Complainant

Respondent

Parties

Krzysztof  Andraszak

Woodie's D.I.Y. Limited

Representatives

  Self

Scott Jevons 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-00036212-001

18/05/2020

The complainant was employed by the respondent as a team leader at one of their stores.  He commenced employment on 01 June 2006.  He worked a 40 hour week and he was paid €2847.93 per month. 

He was dismissed from his employment on 10 December 2019 for gross misconduct by breaching the respondent’s discount policy.  The complainant appealed and on 04 March 2020 the sanction was reduced to demotion, transfer to another store and a final written warning.  On 08 March the complainant wrote to the respondent stating that the appeal outcome was unacceptable to him and informing them he would submit a complaint to the Workplace Relations Commission.  The complaint was received by the Workplace Relations commission on 18 May 2020.

The respondent refutes the claims being made.  The complainant was not unfairly dismissed as the decision on appeal was a sanction of demotion, move to another store and a final written warning to be on file for twelve months.  The complainant rejected this sanction and he resigned his post.  Notwithstanding that, in accordance with the Unfair Dismissals Acts, 1977 – 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

The complainant contended he was unfairly dismissed.  He stated unfair dismissal is when an employment contract is terminated, and the employer did not have fair reason to do so, or if the wrong procedures were applied during the process.

Procedural Issues

The complainant attended an investigation hearing on 23 August 2018.  He stated that he advised the Investigation Officer (GN) that the transaction list given to him was incomplete.  He contends that during the investigation the investigation officer (GN) failed to clarify or to provide him with the factual list of transactions, its quantity and total value.  The Investigation Officer concluded his investigation and issued an outcome letter on 31 October 2019. 

The complainant contends that the Disciplinary Officer (KF) also failed to clarify the list of transactions.

The complainant raised these concerns in correspondence dated, 17 October 2019, 13 November 2019, and 27 November 2019.  As the respondent was not willing to acknowledge these concerns the complainant stated he attempted to investigate the matter himself.  He claims that the respondent did not give him the opportunity to view all transactions on his discount card.  In addition, he claims he found four additional transactions processed within the relevant period.

The complainant stated in his submission that the respondent’s policy includes the following: “All investigations will be fair, thorough, relevant and confidential, and the company will always aim to complete them as promptly as possible.”.  The complainant submits that the investigation of the complaints brought against him could not be called fair, thorough or relevant.

Background to Complaint

The complainant stated in his submission that the respondent had planned and orchestrated his dismissal and that this process was in place during 2017.  The complainant alleged that monthly review documents from 2017 had his signature forged on them.  The complainant had the signatures on the review documents examined by a graphologist who had concluded the signatures were likely a cut and paste from an original document. 

The complainant raised a query as to why he was put on a Performance Improvement Programme (PIP) in 2018 and was not satisfied with explanation he received.  Further, following a data subject request to the respondent in July 2019 for access to documents about him held by the respondent the complainant alleges he was not provided with all the relevant documents.

In December 2018 a new manager (MO’C) was appointed to the store.  The complainant stated in his submission that the new manager welcomed him with little enthusiasm.  During their first meeting the complainant stated he was told he needed to develop people skills.  Further, it was alleged that the manager’s perception of the complainant had been influenced by someone and he was given the task of executing a PIP.  Again, the complainant requested information about why he was on a PIP.

The complainant received a reduced bonus of €300 in 2019 for the year 2018.  It was set at this level because he was on a PIP.  Initially the complainant was told he would not receive a pay increase in April 2019, but this was subsequently changed, and he did receive a pay increase.

In a document dated 18 April 2019 the Store Manager (MO’C) wrote that the PIP process was paused to facilitate change of store management and the process was to be continued to the benefit of the complainant and the business.  The complainant stated in his submission that there was confusion about why he was on a PIP.  On reviewing the documents, he received from the respondent in reply to his data subject request, the complainant points to one document stating his PIP was continuing from one manager to another and yet another document stating a new PIP was commenced in April 2019.  The complainant asserts that since he raised the question of why he was on a PIP the respondent never provided him with the true answer or stated any factual reasons that would address his question.

Complaint

On 23 July 2019 the Loss Prevention Manager sent a report to the complainant’s Store Manager alerting him to a potential misuse of the respondent’s discount policy.  It was alleged that of 75 transactions on a specified employee card between 27 July 2018 and 15 July 2019, 44 transactions were paid for with 26 different debit/credit cards. 

The complainant was invited to an investigation meeting, which eventually took place on 23 August 2019.  The purpose of the meeting was to investigate allegations of breaches of the company discount policy by allowing friends to avail themselves of discounts contrary to Section 1 of the policy and allowing colleagues to use the complainant’s personal discount card contrary to paragraph 1 of the Colleague Eligibility section of the policy.

