a “hearing”. While the Complainant’s understanding was that the particular meeting was a “meeting” where certain questions would be raised with the Complainant, MD expressed his opinion at the time that “when this part of the process was concluded a Disciplinary Hearing would follow” (the Complainant’s solicitor’s correspondence of 16^th April2 018). MD denied any predetermination on his part. He clarified that the investigation process has concluded at this stage and the disciplinary process has commenced. In that regard, the Respondent’s solicitor wrote to the Complainant’s solicitor on 19^th April 2018 noting that an investigation has concluded and the matter proceeded to the disciplinary decision stage, and nothing turns on whether on 13^th April 2019 there was a meeting or a hearing held.

MD said that they walked through the process and took their time. The decision to dismiss was not based on evidence that anything was missing but on the lack of trust, lack of credible explanation of the Complainant’s actions. MD said that the Complainant had some five occasions to clarify the matter and, on the balance, MD was of the view that there was a fundamental breach of trust.

Closing remarks

The Respondent argued that the burden of proof does not require to prove anything beyond the balance of probabilities and whether the Respondent believed and had reasonable ground to believe that the Complainant misconducted himself. The Respondent went through a fair process, the Complainant was represented at all stages and, despite having ample opportunity, he never put forward any explanation other than two short paragraphs which did not clarify the issue. Given the Complainant’s position of trust, the decision was within the band of reasonable responses. The Respondent confirmed that the Complainant’s service was taken into consideration when arriving at the decision.

The Respondent refuted the allegation that MD conducted himself in the manner alleged by the Complainant and argued that his characterisation of a meeting/hearing was not a valid reason for him to step aside.

The Respondent argued that the Complainant’s behaviour was unusual, he never sought to report the matter, at the adjudication hearing he provided an explanation of his actions such as damaged product which was never raised before. Moreover, the Complainant was the only person who had these issues and who appeared on CCTV. While the Respondent acknowledges that there could be a possibility of minuscule issues with barcodes, the Complainant appears to come up with 10 in a very short period of time.

The Respondent said that the subject of the CCTV is a matter for the Data Protection Commissioner. It was used as a last resort; one camera was placed in an area which was not private for a limited period of time. There was a specialised private company engaged to deal with that and data protection agreement was put in place.

The Complainant submits that he was unfairly dismissed on the basis of a lack of transparency and candour on the part of the Respondent, an absence of fair procedures, natural justice and constitutional justice.

Background
The Complainant was dismissed by letter dated 1^st August 2018 on the basis of gross misconduct, to wit, misappropriation or theft. The Respondent's decision is premised on camera images of the Complainant which the Respondent asserts evidence the Complainant placing retail goods in his personal locker and personal hold-all bag between December 2017 and January 2018. The Complainant vehemently denies the allegations and asserts that he was holding the subject property in his personal possession in the process of remedying barcode issues in respect of same.

Legitimate basis for installation of Covert Surveillance
The Respondent asserts that its retail management became concerned by a series of till discrepancies and a pattern of unusual customer refunds. These concerns were purportedly heightened by stock variances that were identified through routine inspections. The Respondent's submissions assert there was no obvious explanation as to why these unusual occurrences existed, so the Respondent's retail management decided to carry out a focussed, short-term surveillance operation.
It follows that the covert CCTV installed on the Respondent's premises was installed as a result of the till discrepancies, unusual customer refunds and stock variances. It does not follow that arising from these complaints it was necessary or proportionate to install covert CCTV in a private area over the employees' lockers. Covert surveillance could not under any circumstance explain till discrepancies or unusual customer refunds. Insofar as it is asserted that there are stock variances, at no point was it indicated to the Complainant:
a)which stock was the subject of the variances;
b) whether stock was down at all.

As a general principle, the use of CCTV and other surveillance is governed by Human Rights law as well as data protection legislation. The Data Protection (Amendment) Act 2003 significantly strengthened the right to privacy of employees. This right is also found in the European Convention on Human Rights, implemented by the European Convention on Human Rights Act 2003. The Data Protection Commissioner in Ireland considered the use of CCTV and its privacy implications in Case Study 7 of 2015. The Commissioner said:

"Data Controllers are tempted to use personal information captured on CCTV systems for a whole range of purposes. Many business have justifiable reasons, usually related to security, for the deployment of CCTV systems on their premises but any further use of personal data captured in this way is unlawful under the Data Protection Acts or unless the Data Controller has at least made it known at the time of recording that images captured may be used for those additional purposes, as well as balancing the fundamental rights of employees to privacy at work in certain situations, such as staff canteens and changing rooms."

