Complainant

Respondent

Anonymised Parties

Sales Assistant

Supermarket

Representatives

James McElwee, Solicitor

Noreen Coyne, People Matters

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-00021195-001

16/08/2018

The Complainant contends that she was unfairly dismissed by reason of gross misconduct.

The Complainant was employed by the Respondent from 1st March 2017 as a Sales Assistant. She was summarily dismissed on 12th May 2018 for allegedly taking coffee without paying the correct rate for it.  She was called into the Respondent’s office and dismissed for “taking of product, in this case, flat white coffees, without payment…which was deemed as theft and therefore gross misconduct”. It is submitted that the Complainant in this case, was unaware of any wrongdoing, as she was not aware of policy. She at all times paid for large coffees and when the shortfall was brought to her attention, offered to pay. It is submitted that she was subjected to unfair or no proper procedures, where the Respondent and his assistant manager conducted an investigation and then proceeded to dismiss the Complainant.   No real right of appeal was given as the notice gave only two days.

The Respondent alleges that the Complainant was observed over a period of time filling two flat whites into a large coffee cup and it was calculated that over a period from January to May 2018, there was a substantial loss to the Respondent. It is submitted that the Complainant was well aware of the situation and requirement to have honesty in the retail trade. Unauthorised discounting is considered such a serious offence in retail that breach of the employees purchase procedures may be deemed as gross misconduct and grounds for immediate dismissal. It is argued that all staff, including the Complainant were trained on the use of the coffee machine in June 2017. It was emphasised to them a number of times the importance of not allowing customers to put two flat whites into an Americano cup. The pricing structures were evident and on display. Despite this, the Complainant was found to have clearly breached the rules and was dismissed on foot of same.

The letter of dismissal to the Complainant dated 15th May 2018 states “I refer to our informal investigation and disciplinary meeting of May 12th..”   In the circumstances where an employee’s employment is at risk of being terminated, it is essential that due process and proper procedures are observed. Statutory Instrument S.I. 146 of 2000 sets out the minimum standards employers must follow in disciplinary and grievance cases. The long established procedures are that employees have a right to know what charges are being laid against them before they attend any investigation or disciplinary meeting, that they are afforded the right to a proper hearing, representation and appeal. The Respondent’s own procedures are that a disciplinary meeting should be conducted by a manager who has not been involved in the investigation. In other words, the risk of being judge, jury and executioner should be avoided.   In this instant case, the procedures followed by the Respondent were flawed in that the Complainant was somewhat ambushed when she attended the investigation meeting. The meeting was described in the letter of dismissal as being “informal”. In all the circumstances of this case I find that the Complainant was unfairly dismissed. I consider that she contributed somewhat to the situation in which she found herself.   I consider compensation to be the appropriate redress. Given a contribution of 50% on the Complainant’s part I award compensation of €750.