FULL RECOMMENDATION
PARTIES : BOOTS RETAIL IRELAND LTD, BOOTS RETAIL IRELAND DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No's: ADJ-00018556 CA-00023777-001.
The Respondent submitted that the Complainant was dismissed for using voupons (money off vouchers) in an inappropriate manner and contrary to the Respondent’s security rules and till procedures. The Respondent submitted that the issues came to light when they had to review CCTV footage for an unrelated reason. The Respondent stated that they noted the following issues, the Complainant receiving voupons without the requisite spend having been made, giving voupons to people who had not reached the threshold, not giving them to people who had reached the threshold and holding items behind the desk. All these behaviours were contrary to the Respondent’s policies. Further investigation established that the Complainant had illegitimately redeemed nine coupons that she had not earned at a financial loss to the Respondent. The Respondent followed its disciplinary procedure, and the Complainant was given a fair hearing. She had been provided with all the policies and had signed for the policies. The Complainant had received an updated copy of the policy four months before the events. Ms Sarah Thompson assistant store operation support for the Republic of Ireland chaired the disciplinary investigation. In her evidence to the Court she stated that she had been in her current role or a variation of same for twenty-two years and had carried out many disciplinary investigations. It was Ms Thompsons evidence to the Court that she received a phone call from the manager of the store where the Complainant worked stating that she had concerns after reviewing CCTV involving the Complainant. Ms Thompson reviewed the CCTV and noticed that the Complainant got coupons from another member of staff. Ms Thompson reviewed CCTV for the period 1stto 31stAugust when the coupons were operating and noted that the Complainant spent more coupons that she had earned, was shopping during working hours and using her discount on clearance items all transaction that were in breach of company policy. A meeting with the Complainant was scheduled for the 5thSeptember 2018 however, at the Complainant’s request it was brought forward to the 3rdSeptember 2018. The Complainant was advised of her right to representation and that the process could lead to disciplinary action up to and including dismissal. In order to facilitate the Complainant’s request that the meeting be held at an earlier date it was agreed that the Complainant would be given a copy of the letter of invite at the meeting. At the meeting the Complainant was asked if she knew how coupons worked and she explained it perfectly. The Complainant confirmed at the meeting that there were times when she did not follow the process and gave an example of giving coupons to regular customers. Ms Thompson stated that she showed the Complainant the CCTV clip which showed the Complainant doing the transaction correctly and then not doing it properly by not giving a customer the coupon when it had been earned. The Complainant was asked to comment on each of the transactions. The second CCTV clip on the 23rdAugust 2018 showed the Complainant being served by a colleague who had vouchers at the side of the till and these vouchers were used for the Complainants transactions. It was clear from the CCTV footage that the transactions had not been closed as is required and that she had not spent the required amount to earn a coupon. It was put to the Complainant that she had not followed the correct procedure and that she had benefitted from this incorrect use of the voupons. The Complainant stated that this was common practise amongst employees. Ms Thompson stated that she suspended the Complainant on full pay at that point to allow her to investigate further. In the course of the meeting the Complainant referenced the fact that she has dyslexia and apologised for making a mistake. By letter of the 5thSeptember 2018 the Complainants suspension was confirmed and she was invited to attend a further investigation meeting on Monday 10thSeptember2018 at 2.00pm. The letter inviting her to the meeting stated that the matter being investigated was a security issue and in particular an alleged breach of security rules namely till procedures. It went on to say that it was alleged that on a number of occasions the Complainant used No 7 voupons inappropriately and that she also removed clearance items from display and put them aside so she could purchase them. The letters stated that the investigation was being carried out under the disciplinary policy and could lead to a disciplinary meeting. The Complainant was also provided with a copy of the disciplinary procedure. Ms Thompson stated that she spoke to the store manager and looked at computer data using staff discount numbers for all the staff in the store. No other member of staff had redeemed more voupons than they had earned. By contrast the Complainant had earned three Voupons and had spent twelve in the period under review. At the meeting on the 10thSeptember 2018 the Complainant was accompanied by her Trade Union representative. It was put to the Complainant that she was the only person in the store who had spent more voupons than had been earned. The Complainant was shown some examples, but the names of the other staff members were redacted. The other issues were also put to the Complainant such as giving out voupons when the corrects spend had not been achieved and not giving voupons to customers who had spent enough to earn a voupon. The Complainant stated that she had seen other staff doing this. In respect of the Respondent’s policies, the Complainant stated that she had received them, but she had difficulty reading as