Complainant

Respondent

Parties

Linda  Maguire

Tesco Ireland Limited

Complainant

Respondent

Representatives

Gavan Mackay Mackay Solicitors

IBEC

Act

Complaints Reference No.

Date of Receipt

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

CA-00035625-001

08/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035625-002

08/04/2020

The Complainant, a general operative, was employed by the Respondent from the 25th August 2008 until the 25th October 2019 when her employment was terminated.  She is claiming that she was unfairly dismissed pursuant to the Unfair Dismissals Act, 1977 - 2015. She is also claiming payment in lieu of notice pursuant to the Minimum Notice and Terms of Employment Act, 1973.

The Respondents case is that the Complainant was dismissed for serious misconduct following an investigation. Furthermore, she is not entitled to notice pursuant to S.8 of the Minimum Notice and Terms of Employment Act.

Respondent’s Submission

The Complainant alleges that she was unfairly dismissed and was not given her statutory notice entitlement. The Respondent refutes these claims in their entirety. The Complainant’s employment was terminated on 25 October 2019 on the grounds of serious misconduct following a fair and impartial investigation, disciplinary and appeal process. Furthermore, the Complainant was not entitled to receive notice as per section 8 of the Minimum Notice & Terms of Employment Act 1973 which sets out that:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The Respondent contends that this instance was one of serious misconduct and therefore, the

Complainant was not entitled to minimum notice or payment in lieu thereof.

Background to the Complainant

The Complainant commenced employment with the Respondent on 9 August 2008 and was employed in the Ballyfermot store as a Customer Assistant. Her contracted hours were 30 hours per week with an hourly rate of €12.97. The Complainant received training on all of the Respondent’s policies and procedures of the company.

On 5 July 2019, a customer of the Respondent store in Ballyfermot left €30 behind at the self-scan till. The sum of money was handed to the Complainant who kept the money on her person and proceeded to go to the locker area and then clocked out 7 minutes later and left the store, not placing the €30 in the till or following the Respondent’s Lost and Found procedures.

The next day, 6 July 2019, a phone call was received from a customer asking if there was €30 handed in as they had left it at the till area. The customer was told that there was no sum of money handed in or left behind the till. Following this, the Complainant removed three notes from the back of the till drawer (where the €50 notes are kept) and placed them into a money bag labelled “SS 73 3x10” (Self-Scan till number 73 3x€10 notes). She then placed the money bag under the till drawer. On the same day, 6 July 2019, the till that the 3 notes were removed from recorded a shortage of €150.

The money bag remained in the till until 9 July 2019. At 7:00pm on 9 July 2019, the Complainant called her colleague, Ms X, to the customer service desk. The Complainant opened the till drawer and Ms X then took the money bag from the till and placed it into her blouse pocket.

In addition, earlier on the same day, 9 July, the Complainant removed a scratch card from the dispenser at the customer service desk, where she then folded the scratch card and concealed it in her phone cover and failed to pay for it at any point during or after her shift. This allegation did not come to the Company’s attention at that point and only became evident during the course of the investigation in relation to the above matter.

On 16 July 2019 a meeting was held by Checkout Manager with the Complainant a colleague representative was in attendance also. She asked the Complainant about a till discrepancy on 6 and 9 July 2019. The Complainant stated that on 6 July a customer handed her €30 while she was working on the self-scan and that she had put the money in a plastic bag into a till and then forgot to tell anyone, until 9 July when she realised the money bag was still under the till drawer and gave it to her colleague, Ms X. The Complainant was advised that she was being placed on paid suspension while a full investigation could be carried out.

The Complainant was subsequently invited to attend an investigation meeting on 19 July 2019. This meeting was conducted by Checkout Manager and the Complainant was in attendance with a colleague representative. The Complainant was advised of the allegations against her. In relation to the till short of €150, on reviewing the CCTV footage of the incident, the Complainant set out that she put the money under the till and then took it back out of the till to put in a money bag, stating that it was 3 €10 notes which had been left behind by a customer on 6 July, before placed the money bag back under the till. She said that she forgot about it until 9 July at which point she gave the money to Ms X, by lifting the till drawer and permitting her to remove the money bag.

The Complainant was also asked about a discrepancy with a scratch card on 9 July. When the Complainant said that she didn’t know what she was talking about the Checkout Manager showed the Complainant the CCTV footage which showed her removing a scratch card from the dispenser at the customer service desk and putting it in her phone cover without paying for it. The Complainant said that she always put scratch cards beside her and paid for them at lunch time. The meeting was adjourned in order for the Checkout Manager to further investigate the matter.

 Another investigation meeting took place on 23 July 2019 and the Complainant again had the same colleague in attendance as her representative.  The Complainant set out that she was seeking legal advice and refused to comment on the points put forward and was advised by the Checkout Manager that the meeting would go ahead, and the footage could be reviewed again after she sought legal advice.