On 30 August 2019 the complainant was invited to a reconvened investigation meeting.  Due to the lack of factual documents, referred to above under procedural issues, the complainant did not attend the reconvened meeting.  Following an exchange of correspondence with some further questions being asked and replied to the investigation was completed without further meetings.  On 31 October 2019 the complainant was informed of the outcome of the investigation.  The matter was referred to a disciplinary hearing.  The complainant did not accept that the investigation was completed.

The complainant was invited to a disciplinary hearing on 14 November 2019.  The complainant objected as in his view the investigation was not completed.  The complainant was invited to a disciplinary hearing on 28 November 2019.  As the complainant remained of the view that the investigation was not completed he did not attend a meeting on 28 November 2019.  The complainant informed the Disciplinary Officer (KF) that “This process has nothing in common with fairness and conscientious progress.  It is far for being fully investigated therefore I will not be attending the meeting rescheduled for 28 November 2019.”.

On 10 December 2019 the complainant was informed that he was dismissed effective that date.  The complainant asserts that the investigation process was not fair or thorough or relevant.  Further, there are reasons to believe the company was focussed on proving him guilty as charged not proving his innocence.  The complainant asserts that the respondent raised the investigation against him for breaching a discount policy when it was standard practice in the workplace to avail a work colleague of a discount card.  The complainant alleges the leadership team themselves have given examples of breaching company policies in the workplace, including the Loss Prevention Policy and the Health and Safety Policy.

The complainant appealed his dismissal.  The appeal hearing took place on 19 February 2020 and the outcome of the appeal was communicated to the complainant by letter, dated 04 March 2020.  The Appeal Officer (DN) decided to overturn the sanction of dismissal and reduce the sanction to demotion and store transfer, accompanied by a final written warning.  The complainant replied on 08 March 2020 “I wish to confirm that your proposition is unacceptable.  I would only consider returning to Woodie’s if I was offered reinstatement of my previous position and contract at the (named) branch and with reimbursement of outstanding salary”.  The complainant did not accept that he had breached the company discount policy as he claimed employees were able to give a discount to family and friends.

Protected Disclosure

The complainant in his oral evidence stated that documents provided by him to the respondent qualified as a protected disclosure.  The complainant referred to several documents and alleged forged documents.  On 13 November 2019 in an e-mail to Disciplinary Officer (KF) the complainant stated “Finally, the disciplinary policy states points of what can result in Disciplinary Action.  I am of the view that the points listed below are the examples of behaviour taken against me in the recent past and will be the objects of the accusations I am ready to process against the company:

·       Fraud,

·       Deliberate falsification of company records and information,

·       Assault, violence or threats of any kind to customers, members of the public or other colleagues,

·       Insulting behaviour of any kind to customers, members of the public or other colleagues,

·       Any conduct or action, in work or outside of work, likely to bring the company into disrepute,

·       Serious breach of company procedures leading to a loss of trust and confidence in a colleague,

 Conclusion

The complainant submitted that his dismissal was unfair.  He claims that the respondent constructed his dismissal and that this had started when he was put on a Performance Improvement Programme.  The complainant denies that he breached the company discount policy.  The complainant claims there was an unfounded investigation launched against him.  The complainant claims that in his communications with the respondent he made protected disclosures, particularly concerning documents on which his signature was forged.  In overturning the decision to dismiss the respondent confirmed the dismissal was unfair.  The complainant found the proposed demotion and move to another store with a final warning to be unacceptable as he had not breached the company discount policy. 

The complainant claimed redress of compensation.

The complainant was employed as a Retail Assistant from 01 June 2006.   At cessation of employment on 10 December 2019 he held the post of Team Leader.  His gross pay was €2847.93 per month.  The fact of dismissal is in dispute.

On 23 July 2019 the Loss Prevention Manager e-mailed the complainant’s Store Manager to make him aware of a potential misuse of the respondent’s discount policy.  The Loss Prevention Manager identified an employee card number that had potentially been used in breach of the policy.  The store manager was asked to do an initial fact-finding exercise to explore the allegation of possible misuse.

The Loss Prevention Team, using data gathered from the Navision system, identified 75 discount transactions, between 27 July 2018 and 15 July 2019, using the same employee discount card.  This was regarded as an exceptionally high use of an employee discount card.  Of the 75 transaction, 44 transactions were paid for with 26 different debit/credit cards the remainder were paid for with one card (this card was admitted by the complainant as his own).

