ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021665

Parties:

Complaint(s):

Date of Adjudication Hearing: 27/09/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complaint, refers to a claim of unfair dismissal of the Complainant, a Service Station Assistant and Cashier, due to a lack of fair procedures. The Respondent maintained the dismissal was fair as it relates to an act of gross misconduct by the Complainant.  

Summary of Respondent’s Case:

CA-00028407-001Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Respondent's submitted that the dismissal of the Complainant on the 10th May 2019 was for gross misconduct due to an incident which occurred on the 2nd April 2019.

The Respondent maintained the on the 2nd April 2019 the Complainant was observed under CCTV purchasing tobacco products for cash from a customer, concealing the tobacco products under a counter, and then later exchanging the tobacco products for cash to another person. The CCTV footage recorded the Complainant taking a telephone call, then withdrawing cash from the till using his personal debit card, subsequently receiving tobacco from a customer, checking the tobacco, exchanging money for the tobacco, concealing the tobacco under the counter, using his phone, and then later exchanging the tobacco for cash with another customer. The Respondent maintained the tobacco did not have the correct duty paid which is in contravention of section 78 (3) of the Finance Act 2005 and contrary to Chapter 4 of the Revenue Commissioners Customs and Excise Enforcement Manual. The Respondent maintained the selling the tobacco at the counter without duty paid was a serious offense in which the Respondent and the Complainant would be liable to criminal prosecution, and conviction of a fine of €5,000 or up to 12 months imprisonment. The Respondent maintained the act was an act of gross misconduct that put the Respondent’s business and livelihood at risk.

The Respondent advised that he discovered CCTV footage by chance some weeks later when he was reviewing another instant. The Respondent advised when he reviewed what happened he gave the Complainant an opportunity to view the CCTV and where the Complainant was also explicitly advised to seek legal advice given the seriousness of the incident. The Respondent maintained that Complainant claimed that that he was doing a favour for a friend and that the tobacco was duty free tobacco he had received as a gift for this favour.

The Respondent submitted that having provided the Complainant with an opportunity to take legal advice he did not do so, nor did the Complainant provide an acceptable explanation regarding his behaviour. The Respondent also submitted that the Complainant refused to reveal the full identity of the vendor of the tobacco. Therefore, the Respondent decided to dismiss the Complainant for gross misconduct.

The Respondent submitted that the Complainant did not seek an appeal to the decision to terminate his employment either directly or through his solicitor. The Respondent advised at the Complainant’s solicitor wrote the Respondent within five days of the Complainant having been dismissed and informed the Respondent they had lodged a complaint to the WRC. The Respondent therefore submitted that the Complainant failed to seek an appeal with regard to his dismissal in advance of issuing the current proceedings.

The Respondent contended that in accordance with s6(4) of the Unfair Dismissals act 1997 the dismissal was a fair dismissal as it resulted wholly or mainly from the conduct of the employee. The Respondent submitted that the reason for the dismissal was that the Complainant had engaged in the illegal sale of tobacco which created a risk for both the Complainant and the Respondent to be open to criminal prosecution, financial loss, and serious reputational damage. Therefore, the Respondent maintained that in accordance with section 6(1) of the Act there was substantial grounds justifying the dismissal. It contended the dismissal resulted wholly from the Complainant’s criminal conduct which destroyed the relationship of trust and confidence that had previously existed between the parties.

In light of what occurred the Respondent submitted the dismissal was proportionate and justified. It further argued that the WRC must not substitute its own view for that of the employer and contended that the function of the WRC is to decide whether, within the band of reasonableness of decision making, the Respondent’s decision was not unfair. It further maintained that the decision and sanction to dismiss was within the range of reasonable responses available to a reasonable employer as set out in McGee V Beaumont Hospital UD136 /1984.

The Respondent maintained that within days of being dismissed the Complainant engaged with a solicitor but did not seek an appeal to his dismissal. It maintained that an appeal had the potential to cure any alleged procedural defects, and further maintained it was incumbent on the Complainant to exhaust all internal avenues before seeking the assistance of the WRC. Referring to jurisprudence, the Respondent stated in Arzyta Bakeries v Vilnis Cacs UDD1812 the Labour Court determined that an employee had an obligation… to exhaust available internal procedures and that failure to do so is a relevant matter to be taken into account when considering whether a dismissal was unfair. In effect the Respondent contended the Complainant failed to meet his obligations to exhaust the internal procedures available to him and submitted that it is not now open to the Complainant to argue that he was unfairly dismissed.

The Respondent further maintained that by the Complainant lodging his complaint to the WRC within four days of being dismissed demonstrated an absence of any despite to appeal the dismissal, or to seek to resolve matters internally. Whilst the Respondent contended there were no procedural defects to any degree that would interfere with the fairness of its decision to dismiss, it maintained if the complaint did have any perceived procedural irregularities it could have been addressed on appeal.

The Respondent admitted that in the event there is a finding that the Complainant has been unfairly dismissed the relevant provisions of Section 7(2) of the Act where in determining the amount of compensation payable, regard shall be had to the extent to which financial loss was attributable to an action, omission or conduct on behalf of the employee and the measures adopted by the employee to mitigate the loss.   The Respondent referred to Coad v Eurobase UD1138/2013 wherein the Tribunal noted a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work … the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.