Following the amended Data Protection Act in 2003, an employer must ensure that employees know what information is processed, how it will be used and to whom it will be disclosed. A committee known as the "Article 29 Data Protection Committee" was established under the European Data Protection Directive (Directive 95/46/EC) to consider issues arising for employers in surveillance in Member States. The Committee summarised its conclusion thus:

"Workers do not abandon their right to privacy and data protection every morning at the door of the workplace. However, this right must be balanced with other legitimate rights and interests of the employer, in particular the right to protect oneself from the liability or the harm that employees actions may create. These rights and interests constitute legitimate grounds that may justify appropriate measures to limit the workers ' right to privacy

The key to lawfulness resides in whether the surveillance is necessary, transparent and proportionate.

The privacy of the location of the covert surveillance is a matter in issue between the parties. The Complainant asserts that the locker area is by its nature a private area and was used as such by the Complainant and his co-workers.

It is the Complainant's position that in order for the Respondents to discharge its duty that the dismissal was fair, the Respondent is obliged to have a legitimate basis for installing covert surveillance and to satisfy the Complainant of such.

The Complainant maintains that the covert surveillance was not necessary or proportionate and in the circumstances the Respondent is obliged to establish to the satisfaction of the Tribunal the installation of covert surveillance was necessary and proportionate by reference to the circumstances which existed prior to the installation of the surveillance. The Complainant asserts that the Respondent cannot retrospectively justify the installation of covert surveillance by reference to the Complainant and/or the allegations against the Complainant.

The Respondent's decision to terminate the Complainant's employment relates to the covert surveillance. As described above, the Complainant contends that in order for the Respondent to fairly dismiss the Complainant it must first establish it was necessary and proportionate to install covert surveillance.

The Complainant further contends that the Respondent was obliged and duty bound to disclose to the Complainant the reasons for and evidence behind installing the covert CCTV surveillance.

The Respondent has complied with its obligation to provide reasons for installing the CCTV which in the Complainant's submission do not support the installation of covert surveillance in a private area. Neither till discrepancies nor unusual customer refunds are solved by the installation of covert surveillance. The Complainant contends that these reasons do not render the installation of covert surveillance necessary or proportionate.

The Respondent may contend that stock variances required the installation of covert surveillance, yet the Respondent has not provided any evidential basis that stock was missing and in particular that the items allegedly misappropriated by the Complainant were the subject of the stock variances. The Complainant submits that the Respondent' s failure to identify the stock variances necessitating the installation of covert surveillance is a breach of fair procedures and in particular a breach of the implied contractual duties of candour and transparency.

Reasonableness of the Employer's Investigation
Had the Respondent made full disclosure of "stock variances" (which it did not) it may have been open to the Complainant to evidentially support his assertions of innocence and good faith by establishing that the items which he was alleged to be misappropriating were not the subject of stock variances. Had the Complainant been provided with evidence of stock variations by the Respondent he could have availed of same to establish his innocence. In the circumstances, the Complainant was deprived of this evidence by the Respondent. This evidence is crucial in that it supports the Complainant's contention that he did not misappropriate any of the Respondent's property by evidencing that the Respondent's stock was not down in respect of those items which the Complainant is alleged to have misappropriated. It is highly likely considering the many years of service provided by the Complainant to the Respondent that the Respondent's decision makers would have taken such evidence into account.

