UDD1933

Background

The Complainant commenced employment as a Sales Assistant with the Respondent in April 2011. She worked on average between 10 and 39 hours per week. In and around the 5th September 2016 the Complainant made a bullying complaint in respect of the Shop Manager and a colleague which the Respondent confirmed would be investigated. The final report of the bullying investigation was issued to her in April 2017 and upheld a number of her complaints. On the 14th February 2017 the Complainant was invited to a meeting with her Manager relating to an accident that had taken place on the 28th January 2017 when she was alleged to have stolen some ham. The Respondent’s position is that she was brought through the disciplinary process and dismissed for gross misconduct. The fact of dismissal is not in dispute. An issue arose in the course of the hearing in relation to the accuracy of the translation of the minutes of meetings which the Respondent had submitted to the Court and was seeking to rely on. The Court having examined the minutes noted that the English version of the minutes of the disciplinary meeting had a number of additional sentences which were not in the Polish version of the minutes and which were written in a manner that supported the Respondent’s position. No explanation was offered to the Court as to why these minutes which had clearly been amended were submitted to the Court by the Respondent as an accurate translation of the minutes of the meeting taken on the day of the disciplinary meeting. The Court took the view that those minutes could not be relied on by witnesses in their evidence.

Respondent’s case

It is the Respondent’s submission that they received a telephone call followed by a letter of complaint dated 29th January 2017 from a colleague of the Complainant advising that the Complainant had not followed shop rules on the 28th of January 2017 in terms of cutting the cold meats and cheese and scanning them for payment for her husband. Mr Stachowiak the Manager of the store from January 2017, in his evidence to the Court said that when he received the telephone call he consulted with Head Office who advised him to look at the CCTV and request something in writing from the staff member making the complaint. He received the letter and following his review of the CCTV he had a meeting with the Complainant. He asked another member of staff who was off duty but happened to be in the shop to be a witness at the meeting. He brought the Complainant and the witness into a room away from the shop floor and went through a list of questions with her which had been prepared for him by HR. It was his submission that the allegation he put to her was that she had prepared product for her husband and taken the cash from him in breach of shop procedures and that she did something with the weighing scales, printed the label for the meat then added more slices in breach of Company policy. The Complainant’s response to all the questions that he asked was that she was cutting and packing the sausages and had done nothing wrong. After the meeting was over he told the witness to go, then he brought the Complainant over to the slicing machine and asked another member of staff to cut the same number of slices of meat and the amount came to a different amount than when the Complainant cut the meat. It was his evidence that he showed the Complainant the CCTV footage. In the course of cross-examination, he confirmed that he had not read the Company Handbook or checked the procedures he should use rather he just took advice from HR. He also confirmed that the Complainant was not given any advance notice of the meeting and that he had recorded the meeting but had not made a copy of that recording available to the Complainant.

On the 15th of February 2017 the Complainant got a letter from the Respondent inviting her to a meeting for the purpose of conducting an investigation into the matter that occurred on the 28th January 2017. A copy of the CCTV was attached and the Complainant was placed on suspension with effect from that date. The Complainant was also informed that she could bring someone to the investigation with her as an observer. Following on from this investigation the Complainant received a letter dated 24th April 2017 inviting her to a disciplinary hearing on the 2nd of May 2017. The letter identified two issues which they had serious concerns over.

Mr Marcin Chlebitzki carried out the disciplinary hearing and in his evidence to the Court stated that he wanted to give the Complainant a chance to explain what had happened. He had viewed the CCTV and felt that the Complainant was not doing the process correctly. In the disciplinary hearing he repeated the questions that had been asked at the meeting on the 11 February 2017. The Complainant’s response was that she had not done anything wrong and that he had already made his mind up. It was his evidence that the issue was about the weighing and the labelling of the ham. He accepted that the letter referred to two issues, one relating to serving her husband. Mr Chlebitzki confirmed to the Court that he had not read the Staff Handbook and was not familiar with the disciplinary process but that he took guidance from HR. It was his evidence to the Court that he alone made the decision to dismiss and that he made the decision a few days after the hearing. It was his evidence that his decision was based on a breach of honesty and loyalty and therefore he did not consider any other options. He confirmed to the Court that he had issued the letter of dismissal which informed the Complainant of her right to appeal and that it was his understanding that no appeal was made. In response to a question from his Representative he informed the Court that his understanding was that if the Complainant lodged an appeal he would have heard the appeal.

