ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023972
Parties:
| Complainant | Respondent |
Anonymised Parties | A Pharmacist | A Limited Co. |
Complaint(s):
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-00030577-001 | 30/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00030577-002 | 30/08/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00030577-003 | 30/08/2019 |
Date of Adjudication Hearing: 06/01/2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly B.L.
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
Withdrawn :
CA-00030577-002 – Withdrawn |
Summary of Complainant’s Case:
The Complainant commenced her employment as a Pharmacist in February 2006 as a full time employee. Following a change in her family circumstances both sides agreed, with effect from 07/05/2017 to change employment contract as follows: - Position- relief Pharmacist - Hours of work weekly reduced from 37.5h to 15h - Annual salary €29,154.10 It was agreed that the Complainant would travel from Poland to Ireland twice a month around weekend’s time in order to perform the agreed 60 hours per month. On or around 21st September 2018 Complainant was suspended for alleged breach of security rules, namely the correct process for handling transactions and cash. The suspension related to the alleged wrong performance between 1st and 3rd September 2018 at R… Shopping Centre pharmacy. That particular pharmacy was one of the busiest pharmacy (in terms of turnover) among all Respondent pharmacies in Ireland in 2018. The Complainant was dismissed on 28/02/2019 and following Complainant appeal the decision was upheld on 25/04/2019. At the time of the suspension the complainant had clear disciplinary record. It is submitted that the Complainant was unfairly dismissed and thus contrary to Unfair Dismissals Act 1977. Section 6(1) of the Act provides that: “the dismissal of an employee shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” Submissions The onus of proof is on the employer to justify the dismissal on substantial grounds and to follow reasonable and fair procedure. It is submitted that there were no substantial grounds justifying Complainant dismissal and also that the sanction imposed- the most sever one, in all the circumstances was not warranted. Dismissal letter confirms that the investigation and subsequent disciplinary action related to: a) the correct process of handling transactions in cash b) High number of suspended, no sale and voided transactions c) Handling cash transactions In respect of correct process of handling transactions in cash, the Complainant refutes that there was any mishandling of cash. The Complainant was operating in the busiest pharmacy in Ireland and at the busiest time, the weekend. She was, on many occasions, forced by the circumstances to serve multiply costumers and at the same time all the while remaining professional, focused and concentrated most importantly on a proper release of medication to patients with a proper and adequate information. She was simply doing her best in such busy environment. It is submitted that the cash registers were often missing a proper change which is partially understandable considering the amount of transactions carried every day. That required, on many occasions, a need to move cash between the tills in order to obtain required change. It is submitted that Complainant was not properly trained and did not confirm receipt of Respondent Security rules/policy regarding handling of cash. This is however an excuse. Due to the number of patients and transactions it was simply not possible to engage another member of staff to perform a simple procedure of ie. Taking €20 note form one till to another to obtain change. Furthermore, the Complainant focus was most importantly on the patient and proper release of medication and of course on making sure that the customers were neither overcharged nor did they pay less than required. It is submitted that Respondent in the dismissal letter confirms that for the two shifts in question: 1st September 2018 and 3rd September 2018 the tills balanced. It is therefore bizarre where the Respondent was going with their investigations and conclusions that Complainant included in their dismissal letter: “you were unable to explain why you would have moved €20 note and my [Decision maker Mr HW reasonable belief that you concealed it prior to moving away from till”. It is a mystery on what basis Mr HW had a reasonable belief of concealing euro note if he had already concluded that tills balanced. It is submitted that while a certain impression was made regarding “concealing” euro notes, Complainant-as it seems- was dismissed for “deliberate disregard for cash handling and the company security rules”. It is submitted that the Complainant did not performe any deliberate action. It is further denied that she had “serious disregard” for cash handling. She was simply trying to serve customers in such a busy environment. The Complainant is at a loss as to what she was deliberately planning or what she decided beforehand with the euro notes, save she was simply obtaining change and finally the Respondent clearly established that their tills balanced. b) High number of suspended, no sale and voided transactions It is submitted that it is a common occurrence that transactions are suspended in variety of circumstances including: the client continues shopping, the