ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00020386

Parties:

Complaint(s):

Date of Adjudication Hearing: 07/02/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

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

Background:

The Complainant, a Toll Operator was employed for almost 10 years and submitted that she was unfairly dismissed following the loss of €647.99 from her takings on 14th May 2018. The Complaint related to an allegation that in dismissing the Complainant the Respondent failed to consider the Complainant’s length of service and her medical circumstances at the time of the incident. As such the Complainant submitted the dismissal was disproportionate.

The Respondent maintained the complaint was out of time having been submitted some two months late without reasonable cause, and further denied the dismissal was unfair as the acts of the Complainant in her failing to adhere to the correct cash handling procedures amounted to gross misconduct.

Summary of Respondent’s Case:

The Respondent submitted that the fact of dismissal was not in dispute and maintained that the Complainant was dismissed on 5th July 2018 following a full and fair investigation, which concluded the Complainant had committed gross misconduct for a breach in the ‘cash handling procedure’ resulting in an unexplained cash discrepancy of €647.99.

Preliminary Issue

As a preliminary issue the Respondent submitted that the Complainant had failed to present her complaint to the WRC within six months of the date of the dismissal due to her child being ill. The complaint was submitted to the WRC on 7th March 2019, some eight months after the dismissal Acknowledging that the Complainant had stated the reason for the delay in submitting the complaint was the illness of her child, the Respondent contended this was not a reasonable cause as defined in law. Referring to juris prudence regarding reasonable cause for the delay in submitting a complaint beyond the six months required under the Unfair Dismissals Acts 1977-2007 (sic), and the Workplace Relations Act 2015, the Respondent quoted Cementation Skanska Ltd v Tom Carroll DWT0338 where the Labour Court provided its view of the standard that a Complainant should provide cogent reasons for bringing a claim later than the six months provided for. The Respondent argued that no evidence was provided before the time of the hearing as to the seriousness or duration of the Complainant’s child’s illness, and most importantly how it prevented the Complainant lodging her case within the six months of the dismissal.

On that basis the Respondent sought for the complaint to be time barred.

Response to the Complaint of Unfair Dismissal

Notwithstanding and without prejudice to its position the Respondent submitted that the in the alternative the dismissal was substantively and procedurally fair.

The Respondent submitted that it was responsible for the operations of a motorway Toll Plaza and associated projects where there is a throughput of 40,000 vehicles per day. The Respondent collects the tolls and maintains the road infrastructure to the high standards required under the contact. The Respondent acknowledged the Complainant commenced employment pursuant to a contract of employment in September 2008 as a Part Time Casual Toll Operator, and in February 2009 she was issued a second contract reflecting her Sundays working. The contracts of employment stated the Handbook forms part of the contract of employment and that the Complainant was also provided with a copy of the Employee Handbook, which includes the Respondent’s disciplinary policy. The Respondent further submitted that it provided the Complainant with training in all practices and procedures including but not limited to the ‘Cash Handling Procedure’.

The Respondent maintained that on 14th May 2018, the cash count from the Complainant’s tollbooth was flagged as missing approximately €647.99. An investigation was commenced, and the Complainant was invited to an investigation meeting. The Respondent submitted that the invitation to the investigation informed the Complainant of the allegation, the right to representation and the possible outcomes.

An investigation meeting took place on 11th June 2018. The Respondent submitted that at this hearing the Complainant was unable to account for the short fall, telling the investigator that “maybe I dropped it and did not notice.” The Respondent maintained that searches were carried out in an effort to locate the missing money and the investigator took statements from the three employees involved in the search. The money could not be located. The Respondent maintained that the investigation established that on 14th May 2018 the Complainant’s cash count was short €647.99; that the Complainant only brought one ‘note bag’ to the Toll Control Room at approximately 18:50; that the Complainant lodged no other ‘note bag’ during her shift; that no €50 notes were recorded on the Cash Up Sheet; that no €50 notes were returned to the Cash Office; that no explanation was provided as to how the discrepancy occurred; that the monies remained unaccounted for; and the matter was sent forward for a disciplinary hearing.

The Complainant was invited to a disciplinary hearing by letter dated 27th June 2018. The Respondent maintained that in the disciplinary meeting the Complainant did not dispute the findings of the investigation and confirmed that she was aware of the seriousness of the situation. Again, the Complainant could not account for the missing money. The outcome of the disciplinary hearing was issued on 5th July 2018 where the decision was made to dismiss the Complainant. The Respondent contended that in reaching its decision the disciplinary manager considered the Complainant’s acceptance that she had collected €50 notes on the day but had not turned any into the cash room. In light of the lack of any explanation for the missing money and given the seriousness of the breach and the lack of an explanation the decision was made to summarily dismiss the Complainant.

