Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retailer

Representatives

Mandate.

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00034728-001

19/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034728-002

19/02/2020

The complainant had been employed by the respondent as a Sales Assistant since January 2000 and her employment was terminated on October 31st 2019 following disciplinary proceedings.

She was paid €535.15 per week for a thirty-five hour week.

On July 9th, 2019 the complainant removed a sum of money from the shop without permission.

Earlier, on July 5th a customer had left a sum of €30 in the shop which had been handed in to a co-worker of the complainant; Ms X, who kept the money on her person. She then left the business with the money.

The following day the customer rang the business looking for her €30 and was told it had not been handed in.

Ms X was observed to have removed three notes from that section of the till where €50 notes are stored and labelled them and put them under the till, where it remained until July 9th.

In due course Ms X called the complainant over to her and gave her the money that had been placed under the till.

The complainant took the money and put it in her blouse pocket.

While she did go to the cash office to lodge other monies she did not lodge the money given to her by Ms X and left the premises with it on her person.

There is some doubt about the actual sum involved and the respondent believes it was €150.

The complainant attended for work the following day but did not hand in the money.

She was then rostered off until July 15th but on July 14th was shopping in the respondent store when she was approached by a co-worker who asked her whether she had heard about anyone being suspended. She said she was not.

On returning to work the following day she went to the cash office fifteen minutes before her shift and handed in a bag containing three €10 notes.

The following day the respondent began an investigation and a series of investigation meetings took place.

The complainant insisted that the money in her possession was that left behind by the customer although there were some discrepancies in her story. She said that she had forgotten to hand it in.

The investigation led to a disciplinary process which involved two hearings at which the complainant was represented by her union.

The conclusion was a finding of serious misconduct and that the appropriate sanction was termination of her employment.

She appealed, and this was heard by a senior manager from a different part of the business but he upheld the decision to terminate.

The respondent submits that the amount involved is irrelevant, and that the complainant had the opportunity to return the money long before she actually did so. Her position shifted in the course of the investigation and ultimately the evidence of Ms X is also irrelevant.

The sequence of events is largely captured in the narrative set out above.

The complainant was brought to a meeting on July 15th at which she was suspended pending an investigation into a till discrepancy but was provided with no other details.

After this meeting she took steps to establish whether it related to the customer money bag which had been handed in, and if so, that she had handed it in that morning.

In the course of the investigation (over a series of meetings) she confirmed that she had been given the money bag by Ms X and that, having placed it in her pocket, she simply forgot about it when she went to make her deposit in the cash office.

It later emerged that the sum of money at the centre of the investigation was €150 but as far as the complainant knew the sum of money in the bag given to her by Ms X was only €30, as that was what Ms X had told her.

CCTV footage was inconclusive in establishing the precise sum of money involved. As a matter of fact it was accepted in the course of the investigation that the complainant had handed in the money before she became aware of the investigation.

The suggestion by the respondent that the conversation between the complainant and a co-worker on July 14th (the day before she returned the money) regarding a possible suspension of an employee had some bearing on the decision to hand the money in the following day is not accepted.

The complainant had simply forgotten to hand it in before her period of leave but did so as soon as she came back to work. The conversation on July 14th regarding whether a person had been suspended had no bearing on this.

There is no question of any collusion between Ms X and the complainant to remove the money.

An unsatisfactory aspect of the disciplinary meeting which followed the investigation was that the complainant wished to put a list of questions to Ms X. This was done indirectly by the person conducting the hearing following an adjournment.

However, Ms X did confirm that the sum of money handed to the complainant was €30.

The decision to dismiss the complainant was appealed on seven grounds, all of which were dismissed except one (that she had not been given one of the respondent’s policies).

Some of the grounds were significant; that she was not provided with all evidence and witness statements, or the right to cross examine, failure to consider the ‘honest mistake’ explanation and the fact that the complainant had returned the money.

The nub of the allegation against the complainant is clear enough, although it is obscured by a lot of detail of varying degrees of relevance to the decision.

Starting with the Investigation Report, it sets out the allegation against the complainant as being that she;

‘on 09/07//2019 removed a money bag containing €150…with the assistance of another colleague and retained this money bag in your possession resulting in a loss of €150 for the company’.

The investigator concluded that the sum of money involved was €150, despite the complainant’s continuing protestation that it was only €30.

The investigator also found that she colluded with a colleague (Ms X) to remove the €150 for her personal gain.

She also criticised the inconsistency in the complainant’s responses and found her to have been in breach of three of the respondent’s relevant policies. She concluded that this justified disciplinary action on the grounds of serious misconduct.

The investigation was an unnecessarily long drawn out affair. There were six meetings in total between July 22nd and August 27th. This might appear a relatively short time frame for these things but given the relatively simple issue that fell to be dealt with and the fact that this was an internal exercise this seems excessive; some of the meetings repeated what had taken place at previous meetings. This is suggestive of indecision and uncertainty rather than diligence.

Admittedly, the net issue; that a sum of money had been removed from the store by the complainant was not in dispute and was accepted by the complainant to have happened, and this was enough to ground serious disciplinary action against the complainant.

The respondent said that whether the sum was €30 or €150 would not have affected the outcome from its point of view but despite this it continued to make quite an issue our of it even at this hearing. That aspect of the matter had been well decided at the first disciplinary hearing.