The Respondent's investigation was focussed on CCTV footage of the Complainant. The Complainant contends that once the Respondent reviewed the CCTV and determined that the Complainant may be misappropriating items the Respondent should have conducted a far greater investigation into the Complainant. The allegation of misappropriation is not simply gross misconduct, it is possible for it to give rise to an allegation of a criminal offence. The Complainant contends that an employer must ascertain the full facts before taking disciplinary action and in addition to CCTV the Respondent should have conducted a far greater investigation. The Respondent could have tracked the items / the Complainant. The Respondent could have hired private investigators. These steps would have performed a dual purpose in assisting the Respondent in reaching its determination and assisting the Complainant in establishing his innocence. (Adam v Farrell UD 64/1993; Meighan v Power Supermarkets Ltd UD 610/1995). As the EAT put it in Vita Contex Ltd v Dourellan:

"A reasonable investigation requires more than merely seeking to confirm suspicions; it must include an inquiry into all the surrounding circumstances and interviewing all relevant employees on these matters"

The Complainant asserts that he personally held the Respondent's property because of a barcode issue with the items in question. The Respondent does not appear to have any policy or procedure for dealing with items with a barcode issue. The Respondent's disciplinary panel at first instance and on appeal determined that the Complainant holding the Respondent's property in his personal possession was indicative of an intention to misappropriate same. In the absence of a written policy or procedure directing the Complainant when managing items with barcode issues the Complainant was at large in how he determined to address the difficulties in respect of the subject items. The Complainant held a position of responsibility with the Respondent and he chose to hold them in his personal possession in order to remedy the defect in due course. When balancing the Complainant's explanation for his actions, the Respondent ought to have considered its own failure to provide the Complainant with a policy or procedure as to how to address items with a barcode issue.

Inquiry and investigation will always be relevant in cases of alleged gross misconduct, and in other conduct issues entitling an employer to dismiss without notice. The employer, when conducting its investigation, should remain impartial and openminded. The extent of the employer's investigation will depend on the facts. More is required where the alleged wrong can be attributed to the employee only by inference. In such circumstances an employer may have to hold several meetings. After some meetings an employer may be inclined to take no further action or indeed on the balance of probability to accept an employee's explanation of events, notwithstanding conflicts, because no objective grounds have emerged to support the employer's suspicion of wrongdoing. Where the case against an employee is inferential, no 'stone' introduced by the employee's explanations should be left unturned by the employer. The employer should follow through on explanations or representations made by the employee.

Arising from the above, and in particular the failure of the Respondent's Investigation to seek out and preserve evidence which would exonerate or assist the Complainant in exonerating himself the Complainant contends the Respondent's investigation was not reasonable nor did it afford him fair procedures or natural justice.

Disciplinary Process
During the course of the disciplinary process the Complainant was asked to attend a number of disciplinary meetings characterised in conformity with the Employers Disciplinary Policy. A meeting characterised as a Disciplinary Meeting was scheduled for Friday, 13^th April 2018. The meeting was attended by XY and MD on behalf of the Respondent. This meeting and the letter requesting the Complainant to attend specifically stated that further probing was to take place at this meeting. The meeting opened with XY characterising the meeting as a Disciplinary Hearing. Objection was immediately raised to the characterisation of the meeting as a Disciplinary Hearing when in fact it had been clearly set out that the Respondent was still in the process of investigation. The Respondent's position being put specifically in a letter dated the 28^th March 2018. When objection was raised by the Complainant in relation to the characterisation of the meeting it was agreed between the parties that the meeting would not form a Disciplinary Hearing but would in fact be conducted in accordance with the letter of the 28^th March 2018 from the Respondent. The agreement to proceed with the meeting was proceeding when MD interjected that once that current process was concluded a Disciplinary Hearing would follow. This position taken by the Respondent was a clear indication that the meeting in question that was stated to be for the purpose of "probing" was in fact a smokescreen created by the Respondent to disguise the Respondent's true intention which was to ultimately discipline the Complainant. It is submitted that the Respondent had predetermined the fate of the Complainant long before the investigation had concluded.

Subsequent to the meeting of the 13^th April 2018 the company proceeded with MD being part of the decision making process when clearly he had expressed a predetermination and bias in his role. MD's continued involvement in the process was objected to. Such protests were rejected by the Respondent. It is further submitted that if the Respondent had the slightest misgivings in connection with MD's continued participation in the process another party could have been substituted for MD without difficulty in an organisation the size of the Respondent employer. Such action on behalf of the Respondent fundamentally contaminates the process as being in flagrant breach of fair procedures and the entitlement to due process.