The Complainant appealed the dismissal in writing on 6th July 2018. The Respondent submitted that the main grounds of appeal were the proportionality of the sanction. The appeal meeting was held on 13rd July 2018. The outcome of the appeal was issued on 24th July 2018. It addressed the main points discussed at appeal, namely the Complainant’s 10 years with the Respondent without incident; that she felt unwell on the day in question; and acceptance that she made a mistake. The Respondent contended that the Complainant had not informed her supervisor on the day of the incident that she was unwell, and the Complainant remained in the workplace when she was, in her own view, unfit to be there. The CCTV footage showed the Complainant counting out thirteen €50 notes and a half an hour later she submitted her Cash Up Sheet where she did not list any €50 notes and did not notify anyone of this.

The Respondent maintained that in the event it was held that for an employee to misplace €650 in one shift constituted an act of serious negligence and no explanation proffered other than the Complainant felt unwell yet remained in work was deemed unacceptable. The decision to dismiss was upheld.

The Respondent submitted the Complainant was dismissed by reason of her conduct. Accordingly, her dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4) (b) of the Unfair Dismissals Act 1977 (as amended). The respondent maintained that following a thorough investigation, disciplinary meeting, and appeal the Complainant was adjudged to have breached the cash handling procedure. This act it argued amounted to Gross Misconduct as defined in its disciplinary procedure.

Legal Submission

The Respondent argued that the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, which stated “it is not for the Tribunal to seek to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.

The Respondent submitted the decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances. It argued the facts were that the Complainant had failed to follow the cash handling procedure, and this resulted in a loss of nearly €650. In light of the facts and the seriousness of the breach of procedure the decision to dismiss was justifiable in the circumstances. Furthermore, it submitted that the Complainant’s actions amounted to a breach of the trust between the parties to the employment relationship.

The Respondent argued the Irish Courts have adopted the 'band of reasonableness test' as articulated by Lord Denning in British Leyland UK Limited v Swift the test is... was it reasonable for the employer 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, the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.

The Respondent also submitted that the importance of trust to the employment relationship has been emphasised on many occasions as reasonable grounds for a dismissal to be fair, citing for example, Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002, where the Tribunal reaffirmed that the trust and confidence has long been established to be fundamental to proper working conditions, and in a situation where this trust and confidence is destroyed, as in the case within, it would be reasonable under such circumstances for an employee to be dismissed.

Finally, the Respondent submitted that 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 light of the aforementioned the Respondent submitted, not only has the Complainant been late in making her submission without demonstrating a reasonable cause for this delay, but that she was also unable to provide a reasonable excuse for the missing the loss of €647.99. Under such circumstances it argued it was reasonable to dismiss the Complainant after applying fair procedures in investigating the loss and in its conduct of the disciplinary procedures and appeal.

Summary of Complainant’s Case:

The Complainant was not represented at the hearing.

Response to the Preliminary Issue

The Complainant submitted that at the time of her dismissal she was pregnant, and in September 2018 she had a baby. Following that she was unwell and whilst she had prepared a submission of her complaint in December 2018, she had remained unwell until March 2019, at which time she submitted her complaint to the WRC. Following the hearing within, the Complainant submitted a certificate from her GP stating from the period between September 2018 and March 2019 she was unfit for work.

Complaint of Unfair Dismissal

The Complainant submitted that she was unfairly dismissed on 5th July 2018 following an investigation and subsequent disciplinary hearing and appeal. The Complainant submitted that she was seven months pregnant at the time of the dismissal. The Complainant maintained she was experiencing a high dependency pregnancy at the time, and the dismissal was disproportionate to her ten years of service where she has no prior verbal or written warnings.

The Complainant further submitted that other employees including supervisors had misplaced money but had not been dismissed. The Complainant maintained that she had an ongoing illness and that the reason for her dismissal was due to her history of attendance. She also submitted that the Respondent had reported the incident to An Gardai Síochána and she was being accused of theft. She therefore maintained the Respondent was changing the allegation to theft, and that no consideration was given to the fact she was pregnant at the time of the incident, or to the fact that she was unwell on the day in question, 14th May 2018. She had been ill for some weeks prior to the incident, and on the day she had asked for a change in her shift due to being unwell, and she worked from 1pm to 7pm that day. When she finished her shift and after normal cash up she went home. The Complainant advised that after cashing up the notes she did not check the booth before leaving and acknowledged she should have done so. The Complainant further acknowledged she had left the €50 section on the cash up form blank and as she was unwell that day her mind was not on the job. The Complainant was contacted on 18th May 2018 by the Respondent and advised that her cash up was short by €647.99.