client is undecided, and the Complainant suspends the transaction in order to serve another customer, customer need some advice on a product on shelf etc. It is also submitted that there are 4 till points in the R.. pharmacy in two different locations, and the till system allows to suspend the transaction on one till and continue it on another. Complainant also submits that again due to the volume of customers and transactions it often happens, that transactions started on login of one employee are continued (started/suspended etc) by another employee. Simply, in order to save time and effort employees would not log out previous colleague on the till and continue operating on till on the login details of previous employee (similar to several people working on one computer to which someone logged in with their login and password in the morning and did not log out). It is further submitted that the number of suspended and void transactions seems to be exaggerated by the Respondent. Applying common logic most likely suspended transactions may have simply ended up as completed or void transactions and the numbers are simply doubled by the Respondent. No sale transaction on the other hand may simply mean that cash till was opened to put some extra change received from customer, to put inside card transaction paper confirmation etc., to correct a change wrongly given to customer etc. Again, it is submitted that Respondent clearly admits that the tills balanced. Evidence of loss As already submitted complainant was working two weekends every month traveling from work from Poland. The dismissal made it difficult to find an employer who will offer similar working hour’s arrangements and therefore Complainant family life was greatly affected. In order to make attempt to earn money required to support her family Complainant was forced to travel more often/ stay longer in Ireland in order to work as a locum pharmacist for agency. The difficulty was also created by the lack of references and the circumstance of her dismissal and the threat contained in the dismissal letter that the matter would be reported to Pharmacy Regulator and Gardai. The Complainant taking the locum placements via the agency was forced to work more hours/days in order to maintain her income on similar level. At the same time, she tried to find some permanent position, attend interviews but was forced on several occasions to cancel interview. She faced a dilemma- if she cancelled offered locum job on short notice (what often happens with interviews offers) the agency/pharmacy will not offer her work anymore as she will not be a reliable service provider. If she chose locum to secure income she was restricted in attending interviews. The Complainant also spent last 13 years working in Ireland and due to specific pharmacy regulations/ differences it was not possible to secure a pharmacist job in native Poland (unless on very limited income) due to such differences and complete lack of experience. Complainant managed to achieve similar income up to about early October of 2019. Locum pharmacist were in demand during summer holiday season and suddenly toward October 2019 locum offers were less advertised, cancelled or on some Complainant was no successful. As a consequence the complainant decided to seriously focus on attempts to secure a permanent job and attend all meeting, interviews, and travel for them even at a cost of not taking locums. In November 2019 Complainant got sick. She was unable to earn any income for the moth as she was in hospital for part of the month. In contrast, as Respondent employee she would have been entitled to sick leave. As a locum pharmacist the Complainant also did not get any paid annual leave. In simple terms not taking locum offers meant no income. The Complainant was also in receipt of annual bonus while working in Respondent. Same was not available anymore. Below calculations on a monthly basis incorporates the loss of bonus, annual leave and sick pay. Calculations: Loss for period April (Complainant was paid notice period at the end of March)- October 2019 The Respondent potential earnings (including expenses and bonus for 2018) €17,557.06 Earnings as locum €16,014.21 Difference: €1,542.85. b) November 2019- €2,929.51 c) December 2019- €2,929.51 d) Annual bonus 2019 €4,800 Financially calculated loss to date: €12,201.87 |
Summary of Respondent’s Case:
The claim before you relates to a claim made by the Complainant, against her former employer, XXXXX Ltd. The Complainant alleges to have been unfairly dismissed contrary to the terms of the Unfair Dismissals Acts. The Complainant further alleges not to have received her notice payment contrary to the terms of the Minimum Notice and Terms of Employment Act. The Respondent notes that the Complainant’s claim under the Employment Equality Acts has been withdrawn. Background to the Complainant: The Complainant was employed by the Respondent company as a relief pharmacist from 23rd February 2006. In 2017 the Complainant reduced her hours from 37.5 hours per week to 15 hours per week, which resulted in a pro-rating of her salary to €29,154.15. Background to the Company The company is a health and beauty retail chain with a number of outlets in operation in Ireland. The company operates strict security rules, applicable to all employees which govern, among other things, cash handling and till procedures. These