Worker

Employer

Anonymised Parties

A Shop Assistant

A Retailer

Representatives

  Self

 FieldFisher

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

17/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

17/11/2020

The Worker referred her dispute to the Director General of the WRC on 17th November 2020 in relation to the disciplinary sanction imposed and in respect of bullying and harassment procedures.

At the adjudication hearing, the Worker sought to introduce a video recording which she allegedly took on 20th December 2019 and which, she asserted, shows that other staff members were breaching the cash management procedures. The Worker confirmed that she did not present the video or made the Employer aware of the existence of it at any stage throughout the disciplinary or the appeal process. The Employer objected to the introduction of the recording on the basis that the Worker had an opportunity to raise the matter of the recording throughout the disciplinary process. The Employer argued that the Worker cannot rely on something that has not been shared.

I have carefully considered the submissions of the parties and I find that, following the investigation meeting on 6th December 2019, the Worker recorded various staff members in the shop allegedly breaching the cash management procedures. The Worker had ample opportunity to present the recording to the Employer if she wished to rely on its content to defend the allegations against her. She did not do so. At no stage did she make any reference to or relied on the recording. The purpose of this hearing is not to conduct a further factual investigation and substitute my own judgment for that of the Employer or indeed to investigate other staff allegedly breaching the procedures. I, therefore, have decided that the recording should not be introduced at the adjudication hearing.

The Worker submits that the Employer had conducted a disciplinary process which she believes was not fair. She submits that, as a result of three years of bullying and harassment she was demoted from her position after 14 years. The Worker argues that the reason for her demotions was that the Anchor position since March 2019 no longer exists within the Employer’s organisation, but she did not accept the new terms offered by the Employer at the time and wished to remain in her position.

The Worker submits that she was bullied by her manager and was told that she might lose her Anchor position. This suggestion was also made many times by the Deputy Manager.  The Worker submits that she had a number of meetings with her manager. These meetings always ended with “if you don’t improve, you won’t be an Anchor”.

The Worker confirmed that she knows how to raise a grievance and she did so after the conclusion of the disciplinary process. She agreed that her grievance cannot be progressed as long as she remains on sick leave.

The Worker submits that because of the time pressure she, as well as other employees, was ‘skipping’ procedures. However, she was the only employee reported and sanctioned. She claims that as a result of the disciplinary action, without any previous warnings, she was demoted from her position of Anchor to Customer Assistant. Her hourly rate of pay was reduced from €14.80 to €14. Her working hours were also reduced, which results in approximately €500 loss monthly.

The Worker submits that the way she was treated at work resulted in her depression and anxiety.

At the adjudication hearing, the Worker argued that the disciplinary process was not fair. She said that she was the only employee observed by the security guard on the CCTV. She claimed that the relevant procedures were breached in the same way by all staff, including the Store Manager. However, she was singled out. She claimed that the Store Manager waited some 3 months until the CCTV footage was no longer available to conduct the investigation. During the disciplinary process he brought up other issues which allegedly occurred over the previous three years. He sent the Worker a list of things she had done when working with the Employer as the reasons for the disciplinary action.

The Worker said that she had requested copy of her personnel file from the HR. The Worker argued that she had never received any performance related letters prior to the disciplinary process, and she received letters dated 23rd October 2018 and 21st March 2019 together with the invitation to the disciplinary hearing. She argued that she was not at work on 23rd October 2018, and it is not possible that the Manager would have handed her the letter on that date. The Worker said that, prior to the disciplinary hearing she asked the Manager about the records of their meetings, but he said that he didn’t have them as he had sent them somewhere. The Worker said that she had three meetings with the Manager, one in 2017 and two in 2018, at which he had a form which she was required to sign. However, these forms were not made available to her.