she had dyslexia and that she had asked managers to explain them to her but that they were too busy. Ms Thompson stated that she adjourned the meeting to consider the issue the Complainant had raised in respect of her dyslexia. Ms Thompson stated that she and spoken to the store managers who confirmed that they were aware of the Complainants dyslexia, and they supported her and made sure she was aware of the policies. Ms Thompson reconvened the meeting on the 12thSeptember 2018. At that point taking into account the length of time the Complainant had worked in the store, her knowledge of the procedures as articulated at the meetings, Ms Thompson stated she felt the issue should go to a disciplinary hearing. In response to a question from the Complainant’s representative Ms Thompson confirmed that the till procedure had six points the issue here was specific to the procedure around the voupons. She also confirmed that she had spoken to Ms Cooke who was the notetaker about the Complainant’s dyslexia as she was the relevant store manager. Ms Thompson stated that when Ms Cooke was asked to be notetaker she could not have predicted that she would be required to make a statement as to how she addressed the Complainant’s dyslexia. In response to a question from the Court, Ms Thompson confirmed that at the first meeting, the Complainant had not raised as an issue that she did not understand the policy around voupons. By letter of 13thSeptember 2018 the Complainant was advised of the outcome of the investigation as follows “As such I recommend that there is a case to answer regarding the alleged non-compliance with company till procedures, namely that on a number of occasions you used No.7 voupons inappropriately, you redeemed No.7 voupons you had not earned for your own personal gain and that this matter should be passed to a disciplinary manager.” By letter of the 26thSeptember 2018 the Complainant was invited to attend a disciplinary meeting on the 4thOf October at 10.30am. The next witness for the Respondent was Ms Lauren Gorman who informed the Court that she had twenty-one years’ experience as assistant manager/ operations manager. It was her evidence that she was asked by HR to Chair the disciplinary hearing. She was provided with the notes of the previous meetings, the statements and the CCTV footage. The Complainant was provided with all the relevant documentation including the disciplinary policy prior to the hearing. She was accompanied at the hearing by her Trade Union representative. At the hearing they discussed the allegations and re-viewed the CCTV footage. The Complainant stated that she never asked for voupons from other staff members. They discussed the boots security rules and the Complainant accepted that she signed to say that she had read and understood the policy, but it was her position that she did not understand the rules. At the disciplinary hearing the Complainant was unclear about the process to be followed for voupons and said she did not know they were related to values, she just followed the till prompt. Ms Gorman stated that she did consider the fact that the Complainant had dyslexia, but she also considered the Complainant’s length of service and the security policy. The meeting went on for a couple of hours they took a number of breaks and the Complainant got full opportunity to have her say. Ms Gorman stated that she considered a final written warning but came to the conclusion that it was not appropriate, and the appropriate action was dismissal. Ms Gorman dismissed the Complainant by letter of 16th October 2018 stating that “having taken all matters into consideration. I find that your actions were so serious as to amount to an irretrievable breach in the trust placed on you. I note that there were four separate occasions (each approximately two weeks apart) where you received and redeemed voupons inappropriately and in breach of the company security rules. Furthermore, you knowingly asked two colleagues to provide you with voupons that were not owed to you. It is therefore my decision to summarily dismiss you from Boots Retail (Ireland) Ltd with immediate effect for Gross misconduct.” In response to a question from the Complainant’s representative Ms Gorman stated that she looked at all the factors including the Complainant’s responses and the fact that she had received verbal briefings on the policy. The Complainant did not sign one policy because she did not understand it and that was fine, but she had signed the security policy which was the policy that she had breached. Ms Gorman confirmed that she had considered the managements statements even though the allegation of asking colleagues to provide her with voupons had not been part of the term of reference for the disciplinary investigation nor had it been put to the Complainant. Ms Gorman stated that it was her belief based on what she had seen on the CCTV footage that this had happened. In response to a question from the Court Ms Gorman confirmed that the CCTV footage did not have audio. Ms Gorman stated her belief was based on hand gestures she saw in the CCTV footage. Ms Gorman was asked why she did not put the allegation the Complainant. Ms Gorman accepted that she did not interview the relevant manager or the sales assistant in relation to this allegation and that it had not formed part of the initial investigation. The Complainant appealed the decision to dismiss, and the appeal was heard by Mr Colm Walsh Pharmacist area manager. The appeal hearing was held on the 8th November 2018. It was his evidence that the purpose of the appeal was to look at everything in its totality, including the length of the Complainant’s service, her role as a beauty advisor, that she understood the procedure, the fact that she had signed the security policy, and