are regularly reviewed and issued to staff. The Complainant has signed her understanding of these rules as recently as 28th April 2017. Background to the Issue: The Complainant was working in the respondent’s R…. location on 1st and 3rd September 2018. The Complainant worked 12 hours on both days. Between these two shifts a number of anomalies came to light in relation to transactions which were conducted by the Complainant under her unique till number. Specifically, between those two dates, 15 suspended transactions were processed, 16 transactions were voided and 36 “no sale” transactions were completed. On review of the CCTV footage of these transactions, it appeared that the Complainant received cash from customers in respect of a number of these transactions, and indeed often gave change, however the transactions were then voided/ no sale was completed. This should have resulted in a combined till surplus of €596.83 between the two dates. However, the tills balanced on each occasion. These repeated anomalies over the course of two days resulted in a serious discrepancy of a high value as outlined above. This was of grave concern to the respondent and so a disciplinary investigation was instigated, in line with the company security rules and disciplinary policy. The Complainant was notified of the investigation by letter dated 21st September 2018. This letter clearly outlines the allegation against the Complainant, i.e. that the allegations related to security, and specifically, breaches of the security rules, namely, the correct process for handling transactions and cash. This was further reiterated in a subsequent letter dated 28th September 2018. The Complainant was further notified that she was to be suspended with full pay pending the completion of the investigation process, however it is clearly outlined in the letter that the “suspension itself does not constitute a finding of fact, nor disciplinary proceedings”. The Complainant was informed of her right to be represented by a colleague or Union Official during the process and was informed of the employee wellbeing service on offer to all employees. The investigation was to be heard by Ms NH, Assistant Stores Operations Support Manager. The initial investigation meeting was scheduled to take place on Saturday 22nd September at 10am. Ms. NH attended the meeting as scheduled however the Complainant did not. She had sent an email late on Friday 21st September stating that she was seeking advice and wished to postpone the meeting until further notice. Following some discussion about the scheduling of the meeting, the Complainant’s investigation meeting ultimately took place on 15th October 2018. The Complainant declined her right to representation and confirmed that she was agreeable to proceeding in the absence of a representative at the outset of the meeting. Ms. NH commenced the investigation by discussing the Complainant’s understanding of various types of transactions on the system, including how to suspend and void transactions among other functions. The Complainant was able to clearly outline the correct processes insofar as till procedures are concerned. For example, when asked when it would be appropriate to use the “no sale” function, the Complainant gave the example of a customer looking for change. When asked when it would be appropriate to use the “suspended transaction” function, the Complainant explained that this might be appropriate when there was a shortage of change in a till, in order to facilitate getting more change, or moving till, or when customers change their mind. The Complainant demonstrated a knowledge of what happens when “suspended transaction” is selected. I.e. that a “suspended transaction” receipt is generated, with a code that can then be scanned in order to resume the transaction later on. The Complainant was clear in her understanding of the correct processes and the appropriate times to use the various till functions. Ms. NH then commenced discussions regarding each of the relevant transactions with the Complainant one by one. Due to the overwhelming similarity between several the transactions in question, this submission will focus on specific examples, however a full summary is outlined in the investigation outcome. The first transaction pattern referred to in the investigation was transaction 6436. The Complainant was shown CCTV footage of this transaction, as well as the electronic record of the transaction. The electronic journal demonstrates that the transaction was suspended, and a “no sale” was then immediately completed. The Complainant took €10 cash for this transaction and gave change to the customer. The “suspended transaction” receipt was placed in the customers bag along with their purchase. After the customer left, 13 minutes later, the “suspended transaction” was then voided. The Complainant did not offer any plausible explanation as to why cash was taken in respect to a purchase that was never processed, why the customer left with their purchase in such a scenario where no transaction was ultimately processed, or why the till was not in surplus had it been a mistake. On another occasion (transaction 14 as per investigation report), a customer paid for a transaction with a €20 note. CCTV demonstrates that there was already a €20 note in the till. An unusual hand movement is made by the Complainant, as is clear on CCTV, and, at the