ADJ-00019671

Complainant

Respondent

Parties

Zheng  Guo

Puig Uk Limited

Representatives

  Self

Aleksandra Tiilikainen,  Ibec

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-00026134-001

07/02/2019

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

CA-00026134-002

07/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026134-003

07/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026134-004

07/02/2019

The complainant commenced employment with the respondent on 09/05/2017.  He worked 30 per week and was paid €2,376.23 per month.  He worked as a sales assistant.  In June 2018 the respondent became aware of a breach of the rules in relation customer transaction limits.  Following an investigation and disciplinary process the complainant was summarily dismissed on 15/11/2018.  He appealed this decision and it was upheld on appeal.  The complainant submitted his complaints to the Workplace Relations Commission on 07/02/2019.

The complainant commenced employment with the respondent as a Loubi Ambassador on 09/05/2021.  The respondent’s sales area was based in a major department store which has a number of boutiques for most of the major brands.  The complainant submits that he was one of the respondent’s best sales assistants in this location.  Most of the customers were Chinese and Chinese tourists.  This contributed to approximately 80% of the company’s performance in Ireland. He worked hard to achieve his sales targets set by the respondent.  He attended anti-money laundering training on 28/09/2017.  He did not receive any copies of the training.  The complainant said that he faced sales pressures every day as the brand was a high-end luxury product.  There was a lot of attention paid to brand culture and customer service.

In relation to the incident which gave rise to his dismissal the complainant explained that he served a loyal customer.  He does not accept that he was involved in anything illegal.  He did ask a manager about the customer limit rules on the day of the sale and before he got a clear response he had organised with the customer to leave the goods and they could be refunded the next day.  The complainant believed that the manager did approve but subsequently denied this.  The complainant submitted that most staff used the process of splitting transactions to overcome the six-unit policy.  He was not aware of any issues with any other staff in relation to splitting up goods for customers.

The complainant felt that he should have been allowed bring his legal representative to the appeal hearing.  The complainant outlined that he was concerned about his reputation in view of the allegations which led to his dismissal and in particular the fact that he would be linked to alleged money laundering activity.  He said that this was very serious for him as things like this spread throughout the Chinese community both locally and also thousands of miles away.  He had a recent experience whereby an offer of employment with another company in the department store was declined.  He attributes this to his dismissal by the respondent.  The complainant also took issue with the respondent’s submission to the hearing and he did not think that was true or accurate and did not reflect the original meaning of the responses he provided at the investigation.  This was why he asked for an interpreter to be present at the appeal hearing.

The complainant organised for a number of witnesses to give evidence at the hearing.

Witness 1: Ms A Lei:  Ms Lei outlined that she was a customer who dealt regularly with the complainant.  She only knew him because of the sales that he had transacted with her.  Ms Lei said that the gave the complainant money to buy a quantity of lipstick. The amount of money was €2,000.  She confirmed that she did not obtain a receipt from the complainant.  She said that she was not concerned about not having a receipt as there was a record of their conversation on “WeChat”.  [WeChat is a Chinese alternative to WhatsApp]. Ms Lei said that as a regular customer she has trust in the store.

Witness 2:  Ms Y Zhao:  Ms Zhao said that she was a friend of the complainant’s.  She confirmed that she does not know about he incident.  She gave evidence that she became aware of the envelope the day after the incident and it was intended for the complainant to purchase a jacket.

Witness 3: Mr Cheng Ming Yan:  Mr Ming Yan confirmed that he was a friend of the complainant’s. He wished to provide evidence to clarify matters in relation the gift card.  Mr Ming Yan confirmed that he had a gift card for the department store. There was a value of €450.00 on this card.  He owed the complainant some money and the complainant did not want to receive cash.  Mr Ming Yan could not recall when he gave the card to the complainant.

Witness 4:  Ms Ocean Xin:  Ms Xin confirmed that she was a friend of the complainant’s.  She wanted to give evidence that she had a gift card for the department store.  This card had €50 - €60 on it.  The complainant was planning to go to China and she wanted to give him a gift for his birthday.  She recalled that she gave this card to the complainant sometime around March 2018.

Complainant:  Under cross examination the complainant confirmed that he got the card from Ms Xin in May 2018.  This was the date of his Chinese birthday.  He confirmed that he transferred the value of this card this to his own card.  The complainant confirmed that he was not aware that this was a breach of policy to transfer points from a customers card to his own card. He was reminded that he received a formal written warning for doing so previously.  The complainant was asked why he did not arrange any of his witnesses to attend the investigation, disciplinary or appeal hearings.  It was his understanding that when he mentioned the names to the respondent it was the respondent’s responsibility to make contact with them.  The complainant was asked if he was aware of how serious this matter was when he was attending the investigation meeting.  He confirmed that he knew it was serious. 

