Complainant

Respondent

Anonymised Parties

A Bar Worker

A Public House

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-00017137-001

29/01/2018

The Complainant was employed by the Respondent as a Bar Worker having commenced employment on 29 October, 2016. The Complainant claims that she was unfairly dismissed from her employment and was not afforded fair procedures in relation to the manner in which the dismissal was effected by the Respondent. The Respondent disputes the claim of unfair dismissal and contends that the Complainant was dismissed by reason of gross misconduct on 16 October, 2017. The Respondent further contends that the procedures which were applied to the dismissal were fully complaint with the principles of fairness and natural justice.

Preliminary Issue

The Respondent company operates Bar B and this company is part of a larger group of companies which are controlled by members of the same family. The Respondent submitted that the Complainant commenced employment with Bar A on 29 October, 2016, transferred to Bar B on 16 July, 2017 and her employment was terminated by way of dismissal on 16 October, 2017. The Respondent accepts that the legal entities which owned Bar A and Bar B are related companies, and therefore, it was not disputed that the Complainant’s employment was continuous for the duration of her entire period of employment in both bars i.e. from 29 October, 2016 to 16 October, 2017. However, the Respondent submitted that the Complainant did not have the requisite service of one year on the date of her dismissal to maintain her complaint under the Act.

The Respondent relied upon the Labour Court case of Finn Tours South Limited -v- Danail Tsvetkov UD/18/01 in support of its position on the issue of jurisdiction.

Substantive Issue

The Respondent submitted that an issue in relation to the Complainant’s conduct at work was brought to the attention of the General Manager, Ms. A, after complaints had been received from two customers in relation to her behaviour on 7 October, 2017. Ms. A inquired into this matter and having viewed CCTV footage from the bar on the night in question it could clearly be seen that the Complainant was in a highly stressed demeanour during her shift and had acted in an aggressive manner towards one customer, in particular, and her colleagues while performing her duties. The Respondent took this matter very seriously in light of the customer complaints and the hostile and intimidating atmosphere which had arisen as a result of the Complainant’s behaviour on the night in question. The Respondent submitted that there had been other issues relating to the Complainant’s performance prior to the events on 7 October, 2017 including an incident where Ms. A had to talk to her about platting a friend’s hair on the premises during one of her shifts.

The Complainant was requested to attend a disciplinary meeting on 13 October, 2017 to investigate the incidents that occurred on 7 October, 2017 and to seek an explanation in relation to her behaviour. This meeting was attended by Ms. A and a HR Consultant, on behalf of the Respondent, and the Complainant, who declined the offer of representation. The Respondent offered the Complainant the opportunity to view the CCTV footage from the bar on 7 October, 2017 but she declined to do so. The issues in relation to the customer complaints and her aggressive behaviour towards her work colleagues were put to the Complainant and she accepted that an incident had occurred on the night in question where a customer has asked if she had done something to upset her. The Respondent did not have CCTV footage in relation to the second customer complaint so the discussions at the meeting were focussed specifically on the complaint made by the customer who had asked the Complainant if she had done something to upset her. The Respondent submitted the Complainant did not dispute that her behaviour was unacceptable but failed to provide any reasonable explanation or give any assurance that there would not be a reoccurrence in the future. The Complainant was informed that the Respondent was treating the matter very seriously and that she was in the “disciplinary arena”.

The Respondent submitted that it had also been noted when viewing the CCTV footage on 7 October, 2017 that the Complainant was seen leaving the bar and returning after 15-20 minutes with a bag from a nearby store. This matter was raised with the Complainant at the end of the meeting on 13 October, 2017 and she replied that she had purchased a basin and cloves for the bar from this store. The Respondent enquired further into this matter after the meeting but could not locate any receipts for the items which the Complainant contended she had purchased so the HR Consultant contacted her by telephone after the meeting on 13 October, 2017 to ask if she could return later that day to discuss this matter. The Complainant indicated that she was unable to return later that day due to prior engagements, so she was informed that a further disciplinary meeting would take place on 16 October, 2017.

The meeting on 16 October, 2017 was attended by Ms. A and the HR Consultant on behalf of the Respondent, and the Complainant, who again declined the opportunity of representation. The Respondent raised the issue in relation to the items which the Complainant had contended she purchased with money from the till and informed her that the receipts could not be located for these items despite a search having been carried out after the previous meeting. The Complainant responded that she had put the receipts for these items in the till after returning to the bar. The Respondent submitted that it accepted the Complainant’s explanations in relation to the receipts and indicated to her at the meeting that it was not making a major issue in relation to this matter.