end of the transaction there remains only one €20 note in the till. The Complainant accepted that this was the case. The Complainant stated that she may have placed the second note in a different till, however there is no evidence of the note appearing elsewhere. On another occasion (transaction 7), the Complainant received two €20 notes, one €10 note and one €5 note in respect of a transaction. However, the Complainant then pressed “no sale”. Notwithstanding this, the prescription was filled and items were put in the customer’s bag. The Complainant did not have a plausible explanation as to why the cash would be taken from the customer and items given, in the event of a “no sale”. She stated that the customer may have requested change. The credibility of such a position must be questioned in circumstances where the customer gave €45 in notes and received only a few coins in change. The initial investigation meeting ran from 11am to 3:35pm and was then adjourned as the Complainant had travel plans that evening. The investigation was re-convened and a second meeting took place on 2nd November 2018. Again, the Complainant declined representation, and was once more afforded the opportunity to put forward her case in relation to specific transactions which were discussed with her individually. A third investigation meeting took place on 22nd November 2018. During the course of the investigation a number of questions were raised by the Complainant. For example, the Complainant queried whether the time on the CCTV was correct such that the electronic records of the correct footage was played in relation to the corresponding transactions. An engineer confirmed that the CCTV was correct to within a minute of the electronic record of the transactions. The outcome of the investigation was issued by letter dated 13th December 2018. The investigation concluded that there had been “multiple suspended transaction completed in the presence of a customer, whereby you received money from the customer, placed the money into the till, and then voided the suspended transactions on the till.” Furthermore, there were “no sale transactions completed in the presence of a customer whereby you received money from the customer, placed the money into the till with the result that no transaction was registered on the till. Records from the electronic journal when coupled with CCTV footage show you processed multiple suspended transactions, no sales and voids while customers were present.” The investigation manager, Ms. NH also considered that, taking the above into consideration, there ought to have been a total excess of cash in the tills of €596.83, however the cash balanced each week. The statements made by the Complainant at each investigation meeting was taken into account, however the allegations against the Complainant were ultimately upheld and the matter was progressed to a disciplinary hearing. Following a period of sick leave absence on the Complainant’s part, a disciplinary hearing was convened on the 8th of February 2019. The meeting was chaired by Mr HW, Area Manager and Pharmacist. The Complainant was once more advised of her right to representation in advance of the meeting but declined same. During the course of the disciplinary meeting, Mr. HW afforded the Complainant the opportunity to put forward her case. When asked why she had done 14 suspended transactions, and 36 no sales in a two day period, the Complainant responded that she didn’t think there was a limit. The Complainant further suggested that she may have been moving to another till to complete the transaction. However, this explanation does not explain why the customer was given their products, a suspended transaction processed and change given to the customer during the transactions in question. Mr. HW further noted that the customers would not have the correct receipt, in the event that they had to return the items. Furthermore, they would not receive their advantage card points. The Complainant also acknowledged that the effect of her transactions on the store would amount to loss of money and accepted that there was also a loss of stock, stating “I do agree, completely”. When it was put to the Complainant that her actions resulted in an anomaly to the tune of almost €600, she stated that there are other employees in the store and that she cannot bear sole responsibility for this anomaly. However, these anomalies are specifically linked to her transactions as was established during the investigation. However, when asked if, as a whole, the Complainant’s actions amounted to inappropriate till behaviour, she stated “I do agree, yeah”, however the Complainant stated that although she had worked in the company for “11 or 12” years as a relief pharmacist, her actions could be explained by “maybe lack of till training, the pressure…not on purpose...maybe I don’t know how to do it”. This despite her having demonstrated a clear knowledge at the outset of the investigation that she did in fact know how to operate the till, and furthermore, having demonstrated her understanding of the impact of her actions on the tills, stock count, and on the customer, throughout the disciplinary meeting. When it was put to the Complainant that it appeared, in one of the transactions, that she puts a €20 note into her pocket, she acknowledged at this juncture that she did indeed have the note in her hand. However, she