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-00012945-001

03/08/2017

The respondent dismissed the complainant, an office worker at its distribution centre, for taking, without paying, a rectangular pack of Hot Wheels toy cars from one of its stores and the use of a staff privilege card. The respondent asserts that the complainant’s actions breached its trust and confidence and the complainant asserts that the dismissal was unfair.

CCTV footage

The respondent presented CCTV of the complainant’s visit to the store. This depicts the complainant making her way through the store, pushing a buggy with her 18-month old child. She is in the non-perishable floor of the store. The complainant picks up two toy packs of Hot Wheels toy cars and other items. As she approaches the self-service till area, she moves one pack from the canopy of the buggy to the under-carriage, on top of a white blanket. She proceeds to the self-service tills and pays for items, including one pack of toy cars. She has difficulty scanning one item and in using the staff privilege card. A staff member comes to help on two occasions. Her child is agitated. The complainant leaves the store without paying for the second pack of toy cars, still in the under-carriage of the buggy.

Security Supervisor

The security supervisor outlined that he is employed by a security company and is the supervisor in the store. He met the complainant in the interview room and liaised with the respondent duty manager. He spoke to the complainant about her leaving the store without payment. She did not have ID but had a staff privilege card, so he knew she was an employee of the respondent. He showed the duty manager the CCTV footage. They decided to let the complainant go and to inform the respondent. They would normally call the Gardaí but classified this as a “sensitive arrest”. He phoned the respondent security manager and informed him that they had detained a member of staff.

In questioning, the security supervisor said he was operating the cameras on a station. It was a security guard who identified suspicious activity, a shopper with a buggy going to a high-risk area. He accepted that the complainant initially picked up three packs of toys and then placed one back. It was put to the security supervisor that the footage shows the complainant’s child throwing the toys to the ground and the complainant then gave one pack to her child and placed the other one on top of the buggy. It was put to the security supervisor that the pack on the buggy canopy was not secure, so the complainant moved the item to the under-carriage.

Security Manager

The security manager outlined that he learnt that the person apprehended leaving the store was an employee in the respondent distribution centre. He viewed the footage and contacted the distribution centre. He wrote the memo the 17th January 2017. They had full SCONE – Selection, Concealment, Observation, Non-Payment, Exiting the store. In questioning, it was put to the security manager that footage favourable to the complainant was deleted and not available; he accepted that any other footage was deleted.

Head of Security

The head of security outlined that he looked after security in the distribution centre where the complainant worked. This case was out of the norm. He visited the store to view the footage as he wanted to ensure that the information was correct. He was satisfied that the security team had the SCONE. He would have known the complainant in passing, but there are a great many people working in the centre.

The head of security outlined that he carried out the formal investigation. He showed the complainant the footage and told her that he was not making any assumptions. She said that it was a misunderstanding and she would normally put items she intended to buy in the under-carriage. The head of security asked why she left it until she approached the till area to move the pack to the under-carriage; she replied that she did not know.

The head of security believed that all points of the SCONE were met. He also investigated the use of the privilege card, where it was confirmed that she used another staff member’s privilege card. The privilege card is given to an individual and while the benefit can be transferred to another person, it must be used by that person. The theft, however, was the key issue and he was left with no option to pass it on to the disciplinary process. When investigating potential shoplifting, the SCONE is the bible and all the points had to be hit.

In questioning, it was put to the head of security that the person who accompanied the complainant to the investigation meeting on the 18th January was not her representative; he said that the complainant had chosen this person. The minutes of the meeting state that the witness will not take any part in the meeting. It was put to the head of security that the invitation letter of the 19th January provides that only a colleague or a union representative from the site can attend. He accepted this, and this was an internal meeting to which the complainant chose a work colleague to attend. The complainant did not raise any issue at the time and he assumed that she was happy with her choice of colleague. It was put to the head of security that the respondent disciplinary policy excludes lawyers from attending meetings.

The head of security accepted that the complainant’s child had thrown toys to the floor, which were then placed on the uneven surface of the buggy canopy. It was put to the head of security that the complainant placed the item into the under-carriage while she was in the middle of the shopping aisle and not off in the corner of the store. The head of security said that the complainant had initially said that the item had fallen off the buggy, but he did not think that this was correct. He showed her the footage again and she agreed that it had not fallen but that she had placed it underneath the buggy. It was put to the head of security that the footage only shows her putting it into the under-carriage and not whether it had fallen off immediately before; he replied that it showed the complainant putting the item underneath the buggy and she had agreed with this. He did not believe he had asked her if it fell at the specific moment of concealment and she agreed that she had taken it from the top of the buggy. It was put to the head of security that this issue could have been explored, had the complainant had legal representation at the meeting.