The Complainant was asked by the Checkout Manager to clarify when she placed the €30 left behind by a customer on self-scan into the till. On review of CCTV footage, it showed a customer handing the €30 to the Complainant at the self-scan but at no point could she see the Complainant put this money in the till, rather she leaves the self-scan with the money and goes to clock out leaving the store.

The second point raised was in relation to the Complainant previously claiming that she had paid for the scratch card on 9 July during her lunch break. On reviewing the CCTV footage, the Checkout Manager confirmed to her that the incident took place after the Complainant’s lunch break. She told the Complainant that she had reviewed the scratch card transactions on that day and the store had only sold 2 the scratch cards and neither of these were sold to the Complainant.

The third point the Checkout Manager asked the Complainant to explain related to taking money from the back of the till (where the €50 notes are kept) and placing them into a money bag before putting it under the till drawer on 6 July. She highlighted that without the engagement of the Complainant she would have to proceed with the evidence available to her including CCTV footage.

On 25 July 2019 the Complainant submitted a sick cert from her GP stating that she was unfit for work until 1 August 2019. The Complainant was deemed fit to engage in the investigation process as of 2 August 2019. To allow the Complainant a further opportunity to respond to the allegations, a further investigation meeting took place on 3 August and the Complainant was again in attendance with her representative. During this meeting the Checkout Manager played CCTV footage from 6 July which showed the Complainant take money from the back of the till (where the €50 notes are kept) and place them in a money bag before putting it under the till.  The Complainant was asked to clarify why the money came from the notes area of the till drawer and not from the money left behind by the customer on self-scan. The Complainant said that she placed 3 €10 notes in the back of the till on Friday 5 July, not 3 €50 notes.

The Complainant was asked to explain how the €30 made it into the till drawer if she didn’t place the money in the till drawer. The Complainant then said that she thought she may have put the €30 the customer left behind in her locker. She was told that there was no footage of the Complainant putting the €30 into the till and then questioned why the money that was placed in the money bag came from the €50’s area of the till drawer, resulting in a till short of €150 on the same day. The CCTV footage showed the Complainant receiving the money that had been left behind by the customer, but she did not place that in the till. The Complainant refused to comment.

A further investigation meeting took place on 10 August. The Complainant was in attendance with a colleague as a representative. In relation to the discrepancy with a scratch card, the Complainant was seen on the CCTV footage taking a scratch card after her lunch break without paying for it although the Complainant had previously said that she paid for it on her lunch break, the Complainant did not engage on the matter and instead asked for the outcome of the investigation.    The Investigator advised the Complainant that she could not issue the outcome as the investigation had not concluded. In relation to the till discrepancy and the €30 the customer left at the till, the Complainant’s explanation that she removed the money from her locker, and then folded the €30 in notes and dropped it into the back of the till drawer was contradicted by till spot checks carried out on 6 July. It was evident on the CCTV footage as she is not seen placing the €30 that the customer left behind in the till, rather she was seen taking 3 notes from where the €50 notes are kept in the till and placing them in a money bag under the till. After a break to speak to her representative, the Complainant confirmed that it was €150 (3 €50 notes) under the till.

An investigation outcome meeting took place on 26 August 2019.  The Checkout Manager set out in the outcome that “...based on the evidence you removed €30 belonging to a customer from the store for your own personal gain. I am also satisfied that it is evident that you in collusion with another colleague, gathered €150, put it in a money bag and concealed it in your till for no apparent reason and then permitted the other colleague to remove this from your till”.

In relation to the incident concerning the scratch card the Checkout Manager set out that “…based on the evidence that you took a scratch card, concealed it in your phone cover and failed to pay for same thus causing a loss to the Company.” The Checkout Manager was satisfied that the Complainant had breached a number of policies and that the issues would be put forward to a disciplinary hearing under the heading of serious misconduct.

On 27 August 2019, the Complainant was invited to attend a disciplinary hearing on 30 August. The disciplinary hearing was conducted by the Ballyfermot Store Manager (Disciplinary Manager) and the Complainant was in attendance with a colleague representative. 

The Complainant told the disciplinary hearing that she felt she was forced into saying there was €150 in the money bag because if she said it the disciplinary would be finished. The Disciplinary Manager asked her about the €30 and the Complainant said that she put it back in the till. She told the hearing that she did not take a scratch card and when asked if she had seen the CCTV footage she stated yes, but that she didn’t remember taking the scratch card.

The Disciplinary Manager explained to the Complainant that there was no CCTV footage to support her explanations provided in the investigation meeting. The Complainant and her representative signed the meeting records and did not raise any issue in relation to any inaccuracies.

 A second disciplinary meeting was held on 24 September 2019 at which questions from the trade union representing Ms X were put to the Complainant.  The Complainant did not answer some of the questions, stating that she had previously answered them. Also, in the disciplinary meeting when questioned about the monetary value in the money bag the Complainant reverted back to her original response stating that she put €30 in the money bag and not €150 as she had previously confirmed in the last investigation meeting held on 10 August. When asked if she had anything else to add to the disciplinary hearing she declined. The Complainant and her representative signed the meeting records and did not raise any issue in relation to the inaccuracies of same.