The Store Manager identified the employee card used for the 75 transactions as that of the complainant.  On 07 August 2019 the Store Manager responded to the Loss Prevention Manager following a conversation with the complainant.  The Store Manager reported that in conversation with the complainant he, the complainant, admitted to giving his discount card to people not covered by the discount policy.

Investigation Proceedings

Another Store Manager (GN) was appointed as Investigation Officer.  GN invited the complainant to an investigation meeting to be held on 15 August 2019.  That meeting was rescheduled and eventually took place on 23 August 2019.  Following that meeting the GN decided he had some further questions for the complainant and invited him to a second meeting on 03 September 2019.  The complainant asked for that meeting to be postponed and it was re-scheduled for 06 September 2019.  On 04 September 2019 the complainant e-mailed GN stating he would not attend the meeting scheduled for 06 September 2019 and asking for any further questions to be put to him in writing.

Initially GN declines to pose further questions in an e-mail as he was of the view that to do so would not be appropriate.  He advised the complainant that if he did not attend the reconvened meeting a decision may be made based on the evidence to hand.  On 10 October 2019 GN made another attempt to engage the complainant with a reconvened investigation meeting.  As it became clear the complainant did not wish to attend a second meeting GN decided to agree to the request for further questions to be put in writing.

On 18 October 2019 GN put his further questions in writing to the complainant.  On 24 October 2019 GN completed an investigation findings summary.  On 31 October 2019 GN wrote to the complainant with the outcome of the investigation.   The letter included the following:

“The investigation meeting was to investigate the alleged breach of company policy by:

1.       Allowing friends to avail of your company discount contrary to section 1 ‘Introduction’ of the company discount policy and;

2.       Allowing colleagues to use your personal discount card contrary to paragraph 1 under section ‘Colleague eligibility’ section of the discount policy.

Having taken everything into consideration including your response to the allegation, I feel this matter has now been fully investigated.  By your own admission you allowed non family members to avail of your colleague discount which is not permitted in the discount policy.  You also confirmed that you allowed store colleagues to avail of the use of your colleague discount card which is not permitted within the policy.

It is my decision that you are now required to attend a formal disciplinary hearing.”

Disciplinary Proceedings

Another Store Manager (KF) was appointed as the Disciplinary Officer.  KF invited the complainant to attend a disciplinary meeting on 14 November 2019.  The complainant advised KF that he would not attend the disciplinary meeting as in his view the matter had not been fully investigated and 14 November was his day off.

KF invited the complainant to a rescheduled disciplinary meeting to take place on 28 November 2019.  The complainant replied on 27 November 2019 stating that he would not be attending as he had previously stated he did not agree the matter had been fully investigated.

KF wrote to the complainant on 10 December 2019.  The letter, headed Disciplinary Outcome, included the following:

“The reason for your disciplinary is gross misconduct namely;

1.       Allowing friends to avail of your company discount contrary to section 1 ‘Introduction’ of the company discount policy and;

2.       Allowing colleagues to use your personal discount card contrary to paragraph 1 under section ‘Colleague eligibility’ section of the discount policy.

After careful consideration of the facts, evidence, your response at your initial investigation and all further correspondence including you failing to engage in the disciplinary process, I have decided to summarily dismiss you, without payment in lieu of notice in accordance with the Company procedures.  This summary dismissal is effective from 10 December 2019.  Any monies owed to you will be paid into your bank account.

My findings for the dismissal are as followed;

During your initial fact find meeting on 07 August and your initial investigation meeting on 23 August you had admitted to allowing friends and colleagues to use your discount card contrary to the company discount policy.

You have also failed to engage with the company throughout the disciplinary process on numerous occasions.  The company has made reasonable effort throughout the process and provided you with several opportunities to attend face to fact (sic) meeting for both your investigation and your disciplinary meetings in which you chose not to attend to.  The company granted your request to put the additional investigation questions in writing despite believing a face to face meeting would be more beneficial.”

The complainant was also informed of his right to appeal.

Appeal Proceedings

The complainant lodged an appeal on 18 December 2019.

An Area Manager, (AT) was appointed as Appeals Officer.  The complainant was invited to an appeal meeting to take place on 21 January 2020.  At the meeting the complainant objected to AT hearing the appeal and made allegations against AT of breaching another company policy unconnected to the complaints against the complainant.  AT adjourned the meeting and then wrote to the complainant on 23 January 2020 recusing himself as the Appeals Officer.

The Head of Engagement (DN) was subsequently appointed by the respondent to be the Appeals Officer.  The appeal meeting eventually took place on 19 February 2020. 