The head of security said that he was not aware of any dishonesty on the part of the complainant in her 9.5 years’ employment with the respondent. He said that he based his decision on the footage and that he had all the points of the SCONE as well as the timing and location of concealment. He accepted that the place of “concealment” occurred in the middle of a brightly lit aisle, but such concealment could take place anywhere in the store. It was put to the head of security that the complainant was laden down and she placed the toy pack on top of a blanket in the under-carriage. He replied that a good shoplifter would not cover it as they had a line of defence. It was put to the head of security that the item was not concealed as it was visible in the cargo part of the buggy. He said that placing the item in the under-carriage represented concealment.

It was put to the head of security that a reasonable person would take the view that this was an innocent act of an employee with a 10-year blemish-free record. He was asked why the complainant was not given the benefit of the doubt; he replied that he made his decision on the CCTV footage, the timing of the concealment and the subsequent non-payment. The head of security said that the complainant had not raised her placing the item under the buggy while in a brightly lit aisle and not subsequently covering the item with the blanket. She did not raise being laden down. She had referred to her child being upset throughout her visit to the store. The complainant had raised that a staff member intervened twice while she was buying the items.It was put to the head of security that the complainant was distracted by the issues at the till and her son’s behaviour, leading her to forget about the toys. It was put to the head of security that it was unusual for an employee with 10 years’ service to pick up four items and pay for three of them and deliberately conceal one worth 6 euros. He replied that he could not assume what was going through the complainant’s mind. There were substantial grounds to find that the complainant was dishonest. Based on the evidence and her interview, it necessary to pass this on to the disciplinary process. He stood over the decision.

It was put to the head of security that in saying that “the SCONE is your bible” showed a rigid and inflexible policy; he replied that the policy ensured that no mistakes were made, and a customer was not approached without the five points being reached. He accepted that he had not put to the complainant the four statements from staff. The staff members were not interviewed as part of the investigation. He accepted that the complainant could not challenge or cross-examine these staff members.

The head of security outlined that the privilege card “came out in the wash” and merited investigation. It was put to the head of security that the staff member who intervened at the till would have spotted that the card was in another person’s name; he did not know whether this staff member had reported the issue. It was put to the head of security that the complainant had her own privilege card so there was no financial loss to the company. It was also put to him that the cards are identical apart from the name stated on the card and could easily be picked up in error. He did not agree and said that the respondent policy regarding privilege cards was clear. The head of security said that he made no findings on the privilege card issue.

Disciplinary Manager

The disciplinary manager outlined that he managed the depot and was experienced in carrying out serious misconduct proceedings. The complainant was accompanied by a colleague and did not ask for legal representation. They always checked that the employee was happy to proceed, and she was happy to proceed without representation. They gave the complainant the opportunity to respond on the two issues. She said that using the card was a mistake while taking the item without paying was an oversight. When the disciplinary manager took all the evidence into consideration, he came back to the point that at the point of payment the item was moved from the top of the buggy to the under-carriage. She did not know why she had not put the item underneath the buggy when taking it off the shelf, as she referred to this as her style of shopping.

The disciplinary manager said that the privilege card is worth a lot of money and is a risk to the company. An employee gets a privilege card for two years and this can be renewed. It can be in the staff member’s name or in the name of a nominated person, but it must be used by that person. He considered the possible alternative sanctions. He considered demotion or moving the complainant to another side of the business. Given that this was a breach of trust issue and an attempt to take an item without paying for it, he decided on dismissal. The respondent has a zero-tolerance policy on theft and the value of the item did not matter.

In questioning, the disciplinary manager confirmed that the breach of the privilege card policy formed part of the dismissal and he could not ignore this. He had never been asked to allow a legal representative to attend a hearing and people usually have a union representative or a colleague with them. The statements of the staff members were part of the investigation. The complainant never requested and was not offered the opportunity to challenge or cross-examine the staff members. It was put to the disciplinary manager that an employee must be allowed legal representation and the right to cross-examine in any disciplinary process that can lead to dismissal and is a threat to their good name. The respondent policy expressly precluded this. He replied that the complainant was given a fair hearing and the opportunity to put her side of the story. She did not ask to cross-examine, so he did not consider moving away from the policy. He listened to her and took account of her points. The CCTV footage was not shown at the disciplinary hearing and he relied on the investigation report.