At the adjudication hearing, the Worker answered a number of questions put to her by the Employer’s representative. She confirmed that she had some meetings with the Manager at which improvements were discussed but there was no formal process followed. She confirmed that the Security Guard brought some issues to the Store Manager’s attention. She agreed that the Security Guard was not an employee of the Employer. She confirmed that his statement was furnished to her, she was then invited to an investigation meeting. At the meeting she was informed of the allegations against her, the right to representation, CCTV was shown to her, and she had a Handbook with the Disciplinarity Procedure. She agreed that at the meeting she confirmed that she did not follow procedure. She admitted that she knew what the correct procedure was. The Manager decided that she had case to answer, and she was invited to a disciplinary meeting. The Worker then asked for the meeting to be postponed. At the meeting, the Worker admitted she knew and breached the procedures. The Worker confirmed that she made reference to bullying and was told what the procedure in respect of allegation of bullying was. The Worker confirmed that at the time she confirmed that she had a fair hearing. The outcome of the hearing was issued to her, and she appealed it. The Worker confirmed that she made a point that everybody was ‘doing it’. The Worker alleged that she sent an email with the details of people who signed a statement that prior to 13th October 2019 they would have witnessed that none of the SRP in the store was using cash boxes to collect cash from cashiers.

The Worker said that she was in a bad place at the time and all she could do was cry or shout.

The Worker made reference to a meeting she had previously in 2017 with the Employee Assistance Officer. She said that the meeting was arranged in a lobby of a busy hotel with people passing by. She said that she didn’t feel comfortable and left the meeting. There was no follow up.

In respect of the complaint in relation to bullying and harassment procedures, the Worker submitted that the meetings with the Store Manager always ended with an explicit or implicit suggestion that if she didn’t improve, she would not be an Anchor.

The Employer submits that the Worker’s claim related to the disciplinary sanction that was imposed on her and in respect of what are referred to as bullying and harassment procedures.

The Employer submits that in late October 2019, the store Security Guard (an employee of a third-party security contractor and not of the Employer) advised the Store Manager that he had observed the Worker taking cash from the tills and putting it into her pocket. The Store Manager commenced an investigation. He invited the Worker to an investigation meeting which took place on 6th December 2019 in a location outside the workplace. The Worker was accompanied to the meeting by a colleague. CCTV footage was reviewed during the meeting. The Worker confirmed her knowledge of the correct cash management procedures. She admitted repeated breaches of the procedures. The Store Manager decided that the Worker had a case to answer and referred the matter to a disciplinary hearing.

The Sales Operations Manager invited the Worker to a disciplinary hearing. The initial hearing was due to take place on 7th January 2020. On the eve of the hearing, the Worker advised the Sales Operations Manager that she was in the process of moving house and he postponed the hearing to ensure that she had sufficient time to prepare.  The Worker subsequently went on sick leave, returning to work on 11th March 2020.

Due to the pandemic, there was a delay in progressing the matter. The retail industry was under particular stress. The Sales Operations Manager invited the Worker to a further disciplinary hearing which took place on 13th May 2020. This hearing was undertaken by phone in light of the requirements for social distancing. The Worker was offered the opportunity to review the CCTV footage again, but she declined. She clearly recounted her understanding of the correct cash management procedures. She admitted to not following the procedures on numerous occasions. The Worker maintained that other staff members did not follow the correct procedures either. She subsequently maintained that she had provided the names of these individuals to the Sales Operations Manager, but he did not receive those names at the time. When the Worker did subsequently submit the names of other individuals whom she maintained did not follow the procedures at a later stage (following her appeal of the disciplinary sanctions), the Sales Operations Manager conducted an investigation in respect of those individuals.

The Worker also made a vague reference to being bullied by her Store Manager. The Sales Operations Manager correctly and appropriately reminded the Worker of the Employer’s Dignity at Work procedures and the avenues that were open to her to raise a grievance in relation to any allegations that she had in that regard. The Worker confirmed that she had not raised a grievance and she chose not to do so until September 2020, after the conclusion of the disciplinary and appeal processes.