The complainant raised several issues at the appeal meeting which prompted the DN to hold a series of meetings with other staff members and one former member of staff.  Between 20 and 28 February 2020 DN met with Area Manager (CO’C), the Disciplinary Officer (KF), the previous Store Manager (KR) now no longer a member of staff, the Loss Prevention Manager (PM), the Investigation Officer (GN) and the current Store Manager (MO’C).

At the request of the complainant the discount report was re-run.  The report was revised, and it produced a higher amount of (money/loss) than had been revealed in the earlier investigation and disciplinary stages.

The Appeals Officer communicated his decision to the complainant by letter, dated 04 March 2020.  The sanction of dismissal was overturned and reduced to demotion and transfer to another store along with a final written warning.  The Appeals Officer suggested a transfer to another store because the complainant would have had no prior dealings with colleagues in that store and so could have a ‘clean slate’ in his new role.  However, he was open to suggestions from the complainant about the new location.

On 08 March 2020 the complainant replied to the Appeals Office stating the outcome was unacceptable to him and he would refer the matter to the Workplace Relations Commission.

Respondent’s Position

The respondent refutes the claims being made.  The complainant was not unfairly dismissed.  The decision arising from the appeal was demotion, transfer to another store and a final written warning.  The complainant did not accept the appeal decision.  Therefore, the complainant resigned his post.

Notwithstanding the above, in accordance with the Unfair Dismissals Acts, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

The complainant was accused of breaching the company discount policy.  The complainant admitted providing discounts to friends which is a breach of the company policy.  This is particularly serious due to his people management and team leadership role, where there is an enhanced need for trust.  This was the first time a person in a leadership role had been discovered to misuse the Staff Discount Policy.

The complainant’s actions in breaching the Staff Discount Policy amount to gross misconduct.  The loss to the respondent was over €1300.00.  In considering what sanction to apply for such breach the company had regard to the seriousness of the allegations and the limited representations made by the complainant within the process.  The complainant had refused to fully engage with the investigation and disciplinary process.

The respondent cited the decision in Looney & Co v Looney, UD 843/1984 in support of the submission that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case.

The actions of the complainant destroyed the respondent’s trust and confidence.  The respondent no longer had trust in the complainant’s ability as a Team Leader.  Therefore, the sanction of demotion and transfer to another store along with a final warning was a reasonable and appropriate sanction.

The complainant was afforded the benefit of fair procedures in line with the respondent’s policy and the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000) and the universal principles of natural justice.  The complainant was offered and utilised the benefit of a full appeal.  All the evidence was considered, including the complainant’s representations before a final decision was made.  It is the respondent’s position that the sanction of the complainant was procedurally fair in all respects.

The complainant admitted breaching the Staff Discount Policy.  The decision to dismiss the complainant was based on the information gathered at the disciplinary stage.  The complainant did not fully engage with the process until he lodged his appeal.  The Appeals Officer analysed every point raised by the complainant at the appeal.  The decision to reduce the sanction from dismissal to demotion, transfer and a final warning was based on information the complainant had failed to bring up earlier in the process but, brought up at the appeal.

The complainant implied that the allegations against him came because of him raising concerns about his manager.  This is in no way the case.  The issues raised by the complainant were separate to the matter at hand in this investigation.  The allegations against the complainant arose because of a review done by the Loss Prevention Manager.  A potential breach of the Staff Discount Policy was identified on a routine report.  The system report only identified the staff discount card number, not an named individual employee.  All that was clear from the report was that an employee had used their discount card 75 times over the course of a year using 26 different debit/credit cards.

Redress

It is the respondent’s position that the complainant is not entitled to seek any redress under the Unfair Dismissals Acts as this was not an unfair dismissal.  The respondent cited the decision in Murray v Meath County Council UD 43/1978 where the Employment Appeals Tribunal held it was appropriate not to award any redress to the complainant considering his inappropriate actions.  In this case the complainant in failing to accept the sanction of demotion has failed to mitigate his own loss as is required by legislation.  The complainant has not provided evidence of attempts to mitigate loss.

Despite admitting to the gross misuse of the Staff Discount Policy, throughout the process, where he did engage, the complainant’s response was combative, refusing to accept responsibility or display any regret or remorse for his actions.

The respondent submits there was no unfair dismissal.  The complainant resigned and is not entitled to seek redress under the Unfair Dismissals Acts.

CA-00036212-001

Complaint brought under Section 8 of the Unfair Dismissals Act, 1977.

The complainant submitted a complaint to the Workplace Relations Commission on 18 May 2020 claiming he was unfairly dismissed on 10 December 2019 for an alleged breach of the Company Discount Policy.  He had held the post of Team Leader in on the respondent’s stores.