It was put to the disciplinary manager that the buggy canopy was unstable, and the complainant could have been distracted by her crying child; he replied that he brought this back to the complainant removing the item just before the point of payment. It was put to the disciplinary manager that this occurred in plain sight, in the middle of an aisle, and someone would conceal an item in a less open part of the store. He replied that it was not unusual for concealment to take place in a prominent position or for someone to pay for some and not all items. It was put to the disciplinary manager that the reason why the complainant had not put the toy pack under the blanket in the under-carriage was not canvassed at the disciplinary hearing; he replied that the critical point was the 30 seconds before the point of payment. The complainant had only a few items and should have known that she had not paid for everything. He accepted that her child was upset at this time.

Appeal Manager

The appeal manager said that a colleague accompanied the complainant to the hearing and she did not ask for legal representation. He said that the last place he wanted to be was letting staff go. There was unfortunately no option but to uphold the decision. They were aware the effect of theft on everyone, including on wages, the share price and the bonus scheme. The complainant’s actions were serious and there is zero tolerance in relation to theft.

In questioning, the appeal manager accepted that theft required intention. He accepted that the complainant had worked for the respondent for ten years and he knew her. There may have been an absenteeism issue in the past. He was asked whether the complainant was entitled to the benefit of the doubt; he replied that he was satisfied that the item was knowingly removed from the shop without paying for it. While the privilege card issue was part of the investigation, it did not form part of his decision. The complainant had not asked to have legal representation and it was hypothetical to consider what he might have done had she requested this. He accepted that the staff members who made statements did not attend the appeal and their statements were not put to the complainant. She had not asked to cross-examine them. It was put to the appeal manager that employees at risk of dismissal and whose good name are at risk have a right to representation and the right to cross-examine; he replied that he had asked thecomplainant on numerous occasions whether she was happy to proceed, and she was. She did not ask for representation or for cross-examination. She had a fair hearing. He outlined that the appeal outcome letter of the 16th May 2017 addressed the three appeal grounds. There was no appeal ground relating to the privilege card or not having legal representation or the right of cross-examination.

In closing, the respondent submitted that the decision in Lyons v Longford Westmeath ETB [2018] 29 ELR 35 was issued after the complainant’s dismissal. It submitted that Burns v Castlerea Prison [2009] 3 I.R. 682 shows that the requirement for legal representation is an exception. The complainant was dismissed on grounds of misconduct. The investigation was a fact-finding exercise and the separate disciplinary process looked at the issue of sanction. The respondent lost some €30 million per year to shrinkage. The complainant’s actions were a breach of trust. She was afforded fair procedures and natural justice. There were separate and impartial disciplinary and appeal processes. As an employee of 10 years, the complainant was aware of the policies and should have known better.

The complainant outlined that her employment commenced on the 8th February 2008, although she previously worked in the distribution centre for an agency. Her role changed following an accident at work and she then managed goods in an out of the distribution centre. She was dismissed on the 20th March 2017.

On the 15th January 2017, the complainant had attended mass and went the respondent store. She picked up a spread, bread rolls and two packs of Hot Wheels toy cars. Her son initially held both sets of toys and after he threw one to the ground, she placed this on the buggy canopy. She intended to buy both sets of toys. She moved the item from the canopy as it was slipping off and did so in a brightly lit aisle. She held the other items and manoeuvred the buggy with her other hand. The pack of toy was visible while in the under-carriage. When she reached the scanner, she inputted the wrong bread roll so asked a staff member to correct this. The privilege card did not work so the staff member returned to input the number. She called the staff member over on both occasions. Her son was crying as he was hungry. She wanted to do a quick shop before returning home. She forgot to pay for the toy pack in the under-carriage.

On leaving the store, the complainant was approached by a security guard and brought to the security room. She was asked for a receipt and realised she had not paid for one item. The security guard said she had stolen and he had to call the Gardaí. Another security manager came and scanned her privilege card. She was able to leave and, on her way, out, she returned to the store and purchased the exact same toys.

The following day, the complainant reported this to her manager. Two days later, she was informed of her suspension and invited to the investigation meeting. She was aware that legal representation was not permitted. She had accompanied colleagues to investigations and disciplinary hearings and had never seen a legal representative attend. The complainant outlined that while she could bring a colleague to a meeting, any union representative had to work for the respondent. She explained that all she had done was to move the pack of toys from the canopy to the under-carriage. Her now-husband worked for the respondent and she had taken his privilege card. There was no loss for the respondent as they both had a 10% discount. The complainant viewed the CCTV for the first time at the investigation meeting. The investigation determined that she stole the item and the disciplinary meeting was to determine what should be done about this.