stated that she was probably moving it to another till. The additional €20 was not found in another till. Mr. HW considered the points raised by the Complainant during the disciplinary meeting, and indeed during the investigation. In doing so, he noted that the Complainant was fully aware of the correct till procedures including Handling cash transactions, Handling card transactions, Dealing with Advantage Card customers, Recruiting new Advantage Card customers , Using the counter cache facilities that are in place. However, he further noted that “some behaviours… are concerning namely, The level of concerning till procedures carried out over a 2 day period, the number of customers that would not have been presented with their proof of purchase as per till procedures and customer care, the level of instances that you were seen on CCTV to review what was written on your left hand whilst completing your till transactions , the personal behaviour of having your left hand in the left pocket of your Pharmacist white coat. Having worked for the company for 23 years this is a behaviour I have never come across before. The level of movement of monetary notes in the tills whilst completing your transactions “In consideration of the evidence, and particularly in light of the Complainant’s assertions that her actions were not inappropriate and/or could be explained by “human error” Mr. Walsh stated, “the electronic journal and CCTV coupled together give a clear picture of what transactions took place and how they took place. These were inappropriate transactions carried out by you where the void transactions totalled €376. Due to the level of suspended transactions, No Sales and Voids the till should have been in a surplus of €596.83 over the 2 days but the outturns for the store was circa €13. The process of completing a suspended transactions, followed immediately by a No sale on 14 occasions followed by a void transactions give me reasonable belief that till building of monies was taking place….I found that you were unable to put forward reasonable explanations as to why these inappropriate transactions took place and why you would have removed the €20 note and concealed it prior to moving away from the till in the CCTV footage viewed. “ The outcome of the disciplinary process was the Complainant’s summary dismissal from the respondent company. The Complainant was noted of her right to appeal the decision to dismiss her within five days. The Complainant appealed her dismissal on 1st March 2019. Her grounds for appeal were that she could not see any evidence of her consciously breaking the security rules, of where the missing €596 went or of her placing a €20 note in her pocket. The Complainant was initially invited to attend an appeal meeting in March but asked to postpone same for health reasons. This request was facilitated, and the meeting ultimately took place on 10th April 2019. The meeting was chaired by Mr NS, Head of Customer Experience. The Complainant was once more afforded the right to representation but declined same. In relation to the lack of evidence, and the Complainant’s assertion that, rather than having placed €20 in her pocket, she probably placed it in another till, Mr. NS reviewed the CCTV footage himself, and played it at the meeting. He further noted that there was no evidence of the €20 appearing in another till. The Complainant further alleged that the investigation was not “done properly”. Mr. NS found that the Complainant had been afforded the right to review all evidence, respond accordingly and was provided with copies of all meeting notes and written materials. The investigation upheld the allegations against the Complainant, and she had further opportunity to state her case at the disciplinary hearing. The Complainant alleged that her XXXXX email address was unavailable to her during the investigation and disciplinary processes. This is not the case. The Complainant’s email address was live until the 2nd April, well after these processes would have completed. It is company practice to discontinue email addresses once an employee has ceased employment with the company but email addresses can easily be reinstated in the event that their appeal is successful. In any case, the Complainant did not request access to her emails between 2nd April 2019, and her appeal meeting on the 10th. Another appeal ground that was explored was the Complainant’s assertion that a manager had commented that he had “gotten rid of that Polish girl”. It is necessary at this juncture to clarify that XXXXX is a proud equal opportunities employer and has a robust Grievance and Dignity at Work policy in place for the purpose of dealing with any complaint of bullying, harassment or discrimination. The Complainant is evidently aware of same having signed her acknowledgement of the company handbook. However, no such complaint was raised by her until her appeal of her dismissal. When asked at her appeal meeting who had made the statement, the Complainant stated that it had been made by Mr. HW. However, the Complainant initially declined to comment as to which “witness” had told her that this was said. She then stated that, in relation to the witness in question, one of their own managers is Mr. HW, and so she had simply assumed that the person who had allegedly made this statement was Mr. HW. Upon further questioning, she retracted her previous