UDD2021

The Respondent submitted that nothing occurred before the Adjudication Officer that gave rise to an appeal to the Court and that the Court, consequently, had no jurisdiction to hear the within matter as an appeal. The Appellant submitted that the Adjudication Officer had made a decision in accordance with the Act at Section 8 and that the Court has jurisdiction to hear an appeal of that decision.

The Court decided to consider this matter as a preliminary issue on the basis that the Court’s decision on this preliminary matter has the potential to dispose of the appeal in its entirety.

In a decision on the preliminary matter the Court determined that the within appeal is a valid appeal of a decision of an Adjudication Officer made under the act at section 8(1). The Court, having made that determination, subsequently convened a second hearing in order to hear the substance of the within appeal.

Background

The Appellant was employed by the Respondent from November 1996 to July 2017. She was employed as a Café Restaurant Manager at the material time.

The uncontested events underlying the dismissal are as follows:

• •On 26^thMay 2017 the Appellant selected goods from the Respondent’s restaurant valued at €5.00. She did not make any payment for those goods and she consumed them in the restaurant.

  •On 15^thJune 2017 the Appellant prepared food for herself in the Respondent’s sandwich counter valued at €5.00. She proceeded from there to the staff canteen where she consumed that food. She made no payment for that food.

  •On 16^thJune 2017 the Appellant prepared food for herself again at the Respondent’s sandwich counter valued at €5.00. She purchased another item at the till of the Restaurant and left without making payment for food she had prepared at the sandwich counter.

  •On 18^thJune 2017 the Appellant prepared food in the Respondent’s restaurant valued at €14.00 and brought it to the staff canteen where she consumed same. She made no payment in respect of that food.

Summary position of the Respondent

The Respondent submitted that the incidents in question were reported to management by various members of staff.

On 24^thJune 2017 Mr Donal Harte, a store manager, met with the Appellant to investigate the matter. A follow up meeting took place on 27^thJune 2017. The Appellant refused the opportunity to be accompanied by a colleague at these meetings.

During these meetings the Appellant admitted that she had consumed the food as alleged without having paid for same. She contended that she had variously forgotten to pay; that there were queues at the checkouts at the time; that having only recently returned to working in a store having been in a head office role it was taking her some time to get back into store procedures; that in head office she was permitted to consume ‘samples’. The Appellant accepted that if she had witnessed a member of staff taking food without payment she would have reported that to the HR Manager as it would be a disciplinary matter.

On 30^thJune Mr Harte wrote to the Appellant. He advised her that in his view she had a case to answer in respect of the incidents which had occurred on 26^thMay, and the 15^th, 16^thand 18^thJune 2017 and that a disciplinary hearing would take place on 4^thJuly 2017.

On 4^thJuly Mr Harte met the Appellant in advance of the disciplinary hearing and showed her the CCTV of the incident of 18^thJune. Mr Harte had, in light of her admission to all of the alleged conduct, omitted to offer her the opportunity to view the CCTV during the course of the investigation. At the meeting of 4^thJuly the Appellant stated that she had not received the letter of 30^thJune and enclosures. She was provided with a copy of that letter and enclosures on 4^thJuly and she was also provided with ‘stills’ from the CCTV footage of all four dates of alleged incidents together with witness statements.

On the evening of 4^thJuly Mr Paul Tully, a store manager, convened a disciplinary hearing. Mr Tully met again with the Appellant on the 5^thand 10^thJuly. The Appellant declined the opportunity on all occasions to be accompanied by a colleague. At the meeting of 5^thJuly she was offered the opportunity to view all CCTV footage but she declined that opportunity. The Appellant admitted her conduct and repeated the explanations she had given at the investigation stage.

On 10^thJuly Mr Tully conveyed to the Appellant his decision that dismissal was the appropriate sanction. He advised her of her right to appeal his decision and she did so by letter dated 19^thJuly 2017.

The Respondent submitted that, having regard to the Act at Section 6(1), there were substantial grounds justifying the termination of the Appellant’s employment and that it had acted reasonably and fairly in effecting the dismissal. The sanction of dismissal was not outside the band of reasonable responses by the Respondent to the Appellant’s conduct.

The Respondent submitted that the role of the Court in the within appeal is not to substitute its views for those of the Respondent but rather to determine whether there were substantial grounds justifying the dismissal and whether the response of the Respondent to the conduct of the Appellant was within the band of responses which might be expected of a reasonable employer. In that context the Respondent referred the Court to decisions of English Courts and Tribunals includingFoley v Post Office [2000] ICR 1283andAnglian Home Improvements Limited v Kelly [2005] ICR 242.The Respondent also drew the Court’s attention to the decision of McGovern J in the High Court inDoyle v Asilo Commercial Limited [2008] IEHC 445. The Respondent also referred to the decision of the High Court inGovernor and Company of the Bank of Ireland v Reilly [2015] ELR 229as well as to the decision of this Court inO’Brien v Dunnes Stores UDD1714where the Court endorsed the statement of the EAT inBunyan v United Dominions Trust [1982] ILRM 404where the EAT had endorsed the view quoted fromNC Watling Co Ltd v Richardson [1978] IRLR 225 EAT (ICR1049)

• The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

• The matter called for a reasonable explanation and … something more was reasonably required than an affirmation of failure to remember. The decision to dismiss was made because no sufficient explanation was, in the view of management personnel, given.