the mitigating factors that the Complainant had submitted. Mr Walsh stated that he did not consider any lesser sanctions. In response to a question from the Complainant’s representative Mr Walsh stated that he focussed on the fact that she redeemed more coupons than she had earned and the fact that she was the only member of staff to do in the period reviewed. It was his submission that coupons had existed for in excess of ten years and that he was satisfied that she had a full understanding of the coupon process. The Respondent submitted that the Complainant was not unfairly dismissed. It was their submission that she redeemed voupons that she had not earned resulting in a financial loss to the Respondent. The result of her action is that there was a fundamental breach of trust between the Respondent and the Complainant meaning that dismissal was the only appropriate action. The Respondent opened a number of cases to the Court underpinning the point that where trust has been breached the employment relationship cannot be sustained. The Respondent also submitted that the approach to be adopted by the Court was to consider if the decision to dismiss “was a reasonable decision which a reasonable employer in the circumstances would have reached” as set out by the EAT inLooney & Co v LooneyUD843/1984. The Respondent went on to submit that should the Court find that the dismissal was unfair then compensation was the appropriate remedy. However, the Complainant had sustainably contributed to her dismissal and the Court should factor that into any award it might be minded to make. SUMMARY OF COMPLAINANT’S SUBMISSION AND EVIDENCE: The representative for the Complainant submitted that from the outset of her employment the Complainant has been open about her dyslexia and management were aware of her learning disability. Throughout her employment she was handed policies to read, sign and return she was never asked if she required assistance or if she understood what she was signing. The Complainant accepts that from time to time her previous manager often discussed the guidelines for cashing up and signing for safe keys with her, but she does not recall him discussing till procedures or voupons with her. The Complainant in her evidence to the Court stated that she signed the policies when they were given to her as she was told the managers would come back and explain them to her, but they never did. The Complainant confirmed that she was a keyholder and that she got cashing up training. She went on to confirm that she continued to work on the tills and selling No 7 products in the period between receiving the first letter and attending the first meeting. The Complainant gave evidence in respect of her efforts to mitigate her loss since her dismissal and confirmed that she is now in employment albeit working shorter hours and at a lower wage. In response to questioning from the Respondent’s representative the Complainant accepted that she had signed the security rules and that they were given to all staff on a yearly basis. The Complainant also confirmed that she used twelve voupons and that she understood that using the coupons saved her money. The Complainant confirmed that she had carried out the transactions on the 23rdand 26thAugust 2018. The representative for the Complainant submitted that she had made an honest mistake. The representative opened a number of cases to the Court and also drew the Court’s attention to the band of reasonableness test. The Complainant submitted that the Respondent in coming to the decision to dismiss had relied on an allegation that had not been put to the Complainant and that this had been accepted by Ms Gorman in her evidence to the Court. Therefore, the decision to dismiss could not fall within the band of reasonableness as the decision had been based at least in part on an allegation that was never put to the Complainant. The Complainant submitted that the decision to dismiss was unfair and that compensation was the appropriate form of redress. THE LAW:
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. (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. ISSUE FOR THE COURT: Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. DISCUSSION: Dismissal in this case as submitted by the Respondent arose from the Complainants breach of its security and till policy in the handling of voupons. The Court finds the Complainants evidence that she was not familiar with the policy despite having worked for the Respondent in an area which dealt with voupons every time there was a promotion for four years not to be credible. The Court finds on the balance of probabilities that the Complainant was aware that her actions were not in compliance with the Respondent’s procedure. However, the Court notes that the Respondent in coming to the decision to dismiss relied on an allegation that was not put to the Complainant either at the investigation or disciplinary stage and which the Complainant was not afforded an opportunity to respond to. On that basis the Court finds that the Complainant was not afforded fair procedure and therefore the decision to dismiss was unfair. In considering the circumstances of this case the Court determines that compensation is the appropriate form of redress. Taking into account the Courts findings above that the Complainant knew her actions were contrary to the Respondent’s policy the Court finds that the Complainant was substantially responsible for her own dismissal and this finding is reflected in the Court’s decision to award compensation of €5,000. The Court determines that the dismissal was unfair and awards compensation of €5,000 The appeal is upheld. The Decision of the Adjudication Officer is set aside. The Court so determines.
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