Legislation

The Unfair Dismissals Act defines dismissal in Section 1 as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would

have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise

ascertainment), the cesser of the purpose;

Section 6 of the Act provides:

Unfair dismissal. 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.

(2 )…

(3) …

(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 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 which 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.

(5) …

(6) …

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

The facts of this complaint are somewhat unusual in that it is agreed the complainant was dismissed by the respondent on 10 December 2019 following a disciplinary meeting which the complainant did not attend.  The complainant was informed that he could appeal the disciplinary decision and he did so.  Following the appeal, the sanction was changed from dismissal to demotion, transfer and a final warning.  The complainant found the appeal decision unacceptable and informed the respondent that he would only consider returning if he was offered reinstatement to his previous position at the store he had worked at and reimbursement of outstanding salary.  The question arises as to whether there was a dismissal or a resignation and if it there was a dismissal was that dismissal unfair as defined in the legislation above.

Background

The complainant was employed by the respondent in 2006 as a retail assistant.  In 2019 he held the post of Team Leader.  As a Team Leader he had management responsibility for other staff.

On 23 July 2019 the respondent’s Loss Prevention Manager sent an e-mail to the complainant’s Store Manager attaching a system report showing 75 discount transactions processed between 27.7.18 and 15.7.19 on 113240/GC2075.  Of the 75 transactions, 44 were paid for on 26 different Credit/debit cards.  The Store Manager was asked to complete and initial investigation to establish if the transactions were in line with “our policy of immediate family only entitled to discount”.  It is clear from this e-mail that no employee was named and only a number (113240/GC2075) was provided to the Store Manager.

The Store Manager (MO’C) identified the number as being that of the complainant.  In a reply to the Loss Prevention Manager on 07 August 2019 the Store Manager wrote that he had spoken with the complainant and that the complainant was aware of the colleague discount policy.  The complainant’s answers to his questions were:

·       Some transaction are his

·       Some he refers to using his card for colleagues in store if they forgot their cards

·       The complainant highlighted the fact that he does not have family here and that some people (3/4) he has befriended in his time here he considers as family and therefore allocates discount

He noted that the complainant had asked for a copy of the transactions and this was provided to him.

Following this initial report an Investigation Officer was appointed to investigate the following allegations:

1.       Allowing friends to avail of your company discount contrary to section 1 ‘Introduction’ of the company discount policy and;

2.       Allowing colleagues to use your personal discount card contrary to paragraph 1 under section ‘Colleague eligibility’ section of the discount policy.

The complainant attended an investigation meeting on 23 August 2019.  On 30 August 2019 the complainant was invited to attend a ‘continuation of investigation meeting’ on 03 September 2019.  The complainant, by e-mail on 04 September 2019, noted that he had not received the registered letter as he had been working on 02 September 2019 and stated that “I have attended the investigation meeting on the 23 August 2019 conducted by you, in which I gave you an opportunity to ask me any questions you wanted me to answer and relate to.  I attended the meeting in good will and provided the answers to all of your questions asked.  There was no statement made by you as to the conductor of the meeting regarding continuation of the meeting and further invitation to continuation of investigation is perceived by me as interrogation.  If you are willing to ask me any further questions, please put them in writing and I will find the time to answer them for you”.

The allegations of breaches of the staff discount policy were set out clearly.  The complainant disputed the accuracy of some elements of the report, for example in relation to the exact number of transactions, 75 or 74 or 68.  In any event there was a substantial number of transactions recorded using the complainant’s discount card and a substantial number of different debit/credit cards used to pay for those transactions.

The complainant only attended the investigation meeting on 23 August 2019 and did not attend either a reconvened investigation meeting or the disciplinary meeting.  The complainant did submit an appeal and he attend an appeal meeting on 19 February 2020.

Company Discount Policy

In his evidence at the hearing the complainant stated he did not breach the company discount policy, but that as he had no opportunity to give a discount to his family he did provide discount to 3 or 4 elderly couples that he was friends with.  He stated that as a Team Leader he was part of management and there was management discretion on discounts.

I was provided with an extract from the Employee Handbook dealing with employee benefits.  In the section on Employee Discount it states:

“Employees qualify for employee discount having successfully completed their 6 month probationary period.  Only employees can obtain employee discount, family members friends etc, cannot obtain it for them.  A manager must record all staff purchases.”

I was provided with the leaflet given to employees on the introduction of the Group Colleague Discount card in which the following restrictions are stated:

“The Colleague Discount Card may only be used by the colleague themselves and the card is non-transferable.   Therefore, colleagues’ friends and family cannot access colleague discounts in other Group businesses through the use of the card.  Colleagues friends and families may however access colleague discounts in their own particular business if that is permitted under the individual discount policy that applies in the business that they work in.  In these cases, colleagues should refer to their local company discount policy for details.