The complainant was asked to explain why he did not issue a receipt when he was given an envelope with €2,000 from Ms Lei.  The complainant said that this was a holding deposit and he did not think there was a policy in relation to this and in any event, all the money went to the respondent.  Ms Lei was back in the store after about two hours.

In relation to the purchase of a jacket the complainant explained that he used €850 to purchase this jacket.  This was intended as a birthday gift for a friend.  He did not give it to his friend as this incident arose.  He purchased it in the manner he did so that a Chinese colleague would get the commission.

The complainant submitted that he does not accept the allegation in relation to money laundering.  He provided explanations, but these were not properly recorded.  He wants to have his good name and reputation restored.  All his actions were done with the approval from a manager.

CA-00026134-02:

The complainant also submitted a complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  In his complaint form he submitted that he did not receive his statutory notice on the termination of his employment or payment in lieu thereof.

CA-00026134-03:

The complainant submitted a complaint under the Organisation of Working Time Act 1977 stating that he did not receive his paid holiday/annual leave entitlement.

CA-00026134-04:

The complainant submitted a complaint under Section 7 of the Terms of Employment (Information) Act 1994, that he was not notified of a change to his terms and conditions of employment.

The respondent is a third-generation family-owned fashion and fragrance business based in Barcelona.  Their main line of business includes the manufacturing of perfumes and cosmetics.

The complainant commenced employment on 09/05/2017 as a Loubi Ambassador.  He was given and signed a contract of employment.  On 13/06/2018 a manager sent a WhatsApp message to the Irish team members reminding them that there was a 6-unit limit per Stock Keeping Unit (SKU) to one customer.  The complainant’s line manager confirmed that all her team members were aware this rule was in place.  The complainant asked the floor manager on 04/10/2018 if the 6-unit policy for Christian Louboutin Lipstick was still in place.  It was confirmed to the complainant that it was.  Later that evening when the manager was completing the end of day tasks she noticed that there was a large sale for Christian Louboutin.  She asked the complainant about this and he confirmed that he split the transaction into multiple transactions in order to bypass the six-unit limit.  He was informed that this would be reported to a Senior Department Manager as it was a breach of policy.

The complainant was suspended on full pay on 02/11/2018 and an investigation was undertaken.  At the investigation meeting on 06/11/2018 the complainant was given details of the suspicious interaction, including gift card transactions and an issue with a large sum of money.  The complainant stated that the had consulted with the floor manager before putting through the sale.  He later said that he consulted another manager.  At the meeting the complainant confirmed that he was aware of the rule not to sell more than six lipsticks of this brand to any customer.  The complainant confirmed that he sold approximately 30 units to this customer. 

At the meeting the complainant was also asked to explain the envelope of money he was given by a customer.  He could not remember this initially but later recalled that he purchases a Macmillan Parka Jacket worth €850 using the contents of that envelope.  At this meeting the complainant admitted that he is aware of the Gifts and Hospitality Policy and the Anti-Money Laundering policy but the did not follow these rules.

The complainant was summarily dismissed from his employment on 15/11/2018 and advised of his right to appeal within five working days.  Although his appeal application was received thirteen days later the respondent arranged an appeal hearing in order for the complainant to present any additional relevant information.  The respondent also organised the services of an interpreter.  However, the complainant wanted to be accompanied by a solicitor and was advised by the respondent that their policy only allowed for a trade union representative or a work colleague.  The complainant did not attend stating that it was unreasonable not to allow his solicitor to attend.  The respondent conducted a review appeal, and this upheld the decision to dismiss.

It was submitted on behalf of the respondent that in accordance with the Unfair Dismissals Acts 1977 to 2015 the dismissal of an employee shall not be unfair if it results wholly or mainly from the conduct of the employee.  The complainants actions amounted to gross misconduct and as a result all trust, and confidence was destroyed thus rendering the continuation of the employment relationship impossible and therefore justifying dismissal.  The respondent also submitted that at the time of the incident the complainant was on a Formal Written Warning for failing to follow the rules and procedures in relation to correct sales procedures for discounts for staff and customers.

The respondent submits that the procedures used to implement the dismissal were in line with the company policy and the WRC Code of Practice on Grievance and Disciplinary Procedures and the universal principles of natural justice.