statement, stating “I am not saying it was Colm”. She later stated that she simply felt that she may have been discriminated against as she is Polish. In considering this ground of appeal, Mr. NS noted the lack of evidence that Mr. HW had made this statement, and the Complainant’s own uncertainty in this regard. In essence, the Complainant’s assertion was that an unnamed colleague, implicated an unnamed Manager. However, at no point did the Complainant object to Mr. HW hearing her disciplinary hearing. Mr. NS found that there was no evidence presented that would support a claim that the Complainant had been discriminated against during the disciplinary process. He further noted that the Complainant was, on a number of occasions, accommodated with rescheduled meetings to facilitate her spending more time in Poland during her paid suspension. Having considered all of the evidence before him, and the points raised by the Complainant, Mr. NS upheld the Complainant’s dismissal. This outcome was issued by letter dated 25th April 2019. Company Arguments The Complainant was not unfairly dismissed but was dismissed by reason of her conduct in line with Section 6(4)(b) of the Act, which states as follows; 4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:, , (b) the conduct of the employee The Complainant repeatedly suspended, voided, or conducted a no sale on transactions, over a two day period, but took cash from customers for those transactions, gave change, and failed to issue the customer with a receipt for the sale which would impact the customer in the event of a return. The result of the Complainant’s actions is that almost six hundred euro is now unaccounted for, as well as, in many cases, the corresponding stock. It is simply not credible that such a large volume of transactions were conducted contrary to till procedures due to “human error” particularly in circumstances where the Complainant demonstrated a clear understanding of the correct process. The importance of trust to the employment relationship has been emphasised on many occasions by the Tribunal. For example, in Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002, (although different circumstances to the case today) the Tribunal stated: “Having conducted an investigation into the situation the respondent was satisfied that the trust and confidence which has long been established by this Tribunal to be fundamental to proper working conditions and is necessary for the correct administration of any reputable business, to be virtually destroyed to such an extent that the Complainant could no longer be retained by the respondent. Accordingly, the claim fails.” The company would cite Ugwomaju v Primark, UD 444/2007, as a relevant case to be considered in this instance. In Primark, the Complainant was dismissed for the theft of a lipstick, and the dismissal was found not to have been unfair “given the seriousness of the incident”. Theft and other actions the consequence of which are that the company suffers a loss of profit, are serious offences which warrant dismissal. In Scisloski v The Strand Hotel, The EAT found The test to be applied in cases of misconduct is whether the employer had a genuine/reasonable belief following a fair investigation that the employee was guilty of the wrongdoing of which he is accused, and that dismissal was a proportionate sanction. In this case the appellant admitted, although late in the investigation process, that the coffee was the respondent’s. Having considered the evidence the Tribunal is satisfied that it was reasonable for HRM to believe that the appellant took the coffee for use at home. The appellant was the chief kitchen steward and his duties included controlling the security of company stock and property. His action breached the trust reposed in him by the respondent and particularly so in light of his responsibility for the security of company stock. In this case, the Respondent had a reasonable belief that the Complainant had breached its till procedures, in the knowledge of what the correct procedures were. There was no acceptable explanation offered as to where the missing cash has gone. There is no evidence of the Complainant having moved cash between tills. As a Pharmacist, the Complainant was in a position of trust within the Respondent company. Having worked with the company since 2006 it is simply not credible that she did not know how to process transactions. Breaches of the till procedures, or the wider Security Rules are explicitly outlined as gross misconduct, both in the Security Rules themselves and in the company disciplinary policy. The company disciplinary policy allows for employees to be suspended pending the outcome of disciplinary processes, and the company policy was adhered to throughout the Complainant’s process. The Complainant was at all times afforded her rights of natural justice and fair procedures throughout the process, in accordance with SI 146 of 2000. In particular: The Complainant was aware at all times of the allegations against her The Complainant was provided with an opportunity to respond to those allegations and to present her version of events. The matter was investigated fully before a decision was made. The Complainant was afforded the right to representation although she declined same. The assessment of the facts and the decision made took into account the representations made by the employee