Proportionality
Without prejudice to the foregoing should this Tribunal determine misconduct on the part of the Complainant, the Complainant contends that the decision to terminate his employment was not proportionate to the misconduct in question. The Complainant has had a blemish free record with the Respondent with many years of service. The Complainant contends the Respondent failed to have regard to the Complainant's years of service and blemish free record when deciding to terminate his employment. The Complainant contends that a reasonable employer would not have dismissed him and the decision to dismiss him was outside of the band of reasonableness. (British Leyland UK Ltd v Swift [1981] IRLR 91 cited with approval by the Labour Court in O 'Brien v Dunnes Stores UDD1714 (7April 2017)).

An employer must be able to show why a sanction short of dismissal would not have sufficed in the particular case. In this context, it is important to reflect on the reality that several alternative sanctions are open to employer which can both punish an employee, send a clear message as to the position that the employer will adopt in relation to such wrongdoing, and arguably protect the business given that the sanctioned employee will be vulnerable to dismissal for any further offence. An example of such a sanction is suspension without pay, which clearly contains a strong punitive element for the employee which the Supreme Court has described as a "significantly less Draconian measure" than dismissal. (Berber v Dunnes Stores Limited [2009] ELR 61, per Finnegan J at 73.)

Complainant’s direct evidence

The Complainant outlined his career progression with the Respondent.

He said that he was called to a meeting on 19^th February 2018 when he was informed of the Respondent’s concerns. He said that the Respondent did not expect him to go to solicitor but he knew that it was a “serious enough” matter.

The Complainant submitted that at the next meeting he was shown the videos, he was asked to consider the matter and revert.

The Complainant said that the area in question was “private” in his opinion. However, he then said that it is a corridor which is “a public place” (staff only).

The CCTV footage was played for the Complainant and the Complainant described what he sees as follows:

Video 1 – 3^rd December 2017 at approximately 9.55pm
The Complainant said that he thought he had already clocked out. A couple of minutes before finishing his shift he noted a problem with a barcode. He checked out the items and immediately identified the problem. The Complainant was asked by the Adjudication Officer what he meant by “identify the problem with a barcode”. He said that he knew straightaway that it was “maybe broken, maybe had sticker”. He wanted to finish work as soon as possible as his shift was over. He said that nothing went into his backpack.

Video 2 – 4^th December 2017 at approximately 7:37am
The Complainant said that he arrived at 7am, he put his coat etc. into his locker, went to the shop floor and returned to his locker to tidy it up, “make more space”, “general maintenance”.

Video 3 – 6^th December 2017 at approximately 7:48am
The Complainant noted that he did not handle a bottle of perfume but chewing gum.

Video 4 & 5– 15^th December 2017
The Complainant said that he was collecting bottles from downstairs. He identified a product which had an issue with a barcode. Not to cause any problems for customers, he put the product into his locker. He believed it was an efficient way to deal with the problem.

Video 6 – 9^th January 2018 at approximately 3.25pm
The Complainant said that sometimes the tags were missing and there could be a huge issue with barcodes. He said that when he saw that there was going to be a problem at the till, he put the item in the locker. He said that he is seen there trying to make space, tidy up the locker.

Video 7 – 10^th January 2018 at approximately 7.28am
The Complainant said that he looked through the product to see if there was any issue.

Video 8 – 11^th January 2018 at approximately 6.22am
He said that a product was causing trouble, so he put it away in the locker.

Video 9 – 20^th January 2018 at approximately 9.03pm
The Complainant said that he was bringing liquor and cigarettes to the store. He identified an issue with the product. He said that staff are inattentive, they could scan wrong barcodes and scan a single pack rather than a double pack barcode.

Video 10 – 20^th January 2018 at approximately 9.14pm
The Complainant said that he is seen there tiding up the locker, making more space so the items don’t get damaged.

The Complainant argued that other members of staff encountered problems. He said that he never put anything into his rucksack and walked out. He said that he did not place the items into his locker to misappropriate them, what he did was business related and he did what was best for the business.  The Complainant confirmed to the Adjudication Officer that, despite coming across multiple issues with the barcodes, he did not report it to the management.

He also said that he subsequently brought all the items to the shop floor to rectify the problem. He did not explain why, if that was the case, did he not request to review the CCTV footage further which would show him bringing the items to the shop floor.

The Complainant gave evidence in regard to the effect the dismissal had on him. He said that he lost the income and had to re-mortgage his house. He had to make up a fictional CV as for 16 years he worked for the Respondent. The Complainant furnished details of his attempts to mitigate loss.