CA-00026134-02:

The complainant also submitted a complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.  In his complaint form he submitted that he did not receive his statutory notice on the termination of his employment or payment in lieu thereof.  The respondent submits that Section 8 of the Minimum Notice & Terms of Employment Act, 1973 states:  “nothing shall affect the right of an employer or employee to terminate a contract of employment without notice because of the misconduct by the other party”.  Therefore, the respondent is not in breach of this Act.  The complainant did not receive his statutory minimum period of notice on the termination or his employment or payment in lieu thereof as he was not entitled to receive it.

CA-00026134-03:

The complainant submitted a complaint under the Organisation of Working Time Act 1977 stating that he did not receive his paid holiday/annual leave entitlement.  The respondent provided a copy of the complainant’s payslip which separately shows the pay he was due in relation to outstanding annual leave.

CA-00026134-04:

The complainant submitted a complaint under Section 7 of the Terms of Employment (Information) Act 1994, that he was not notified of a change to his terms and conditions of employment.  The respondent refuses to accept this claim and provided evidence of the complainant’s contract of employment which outlines the terms and conditions relevant to his employment.

CA-00026134-001

This is a complaint pursuant to the Unfair Dismissals Act.  The Complainant commenced employment on 09/05/2017 and ended on 15/11/2018.  He worked as a brand ambassador and was paid €2,376.23 gross per month.  The fact of dismissal is not in dispute. The legal onus is on the Respondent to show that the dismissal was not unfair.  In this case, the dismissal arose from the as a result of the complainant’s breach of the rules in relation to customer transactions.  The evidence was that the complainant had breached the rules and gave conflicting versions of what happened. The complainant denies that he was involved in any illegal activity and “wants his name and reputation cleared”.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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 he held without contravention (by him or his employer) of a duty or a restriction imposed by any statue or instrument made under statute.”

Furthermore, Section 6 (6) of the Unfair Dismissals Act 1977 places an onus on the employer which provides:

“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 or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The burden of proof lies with the Respondent to show that the complainant’s dismissal was fair.  In formulating a decision, I am conscious that in my role as an Adjudicating Officer, I must not assume the mantle of an employer regarding the facts in any case.  My role is to decide whether, within the so-called band of reasonableness of decision making, an employer’s decision is not unfair.  The band of reasonable test was considered by the Irish High Court in Bank of Ireland v Reilly ([2015] IEHC 241.  In that case, Noonan J looked at S 6(7) of the Unfair Dismissals Act 1977 and outlined that it provided that a court have regard to the reasonableness of the employer’s conduct in relation to a dismissal.  He stated:

“That is, however, not to say that the court or other relevant body may substitute its own judgement 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.”

It is not my function to determine if the dismissal was the correct sanction.  It is my function to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases.  I am guided by the jurisprudence of the High Court in the case of Bank of Ireland. 

The importance of fair procedures in cases involving dismissal on grounds of misconduct has been set out in our case law. 

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.”

In the within case there were clearly a number of issues which the respondent was required to address. 

I have carefully considered the submissions received and evidence presented by both parties at the hearing.  The allegations against the complainant were very serious and would have important implications for both the respondent and the complainant.  Trust is an essential component of all employer/employee relationships.  This trust is of the utmost importance in any employment involving  transactions which involve money and goods.   The respondent had a duty to deal with the incident which presented on 04/10/2018.  It is clear that a policy and procedure existed for such an eventuality. 

In all the circumstances of this case I find that the action of the respondent in dismissing the complainant for gross misconduct was within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.

CA-00026134-02:

This is a complaint under Section 12is of the Minimum Notice & Terms of Employment Act, 1973.  In his complaint form he submitted that he did not receive his statutory notice on the termination of his employment or payment in lieu thereof.  I accept that the complainant was not entitled to such notice.  I find this claim to be not well founded.

CA-00026134-03:

This is a complaint under the Organisation of Working Time Act 1977 stating that he did not receive his paid holiday/annual leave entitlement.  I accept the respondent’s evidence that he was paid for all outstanding annual leave.  I find this complaint to be not well-founded.

CA-00026134-04:

The complainant submitted a complaint under Section 7 of the Terms of Employment (Information) Act 1994 that he was not notified of a change to his terms and conditions of employment.  At the hearing the complainant could not elaborate on what the precise nature of this complaint was.  I accept that he was issued, and signed, a contract of employment dated 12/04/2018 which is a clear statement of the main terms of his employment.  I find this complaint to be not well-founded.

CA-00026134-01: I find that the complainant was not unfairly dismissed.

CA-00026134-02: I find that this complaint is not well-founded.

CA-00026134-03: I find that this complaint is not well-founded.

CA-00026134-04: I find that this complaint is not well-founded.

Unfair dismissal.