I was provided with a copy of the Colleague Purchase and Discount Policy for Woodies issued in November 2018.  That document contains the following statement:

“Colleague discount is applicable for Woodie’s colleagues and immediate family.  Immediate family is parents, brothers, sisters and grandparents. …” “Purchases requested by friends and extended family are therefore not permitted.”

Considering all three documents it is very clear the staff discount does not apply to friends.  The complainant at the hearing confirmed he provided some friends, 3 or 4 elderly couples, with discount.  Having carefully considered the submissions, documents provided and the oral evidence I am satisfied that the complainant did breach the company discount policy.

Investigation / Disciplinary Procedures

The complainant attended one investigation meeting on 23 August 2019.  He declined to attend a reconvened meeting, for the reasons set out above.

On 31 October 2019 the outcome of the investigation was issued to the complainant.  The Investigation Officer (GN) included the following in his letter to the complainant:

“Having taken everything into consideration including your response to the allegation, I feel this matter has now been fully investigated.  By your own admission you allowed non family members to avail of your colleague discount which is not permitted in the discount policy.  You also confirmed that you allowed store colleagues to avail of the use of your colleague discount card which is not permitted within the policy.

It is my decision that you are now required to attend a formal disciplinary hearing.”

The Disciplinary Officer, (KF), invited the complainant to a formal disciplinary hearing on 14 November 2019.  In the letter of invitation, dated 08 November 2019, the complainant was told he had the right to be accompanied to the hearing and he was provided with a pack of information which would be used at the hearing.  The documents included details of the fact find meeting, the discount report, the discount policy, the notes of the investigation meeting, the Atlantic Employee Discount Policy, the Woodie’s Colleague discount poster 2018, the Group Discount card leaflet, the continuation investigation questions and answers and details of a phone conversation with Store Manager (MO’C).

The complainant replied to the Disciplinary Officer by e-mail dated 13 November 2019.  He informed the Disciplinary Officer that he would not be attending the disciplinary hearing on 14 November 2019 because he did not agree that the matter had been fully investigated as he had not received a response to some questions he had raised to the Investigation Officer on 17 October 2019.  Also, he would not attend as 14 November 2019 was his day off.  The last paragraph of the reply stated “I am of the view that the points listed below are the example of behaviour taken against me in the recent past and will be the objects of the accusations I am ready to process against the company:

·       Fraud,

·       Deliberate falsification of company records and information,

·       Assault, violence or threats of any kind to customers, members of the public or other colleagues,

·       Insulting behaviour of any kind to customers, members of the public or other colleagues,

·       Any conduct or action, in work or outside of work, likely to bring the company into disrepute,

·       Serious breach of company procedures leading to a loss of trust and confidence in a colleague,”

No details of these allegations were contained in the e-mail.

The Disciplinary Officer then sent an invitation to a disciplinary hearing on 28 November 2019.  He noted in his letter that the discrepancy in the discount transaction total was merely an IT administration error and had been rectified.  He also noted that the complainant had been provided with the opportunity to meet face to face with the Investigation Officer, but he chose not to attend. 

The complainant declined to attend the disciplinary hearing scheduled for 28 November 2019.  In his reply to the Disciplinary Officer he again stated his view that the investigation had not been completed.  He raised further issues about the number of discount transactions, 75 or 74 and stated he had not received an updated report from the Investigation Officer.  He claimed that the Investigation Officer had made no effort to clarify issues raised by him about the actual quantity of transactions.

The Disciplinary Officer (KF), having failed to get the complainant to attend a disciplinary hearing, made a decision based on the evidence available to him which included the complainant’s response to the initial investigation, the documents provided to the complainant, all further correspondence and the failure of the complainant to engage in the disciplinary process.  The Disciplinary Officer decided to summarily dismiss the complainant with effect from 10 December 2019.  In this evidence at the hearing the Disciplinary Officer stated that the factors that influenced his decision to dismiss included that there was a breach of the policy by the complainant as he admitted providing discount to friends and allowing colleagues to use his discount card, the volume of transactions, and the management post held by the complainant.  He considered that there was a breach of trust as the complainant as a Team Leader held a management grade with responsibility.

I have reviewed the documents provided and considered the written submissions and oral evidence and I am satisfied that the complainant was given the opportunity to address the specific allegations of breaches of the company discount policy at the investigation stage and disciplinary stage.  Having attended the investigation meeting on 23 August 2019 the complainant then declined to attend a reconvened investigation meeting because as stated in his e-mail of 04 September 2019 “further invitation to continuation of investigation is perceived by me as interrogation”.  The complainant declined to attend the disciplinary meeting as in his opinion the investigation had not been completed.