In cross-examination the Complainant accepted that there were some 3 initial investigation meetings, that he was accommodated when requested more time and he was granted solicitor’s representation even though the Respondent’s procedure does not provide for that.

The Complainant confirmed that CCTV footage was shown to him on 26^th February 2018, he did not provide any response at the time. He provided a written reply on 23^rd March 2018 and he conceded that he was given plenty of opportunity to give his response.

It was put to the Complainant that in his lengthy document of 23^rd March there were only two short paragraphs in respect of the CCTV footage. While he gave a detailed explanation at the hearing, none was given in the document. The Complainant said that he did not think it was a lawful activity to install CCTV and did not want to go into details for that reason. He said that the barcode issue explanation refers to each of the videos.

It was put to the Complainant that if he was, as he said, not a thief, he would have given the Respondent as much information as possible to help them to understand the problem. The Complainant argued that it was not up to him to prove that he is not a bad person and he did nothing wrong. He said that his privacy “was compromised big time”. He said that MD was biased and wanted to get rid of him.

The Complainant was told that all evidence was put to him at the disciplinary meeting but, upon advice of his solicitor, he decided not to comment after the fifth video. In reply, the Complainant said that he was appalled by the allegations, pressure and bias. He said that despite the presence of his solicitor, adjournments granted etc., he was under substantial pressure.

It was put to the Complainant that at the adjudication hearing he gave a different explanation to the 5 videos than he gave at the disciplinary meeting, e.g. for the first time he talked about the barcodes being damaged or having stickers on them. The Complainant said that he “just expanded” his answers.

The Complainant agreed that the locker was for personal items in general such as a coat, phone but added “not exclusively”.

When it was put to the Complainant that he never brought the matter to the attention of anyone with authority he said that he “had some authority too”.  He felt that there was no point to go with each product and it was better to resolve the problem.

The Complainant was asked why, if he witnessed other staff members experiencing problems with the barcodes, he did not call them as a support at the disciplinary process. He claimed that he was dealing with bias and predetermination.

A discussion ensued in respect of the packets of cigarettes, which the Complainant said were packed as a double packet but could be scanned as a single one. The Complainant said that an experienced cashier would notice it but maybe he put it in the locker because the barcode did not read correctly. When it was put to him that he had no scanner with him to check if it did, he said that maybe there was a sticker over it, or it was damaged.

It was put to the Complainant that at least on one occasion he is seen looking around and up to the sky which suggests he may have been concerned to be seen. The Complainant said that that is a way of an exercise which improves one’s eyesight by looking at something in the distance.

The Complainant agreed that the area was an accessible corridor, for all staff and it was not a changing, private area.

The Respondent put it to the Complainant that the timing of the events in question, early morning or late evening and usually around the time he was about to go home would suggest that he was placing the items in his locker when there were a few people around. The Complainant denied and claimed that he did it when he had an opportunity.

When it was put to the Complainant that it is clear that he transfers cigarettes to his locker and then some time later into a rucksack, the Complainant said that it is not what happened. He said that some people are creative and try to develop something to improve the process. He said that he is not obliged to do everything the same way as everyone else.

The Complainant agreed that he was employed in a position of trust, he claimed that he was dismissed because of someone’s opinion, because MD “formed an opinion”.

The Complainant accepted that his appeal was heard by the CEO but he implied that the fact that the CEO was there not that long could have impacted the outcome of the appeal. When it was put to him that none of the explanations given at the adjudication hearing were shared during the appeal, the Complainant said that he presented his point at the time.

Closing remarks

It was highlighted that the Complainant had 16 years of service with the Respondent and not a glimpse of any problem. While his actions may have been a bit against the norm, it does not mean that he removed the items “in order to misappropriate”.

The Complainant argued that there is 24/7 security and monitoring within the Respondent’s premises. The Complainant should have been searched. There may have been questions which required answers, but they were not answered well and the Complainant was not given the benefit of the doubt.

The Complainant highlighted that he had an issue with the matter of the disciplinary meeting versus hearing and with MD not stepping aside when asked. He felt that MD overreacted by dismissing the Complainant without evidence showing that one square of chocolate was removed from the Respondent’s premises. It was argued that the Respondent did not meet the standard of proof.