The Appellant was afforded the right to representation by a colleague as set out in the written internal procedures of the Respondent. The Appellant at all times refused representation.

The Respondent submitted that its procedures are fair and contended that the Appellant had failed to set out the basis for her assertion that the appeal of the decision of the dismiss should not be conducted on the basis of the papers associated with that appeal rather than a full rehearing of the matter.

Summary evidence on behalf of the Respondent

The Court heard testimony from Mr Paul Tully on behalf of the Respondent. Mr Tully was a drapery store manage at the material time. He carried out the disciplinary procedure and ultimately made the decision to dismiss the appellant.

He stated that he had convened disciplinary meetings following the completion of an investigation by Mr Donal Harte, on 4^thJuly 2017, 5^thJuly 2017 and on 10^thJuly 2017. He stated that the Appellant had accepted that each allegation made against her was true. She had offered as reasons for her conduct that she forgot to pay for the items or that she had intended to pay at a later time. In respect of each instance the Appellant had not paid for the items in question.

He stated that the Appellant could not put forward any reasonable explanation for her actions. The Appellant had stated that she forgot and that she intended to pay later about made no attempt to do so.

He stated that he looked at all of the options available to him but concluded that the appropriate sanction was the termination of the Appellant’s employment. In making that determination he took into account that the Appellant was a manager and as such the custodian of company procedures. She was required to set a good example for 22 people for whom she was responsible. He was satisfied that she understood the seriousness of the matter.

When examined by the Appellant’s representative Mr Tully stated that he had offered the Appellant the opportunity to be represented by a work colleague or a manager. He said that he had not made up his mind at the start of the disciplinary procedure but that, having regard to the outcome of the investigation, he had a good idea of how he might find as regards the uncontested allegations made against the Appellant. He stated that if anything came up during the procedure he could have changed his mind. The disciplinary meeting was an opportunity for the Appellant to say anything she wanted about the matters at issue.

Summary position of the Appellant

The Appellant submitted that she had made a request to the Respondent under Section 14 of the Act and that this request had not been responded to. Her representative submitted that, as a consequence, she had not been advised of her dismissal in accordance with the Act. She submitted that this failure rendered her dismissal unfair.

She submitted that during the investigation process she had been furnished with statements of nine individuals but had been denied the opportunity to cross examine those individuals.

She submitted that the outcome of the investigation was a finding of fact and in those circumstances she should have been advised of her right to legal representation. At the hearing of the Court however the Appellant’s representative amended his submission to remove his contention that the Appellant should have been advised of a right to be legally represented at all stages of the investigative and disciplinary process.

She submitted that she was never given a right to a full appeal. The appeal was a paper based appeal and that it should have been a full rehearing of the matter at issue. She submitted that the failure to conduct a full rehearing of the matter is a failure of fair procedures and renders the dismissal unfair.

The Appellant submitted that the Respondent had utilised CCTV footage of the incidents at issue during the course of its investigation and disciplinary procedures and that this constituted a breach of the Data Protection (amendment) Act, 2003. Her representative submitted that the Respondent had produced no documentation to show that CCTV could be used for disciplinary purposes and that there were no notices to that effect in the relevant area.

The Appellant submitted that she was denied the right to be represented by her partner in the investigation and disciplinary procedure but rather she was advised of her right to be represented by a fellow employee or manager.

The Appellant gave evidence as regards her earnings prior to dismissal, her attempts to mitigate her loss arising from her dismissal and the the extent of that loss.

Relevant law

Section 14 of the Unfair dismissals Act 1977 in relevant part provides as follows:

• 14.—(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal. ]

• 6.(1) Subject to the provisions of this section, 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.

  (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:

  (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

  (b) the conduct of the employee,

  (c) the redundancy of the employee, and

  (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Issue for the Court

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

Discussion

At the outset of his submission the Appellant’s representative had asserted that the Appellant had made a request under Section 14(4) of the Act for details of the principal grounds for her dismissal. He said that, in the absence of a response to that request, the Appellant was unaware of the grounds for her dismissal and that the failure of the Respondent to supply such information rendered the dismissal unfair.

The Court has carefully considered the submission of the Appellant’s representative in this regard. The Court notes that the Respondent set out clearly, in a letter dated 13^thJuly 2017 to the Appellant, the detailed basis for the decision to dismiss her. The Court cannot therefore accept that the Appellant was unaware of the grounds for her dismissal and that a lack of such knowledge was present to the degree that the dismissal is rendered unfair on that account.

In this case the conduct of the Complainant is not disputed and therefore the question to be considered by the Court is whether the Respondent’s decision to dismiss falls within the range of responses which might be expected of a reasonable employer and whether the procedures employed to reach such a decision were fair.