CA-00028407-002Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                

The Respondents submitted that as the Complainant was dismissed for gross misconduct he was not entitled to notice or payment in lieu thereof. Referring to Section 8 of the Minimum Notice and Terms of Employment Act ,1973, the Respondent stated it had a right to terminate a contract of employment without notice because of misconduct by either party. It maintained that Section 8 of the Act saves an employer from liability for a minimum notice where the dismissal is for misconduct. It therefore maintained that the reason for the Complainant’s dismissal without notice was due to the illegal activities which he engaged in, namely purchasing of and selling on of tobacco contrary to the relevant legislation. On that basis it argued the Complainant was not entitled to notice our payment in lieu thereof.

Summary of Complainant’s Case:

CA-00028407-001Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that he worked as a car wash attendant and cashier at the Respondent’s site for twenty-six years. The Complainant's admitted that he has never had any disciplinary issues in the twenty-six years, nor has he received warnings of any nature.

The Complainant submitted that he was friendly with members of the Filipino community having had one renting a room in his house, and also has holidayed in the Philippines. He submitted a member of the Filipino community had a table and chair to be fixed and that the Complainant's brother who has a joinery business fixed them free of charge. As a token of his appreciation the Filipino colleague brought 400 Marlboro light cigarettes to the Complainant's place of work to give them to him. The cigarettes were duty free as they had been brought back from the Philippines, and the Complainant insisted on paying €120 for the cigarettes.

The Complainant advised that whilst he does smoke, he does not like Marlboro lights and decided he would pass them on to a friend. He therefore placed the cigarettes behind the counter for safekeeping and called his friend who smokes Marlboro lights.   His friend came to the filling station and paid the Complainant €120 for the cigarettes. The Complainant maintained he did not make any profit. The Complainant viewed the cigarettes as a generous gift from a friend in which he in turn passed on to another friend.

The Complainant could not recall the day this happened but believed it was in March or early April 2019. The Complainants submitted that he did not realise he was doing anything wrong but in hindsight acknowledged that he was effectively selling cigarettes in a premises that was licensed to sell cigarettes.

The Complainant submitted that on the 7th May 2019 while at work he was approached by a Director of the Respondent and was invited to look at CCTV footage on the Director’s phone. The Complainant was asked what he was doing, and he said he told the Respondent that he had received the cigarettes from a colleague, and that another colleague picked them up later on. The Complainant said he was told by the Respondent that he was selling contraband over a licensed tobacco counter to which the Complainant said he was shocked. The Complainant contended that the Respondent advised him that they could do it the easy way, or the hard way, or call the Gardai. The Complainant said he continued at work, washed a customer's car and he was approached again by the Respondent who asked him what his decision was. The Complainant said he apologised four or five times and that the Respondent gave him until the following day to think about it. The Complainant said he was approached the following day, 8th May 2019 by the Respondent who told him he should get some advice.

The Complainant submitted that on the 10th May 2019 while he was at work the Respondent waited outside his workplace until he had finished his shift. The Complainant maintained that he had been working from 6:30 am to 5:00 pm with no break during that day. He was exhausted as he had not slept well over the previous few nights. He was asked by the Respondent what he was going to do. The Complainant maintained he apologised again, and he was told by the Respondent that he had two choices- the first choice was for the Complainant to resign and the whole thing would go away for good, and the second choice was that the Respondent would go to the Gardai and show them the CC TV footage. The Complainant maintained that the Respondent advised that the Complainant would get a criminal record and not be able to fly to the USA. The Complainant contended that he was advised by the Respondents to resign and it would all go away. The Complainant maintained that this conversation went on for approximately 10 minutes. The Complainant then rang a family member and came back to the Respondent and told Respondent he was not going to resign.

The Complainant submitted that the Respondent then produced a letter which had been prepared and advised the Complainant that he was going to sign the letter and terminate the Complainant’s employment straight away. The Complainant said he was asked again to resign but said no and at that point the Respondent signed the letter, handed it to the Complainant, and asked the Complainant for his keys and phone.

The Complainant said there was no appeal process, no disciplinary procedure, no independent investigation, or no fair procedures. Whilst he acknowledged with the benefit of hindsight that what he did was wrong the Complainant maintained his summary dismissal was disproportionate after twenty-six years of loyal service.

The Complainants admitted that since his dismissal he has been seeking employment and applied for a number of jobs at filling stations, a building job, a college, and a public house. He also followed job alerts for vacancies. The Complainant says he registered online through job agencies and secured employment through that process. He now works two days per week and receives €240 gross. The Complainant maintained that his employment is a five mile journey each way adding extra expense to him as he could walk to his original job. He maintained his gross loss was €9,922.75, and his ongoing weekly losses are €282.25 gross.

CA-00028407-002Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                

The Complainant submitted that he was dismissed without notice and without the Respondent adhering to a fair procedure. He was therefore seeking payment in lieu of notice in accordance with the Minimum Notice & Terms of Employment Act, 1973.