The Respondent had further discussions with the Complainant at this meeting in relation to the customer complaint and her aggressive behaviour towards colleagues on the 7 October, 2017 and she didn’t provide any valid explanations for her unacceptable behaviour or any reassurance that there would not be a reoccurrence in the future. The Respondent submitted that it was striving to build a reputable business and staff were aware that they were required to adhere to the highest standards of customer care which was not evident in the Complainant’s behaviour on 7 October, 2017.

The Respondent submitted that while investigating this issue it was also evident that the Complainant’s behaviour towards, and treatment of her colleagues was unacceptable, and that management also had to speak to her on a couple of occasions prior to this in relation to her behaviour. The Respondent submitted that the Complainant’s performance and behaviour had fallen well below the standard acceptable and it could no longer have the trust and confidence in her to achieve the required standard of customer care. In the circumstances, and in light of the acts of gross misconduct which the Complainant had committed on 7 October, 2017 the decision was taken to dismiss her with immediate effect on 16 October, 2017.  

The Complainant was informed in writing by letter dated 19 October, 2017 of her dismissal and was afforded the opportunity to appeal this decision. This letter was returned to the Respondent by An Post so the period within which to appeal was extended but the Complainant failed to take the opportunity to do so. The Respondent subsequently wrote to the Complainant on 1 November, 2017 and indicated its disappointment that she had failed to fully exhaust the internal disciplinary procedure and confirmed that she had been paid two weeks in lieu of notice and her outstanding annual leave entitlements.

Submissions

The Respondent made the following submissions in response to the Complainant’s claim of unfair dismissal, namely:

·         The Complainant’s aggressive behaviour towards customers and work colleagues on 7 October, 2017 was totally unacceptable and amounted to gross misconduct in accordance with its internal procedures. The Complainant failed to provide any acceptable explanations for this behaviour or assurances that it would not reoccur in the future. In the circumstances, the Respondent could no longer have trust and confidence in the Complainant to adhere to the required standards of behaviour and customer care and therefore, was left with no option but to dismiss her from her employment.

·         The Respondent’s investigation and disciplinary process into the incidents which resulted in the Complainant’s dismissal was conducted in accordance with the internal disciplinary procedures and complied fully with fair procedures and natural justice. In this regard, the Complainant was advised of the nature of the allegations being investigated prior to the first disciplinary meeting; she was given a copy of the internal disciplinary procedures prior to the commencement of the disciplinary process; she was afforded the opportunity to view CCTV footage of the incidents that occurred on 7 October, 2017; she was advised of the right of representation at both disciplinary meetings; she was provided with copies of the minutes of both meetings; she was afforded the opportunity to put forward explanations for her behaviour but failed to do so.

·         The Complainant failed to fully exhaust the internal disciplinary procedures and did not take the opportunity to appeal the decision to dismiss.

Preliminary Issue

The Complainant disputes the Respondent’s contention that she did not have the requisite service of one year on the date of her dismissal to maintain her complaint under the Act. The Complainant submitted that her employment with the Respondent commenced on 29 October, 2016 and that she received notification from the Respondent that her employment was being terminated with effect from 16 October, 2017. However, the Complainant submitted that she was entitled to two weeks’ notice in accordance with the terms of her contract of employment, and therefore, having regard to the provisions of Section 1 of the Act, the “relevant date of dismissal” is the date on which such notice would have expired, namely 30 October, 2017. The Complainant submitted that her service with the Respondent covered the period from 29 October, 2016 to 30 October, 2017 which satisfies the requirements as provided for in Section 2(1)(a) of the Act.

Substantive Issue

The Complainant’s qualifications are in the service industry and she had 10 years’ experience in the bar trade prior to commencing employment with the Respondent. She commenced employment at a bar (Bar A) owned by the family group of companies owned by Respondent on or about 29 October, 2017 and worked there without incident until July, 2017. The Complainant transferred to another bar (Bar B) owned by the Respondent on 18 July, 2017.

The Complainant submits that it was her suggestion to have a gin bar in or about the summer 2017 and she would come up with a special cocktail menu for promotional nights in Bar A. She contends that Bar B wanted to have a special gin bar and may have been influenced by what she was doing in Bar A so the directors of the Respondent jointly requested her to move to Bar B in July, 2017.