It was the Respondent's submission that there were no material flaws to the process and that the Complainant had been given every opportunity to put forward her case. The Representative for the Respondent submitted to the Court that the Managing Director, Mr Chlebitzki was a gateway to the appeal process and would not necessarily have heard the appeal.

Complainant’s case

It is the Complainant’s case that she was not afforded fair procedures and that she believed that the issues only arose because she had made a bullying complaint. In her evidence to the Court the Complainant stated she was at home when she got a call from Mr Stachowiak asking her to come to the shop and meet with him before her shift commenced. She was not told what the meeting was about. She was brought into a small room where she was shown the CCTV. She was then asked questions. She explained that sometimes customers will ask for €5 worth of meat instead of a certain number of slices and this requires that you put in the code and then slice and weigh the meat but sometimes it is not enough, so then you have to add more slices. When you get to the correct amount you print the label and that is what she did on the day in question. It was her evidence to the Court that she offered to show Mr Stachowiak how she had cut the meat but he would not let her. After the other employee sliced the meat Mr Stachowiak left with the meat. She asked him was she to complete her shift. He walked off, got into his car and never replied.

At the investigatory meeting on the 11th February 2017 there was no explanation of the process being followed other than to ask her if she had the Handbook. She was asked a number of questions relating to family discount and printing off the label before she had finished cutting the meat. It was her evidence that she did not print off the label before she was finished cutting the meat and that she requested a copy of the CCTV footage showing her serving her husband but she was not provided with same. She then received the letters inviting her to the disciplinary hearing. At the disciplinary hearing she was not sure why she was there as she had not done anything wrong. It was the Complainant’s evidence that during the meeting Mr Maircin Chlebitzk was “trying to get me to admit that I had served my husband” and that was the focus of the meeting, not the labelling incident. It was her evidence that she was forced to sign the document as she was told she could not leave the meeting until she signed it. A few days later she got a letter saying she was dismissed. She did not feel there was any point in appealing as they had already made up their minds.

The law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6(1) states

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

Section 6(7) of the Act provides:

• “(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

  (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

  (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

The Complainant’s case is that her dismissal was unfair as the decision to dismiss her does not meet the standard of fair procedure set out in case law. The Respondent disputes that there were any errors and submits that any errors in the process were minor and that there is no requirement for the process to be perfect.

Walsh J, giving the majority judgment for the Supreme Court inGlover v. BLN Limited[1973] IR 388, said:-

• "This court inIn re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.

(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s). (Preston v. Standard Piping[1999] ELR 233 refers.) It is abundantly clear to the Court that there was confusion in relation to the allegations against the Complainant right up to and during this hearing. The allegations against the Complainant were initially in relation to serving her husband and then at the preliminary stage changed into an allegation that she had in effect stolen some slices of meat. It was not disputed that the meat was paid for as receipts were relied on by the Respondent who, submitted that the incorrect weight for the meat was on the receipt. The Complainant's evidence was that she requested but was not provided with CCTC footage in relation to the sale of this meat to her husband. This evidence was not disputed by the Respondent. While both allegations featured in the written documents sent to the Complainant including the dismissal letter it was the Respondent’s submission to the Court that her dismissal related to the additional slices of meat only and this was the only issue they focused on during the hearing

(ii) The procedures provided for in the Company’s Disciplinary Policy are limited. Even so, there was no clarity around which of the two Handbooks the Respondent was operating from and which part of the procedure they were following at any given time. The two witnesses who were involved in the disciplinary process, with one being the decision-maker in relation to the dismissal, both confirmed in their evidence to the Court that they had not read the disciplinary procedure and were not familiar with same. The person who ran the disciplinary hearing did not know the policy and on his own admission had never been involved in a dismissal procedure previously and, while submitting that the process was in the main fair, confirmed to the Court that he would have heard the appeal as he was the Managing Director.

(iii) the reasonableness of the sanction of dismissal in relation to the complaint. In this case the decision-maker could not tell the Court how he had come to the decision to dismiss other than to say that it was related to honesty and loyalty. He also informed the Court that he had not considered any other sanctions.

In addition to the above issues with the process no explanation was submitted to the Court regarding the fact that the English version of the minutes of the disciplinary meeting appear to have been altered to support the Respondent’s version of events and submitted to the Court as an accurate translation of the Polish version. In view of all the circumstances set out above the Court cannot see how this dismissal could be deemed to be fair.

Remedy

Section 7 of the Act states

• 7. (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

  (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

  (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

  (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

  (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong she has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €20,000. The Court so determines.

Determination

The Court determines that the Complaint is well-founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €20,000. The Decision of the Adjudication Officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
3 July, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.