Findings and Conclusions:

CA-00028407-001Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(c) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer 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 which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial reason for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear 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 - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Based on the evidence presented I am satisfied that the Complainant did receive and pay for cigarettes at his place of work, concealed the cigarettes under the counter at work, and exchanged the cigarettes for cash to another person later during his shift. The selling of tobacco without paying duty, and doing so in a licenced premises, is contrary to the legitimate operation of the Respondent and this act by the Complainant placed the Respondent’s business at grave risk. Furthermore, the Complainant in selling the duty free cigarettes, in that he took money for them across the counter, was committing an illegal Act. As such I conclude that the Complainant’s actions amount to an act that would reasonably be regarded as destroying the relationship of trust and confidence between Respondent and Complainant. Whilst the Complainant’s contract of employment did not specifically refer to such an act as being a dismissal offence, it would be reasonable to conclude it if occurred it would be an act of gross misconduct.

I also find that once the Respondent became aware of the act, he viewed it as a serious matter. However, he did not suspend the Complainant to conduct an investigation of the matter. Rather he confronted the Complainant and gave him a number of days to consider what he would do. The Complainant continued to be rostered for work and attended work for a number of days. I am also satisfied that the evidence supports the Complainant was given an option to either resign or the matter would be reported to the Gardai. The Complainant chose not to resign, apparently on the belief he had been doing a favour for a friend by selling the cigarettes for what he paid for them rather than doing anything illicit. The Complainant also confided in a family member before deciding not to resign. At that stage, and at the end of a day’s shift, the Complainant was handed a letter of termination of his employment by the Respondent.

Having reviewed the Complainant’s written statement of terms of employment, there is no reference to disciplinary procedures. Notwithstanding the Respondent is obliged to adhere to fair procedures before dismissing an employee. At a minimum the Respondent is expected to have regard to S.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000. The code of practice sets out that an employer should ensure details of any allegations or complaints are put to the employee concerned; that the employee concerned is given the opportunity to respond fully to any such allegations or complaint; that the employee concerned is given the opportunity to avail of the right to be represented during the procedure; that the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.The code further advises that these principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

A review of the evidence presented supports that the Complainant was not offered such procedures, but rather was confronted by the Respondent with the alternatives of resigning or the matter would be reported to the Gardai. No impartial investigation was taken of the issue, and nor was the Complainant offered fair procedures. Furthermore, it is noted the Respondent had submitted that the Complainant did not appeal the decision and was critical of this. Despite raising this objection, it must be noted that the letter of termination did not refer to any right of appeal and in fact stated there was likely to be a Garda investigation in the incident. The letter of termination further stated that the Complainant was advised to co-operate fully with the Gardai for his own good when contacted.

Accordingly, I find that the Complainant was not given no reasonable opportunity to appeal a decision to dismiss him, and where that decision was made without any fair procedures being conducted before the decision to dismiss was taken. It is also noted that whilst the Respondent identified the seriousness of the matter, and the fundamental breach of trust and confidence it presented, it did not suspend the Complainant once it became aware of the incident. Instead, the Respondent allowed the Complainant to continue in his employment for a number of days before it decided to dismiss the Complainant at the end of a day’s shift.

Taking all the above into account, while I find the Complainant by paying for and reselling duty free cigarettes over the counter when at work has breached the trust and confidence of the employment relationship, I find he was not offered a fair procedure before his employment was terminated. I find that in accordance with section 6(4) of the Act, there are substantial grounds justifying the dismissal due to the conduct of the Complainant. However, in accordance with Section 6(7) of the Act I do not find the Respondent’s conduct was reasonable in relation to the dismissal by not affording the Complainant fair procedures.

On that basis I find that the manner of the Complainant’s termination of employment, by the Respondent failing to follow fair procedures, amounts to an unfair dismissal and therefore I uphold the complaint.

CA-00028407-002Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                

S4 (2)(e) of the Minimum Notice & Terms of Employment Act, 1973 requires that the minimum notice to be given by an employer to terminate the contract of employment of his employee is eight weeks if the employee has been in the continuous service of his employer for fifteen years or more.

S8 of the Act states that nothing in the Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

As I have found the Complainant has engaged in gross misconduct, I find that the Respondent was entitled to terminate the employment without notice. I therefore do not uphold that the Respondent is in breach of its obligation under the Act.

Decision:

CA-00028407-001Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

I find that the action of the Complainant has significantly amounted to his dismissal. The action of exchanging money for duty free cigarettes and then reselling those cigarettes to another person at his place of work and across the counter placed the Respondent’s business and livelihood at substantial risk. For its part the Respondent failed to adhere to fair procedures before dismissing the employee.

Taking all of this into account I award the Complainant €5,000 for the unfair dismissal that occurred which I believe is just and equitable due to the obvious lack of fair procedures applied.

CA-00028407-002Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973                                                                

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.

I have found the Respondent is not in contravention of the Act as the termination of employment was due to the clear and obvious misconduct of the Complainant. Therefore, this complaint is not upheld.

Dated:   17-4-2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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