The complainant explained at the disciplinary hearing what happened, and they did not discuss differences between her account and those set out in the statements. She shopped in this store daily and it was hard to use a basket and push a buggy. She did not intend the steal from the respondent, for whom she had worked for ten years. She understood at the disciplinary outcome meeting of the 14th March 2017 that she was being dismissed.

In her appeal, the complainant wished to challenge the finding of stealing. She wished to appeal all the decisions and wrote about the stealing finding. She was not given the opportunity to ask questions of those who made statements. She was not permitted representation.

The complainant outlined that she was now self-employed, running an online business and working as a fitness instructor. She applied for work with a clothes retailer in September and sought work in the other distribution centres. She was interviewed for two positions. She qualified as a fitness instructor in December 2017.

In questioning, the complainant said she had witnessed at meetings the respondent denying requests for legal representation and this was why she did not ask to have legal representation. She said that while the letter of the 19th January refers to the witness statements being attached, they were not attached. She accepted that she had viewed the CCTV footage at the investigation. She was asked whether she appreciated the respondent’s point about her moving the pack of toys 30 seconds before she reached the till; she replied that her child was upset at the time. She had not intended taking the item without paying. She was aware of the rules regarding the privilege card but had taken her husband’s card by mistake.

In closing, the complainant relied on Lyons v Longford Westmeath ETB, a decision grounded on Re Haughey [1971] I.R. 271. An investigation and disciplinary process must comply with natural and constitutional justice. An employee’s rights and their right to a good name required legal representation in such a process and this was expressly excluded by the respondent. The decision in Lyons is clear that an employee has the right to cross-examine through counsel any person adducing evidence. The process in this case was conducted based on statements, falling foul of Lyons.

The investigation reached a clear finding of misconduct against the complainant. The outcome of a disciplinary hearing was, therefore, a foregone conclusion; the disciplinary hearing was effectively a sentencing hearing. The only remaining question was the sanction to be applied. While there was some substantive consideration of the complainant’s explanation at the disciplinary hearing, it mainly addressed the issue of sanction.

The complainant was entitled to the benefit of the doubt, given her record and the nature of her account. The CCTV showed her child throwing the pack of toys from the buggy and the complainant trying to push the buggy while carrying items. The pack of toys can be seen moving off the canopy. The footage blurs. The item is then placed in the under-carriage, while the complainant was in the middle of a brightly lit aisle. The complainant did not put the pack of toys underneath the blanket or rain cover, both located in the under-carriage. The complainant was distracted at the point of payment, as her child was crying and trying to get out of the buggy. On two occasions, she had to call over a staff member. It is plausible to find that she forgot to pay for the item. Why would she risk her employment to steal an item worth €6.74? She submitted that there were fundamental procedural failings, meaning that the decision to dismiss cannot be substantially fair.

On the 15th January 2017, the complainant and her then 18-month old son went shopping in the respondent supermarket. She worked for the respondent at its distribution centre, not a great distance away. On this occasion, the complainant pushed her son in a buggy and did not use a basket or trolley. While the complainant was shopping, she was monitored on the store CCTV. While going through the store, she placed one item – a pack of ‘Hot Wheels’ toy cars – on the buggy canopy. Crucial to the respondent’s finding of serious misconduct was the complainant’s actions on approaching the self-scan tills. She is seen to stop and place the pack of toy cars from the buggy canopy to the under-carriage. They are placed on top of a blanket and rain cover. The complainant pays for the other items (including another pack of toy cars) and requires assistance with scanning an item and the staff privilege card. The security personnel approach the complainant on leaving the store, as she has not paid for the pack of toys placed in the under-carriage. She is brought to an office and states that she is an employee of the respondent. She is allowed leave, without the Gardaí being called, and returns to the store to buy the same pack of toys, retail price €6.74.

The respondent suspended the complainant on the 18th January 2017 and she attended the investigation meeting on the 20th January. The “investigation outcome” stated “I have considered all of the information from my investigations including your responses to the allegations and I am satisfied that an act of serious misconduct did take place therefore it is my decision to move to a disciplinary hearing.” The complainant attended a disciplinary hearing on the 2nd February, leading to a further outcome meeting of the 15th March. The respondent referred to the concealment of the pack of toys prior to the complainant reaching the tills as showing the “intent to steal”. The letter also cites the use of the privilege card and concludes that her actions breached mutual trust and confidence, leaving no option but her dismissal. The appeal upheld the finding of serious misconduct and the sanction of dismissal.