I have carefully reviewed the documents provided to the complainant and considered the submissions and oral evidence and I am satisfied that the complainant was made aware of the alleged breaches of the company discount policy, that he was given the opportunity to answer those allegations at each stage, was informed that he could be accompanied to each meeting and was provided with the notes of the meeting of 23 August 2019.  While there were some discrepancies in the initial transaction report the number of transactions queried by loss prevention was over 70 of which 44 were paid for with 26 different debit/credit cards.  In my opinion a query on one transaction, 74 or 75, did not invalidate the investigation.  I am satisfied the investigation and the disciplinary process gave the complainant a fair opportunity to answer the allegations of breaches of the discount policy brought against him. 

Appeal Procedure

On 18 December 2019 the complainant appealed the decision to dismiss him.  The first appeal meeting took place on 21 January 2020.   At the meeting the complainant made allegations again the Appeal Officer.  That meeting was adjourned, and the Appeal Officer subsequently recused himself.

A second Appeals Officer (DN) was appointed by the respondent.  The appeal hearing took place on 19 February 2020.  The complainant provided the Appeal Officer with a detailed submission.  Some of the submission deals with discrepancies in the list of transactions provided to the complainant and issues he had with the way the investigation was conducted.  Most of the submission concentrates on what the complainant described as “solid proof confirming the company has planned and orchestrated my dismissal and this process was in place in 2017.”

The submission did not meaningfully address the allegations of breaches of the company discount policy.  The complainant was firmly of the view he did not breach the policy even though he admitted he had provided discounts to friends.  In his submission the complainant focussed on the reasons he was on a Performance Improvement Programme (PIP), the history of encounters with his Store Manages and HR about the PIP, queries on his bonus award for 2018 and the salary increase he received from 01 April 2019.  In addition, the complainant repeated the allegations first made by him on 13 November 2019 concerning breaches he described as examples of behaviour taken against him by the Company.

The Appeal Officer (DN) stated in his report that on review of the complainant’s appeal letter he noted the following areas that the complainant felt were of importance:

·       The accuracy of transaction data in relation to the investigation

·       Historical performance management processes, including the alleged falsification of ‘Steps’ documents and a belief that his PIP process was unjustified and unfair.

·       Adherence to company policies by other colleagues (specifically the Staff Search Policy and the Colleague Discount Policy)

·       Bonus and Pay Review

·       Data Access Request

An over-arching theme of the complainant’s appeal is that he perceived there to be an historical effort on the company’s behalf to remove him from the business.  The Appeal Officer sought to understand if there was any validity to this perception.  Consequently, the Appeal Officer interviewed six people identified by the complainant in his submission.  He met with Store Manager (MO’C), Area Manager (CO’C), Investigation Manager (GN), Disciplinary Manager (KF), Loss Prevention Manager (PM) and spoke by telephone with the Previous Store Manager (KR) who is no longer an employee.

The Appeal Officer in his summary of findings stated:

“I am unable to substantiate (the complainant’s) belief that his dismissal was orchestrated by the company through actions let by his Area Manager and supported by other employees of the company.  I am satisfied that (the complainant’s) dismissal from the company is as a result of a breach of the Discount Policy.  I am also satisfied that the manner in which these breaches came to light is in line with our standard operating practices and that the manner in which the investigation and subsequent disciplinary process took place was in line with company policy.  I am also satisfied that there was no external influence on the investigation or disciplinary process and that both the Investigating Manager and Disciplinary Manager reached their conclusions on their own accord and based on the evidence available to them, which only related to the breach of the Discount Policy.”

The Appeal Officer found that there were numerous breaches of the Discount Policy by the complainant throughout 2018 and 2019.  These breaches of the policy were the reason for the complainant’s dismissal.  However, taking all the facts into account the Appeal Officer decided to reduce the sanction to demotion, a store transfer and a final written warning.

The Appeal Office in his evidence at the hearing stated his decision was based on his finding the complainant had breached the discount policy, the complainant’s refusal to accept he had breached the policy and apologise, and the complainant’s previous track record.  In his view the reasonable and appropriate sanction was a demotion, transfer and final written warning.

Finding

I have carefully considered the written and oral submissions and evidence and I am satisfied that the appeal process was thorough and fair. 

I am satisfied that at all points of the investigation, the disciplinary process and the appeal that the issues under consideration were the alleged breaches of the company discount policy.  At no point was the complainant’s performance and the Performance Improvement Programme an issue in the investigation or subsequent disciplinary decisions.  The PIP was raised by the complainant in the context of his belief that the respondent had orchestrated his dismissal.