The Sales Operations Manager considered the Worker’s responses to the allegations carefully. He concluded that the Worker, as a long serving member of staff who was in a supervisory position, had engaged in serious and repeated breaches of the company’s cash handling procedures. Having considered the various sanctions that were opened to him, he decided to issue the Worker with a Final Written Warning and to demote her from her position of Anchor to the position of Customer Assistant. The Final Written Warning was to remain on the Worker’s file for 12 months. It was imposed on 3rd June 2020 and has expired since.

The Worker was advised of her entitlement to appeal the outcome of the disciplinary stage. She availed of that opportunity and submitted her points of appeal. The appeal was heard by the Sales Operations Executive on 26th June 2020 by phone. He considered each of the points made by the Worker in her letter of appeal and during the appeal hearing. By letter dated 8th July 2020, he noted that the Worker had confirmed that she knowingly broke the company’s procedures. He noted that the dismissal was an option that could have been considered. He took account of her length of service and concluded that the sanction imposed as the disciplinary stage was justified and proportionate.

On 24th August 2020, the Worker went out on sick leave, and she remains on sick leave.

On 24h September 2020, the Worker submitted a formal grievance. In light of her ongoing absence, the Employer is not in a position to advance that grievance until such time as the Worker returned to work.

The Employer submits that the Worker at all times understood the correct procedures and was able to explain them clearly at each step of the disciplinary process.  The Worker acknowledged her wrongdoing and admitted having repeatedly breached the Employer’s cash management procedures. She was at all times afforded sufficient notice of the possible consequences of the disciplinary process and was afforded the opportunity to answer the allegations put to her and to present her case fully. She was also afforded the right to appeal which she exercised. The Employer has acted fairly and reasonably at all times during the investigation, disciplinary process and appeal process. The sanctions were appropriate in all of the circumstances.

In response to the Worker’s allegation that she was targeted because the Employer did not want the Anchor position within the organisation anymore, the Employer noted that there is no policy to get rid of Anchors. There are still some 40 Anchors in the region (1 of four regions).

Submission of the Store Manager

The Store Manager confirmed that the Worker’s role is a supervisory one. As a Store Manager, he would engage on a daily basis with employees. He said that he met with the Worker, and it was part of everyday process, not exceptional. He said that the letters followed these meetings. The Manager said that he never explicitly threatened the Worker with demotion.

The Store Manager said that he received a report from the Security Guard that he had seen the Worker putting cash into her pocket and carrying into the office. The Manager said that it warranted an investigation. He invited the Worker to an investigation meeting, told her what it was about, informed her that she can bring a colleague with her. He showed the Worker the CCTV footage. He was happy that she understood what it was about. She recited the procedures, she told him what was on the CCTV footage. She admitted that she took cash from tills to the office without using a cash box. She also gave her password to a colleague to use her till. The Manager said that it was a fact-finding meeting, he just tried to establish facts. He didn’t decide guilt. He generated a report and decided that the Worker had a case to answer. The Manager then attended the disciplinary hearing, presented his report and withdrew from the process.

The Worker put it to the Store Manager that when she tried to say something at the meeting, he told her that she has no right to say anything. The Manager denied this assertion and said that the Worker had ample opportunity, she was asked if there was anything else. She signed the minutes.

The Worker asked the Manager if he remembered that she reminded him that they all were doing the same. He confirmed that he remembered that, but he never accepted her assertion. He said that he never moved cash without a cash box. He said that as far as he was aware, everyone was following the procedure. He said that he had never sat on someone’s till or gave his password to someone else.

The Worker asked the Manager if he recalled telling her at a meeting that she should step down from her position. He replied that he didn’t recall and that all was recorded in minutes and letters. The Worker asked the Manager what happened to the forms from the performance meetings, but the Manager had no recollection of any forms. He said that he handed the Worker letters following these meetings. The Worker denied receiving any letters. 

The Manager confirmed to the Adjudication Officer that the meetings with the Worker were standard, everyday conversations. When asked would he issue a feedback letter after every such a meeting, like he allegedly did in the Worker’s case, he said that he would send letters “only when required”. The Manager confirmed also that he did, in fact, have a standard form at these meetings, which the Worker signed, and which were kept on file. When asked why the Worker did not have a copy and why the Worker’s forms were no longer filed, he said that he might have had them in his “own personal file”. He argued that he handed the Worker the performance letters, he said that he should have asked the Worker to sign them. He noted that the process was not that tight at the time.