In this case it was not disputed that the incidents which formed the basis for an investigation by the Respondent and subsequent disciplinary procedure had occurred. The evidence given to the Court by the Respondent’s witness, and not disputed by the Appellant, was that the Appellant had at all times accepted that she had removed product from the Respondent’s store and failed to make payment in respect of those goods. Neither is it disputed that she offered a range of reasons for her conduct including that she had forgotten to pay and that she had intended to pay for the goods at a later time.

The Appellant did not dispute before the Court that her conduct was not in compliance with the written procedures of the Respondent. She did not dispute the submission of the Respondent that during the investigation of these matters she had acknowledged that, as a manager, if she had observed a staff member behaving in the manner she had behaved she would have reported that conduct to the Respondent’s HR Department as it would have been a disciplinary matter.

The Appellant has contended that the failure of the Respondent to allow her to be represented by her partner throughout the investigation and disciplinary procedures was a failure. She has not however set out the detail of when she sought such representation and when any such request was refused. She accepted before the Court that she had been offered representation by a colleague or manager at all stages but refused such representation. The Court is satisfied that the Appellant was afforded the right to representation at all stages of the investigation and disciplinary procedure and cannot conclude that a failure to afford her the right to be represented by her partner amounted to a flaw in the procedures adopted to the degree that the fairness of the procedure was imperilled.

The Appellant has submitted that the fact that CCTV footage of the incidents giving rise to her dismissal was available to the investigator and the person who decided to dismiss her, was a breach of Data Protection Legislation. The Court accepts the submission of the Respondent to the effect that this Court does not hold jurisdiction to determine allegations of breach of Data Protection Legislation. The Court does however have jurisdiction to consider the fairness of the procedure employed in disciplinary matters where the outcome of that procedure is the subject of a complaint under the Act. In the within matter the submissions and evidence of the Respondent make clear that the initiation of investigation and disciplinary procedures arose from allegations made by staff of the Respondent rather than any utilisation of CCTV footage. Similarly, it is clear that the investigator and decision maker in the decision to dismiss relied upon clear admissions of the Appellant rather than CCTV footage to reach conclusions. In those circumstances the Court cannot conclude that the fact of the existence of CCTV footage which was not relied upon to determine the matter at any stage, amounted to any lack of procedural fairness which would imperil the decision to dismiss the Appellant.

The Appellant has submitted that, whereas various staff members reported the conduct of the Appellant to the Respondent, she was not offered the opportunity to cross examine those staff members. It is common case however that she never sought such an opportunity at any stage of the procedure to cross examine these staff members. It is also common case that the Appellant at no stage disputed the substance of the reports made to management and that she was supplied with copies of statements form all persons involved. In those circumstances the Court must conclude that no issue of fairness arises in relation to cross examination of staff who made reports to the Respondent as regards the Appellant’s conduct.

In the course of cross examination of the Respondent’s witness, Mr Tully, he stated that he had not made up his mind at the start of the disciplinary procedure but that, having regard to the outcome of the investigation, he had a good idea of how he might find as regards the uncontested allegations made against the Appellant. He stated that if anything came up during the disciplinary procedure he could have changed his mind. The disciplinary procedure was an opportunity for the Appellant to say anything she wanted about the matters at issue.

The Court, while concerned that the decision maker, Mr Tully, could have pre-determined the matter before initiation of his disciplinary hearings, any such conclusion based on the testimony of the witness would, in the view of the Court, be unreasonable.

The Appellant submitted that she was never given a right to a full appeal. The appeal was a paper based appeal. The Appellant contended that, in order to be fair, any appeal should amount to a full re-hearing of the matter heard during the disciplinary hearings. The Respondent has submitted that no free-standing right to a full re-hearing exists at appeal stage. The Appellant’s representative put no submission before the Court which supported his contention in relation to the nature of the appeal process. In all of the circumstances and noting that the nature of the appeal which was conducted in this case was consistent with the procedure set out in writing to employees by the Respondent, the Court concludes that no lack of fairness can be found to have stemmed from the nature of the appeal procedure employed

Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment the Court finds that in the circumstances it was reasonable for the Respondent to treat the admitted removal of goods from the store without payment as being very serious.

It is not for the Court to put itself in the place of the employer in the within case. Rather the role of the Court is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

This approach was explained by Donaldson L J inUnion of Construction Allied Trades and Technicians v Brane [1981] IRLR 224 (Court of Appel for England and Wales)in the following terms:

• “It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

• “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 take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may have dismissed him”

In this jurisdiction, inBunyan v United Dominions Trust [1982] ILRM 404,the EAT adopted and applied the following principle enunciated by the UK EAT inNC Watling Co Ltd v Richardson [1978] IRLR 225:-

• [T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

The Court has also considered the procedures invoked by the Respondent in this case and has found that the investigative and disciplinary processes employed by the Respondent were fair and were conducted appropriately.

Determination

In all the circumstances, and having regard to the foregoing, the Court finds that the Respondent had substantial grounds to justify the dismissal of the Appellant. The appeal fails, and the decision of the Adjudication Officer is affirmed.

The Court so Determines.

Signed on behalf of the Labour Court




CO'R______________________
09 June 2020Kevin Foley
Chairman


NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.