The issue before me is not whether the Complainant had actually placed the items in question in his locker/ rucksack in order to misappropriate them. The issue is whether or not in all the circumstances the Respondent was justified in dismissing the Complainant having regard to his conduct, his explanation for his conduct and the surrounding facts established by the Respondent.

The relevant law

The Unfair Dismissal Act, 1997 stipulates that:
Section 6(1)

”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:
...

(b) the conduct of the employee,…”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair, and Section 6(7) provides for an Adjudication Officer to have regard to

“(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 (to provide written reasons when requested) 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.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is not the function of the Adjudication Officer to establish the guilt or innocence of the employee. It is the function of the Adjudication Officer to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In O'Riordan v Great Southern Hotels (UD1469-2003), the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:

“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 also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.

I must therefore consider both the fairness of the procedures adopted and the substantive issues leading to the dismissal.

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 contends that the Complainant was dismissed on the grounds of gross misconduct.

The evidence in form of the CCTV footage shows the Complainant placing various items of stock into his personal locker and/or a bag. The matter of the Complainant’s intentions was strongly disputed.

The first matter for me to decide is whether it was reasonable for the Respondent to form the view that the Complainant had not provided a reasonable explanation for his behaviour and to proceed with the investigation process. Having considered the evidence before me I find that sufficient grounds existed for the Respondent to initiate the investigation process.

Any investigation/disciplinary process applied must be in accordance with the requirements of fair procedures, due process and natural justice. I note that the Complainant raised a number of concerns in that regard.

Firstly, the Complainant questioned the Respondent’s basis for the installation of covert surveillance. I note that the Respondent’s premises are high security, heavily monitored buildings. Given the nature of the services provided by the Respondent it is fair to say that the surveillance would be more substantial and prominent than in a typical shop.
In relation to the claim that the CCTV evidence was collected in a covert or illegal manner, I am obliged to point out that I have no statutory function to consider any matters relating to the Data Protection legislation, such as the installation of CCTV cameras or the use of such footage as evidence of wrongdoing in disciplinary hearings.  

In Pacelli v Irish Distillers Limited [2004] 15 E.L.R. 25 it was held:

“If product goes missing or there are stock-shortages the respondent company must pay duty on such missing product, and the monetary amounts involved may be considerable. Therefore, the respondent had a duty to curtail losses which impact upon profitability and ultimately deprive its shareholders of their rightful dividend, given and having regard to the penalties, attached by way of custom duties, to patrol, monitor and investigate shortages in an effort to contain the same, and also to effectively prevent and detect practices which fundamentally depart from the standard practice in the company which could lead to the misappropriation and/or thievery of product. It is in the latter objective, which underlies the ostensible authority of an officer of the company, in appropriate circumstances and, in an appropriate manner, to approach a person for the purposes of investigating questionable behaviour. Likewise, the company is empowered to install machinery and equipment which will deter or at least monitor offensive behaviour or misconduct.”

I also note that in the recent decision of the Grand Chamber of the European Court of Human Rights (ECtHR) in López Ribalda and others v Spain the Grand Chamber has overruled a 2018 decision regarding the unlawfulness of using hidden camera footage to dismiss employees of a Barcelona supermarket, which showed them engaging in theft.

Having carefully considered the submissions of both parties regarding the admissibility of this CCTV recording, I decided that I was not precluded from admitting it into evidence.    

The Complainant also raised his concerns in relation to the reasonableness of the Respondent’s investigation arguing that the Respondent should have conducted a far greater investigation, could have tracked the items or hired private investigators and “no ‘stone’ introduced by the employee’s explanation should be left unturned by the employer”.
The Respondent was clearly required to conduct an investigation but there was no requirement to prove its case beyond a reasonable doubt. In that regard, I note that the initial meeting was held with the Complainant on 19^th February 2018. The Complainant was informed of the Respondent’s concerns and these were outlined in writing. He obtained legal representation and attended investigation meetings on 26^th February and 23^rd March 2018 with his solicitor. The Complainant provided his written response to the allegations but declined to make any further oral submissions or comments.
I find that employees have a duty to assist management in their investigations: Sim v Ratherham BC [1986] IRLR 391. The Complainant was given every opportunity to explain his version of events, the Complainant chose to do so in a very limited manner.