The Complainant commenced her shifts in Bar B at about 6 or 7 pm. Her duties involved cutting fruit, stocking ice and the fridges and cleaning the sinks prior to tending to the bar. She did not look for help as other staff were run off their feet and workers on the coffee bar wanted to leave and finish their shifts. There was no direction and no manager to instruct the coffee bar staff to clean up after their shift. The Complainant felt herself getting increasingly stressed prior to 7 October, 2017 owing to her work conditions and she mentioned the stressful working conditions verbally to Ms. A, the General Manager and Director.

The Complainant had a performance appraisal in August, 2017 and was informed that she was getting on great apart from one complaint made by a 17 year old “runner” and it was accepted by the General Manager who spoke informally with the Complainant, that she was very busy at the time that incident occurred.

On 7 October, 2017, the Complainant found it very stressful when she commenced her shift as nothing had been organised and she was the only staff member scheduled for the gin bar at that time. There was no supervisor. The Complainant had to carry out all the preparatory work for the extremely busy night ahead including cutting the fruit, restocking the bar, clean the café and serve customers. The sink was also clogged from the day’s coffee bar at that location and to ensure that it did not overflow on the night ahead the Complainant took cash from the till and purchased a basin in a nearby store for €3.99. The Complainant also ran to another nearby shop to purchase cloves which cost €3.41. The Complainant put the receipts for both items she had purchased in the till immediately on her return to the bar. A customer reported to the Complainant that she had forgotten some of her order and when the Complainant became stressed, the customer asked if she had done something to upset her. The Complainant said “no”, that she was stressed because it was busy, and she was short staffed.

On 9 October, 2017 the Complainant went into the bar to say hello to her colleagues and was pulled aside by Ms. A, General Manager, who informed her that two customers had made complaints against her the previous Saturday evening. The Complainant was requested by the Respondent’s HR Consultant by e-mail on 11 October, 2017 to attend a “disciplinary meeting” at Head Office which was scheduled to take place on 13 October, 2017. The e-mail referred only to a complaint made by a single customer.

At the meeting, the Complainant accepted that a customer said, “did I do something to upset you” and stated that she had never had a customer complaint against her ever before and she apologised for her stressed behaviour and outlined that her stress was due to her working conditions. Ms. A and the HR Consultant informed the Complainant that she was being aggressive towards her colleagues. The Complainant disputed this. The Complainant was never presented with any written complaints or grievances from her co-workers either at the meeting on 13 October, 2017 or thereafter. Ms. A acknowledged that the Complainant was “very capable” and both Ms. A and the HR Consultant stated that they would consider her position over the following week. Ms. A stated that the Complainant would be given a chance in the main bar to see how she would get on and the Complainant was happy with this suggestion. It was not at all made clear to the Complainant that she was at risk of being dismissed from her employment.

The Complainant received a telephone call from the HR Consultant three and a half hours after the disciplinary meeting and was asked to call back into the office because there was something they had forgot to cover at the meeting. The Complainant asked what this matter concerned whether the HR Consultant could tell her over the telephone as she had some prior engagements. The HR Consultant refused to tell her what the matter was and scheduled a further meeting for 16 October, 2017. The Complainant was given no notice, either verbal or in writing, of the second complaint against her, prior to the second meeting on 16 October, 2017. The Complainant worked from 12 October, 2017 to 14 October, 2107 without incident or complaint.

The Complainant met with Ms. A and the HR Consultant on 16 October, 2017 and was informed that they could not locate the till receipts for the purchases made by her on 7 October, 2017. The Complainant explained that she vividly recalled placing the receipts in the till under the stack of €50 notes where she put all work-related receipts. The Complainant had previously purchased items from the till during her employment without any incident such as fruit for cocktails. The till was chaotic that night as it was so busy, and it was overflowing with cash at the end of the night.

Ms. A and the HR Consultant informed the Complainant that they could not see her on camera at the bar but did say that they saw her entering the building with a XX Store bag. Ms. A once again told the Complainant that she was “very capable”. The Complainant was told that Ms. A expected more. The Complainant was given an ultimatum to hand in her resignation, or she would be dismissed. The Complainant submits that effectively the Respondent “rolled up” an investigative hearing with a disciplinary sanction and moved to swiftly terminate the Complainant’s employment without affording her fair procedures. The Complainant asked whether her termination was immediate, and she was told that it was, but she would be paid her notice and any outstanding annual leave. The Complainant asked about other staff and was told that the Respondent decided “not to involve them”.