The investigator concluded on the basis of its interview with Ms X that the sum she put in the bag was €150, and the till was short €150. Yet why Ms X would have done so was odd given that the sum allegedly left by the customer was €30. The complainant was not shown a report of the investigator’s meeting with Ms X.

The report of the responses given by Ms X at the complainant’s disciplinary hearing are of little assistance either. Ms X did not attend the hearing but responded to a number of questions drafted by the complainant and put to Ms X by the decision maker.

This lack of clarity in Ms X’s response may not have been helped by the interviewer (the disciplinary decision maker) essentially disavowing responsibility for the questions and telling Ms X that the questions had ‘nothing to do’ with the respondent but that it was the union which was requesting the answers.

It was quite wrong of him to do so; as it significantly diminished the importance of these questions as part of a disciplinary process, and given that Ms X was being interviewed by the Disciplinary decision maker at the request of the complainant’s representative.

His undertaking ‘to put’ any questions from the complainant to Ms X required something more than the statement by him to Ms X that ‘it’s up to you if you answer them’.

The obligation on him was one imposed by the requirements of natural justice, deriving from the obligation falling on him to be impartial and was not some favour to the complainant.

Ms X responded accordingly with a series of uncooperative responses, such as ‘I’ve already answered them’ to which his less than enthusiastic response was ‘I’ll go through them anyway’.

However, Ms X did confirm that she called the complainant to her, gave her the money bag and told her that it was the sum of money left behind by the customer and was an amount of €30. She also denied that she colluded with the complainant.

While the decision maker did not specifically uphold the findings of the Investigation, referring vaguely to a ‘sum of money’ having been taken, and also declining to express a view on the alleged collusion he nonetheless concluded that this was sufficient to represent serious misconduct as it broke the bond of trust to such an extent that it was ‘beyond restoration’ and he confirmed her dismissal.

In fairness to the disciplinary officer, he demonstrated the degree of independence necessary in considering the outcome of the investigation report.

The complainant appealed.

The appeal decision maker specifically confirmed that there had been no collusion.

His statement that the disciplinary officer in his outcome had ‘discarded’ the allegation of collusion is not strictly correct as the disciplinary officer did not state explicitly that he was doing so. All he did was ignore the allegation and made no finding either way.

He addresses the issue of Ms X’s response to the questions put to her, in the context of the complainant’s complaint about not being allowed to cross examine Ms X.

There is no general right to cross examination in such proceedings, but there is a right to test any evidence which may be relied on in reaching a decision.

The appeal decision maker referred to the appeal ground submitted by the complainant that the questions submitted to Ms X.

‘were not completed, with [Ms X] continuously stating that the questions were previously answered. The company did not provide the answers previously given by [Ms X] to you.

However, he concluded that at ‘all stages throughout the course of the investigation and disciplinary process the rules of natural justice were applied.’

The rules of natural justice, it is often remarked, are somewhat elastic.

Whether they contain sufficient stretch to allow some of the above deficits to be overlooked is the case being raised by the complainant even taking into account her admission that she did take money which should properly have been immediately lodged to the company’s account, is the question.

When the respondent states that the sum of money is irrelevant to its decision it is a pity it did not take its own advice and simply make a decision to rely on the lower sum, such was the doubt about what exactly the sum was.

The fact that it was still seeking to ‘ride both horses’ on this point at the WRC hearing is inexplicable.

This is one of several unsettling examples of where, and without much in the way of evidence, it continued to raise questions about the complainant’s conduct even though these were no longer relevant.

The first was this confusion over the actual sum of money.

If the respondent had been within its rights to terminate the complainant’s employment over the removal of the €30 why did it not do so?

It seems odd that the confirmation of the sum only came in Ms X’s responses to the questions raised by the complainant at the disciplinary hearing, despite a five-week investigation that involved six meetings with the complainant.

Of course, it is possible that Ms X gave this same information to the investigation, but the complainant was not told of this at the time. But why this was still an issue by the time it came to the WRC when its own internal processes had dealt with it is unclear.

The second was the allegation of collusion; ultimately unfounded.

The third was the quite unnecessary insinuation that the complainant only returned the money because of the mysterious exchange with a colleague (a local union representative) on the day before she actually did return it.

The respondent also asserted, without any evidence, that the union representative she met on the day before she returned the money thought ‘she [the complainant] looked quite panicked’ by the query about a person being suspended and juxtaposed this in its submission with her eventual return of the money; clearly attempting to link the two, although there was not an iota of evidence to justify doing so.

In fact, no one had been suspended when the pair had this conversation. The complainant denied at the hearing that she had had any such reaction.

Despite these unsettling aspects of the respondent’s submission to the hearing, which seemed only calculated to present the complainant in a bad light, and the uncertainty and inconsistency in the respondent’s approach, which could easily have tilted into making the process unfair ultimately, I conclude that they did not.

Both stages of the actual disciplinary process were sufficiently fair to meet the requirements of a fair process and I find that the decision makers acted fairly, despite the reservations expressed above.

Having regard to its policies and procedures, and the complainant’s acceptance that she did in fact remove the money the decision to terminate lay within the range of reasonable sanctions.

On balance, therefore I find that the complaint is not well founded.

Given those conclusions, her complaint under the Minimum Notice & Terms of Employment Act, 1973 is also not well-founded.

For the reasons set out above I find complaints CA-00034728-001 and 002 not to be well-founded.

Unfair Dismissal, Minimum Notice