Submission of the Area Manager

The Area Manager confirmed that he was involved in the disciplinary process. He confirmed that as the Area Manager, he would have known the Worker, but he would normally deal with Shop Managers. He said that he was satisfied that the Worker had clear understanding of the correct procedures. As an Anchor she was responsible for ensuring that the cash handling was in accordance with the procedures. He confirmed that the Worker admitted to not following a range of cash procedures. He said that the Worker raised the issue of other staff members, but she would not provide any names. Following the appeal, the Area Manager said, he received a list of names and carried out an investigation. He did not propose to discuss the investigation as it was a matter for other people. He said that cash procedures are taken very seriously, and the Worker was responsible for operation of the shop, including cash management.

The Area Manager said that there was a range of sanctions considered, he stopped short of dismissal and imposed demotion instead.

The Area Manager confirmed that, following the Worker’s allegations a full investigation which he chaired, was carried out. He said that some irregularities, infractions and breaches of procedures were discovered but not to the extent of the breaches by the Worker. He said that no disciplinary action followed in respect to any staff member. All staff were re-trained and cash management refresher training was conducted. He noted that the Worker was invited to take a part in the investigation as a witness, but she declined.

Submission of the Sales Operations Executive

The Sales Operations Executive said that he hasn’t been involved in the process and did not know the Worker. He wrote to her on 11th June 2020 and the appeal hearing was held on 26th June 2020.

The Sales Operations Executive questioned the Worker’s statement at the hearing that she was in a bad place at the time and all she could do was cry or shout. He said that she engaged, he asked her if she was ok, and she answered that she was.

The Sales Operations Executive said that because the hearing was held on the phone, he would have paused, also for the note taker’s sake and he afforded the Worker every opportunity to bring any information she had.  He said that when the Deputy Manager was not present, the Worker would have been responsible for the shop, a multimillion business. He confirmed that other, more severe sanctions were available, but he upheld the decision. He confirmed that he did review all documentation on file including the letter of October 2018 and March 2019 and these records formed part of his decision-making.

The above submissions of the parties relate to two disputes referred by the Worker.

In respect of the Worker’s claim in relation to the bullying and harassment procedures, I note that the Employer has Dignity at Work Policy and Procedure and Grievance Procedure in place. The Worker formally raised her grievance on 7th August 2020. The Worker was advised that, as she was deemed unfit to engage with the Employer by an independent Occupational Health Physician, her complaints cannot be progressed any further and will be paused until such time as she is fit to engage in the process.

In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted.

In respect of the claim in relation to the disciplinary sanction I find as follows.

The investigation of the alleged breaches of cash procedures against the Worker was launched on foot of the report of a Security Guard. The document referred to by the Employer as “Statement provided by Security Guard” is a typed-up question/answer record of a purported meeting between the Store Manager and the named Security Officer. I note that the document is not dated and not signed by either. The Worker was not offered an opportunity to confront or question the witnesses.

The Security Guard allegedly witnessed the Worker breaching the procedures on three occasions, 19th September 2019, 23rd September 2019 and 13th October 2019. However, he did not report the matter until the end of October 2019 and the Investigation meeting was not arranged until 6th December 2019. The CCTV from September was no longer available at the time.

The subsequent letter of 13th November 2019 invites the Worker to an investigation meeting “in relation to, but not limited to, alleged cash management irregularities in the [named] store”. In my view, the letter is very vague as to what exactly are the allegations against the Worker.

I note that the Store Manager stated at the adjudication hearing that “as far as [he] was aware, everyone was following procedures”. I have some serious concerns in respect to this statement. The Store Manager’s own Investigation Report states that “upon analysis gathered during the investigation and following the meeting with [the Worker], it has been established that there are serious breaches of cash management and till procedures in the [named] store.” The Report goes on to say that “It is also apparent that poor cash management and till practices exists in the [named] Store, and in particular amongst the newer members of staff”. I, therefore, cannot accept the Store Manager’s submission that everyone bar the Worker was following the procedures.