Legal Submissions

The Complainant made the following submissions in support of her contention that her dismissal was both substantively and procedurally unfair, namely:

·         The failure to exhaust the internal appeal procedures does not militate against the grant of relief, although it is accepted it may be taken into account in circumstances where it is held that a person had contributed to his/her dismissal (as occurred in the Labour Court decision in the case of Rogers -v- Joseph Brenan Bakeries UD17/160). The Complainant in the instant case was invited to appeal the decision to dismiss but it was unclear as to who would be conducting the appeal. Secondly, the decision to dismiss the Complainant and the way this was taken by the Respondent had an impact on her health. The Complainant’s confidence in herself and her ability to do her job was shattered. The Complainant was accused of a most serious matter, effectively tantamount to thieving from her employer and against that background she could have not have any faith in her employer and her continued employment.

·         The Complainant was not afforded fair procedures or natural justice in relation to the manner in which she was dismissed from her employment. She was not informed of the allegation of theft at the outset of the disciplinary process, in order to ensure that she had a meaningful opportunity to prepare and present her defence.

·         The Respondent failed to comply with the Code of Practice on Disciplinary Procedures (SI No. 146/2000), including as follows: she was not moved through several stages of the disciplinary process but rather to the final stages which constituted both an investigation and disciplinary meeting. She did not know in advance of either meeting that a potential decision would be taken to dismiss her and this affected her decision not to be accompanied or engage legal representation; the same persons who investigated the allegation that she had taken money from the till without putting back a receipt (tantamount to theft) against her were involved in the decision to dismiss her; she was not afforded full and reasonable notice of the allegations against her or permitted to contact any potential relevant witness to support her version of events; she was not afforded a right to cross examine her accusers, or even to see any written complaints made by third parties and/or colleagues against her.

·         The sanction of dismissal was disproportionate to the findings including having regard to the amount of money involved which was €7.40 and the Complainant’s responses to this allegation and to the customer complaint against her.

·         The Respondent failed to carry out a careful investigation into the missing till receipts, for example, that the possibility that a co-worker could have removed them or that they had become inadvertently lost whilst the cash was in transit.

·         The Complainant was given no targets for improvement in her alleged stressed behaviour nor does it appear that the fact no complaints were made against her between 12 October to 17 October, 2017 was taken into consideration prior to the decision to dismiss her.

·         The Respondent failed to have any regard to the fact that the Complainant’s stress on the night of 7 October, 2017 was caused by the stressful working conditions caused, permitted or occasioned by the Respondent.

The Complainant also relied upon the following cases in support of its position, namely: Frizelle -v- New Ross Credit Union Limited [1997] IEHC 137, Preston -v- Standard Piping [1999] ELR 233 and Burbs -v- Governor of Castlerea Prison [2009] 3 IR 682.

Preliminary Issue

The Respondent submitted that the Complainant did not have the requisite service of one year on the date of her dismissal to maintain her complaint under the Act. Section 1 of the Unfair Dismissals Acts makes provision for the “date of dismissal” for the purposes of complaints under the legislation as follows:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1977 … “.

It was not in dispute that the Complainant commenced employment with the Respondent on 29 October, 2016 and that she was dismissed on 16 October, 2017. However, I note that the Complainant’s written contract of employment provided that she was entitled to two weeks’ notice in writing in the event of the termination of her employment. I also not that there was undisputed evidence adduced at the oral hearing to confirm that the Complainant received two weeks’ pay in lieu of notice following the termination of her employment.

In the circumstances, and having regard to the provisions of Section 1 of the Act, I find that the relevant date of dismissal for the purposes of the instant complaint was 30 October, 2017. Accordingly, I find that the Complainant has the requisite service of one year on the date of her dismissal to maintain her complaint under the Act.

Substantive Issue

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

Therefore, the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and 2) whether the dismissal adhered to the principles fair procedures.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held 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 …. “.