In regards the disciplinary process, the Complainant outlined his concerns in respect of the characterisation of the meeting held on 13^th April 2018. The Complainant argued that the meeting was for the purpose of “probing” rather than to discipline the Complainant and therefore, the Complainant argued that it was a disciplinary meeting and not a disciplinary hearing.
The Complainant argued that MD’s comment that “once that current process was concluded a Disciplinary Hearing would follow” predetermined the fate of the Complainant before the investigation had concluded. As a result, the Complainant argued that MD expressed predetermination and bias and should his involvement was in breach of fair procedures and due process.

I note that the letter dated 28^th March 2018 from HC of the Respondent to the Complainant states clearly that the purpose of the investigation “was to establish if your explanation of your behaviour and actions was sufficient to allow the investigation team to conclude that there was no further matters of concern to follow up. If the investigation team concluded that the responses given did not resolve these concerns then a disciplinary process might be the next appropriate step” and concludes “It is our conclusion that the matter should now proceed to the disciplinary process and you will be required to attend a disciplinary meeting with arrangements to follow separately.”

The letter of 29^th March 2018 states:
“I refer to [the Respondent’s] letter to you dated 28^th March 2018 confirming the outcome of the Investigation process.”…“You are now required to attend a disciplinary meeting”…“You should be aware that the matter under review may or may nor result in disciplinary action being taken up to and including a finding of Gross Misconduct resulting in termination of your employment with [the Respondent].”

While HC’s letter refers to probing further of the Complainant’s actions with him, there could be no confusion that the Complainant was invited to a meeting with the purpose of determining the validity of the allegations against him and applicable disciplinary sanction, if any. It is my view that the Complainant was fully aware of the purpose of the meeting on 13^th April 2019 regardless whether a term “meeting” or “hearing” was used for the purpose of describing it.

I note the Complainant’s assertion in respect of the comment made by MD at the meeting of 13^th April 2018. However, it is my view that the comment expressed MD’s opinion on the characterisation of the meeting and was not an indication of pre-determination of the meeting itself or bias. I find that the comment is not enough, or nearly enough to taint the entire process.

Having considered the evidence before me and the parties’ submission in relation to the conducting of the disciplinary process, I am satisfied that a full investigation took place, the Complainant was interviewed, he was legally represented, the allegations were discussed with him, his explanations offered and submissions were considered prior to the investigation report being issued.

A disciplinary hearing was conducted by parties not involved in the investigation. The Complainant was legally represented. The representations made by the Complainant were considered and the allegations were upheld following consideration of them and the decision to dismiss was made.  He was advised of the reason for dismissal.  He was allowed to appeal the decision to dismiss and a hearing for that purpose was held. The decisions were made without haste.

The Complainant was afforded a comprehensive and thorough disciplinary process and was given ample opportunity to explain his actions. I am satisfied that the procedure followed by the Respondent that resulted in the Complainant’s dismissal, was a fair procedure.

The final matter for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances. The Complainant asserted that, if misconduct is determined on part of the Complainant, the decision to terminate his employment was not proportionate to the misconduct in question.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, I note that, having examined the matter the Respondent came to a conclusion that the Complainant placed a large amount of the Respondent’s retail goods into his personal locker and personal bag. The Complainant’s explanation for his actions was that he put the goods aside for the purpose of rectifying barcode issues. This explanation, in the Respondent’s view lacked any credibility. The Respondent concluded that the Complainant has broken the bond of trust between him and the Respondent and therefore, the Complainant was dismissed by reason of gross misconduct.

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.’

It is not for me to judge the Complainant’s actions. My role is to determine whether in all of the circumstances the Respondent’s decision to dismiss the Complainant was within the band of reasonableness. The Respondent stated that, due to the fact that the Complainant’s actions had broken the essential element of trust, it had no option but to terminate his employment.
I accept that trust is an essential and crucial element of the working relationship between the Complainant and the Respondent. Having considered the matter, in all the circumstances of this case, I find that the Respondent’s decision that, due to the Complainant’s actions, that essential element no longer existed and it had no option but to terminate his employment was within the band of reasonableness.  

Having considered the submissions of both parties and all the evidence adduced, I find that the complaint is not well founded.

Unfair dismissal – gross misconduct – trust-