The Complainant acknowledged she was shown the CCTV footage of her counting the €50 notes three times where she had counted thirteen €50 notes, but the cash sheet did not record this money.

The Complainant did not dispute the fact that money was missing, acknowledged that somehow she may have made a mistake stating she may have dropped it on the day. The Complainant acknowledged that she had signed for the notes on the day, and at cash up would always put her notes into separate bags. She contended that no consideration was given to her medical situation, and the fact that she attended casualty following the incident. The Complainant submitted that whilst she had been dismissed other staff who had stolen money were told to leave with no further action. The Complainant also submitted that whilst she was dismissed for failing to follow the cash handling procedures other employees had been put on probation.

The Complainant therefore maintained that whilst the money was missing there was no consideration given to the mitigating circumstances that she was unwell on the day, that she was pregnant, and that she had attended casualty following her work.

Findings and Conclusions:

Preliminary Issue

The complaint was submitted some eight months after the dismissal. The Respondent submitted that the complaint was out of time as the Complainant had not provided any verification that she had been unwell, there was no reasonable cause to extend the submission time.

In accordance with S8(2) of the Unfair Dismissals Acts, 1977 to 2015, a claim for redress shall be initiated within the period of six months beginning on the date of the relevant dismissal. In accordance with S41(8) of the Act An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I note the alleged breach occurred some eight months before the Complainant submitted the complaint to the WRC. The Complainant maintained this was due to the fact that she was unwell. Following the hearing she submitted a certificate from her GP confirming that for the period September 2018 to March 2019 the Complainant was medically unfit to work due to stated reasons.

Having considered the evidence, I am satisfied the Complainant was in fact medically unfit to submit a complaint until 7th March 2019. I am satisfied the Complainant has provided evidence there was reasonable cause for this delay. Accordingly, in accordance with S S41(8) of the Workplace Relations Act 2015 I find it is in order to entertain the complaint and reject the Respondent’s assertion that there is no reasonable cause to extend the time for its submission.

Unfair Dismissal Finding

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) of the Act states [w]ithout 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… 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.

Having considered the evidence presented to me I find that the Complainant was responsible for the improper accounting of €647.99 of takings on 14th May 2018 and where she could not provide a reasonable cause for how this money was not properly accounted for. Whilst acknowledging that the Complainant was pregnant at the time of the incident, and where she had been on sick leave prior to the incident, she did not report feeling unwell to the Respondent on the day in question when she attended for duty, or in the course of attending work from 1pm to 7pm that day.

The Operator’s obligations in accordance with the procedures places a key responsibility on the Operator to manage and secure all cash held in the toll booth, and where money is collected it must be sent to the cash office. Cash in notes must be returned to the control room at breaks or at the end of shift. In addition, Operators must ensure the Supervisor acknowledge/sign for all notes collected in the booth. The procedures also require the Operator, when finishing a shift, to check that they have collected all the money associated with their shift. In addition in her written Roles and Responsibilities as an Toll Operator the Complainant is required to follow established company procedures in relation to toll collection operations; and to follow established procedures for the handling of cash, transfer the cash to the cash office, and completion of cash up procedures at the end of shift/work session. Breaches of the cash handling procedures amounts to gross misconduct. The Complainant was aware of and trained in these procedures.

I am satisfied the Respondent adhered to reasonable practice in how it conducted the investigation of the matter, and the conduct of the subsequent disciplinary hearing and appeal hearing. It considered all the submissions made by the Complainant and the fact that the missing €50 notes were not disputed. It considered whether the Complainant had reported feeling unwell that day, and that she had reported to A&E four hours after her shift. It concluded the missing €50 notes and the failure of the Complainant to adhere to the cashing procedures, particularly in light of the CCTV footage recording the Complainant counting the €50 notes but not putting them in the cash up bag, as being a significant issue. The appeal hearing also discussed and considered the allegation that other staff had not been dismissed and noted that the case within was unique where no precedent existed regarding a previous disciplinary sanction for a comparable breach of cash handling negligence.

I am satisfied that neither the Complainant’s pregnancy nor her absences due to illness were a factor in deciding to dismiss her.

I conclude the dismissal is wholly as a result of the Complainant’s failure to adhere to the cashing up procedures. I do not find the Respondent has acted unreasonably, or that it has omitted to adhere reasonably any to any procedure it is obliged to comply with in relation to the dismissal of the Complainant. I therefore do not uphold the complaint and find the Complainant was fairly dismissed.

Decision:

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.

I find this complaint of unfair dismissal not to be well-founded and accordingly, dismiss same.

Dated:   18-05-2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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