In the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes “gross misconduct” justifying summary dismissal. In this regard, I note that the EAT held in the case of Desmond Brennan -v- Institute of Technology Carlow UD281/2000 that: “Lawyers use the adjective “gross” in limited cases. “Gross negligence” means negligence of a very high degree, and quite different from ordinary negligence which can happen quite easily. Similarly, “gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature. The word used in s.6(4)(b) of the Unfair Dismissals Act is “conduct”, which is a neutral word, by contrast with the word “misconduct” used in the Minimum Notice and Terms of Employment Act to justify dismissal without notice. The use of these two words in related statutes suggest two different standards, and over the years the Tribunal has often found that the nature of an employee's conduct was such as to justify dismissal, but not to justify summary dismissal. The words “gross misconduct” must therefore mean something even more serious.”.

In the instant case, the Respondent contends that the Complainant was dismissed by reason of gross misconduct arising from her aggressive and unacceptable behaviour towards customers and work colleagues during her shift on 7 October, 2017. The Respondent contends that this matter was investigated in accordance with its internal disciplinary procedures and that the Complainant failed to provide any acceptable explanations for this behaviour or assurances that it would not reoccur in the future. The Respondent contends that the Complainant’s unacceptable behaviour on 7 October, 2017 when taken in conjunction with the fact that she had been previously spoken to on a number of occasions in relation to her behaviour, meant that it could no longer have trust and confidence in her to adhere to the required standards of behaviour and customer care, and therefore, was left with no option but to dismiss the Complainant from her employment. The Respondent also contends that the Complainant failed to fully exhaust the internal grievance procedures on the basis that she failed to appeal the decision to dismiss.

The Complainant does not dispute that an incident occurred in the bar on 7 October, 2017 where a customer had asked her “did I do something to upset you” but disputes that her behaviour towards other staff members on this occasion was aggressive or unacceptable. The Complainant contends that the incident which gave rise to the customer complaint on the material night in question was attributable to the stressful working conditions she was forced to endure. The Complainant disputes that her conduct on this occasion amounted to gross misconduct and she contends that the penalty of dismissal was totally disproportionate when all the circumstances of the case are taken into consideration given the nature of the incident and her previous good work record. The Complainant also claims that the manner in which the disciplinary process was conducted was flawed and lacking in fair procedures with the result that she could not have had any confidence in a fair appeal hearing.

In considering whether the sanction of dismissal was reasonable in the circumstances, I am satisfied that the following facts have been established in relation to the matter:

·         The Complainant was very capable and competent in her position and there had not been any significant performance related issues prior to the incident which occurred on 7 October, 2017. It was not in dispute that the Complainant had a performance appraisal in August, 2017, some two months before her dismissal, and she was informed by the General Manager, Ms. A, that she was “getting on great”. The only performance related issues that were raised with the Complainant prior to the incident on 7 October, 2017 related to an incident where she was alleged to have made a comment to a “runner” in the bar and a further occasion where Ms. A had to speak to her about an incident where a supervisor reported that she had been platting a friend’s hair in the bar during her shift. However, I am satisfied that the Respondent did not view these issues as particularly serious at the material times in question as it did not invoke the internal disciplinary procedures or issue the Complainant with a formal warning in relation to same.

·         The Complainant does not dispute that an incident occurred during her shift on 7 October, 2017 where a customer asked her if she had done something to upset her and that this incident was subsequently the subject of a complaint by the customer. However, the gravity of this incident and the reasons which precipitated the Complainant’s reaction to the customer on this occasion were very much in dispute. The Complainant accepts that she was very stressed in the bar on the night in question, which she contends was due to the highly pressurised working conditions and lack of support staff, and that she reacted in a curt and inappropriate manner to the customer when taking her order.

·         The Complainant disputes the Respondent’s contention that she engaged in aggressive and unacceptable behaviour towards other staff members on the night in question. I note that the Respondent’s assessment of her conduct on this issue was based exclusively on information imparted from two customers and its perusal of the CCTV footage from the bar. The Respondent did not adduce evidence to suggest that any of the Complainant’s colleagues had made a formal complaint in relation to her alleged behaviour on this occasion or that she had engaged in behaviour of such a nature in the workplace theretofore.

·         The Respondent adduced evidence that the issue in relation to the missing till receipts relating to the items which the Complainant purchased on 7 October, 2017 was not a factor in the decision to dismiss.

Having regard to the totality of the evidence adduced, I fully concur with the Respondent’s position that high standards of customer service are of paramount importance in the hospitality trade and I accept that it was entitled to reprimand the Complainant and invoke an appropriate and reasonable disciplinary sanction in respect of her failure to adhere to the required standards arising from the incident on 7 October, 2017. However, based on the evidence adduced, I am not satisfied that it was reasonable for the Respondent to conclude that the incident relating to the manner in which the Complainant reacted to the customer on the night in question, when viewed in isolation, or when taken in conjunction with the alleged aggressive behaviour to other colleagues, constituted an act of gross misconduct.