There was considerable focus on the right to representation in a disciplinary process. The respondent policy states “No persons unconnected with the enterprise e.g. solicitors, will be allowed to represent staff throughout any of these procedures”. The evidence was that any union representative would have to be a staff member of the respondent. The complainant was accompanied by colleagues and did not request to have legal representation, i.e. to deviate from the policy (the complainant says she did not do so because the respondent would have declined the request). In submissions, the complainant relied heavily on the High Court authority of Lyons v Longford Westmeath ETB, while the respondent pointed to the Supreme Court authority of Burns v Castlerea Prison. Since this adjudication, the Court of Appeal in Irish Rail v McKelvey [2018] IECA 346 held that Lyons departed to a significant extent from the jurisprudence in Burns.

First, the investigation in this case very clearly made a finding of serious misconduct. Fair procedures, therefore, applied to all stages: the investigation, the disciplinary hearing and the appeal hearing. As set out in Burns, the entitlement to legal representation in a disciplinary hearing arises only in exceptional circumstances. While the complainant’s job was clearly at stake, the issue was not especially complex. There was no point of law. The issue was, first, whether the finding of serious misconduct was a reasonable one for the respondent to reach. This involved consideration of the complainant’s actions and the circumstances. While the complainant may have asked particular questions, had she been legally represented (the public location she moved the toys to the under-carriage and placing them on top of a blanket, rather than hidden beneath it), this does not constitute exceptional circumstances.

In Looney and Co Ltd v Looney UD843/1984, the Employment Appeals Tribunal held:

‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

In Tesco Ireland Ltd v Faherty UDD1866, the Labour Court emphasised the need for a “scrupulous attention to fairness” in assessing the circumstances of a case and proportionality. The employee in question had taken a bottle of wine without paying for it, while purchasing other items.

In considering the procedural fairness of this process, I note the central importance of CCTV in reaching the finding of serious misconduct. I find that it was a procedural breach to only show the CCTV footage at the investigation and not at the later hearings, most notably the disciplinary hearing. While the disciplinary manager viewed the footage and the complainant had seen the footage at the investigation, this was not viewed at the disciplinary hearing. Central to this case is the conclusion of an intent to steal gleaned from viewing CCTV. For a disciplinary hearing to reach this conclusion, this required the complainant view the CCTV at the disciplinary hearing and explain her actions while the footage was being shown. Instead, she was asked for her explanation in the absence of the footage. This led to the finding of serious misconduct made by the investigator being an unassailable finding for the complainant to reverse at the disciplinary hearing. This renders the procedure unfair.

In further assessing whether the finding of serious misconduct fell within the reasonable band of findings in this case, I note that the complainant was clearly struggling with her upset child. She was pushing the buggy while also holding items. I appreciate the great emphasis placed by the respondent on the complainant placing the pack of toys in the under-carriage in the 30 seconds prior to approaching the tills. It points to the complainant’s failure to then pay for this item shortly afterwards. I note, however, the delay caused by the scanning issues, the interactions with the respondent staff member and the child’s continued upset while the complainant was at the till. I also note that the retail store was not the complainant’s place of work (she worked in the distribution centre).

The most striking element of the case is that after being apprehended on leaving the store and brought upstairs to an office, the complainant went back to buy the pack of Hot Wheels toys. This is evidence of a customer who forgot to pay, as opposed to a shoplifter trying to avoid paying for an item. The totality of the circumstances was not addressed in the disciplinary process and it follows that the finding of serious misconduct falls outside the range of reasonable findings. I, therefore, find that the dismissal was procedurally and substantially unfair.

In assessing redress, I note that the complainant set up businesses following her dismissal and made efforts to find alternative employment. While she approached other retail distribution centres, she did not pursue other logistics-related roles. In respect of any contribution to dismissal by the complainant, I note the extenuating circumstances of the complainant’s time at the till. Taking these factors together, I award redress of €9,000.

CA-00012945-001

For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €9,000.

Unfair Dismissals Act / serious misconduct

Right to legal representation / Burns v Castlerea Prison

Looney and Co Ltd v Looney / band of reasonableness

Tesco Ireland Ltd v Faherty / scrupulous attention to fairness