I note that the Worker was one of the persons in a supervisory role responsible for ensuring that the Employer’s procedures are followed. While the fact that other staff members, potentially including the managers were breaching procedures does not excuse the Worker’s actions, it does demonstrate that it seemed to be generally accepted behaviour.

It was confirmed at the adjudication hearing that, following the Worker’s allegation an investigation was carried out and some irregularities, infractions and breaches of procedures were discovered. The Area Manager claimed that the breaches discovered were “not to the extent” of the breaches conducted by the Worker, albeit he failed to provide any more specific information. It was confirmed that none of the staff members involved in these breaches was subjected to a disciplinary process. All staff were re-trained and cash management refresher training was conducted. It is imperative that employers act consistently in their treatment of anyone who is alleged to have engaged in or found guilty of improper or inadequate conduct. It therefore raises a question as to why the Worker was the only person who faced a disciplinary action.

At the relevant time, the Worker had no warnings on her file. I note the Employer’s reliance on the letters allegedly handed to the Worker on 23rd October 2018 and 21st March 2019 (the Employer’s copy of the letter is dated 31st March 2018, while the copy given to the Worker is dated 21st March 2019). However, I also note that throughout the disciplinary process the Worker consistently denied receiving the letters prior to the disciplinary process. This matter didn’t seem to be addressed at all by the Employer at the time. Also, while the letter of 21st March 2019 is listed in the appendices of the Investigation Report, the letter of 23rd October 2018 is not. It is unclear as to when did the Worker receive a copy of same. On the other hand, the Worker insisted that after each of her meetings with the Store Manager she was asked to sign performance forms which were countersigned by the Store Manager and the Deputy Store Manager. These forms were not made available to her at any stage, not even after her request to release any personal data the Employer might have. I find the Store Manager’s explanation in that regard somewhat confusing. As per the Minutes of the Disciplinary Hearing on 13th May 2020, the Store Manager said that “For any meetings or discussions, the notes went to HR”. When asked by the Worker, he didn’t seem to acknowledge the existence of the forms and repeatedly referred to the letters (which the Worker denied receiving). When asked by the Adjudication Officer, the Store Manager confirmed that there were standard forms which the Worker had signed, and they would typically be kept on file. He was not sure as to why the Worker’s forms were not there. I find the disappearance of the forms and the Store Manager’s explanation that “the process was not that tight at the time” and that he had his “personal file” where he stored personnel information in respect of staff members somewhat concerning.

I am also concerned about the lack of support for the Worker throughout the process. I have reviewed carefully the minutes of the meetings with the Worker and only during one meeting on 13th May 2020 the Worker on a few occasions asked to simplify the language, clarify what is asked of her or said that she did not understand the question. I note that at the adjudication hearing, the Worker was assisted by an interpreter. It is also evident that the Worker was still traumatised by the experience of a robbery she witnessed in another of the Employer’s shops.

There was no dispute that the Worker did not follow the correct procedure. However, in light of my findings above, I find that the disciplinary process employed by the Employer fell short of the requirements of fair procedure and the combined sanction of demotion and final written warning was disproportionate in the circumstances of this case. Having carefully considered the parties’ submission, I recommend that the Worker is returned to her role of Anchor and on the applicable rate of pay as of the date of this recommendation. I recommend that, following her return to work, the Worker undergoes the relevant cash management procedure training as soon as possible but within a month from the date of her return. The final warning has since expired and therefore this matter is moot.

Having considered the submissions of both parties to this dispute, I donotrecommend in favour of the Worker.

I recommend that the Worker is returned to her role of Anchor and on the applicable rate of pay as of the date of this recommendation. I recommend that, following her return to work, the Worker undergoes the relevant cash management procedure training as soon as possible but within a month from the date of her return. The final warning has since expired and therefore this matter is moot.

Industrial relations – demotion – grievance