Complainant

Respondent

Anonymised Parties

Customer Assistant

Retail Store

Representatives

Mandate Trade Union

Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019797-001

15/06/2018

The Complainant contends that she was unfairly dismissed after she inadvertently used a customer bank card to purchase goods.

The Complainant worked for the Respondent for 14 years. During that time she was dedicated to her job and got on very well with colleagues. Over the years she was presented with a number of awards for customer care and attention. In December 2017 the Complainant had purchased a cardigan and in accordance with procedures, had the security guard sign her receipt. When he was handing back the receipt he also handed her a bank card which she believed was her own bank card. She then went on to purchase some scratch cards with the card, tapping the card to pay. When she went outside for a cigarette later, she threw away some receipts and tissues in the bin outside the door. She believes at this point she inadvertently threw the customer bank card in the bin.   She was subsequently subject of disciplinary action, resulting in her dismissal. It is argued that the Complainant should have been given the benefit of the doubt.   It is further It is argued that dismissal being the ultimate sanction in this case was extremely severe and disproportionate. It is submitted that the Respondent acted contrary to their own procedures by failing to notify her trade union official prior to her disciplinary hearing.   It should be noted that the Complainant was commended for her honesty a number of weeks before this incident when she brought the store’s attention to the fact that she had been undercharged for goods. In all the circumstances, it is requested that the decision to dismiss be overturned and the complainant be re-instated in her job.

The Complainant was dismissed in line with Section 6 (4) of the Unfair Dismissals Act 1977 which states :

“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…the conduct of the employee.”

The Complainant was dismissed for using a customer’s bank card which had been inadvertently left behind at self-scan, for her own personal use. The Company had no option but to dismiss her based on her conduct. Apart from the issue of serious misconduct, the bond of trust between the Complainant and the Company had been severed. Throughout the investigation and disciplinary process the Complainant provided no explanation as to what she did with the customer’s card after she used it for her own personal use. It was only at the appeal hearing that her Trade Union Official on her behalf, suggested that she believed she threw it in the bin with tissues, unbeknownst to herself. Up to this point, neither the Complainant nor her three representatives, who accompanied her at different times in the hearings, made any such point. The Company operated in a fair and reasonable manner in line with their procedures and the rules of natural justice. The Complainant was given the right to representation which she availed of throughout, and the allegation was clearly put before her. The Union submission is that the Company did not operate strictly in line with procedure in that the Trade Union Official was not officially notified at the time of suspension. It is argued that this is a minor technical point and that the Complainant herself was formally notified of her right to representation at any level, shop steward, colleague and Trade Union Official.

The Company honesty policy states clearly that any dishonest act by a member of staff while at work or otherwise representing the company will be considered an infringement of the reputation for honesty of other staff and of the company.     Any breach of the policy is deemed serious misconduct.     It is argued that the principles to be applied in cases of gross misconduct have been clearly established and the test is set out in Looney & Co v Looney UD 843/1984, where it was stated that it was not for the Tribunal to establish the guilt or innocence of the claimant, but to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.   It is argued that the Respondent’s action in taking the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances.

The Complainant was dismissed following a full and fair investigation and disciplinary process during which she had representation at all times.   I note that the Respondent’s commitment to notify the Trade Union Official at the time of suspension was not carried through.   However, while this was a flaw in procedures, I find it was not a fatal flaw such that the decision to dismiss be overturned. In the circumstances, I do not uphold the Complainant’s complaint that she was unfairly dismissed.