I am satisfied that the allegations of breaches of the discount policy were proven as the complainant in his evidence confirmed the had provided discounts to friends and allowed other colleagues to use his discount card.  The breaches of the discount policy resulted in a loss to the respondent.  The complainant did not accept that he had breached the discount policy.  It is not open to any employee to put their own interpretation on a company policy to suit their own needs.  It is very clear in all the documents that the discount policy does not apply to friends.

The complainant made several statements in his communication of 13 November 2019 and repeated in his appeal submission concerning forgery of his signature on performance review documents in 2017.  His performance reviews and PIP did not form any part of the investigation of the alleged breaches of the discount policy.  I find that the disciplinary sanction applied was because of the complainant’s breach of the discount policy and was not due to any protected disclosure made by the complainant or any other reason. 

The respondent decided that the complainant had breached the company discount policy.  The Appeal Officer in his letter of 04 March 2020 stated

“It is clear to me that there were numerous breaches of the Discount Policy by yourself throughout 2018 and 2019. 

I am satisfied that the investigation and disciplinary process regarding these breaches followed company guidelines.  I am also satisfied that the Investigation Manager and Disciplinary Manager reached their conclusions based on the evidence available to them.  It is clear to me that these decisions were made independently and without the influence of any third party.

Whilst I understand the logic applied by (KF) in reaching his outcome decision, I have decided to over-turn the sanction of dismissal.  Taking all the facts into account, I have decided to reduce the sanction in this instance to demotion and store transfer.  This will be accompanied by a final written warning.”

The complainant appealed the disciplinary decision and was successful in having the sanction reduced from dismissal to demotion and transfer to another store.  The complainant refused to accept this sanction.  In his letter of 08 March 2020 to the Appeal Officer he indicated that no sanction was acceptable as he wanted to be restored to his Team Leader post in the original branch.

I am satisfied that the respondent acted reasonably in imposing a sanction of demotion and store transfer in circumstances where they had established the complainant had on numerous occasions breached the discount policy.  That sanction was within the band of reasonable actions a reasonable employer might take in response to breaches of a company policy where the employer suffered a financial loss.  The complainant did not act reasonably in expecting no sanction to apply to him for breaches of the discount policy.  The complainant admitted he provided discount to friends, but he did not accept that he had breached the discount policy.  The discount policy documents clearly state the discount does not apply to friends. 

I find that the complainant was not dismissed.  The complainant did not accept the sanction of demotion and move to another store.  I am satisfied that by rejecting the sanction of demotion and move to another store the complainant resigned from his employment.  I find the complainant was not unfairly dismissed.

CA-00036212-001

Complaint brought under Section 8 of the Unfair Dismissals Acts, 1977-2015

I have carefully reviewed the documents provided to the complainant and considered the submissions and oral evidence and I am satisfied that the complainant was made aware of the alleged breaches of the company discount policy, that he was given the opportunity to answer those allegations at each stage, was informed that he could be accompanied to each meeting and was provided with the notes of the meeting of 23 August 2019.  I am satisfied the investigation and the disciplinary process gave the complainant a fair opportunity to answer the allegations of breaches of the discount policy brought against him. 

I have carefully considered the written and oral submissions and evidence and I am satisfied that the appeal process was thorough and fair.  The complainant attended the appeal hearing on 19 February 2020 and was provided with notes of the meeting.

The allegations of breaches of the discount policy were proven as the complainant in his evidence at the hearing and during the respondent’s investigation confirmed that he had provided discounts to friends and allowed other colleagues to use his discount card.  The breaches of the discount policy resulted in a loss to the respondent.  The complainant did not accept that he had breached the discount policy.  It is not open to any employee to put their own interpretation on a company policy to suit their own needs.  It is very clear in all the documents that the discount policy does not apply to friends.

I find that the disciplinary sanction applied was because of the complainant’s breaches of the discount policy and was not due to any protected disclosure made by the complainant or any other reason. 

I am satisfied that the respondent acted reasonably in imposing a sanction of demotion, store transfer and a final written warning in circumstances where they had established the complainant had on numerous occasions breached the discount policy.  That sanction was within the band of reasonable actions a reasonable employer might take in response to breaches of a company policy where the employer suffered a financial loss.

I find that the complainant was not dismissed.  The complainant did not accept the sanction of demotion and move to another store.  I am satisfied that in rejecting the demotion and move to another store the complainant resigned from his employment.  I find the complainant was not unfairly dismissed.

Unfair Dismissal

Protected Disclosure

Fact of dismissal in dispute