Furthermore, I am satisfied that the Respondent failed to act reasonably by failing to consider whether dismissal was a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee as required in Frizelle -v- New Ross Credit Union Ltd case. Notwithstanding, the fact that the Complainant accepted her conduct on the night in question fell short of the required standards of customer service, there was no consideration of the mitigating factors proffered during the disciplinary process, and in particular of her prior good record, and whether a lesser sanction such as an oral or written warning would be more appropriate. Notably, the reasons given for the Complainant’s dismissal made no reference to these mitigating factors. In all the circumstances, I find that the actions of the Respondent in terms of the sanction of dismissal were not within the range of reasonable responses open to it and that substantial grounds did not exist to justify her dismissal.

The next issue which I must consider relates to the procedural fairness or otherwise of the Complainant’s dismissal. The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[2] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. In considering this matter, I am satisfied that the Respondent had an established Grievance and Disciplinary Policy in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

I have carefully considered the manner in which the investigation and disciplinary procedures were applied in the present case and I am satisfied that there were a number of fundamental aspects of the process which did not meet the required standards of procedural fairness, namely:

·         The Respondent’s stated position was that the Complainant’s behaviour on 7 October, 2017 amounted to an act of gross misconduct and that it was left with no option but to apply a sanction of dismissal. However, I am satisfied that the Complainant was not advised prior to the disciplinary meetings on either 13 October, 2017 or 16 October, 2017 of the seriousness of the matter, namely that her behaviour on the date in question was being treated as gross misconduct and that there was the possibility of her being dismissed. Having regard to the evidence adduced, I am satisfied that the Respondent proceeded to dismiss the Complainant without informing her that it had deemed her actions as “gross misconduct” contrary to its disciplinary procedure. Instead, it relied on the outcome of the disciplinary hearing to justify summary dismissal.

·         The same individuals, namely Ms. A and the HR Consultant, conducted the investigation meeting as made the disciplinary decision. Unless it cannot be avoided the person, who carried out the investigation should not be the decision maker. I am cognisant of the fact that in a small workforce it may not be possible to separate the investigator from the decision maker. However, in the instant case, I am satisfied that it would have been possible, and wise, to separate the two roles.

·         The Respondent introduced an issue in relation to missing till receipts for items purchased by the Complainant during the disciplinary meetings without giving her prior notice that this issue would form part of the investigation or disciplinary process. The Respondent adduced evidence that it accepted the explanations provided by the Complainant at the investigation/disciplinary meeting in relation to this matter and was satisfied that she had not engaged in any impropriety relating thereto. However, I have difficulty in accepting the Respondent’s evidence that this issue was not a factor in the decision to dismiss, having regard to the manner in which it was introduced during the disciplinary process, and in view of the fact that it was also referenced in the letter of dismissal which was sent to the Complainant on 19 October, 2017.

·         The Respondent did not consider any alternatives to dismissal. I am satisfied that the sanction of dismissal was disproportionate in all the circumstances.

I find, therefore, that the manner in which the Respondent conducted the disciplinary process which resulted in the Complainant’s dismissal did not comply with fair procedures and natural justice. I note that the Complainant was afforded the opportunity to appeal her dismissal but failed to do so and I have taken this factor into account in considering the award of redress.

In the circumstances, I find that the Complainant’s dismissal was both substantively and procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a net weekly wage of €341.00 by the Respondent at the material time of her dismissal. The Complainant adduced evidence that she has obtained three separate periods of temporary employment following her dismissal (the most recent period of employment terminated on 1 September, 2018) in respect of which she has earned a total net amount of €5,605.00. I have received submissions from the parties in relation to the Complainant’s loss arising from her dismissal, her efforts to mitigate those losses and her failure to fully exhaust the internal disciplinary procedures by not appealing her dismissal, all of which I have taken into account in deciding the quantum of the award of compensation.

Having regard to the foregoing, I deem that an award of €7,500.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal.

Unfair Dismissals Acts, 1977 – 2015 – Jurisdiction – Section 1 – Relevant Date of Dismissal - Section 6(4) – Gross Misconduct – Dismissal Procedurally and Substantively Unfair - Complaint Well Founded – Compensation Awarded