Complainant

Respondent

Parties

Daniel  Mullen

Regatta Great Outdoors Ireland Limited

Representatives

  Self

Callum Peel, Elcons

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-00033825-001

16/01/2020

The complainant worked for the respondent as a store manager.  He commenced employment on 21/11/2016.  On 01/11/2019 the complainant visited another of the company’s store as a customer and wished to purchase four items of clothing.  He asked the sales assistant to transfer these items on the stock recording system to his own store.  He then went on annual leave.  On his return the respondent suspended him pending the outcome of an investigation into the matter.  Following the investigation, a disciplinary process resulted in the complainant’s dismissal on 27/11/2019.  A subsequent appeal upheld the sanction of dismissal.  He was paid €2,333 per month.  He submitted his complaint to the WRC on 16/01/2020.  He was paid €2,333 gross per month.

The complainant worked for the respondent as a store manager and worked in “Store A”.  On 01/11/2019 he was in “Store B” and he selected four items of clothing.  He asked the store assistant to transfer these items on the stock recording system to his store, “Store A”.  He told the assistant that he would pay for them when he returned to his own store.  The following day he flew to the USA for his wedding and he returned to Ireland on 10/11/2019.  He was due to resume work on 18/11/2019 and intended to pay for the goods in his own store at that time.  He received an e mail from the respondent on 15/11/2019 indicating that it had become aware of the transaction which took place on 01/11/2019 and it wished to conduct an investigation into the matter.  He was placed on paid suspension pending the outcome of this investigation.

He attended the investigation meeting on 18/11/2019 and was provided with written notes of this meeting.  A number of other employees were also interviewed as part of this investigation and notes of these meetings were provided.

A disciplinary meeting took place on 27/11/2019 and following this he was advised that his employment was being terminated on the grounds of gross misconduct.  This arose by virtue of the fact that he took stock from “Store B” without paying for it.

He appealed this decision and an appeal hearing took place on 17/12/2019.  The outcome of this appeal was that the decision to dismiss the complainant was upheld. 

The complainant lodged his complaint with the WRC on 16/01/2020.

The complainant was employed as an assistant manger with the company and worked in “Store A”.  He commenced employment on 21/11/2016.  He was seconded to the position of Store Manager for a period of six months from 10/07/2019 and due to finish on 10/01/2020.

The complainant visited the respondent’s “Store B” on 01/11/2019 while he was on annual leave.  He selected four items of clothing and asked the sales assistant in that store to transfer the four items of stock on the stock recording system to his own store.  The stock was not transferred. The complainant left the store with the stock without paying for them. The respondent became aware of this incident when the sales assistant  in “Store B” voiced her concerns to her manager.  The respondent established an investigation process and the complainant was suspended with pay and without prejudice pending the outcome of this investigation.  A thorough investigation was conducted, and comprehensive notes were taken at all meetings.  The complainant was advised of his right to be represented at any meeting but elected to attend alone. 

During the investigation the complainant was given every opportunity to outline and explain his account of what happened. 

The investigation concluded that the complainant had a case to answer and a disciplinary hearing was conducted on 27/11/2019. The complainant attended unaccompanied.  The complainant was given an opportunity to present his version of what happened on 01/11/2019 in “Store B”. 

Following the hearing the disciplinary hearing chairperson concluded that the complainant could not provide any valid reason for wanting to pay for the goods in his own store.  He did not seek any permission to act outside the usual process and the complainant did not show any remorse.  The sales assistant  in “Store B” did not have any recollection of the complainant saying that he would pay for the goods in his own store on his return from annual leave.

The outcome of the disciplinary hearing was that it was determined that the conduct of the complainant constituted gross misconduct as he took four items of clothing without paying on 01/11/2019 and as a result he would be dismissed.

The outcome was communicated to the complainant on 27/11/2019 and he was provided with all the notes from the disciplinary hearing.  He was also advised of his right to appeal and he submitted his appeal on 04/12/2019.

An appeal hearing took place on 17/12/2019 and following careful consideration of the grounds for appeal and additional information the appeal hearing upheld the decision to dismiss the complainant on the grounds of gross misconduct.

The respondent denies that the complainant was unfairly dismissed and submits that it conducted a full and thorough investigation into the allegation.  The conclusion was genuine and a reasonably held belief that the allegations against the complainant should be upheld.  The respondent also noted that up to the date of the hearing the complainant had still not paid for the goods.

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

Section 6(1) of the Unfair Dismissals Act, 1977 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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides 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:

(a)    the capability, competence or qualification 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 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.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The issue of fair procedures requires examination.  It is clear that the investigation and disciplinary processes were conducted by persons with the relevant expertise.  The disciplinary process was conducted in accordance with the provisions of S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.     The appeal’s process was likewise conducted in accordance with the principles of natural justice and fairness. 

In the within case there are clearly issues which the respondent was required to address.  A store manager made a decision to transfer stock from one store to another without any approval and without paying. 

At the hearing the complainant did not provide any credible explanation for what happened.  He confirmed that he was familiar with the procedures in place for dealing with stock transfer for customers.  The respondent’s code of conduct which the complainant has signed clearly outlines the “expectations of personal conduct and business integrity” which it expects from its employees.

Having considered the evidence adduced at the hearing and the submissions received I find that the decision of the respondent to dismiss the complainant was a reasonable response to the circumstances presented.  I find that the complainant was not unfairly dismissed.

I find that the complainant was not unfairly dismissed.

Unfair dismissal.  Gross misconduct.  Stock removal