Complainant

Respondent

Anonymised Parties

Employee

Supermarket

Representatives

self

Lorna Lynch BL/Walter Beatty Solicitor

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-00036318-001

24/04/2020

The employee worked as shop assistant.

The employee was convicted for a criminal offence of being in possession of property knowing that it was the proceeds of crime. She received a suspended sentence.

The employee’s contract states that a disciplinary sanction up to and including summary dismissal for Conviction of any criminal offence ( other than a minor motoring offence).

The employer initiated the disciplinary procedure that included the right of appeal.

The employee’s immediate manager was not involved in the disciplinary process or decision.

The disciplinary hearing concluded that the employee’s contract should be terminated having regard to the fact that she had received a criminal sanction. In particular the employer had regard to the fact that the employee as part of her day to day responsibilities received cash from customers. The nature of her job meant that in all of the circumstances the trust and confidence required by the employer had been fundamentally breached. The breach in trust and confidence arising from the criminal conviction and the circumstances that gave rise to that conviction was a substantial ground to justify dismissal as provided for under the Act:

  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.

The employee counters this by stating that the process was tainted by unfairness. Her immediate manager informed her when he became aware of the fact that she had received a criminal conviction that she had two choices:

1.       Resign

2.       Face the disciplinary process and that will find against you and terminate your contract.

The employee sees the process has tainted and predetermined based on the representation made by her immediate manager.

She also relies on the fact that the company allowed her work a shift before suspending her pending the disciplinary hearing and that this failure to suspend when they became aware of the conviction demonstrated that they had no concern about her handling cash. If they had they would have immediately suspended her.

The employee accepts that she did receive a criminal sanction and a suspended sentence. However, she was denied fair procedures as the process and outcome of the hearing was predetermined, the company had already made up their mind before the hearing commenced. Also the company by allowing her to work most of her shift after finding out that she had received a criminal sanction had negated their right to proceed and take any action against her. As during this shift she was handling cash. Once they became aware of the sanction she should have been suspended pending the outcome of their disciplinary investigation.

The employee’s manager was not involved in the disciplinary hearing or decision to terminate the employee’s contract. The procedure followed by the company was fair and objective. Also the employee was given the right of appeal. The fact that a manager made a comment or view about his personal position did not compromise the integrity of the process; when that manager was not involved in the disciplinary investigation or any decision arising from the process. The fact is the employee had received a very significant criminal sanction. The criminal sentence arose after being found guilty of being in possession of property knowing that it was the proceeds of crime. She received a suspended sentence. The employee deals with cash every day. The trust and confidence that an employer must have in the employee was fundamentally breached arising from the facts that led to the criminal sentence. The company followed a fair procedure, had substantial grounds to justify the dismissal and acted within the band of reasonableness and that standard expected from an employer.

On balance the employer has followed a fair procedure and compliant with the contract of employment.

The fact that the employee continued to work for a shift/part shift, prior to suspension while the manager of the store or/and other more senior management knew about the criminal sanction does not equate to acquiescence. If a very significant delay arose prior to commencing a disciplinary process then delay could be a factor to consider. However, no significant delay occurred in this case.

The complainant states that her immediate manager told her that the she would be sacked and it would be better if she resigned. She relies on this statement to show that the process was not fair, was prejudiced and offends natural justice.

Her immediate manager had no part to play in the disciplinary process and therefore the hearing and the decision making were free from any bias. The fact that the outcome was dismissal does not mean that the process did not adhere to fair procedures. The circumstances and facts that gave rise to the complainant receiving the suspended custodial sentence for knowingly being in receipt of goods/property that were the proceeds from crime, was the substantial ground justifying the dismissal.

This is a sad case where the complainant had been represented by her mother during the company disciplinary process, who tragically passed away prior to this hearing. I am conscious of the fact that the complainant has had a lot to deal with in the recent past and also minds a young child.

The company procedure allows for a friend or work colleague of their choice to assist the employee but not to answer questions on their behalf. The company stated that this contract clause meets the test of allowing the complainant to be represented. The complainant is dyslexic and the Court also had regard when sentencing that she was easily manipulated.

A key consideration is whether or not the procedure followed by the company was fair. In McKelvey v Iarnród Éireann [ Appeal No: 2018/178] which dealt with legal representation; Clarke CJ stated at 6.7 that:

“,the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation.”

Based on the evidence given at the hearing it would appear that representation was in fact adequate at the company initiated meetings.

At the Adjudication hearing the complainant also adequately made out her case concerning the alleged procedural flaws in the company’s procedure that offended fair procedures and that the company had in fact acquiesced to her continuing to work and had confidence in her to handle cash due to the delay in suspending her.

Counsel for the respondent did ask whether or not her mother knew about employment matters and referring a complaint to  the Workplace Relations Commission. It would appear from the evidence given under oath that she did and it also clear from the complainant’s case presented at the hearing; that she was aware of potential procedural breaches in how the company conducted the disciplinary process; that might show that the disciplinary procedure was flawed. At the hearing the complainant was facilitated by the Adjudicator to communicate her case but not in making her case.

In Redmond on Dismissal Law 3rd Edition at 16.05:

It is generally possible to justify dismissal for a first offence of gross misconduct. Many disciplinary procedures provide that an employee can be dismissed instantly for ‘gross misconduct’ although this will not be conclusive for the purposes of the legislation and the adverb ‘instantly’ (or ‘summarily’) is not to be literally interpreted. Whether behaviour constitutes gross misconduct is far less likely to ground an appeal from a determination of the Workplace Relations Commission (WRC), than the broader issue of reasonableness. Gross misconduct generally presupposes intentional and deliberate misconduct, 9 but gross negligence may also amount to gross misconduct. 10 As the English Court of Appeal has recently stated:

‘The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence

The fact of the conviction must raise the question has that behaviour in this case damaged the relationship.

Also in assessing the fairness of the procedures followed at 16.06 in Redmond it states:

the High Court has provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct in Frizelle v New Ross Credit Union Ltd: 12

‘1 The complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

2Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

4The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.’

On balance the company has followed these steps.

The employer relies on the band of reasonableness test which is stated at Redmond 13.29:

The ‘band of reasonable responses’ test was articulated by Lord Denning MR:

‘The correct test is: Was it reasonable for the employers 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, then the dismissal was fair. 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.’ 47

The employer has exercised their right to dismiss based on a substantial ground justifying dismissal that is proportionate in the circumstances of the company’s business and a decision that a reasonable employer might reasonably also make in such circumstances. The procedures followed by the company on balance were procedurally fair. On this basis, I determine that there were substantial grounds justifying the dismissal and the decision to dismiss was fair.

Section 8(1)(c) of the Act provides that:

(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and

The employer has exercised their right to dismiss based on a substantial ground justifying dismissal that is proportionate in the circumstances of the company’s business where she is required to handle cash. The conduct of the employee has fundamentally damaged the relationship between the employee and the employer; the dismissal in these circumstances is reasonable and a decision that a reasonable employer might reasonably also make in such circumstances. The procedures followed by the company on balance were procedurally fair. On this basis, I determine that there were substantial grounds justifying the dismissal and the decision was fair. I dismiss the claim.

Criminal Conviction-Fair Procedures