and was an impartial determination The Complainant was provided with, and availed of, the opportunity to appeal. This appeal was heard by a senior manager not previously involved and the Complainant was afforded a fair hearing. The Respondent Company therefore submits that the summary dismissal of the Complainant was both substantively and procedurally fair. Without prejudice to this position and in the alternative, were the Court to find the dismissal unfair, the Respondent submits that the Complainant’s contribution to her dismissal was substantial such that no compensation is owing. In relation to the Complainant’s complaint under the Minimum Notice and Terms of Employment Act, The Complainant was dismissed for reasons of misconduct, such that no notice period, nor payment in lieu of same, was owing to the Complainant in accordance with Section 8 of the Act, which states as follows; “Nothing in this 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.” |
Findings and Conclusions:
The complainant is alleging that she was unfairly dismissed from her employment following the discovery of a number of till anomalies during her shifts. The Respondent states that the decision to dismiss the complainant was within the band of reasonableness. A number of anomalies were discovered in relation to till transactions on the 1st and 3rd September,2018. The complainant was notified in writing that she was being suspended with full pay pending the completion of the investigation. That letter clearly set out that " the suspension itself does not constitute a finding of fact nor disciplinary/proceedings" The complainant was invited to an investigation meeting which was due to take place on Saturday 22nd of September at 10 a.m.. The complainant did not attend this meeting. It later came to the respondent’s attention that the complainant had sent an email late on Friday 21st September stating that she was seeking advice and wished to postpone the meeting until she had received that advice. The meeting took place on the 15th of October 2018. The complainant was advised that she was entitled to bring a representative of her choice, but she declined to do so. At that meeting the complainant was given every opportunity to explain her version of the events. Importantly, I note that when she was giving her explanations she did demonstrate a knowledge of how the system works in relation to suspending transactions etc. A second investigation meeting took place on 2nd November 2018, due to the fact that the previous one had to finish early because the complainant had travel plans. A third investigation meeting took place on 22 November 2018. The Complainant raised some issues in relation to the time on the CCTV cameras. An engineer was called to inspect the CCTV and he confirmed that the timing was correct. The outcome of the investigation meeting was furnished to the complainant by letter dated 13th December 2018. The matter progressed to a disciplinary hearing. That meeting took place on the 8th of February 2019. The complainant was again advised that she had a right to bring a representative of her choice, but she declined to do so. The complainant was again given an opportunity to state her case. The outcome of the disciplinary process was that the complainant was summarily dismissed. She was advised of her right to appeal that decision. The complainant appealed the decision in relation to her dismissal on the 1st of March 2019. The first appeal hearing was postponed on the complainants request, due to health reasons. The hearing took place on the 10th of April 2019. Again, the complainant was advised of her right to bring a representative of her choice but she declined to do so. Following the appeal hearing the decision to dismiss the complainant was upheld. She was notified of same in writing by letter dated 25th April.
In Governor of Bank of Ireland v Reilly [2015] ELR 229 the Court said as follows (at para. 38 et seq.): “[T]he 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. Judge Linnane in Allied Irish Banks v Purcell [2012] E.L.R. 189, makes reference to the decision of the Court of Appeal in British Leyland UK Ltd v Swift [1981] I.R.L.R. 91 and the following statement of Lord Denning MR at p. 93: ‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.’ What is now well established law, is that it is not for me to ask whether I would have dismissed in the circumstances or to substitute my view for that of the employer's view but to ask was it reasonably open to the respondent to make the decision it make. An employer is entitled to come to a reasonable conclusion that an employee’s till transaction anomalies constitute reasonable grounds for dismissal. I find that the investigation and disciplinary process was thorough, fair and transparent. I can find no breach that could render the process unfair or that would cause a prejudice to the complainant. The respondent has established that there were substantial grounds justifying the dismissal and that it resulted wholly from the conduct of the employee. The complaint fails. |
Decision:
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.
CA-00030577-003 The complaint fails |
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.
CA-00030577-001 The complaint fails. |
Dated: 23rd April 2020
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly B.L.
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