A disciplinary outcome meeting took place on 25 October 2019.  The Disciplinary Manager set out that having given careful consideration to all the facts including the Complainant’s responses, he was satisfied that the Complainant took a sum of money from the store for her own personal gain as well as taking a scratch card without paying for it. He found that her actions amounted to serious misconduct under the Respondent’s Disciplinary Procedure, and that the bond of trust between the Complainant and the Respondent was broken, therefore the appropriate disciplinary sanction was dismissal from employment with immediate effect.

The Complainant was afforded the opportunity to appeal the disciplinary sanction which she did via her solicitor on 7 November 2019.  The Ashbourne Store Manager heard the appeal on 29 November2019. The Complainant was advised of her right to representation but decided to proceed without representation.  On 2 January 2020 he set out his findings and did not uphold any of the appeal grounds and upheld the disciplinary officer’s decision to dismiss the Complainant.

Legal Submission

The Respondent places trust in colleagues to do the right thing for customers and the business. As a business that involves dealing with cash it is important that this trust is maintained throughout a colleague’s employment. This was not the case for the Complainant as her actions caused a breach of the bond of trust the Respondent had placed in her. The Complainant was dismissed by reason of her own actions which were considered as serious misconduct. Accordingly, her dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977-2015.

Having considered all the facts, the responses and explanations of the Complainant, they were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of her actions. The Complainant’s actions amounted to gross misconduct. The Complainant’s responses to the allegation were inconsistent, differed from meeting to meeting and were contradictory throughout the investigation/disciplinary and appeals process.

It is the Respondent’s position that the Complainant removed a sum of money from the store that belonged to a customer who had left it behind in the store with the intention of keeping this for her own personal gain and that she took a scratch card without paying for it resulting in a loss to the Company. The Respondent had no alternative but to dismiss the Complainant for her conduct. Apart from the issue of serious misconduct, the bond of trust between the Complainant and the Respondent had been severed.

In the Circuit Court Case of Hestor v Dunnes Stores Judge Clarke held that “the issue was not whether the appellant had actually stolen the ham or not, but whether in all the circumstances of the case, the respondent was justified in the dismissal for misconduct. The respondent had not acted unfairly nor without justification, since the appellant had been unable to offer a satisfactory explanation for her conduct which had given rise to deep suspicion and required a satisfactory explanation.”

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the Respondent’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

The actions of the Complainant destroyed the company’s trust and confidence in her and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that:

“[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the Respondent’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegations against her. She was afforded the right to representation. She was further provided with a number of fair and impartial hearings, at which she was given every opportunity to respond to the allegations against her. All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.

The Respondent contends that the actions of the Complainant contributed wholly to her dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in  Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

Furthermore, the Complainant was not entitled to receive notice as per section 8 of the Minimum Notice & Terms of Employment Act 1973 which sets out that:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The Respondent contends that this instance was one of serious misconduct and therefore, the Complainant was not entitled to minimum notice or payment in lieu thereof.

Witness

Karl Moraghan Disciplinary Manager (Affirmation)

He said that he conducted the disciplinary following an investigation conducted by the Checkout Manager. He said that he is 30 years with the company and 14 years as a store manager. He said he has conducted several investigations, disciplinary and appeal hearings. He said that he reviewed the investigation notes and the CCTV footage. He said that there were 2 allegations against the Complainant following the investigation, the removal of the €30 left at the till by the customer and the scratch card which was not paid for. All the information was provided to the Complainant, and she was called to a disciplinary hearing. She was accompanied by a union representative from the shop.  He said that he went through all the allegations with the Complainant, and he asked if she wanted to view the CCTV footage and she declined. He said that he asked her about the€30 left behind by the customer at the self-service till. 

He said that the CCTV showed that the €30 the customer left at the till was given to the Complainant. She folded the money and put it in her pocket and very shortly afterwards her shift was over she walked down to the locker room and left the store. He said he reviewed the CCTV footage for the next day and there was no sign of her putting the €30 back in the till. He said that he asked the Complainant to look at the CCTV footage and explain her actions and she said that she didn’t want to see it.  He said that he put it to the Complainant at the meeting that there was no sign of her putting the €30 into the till and her response was that she didn’t take the money. He said that based on the evidence before him he concluded that the Complainant took the €30 and a scratch card for her own personal benefit. There were 2 other matters put forward to the disciplinary hearing (collusion with another employee to remove €150 from the till and a breach of the company’s mobile phone policy) which he set aside.

He said that the last thing he wanted to do was dismiss the Complainant, but her actions were a serious breach of trust, and he had no other option but to dismiss her. He said that the company has a grievance and disciplinary which was followed.  The Complainant was made aware of the allegations against her and the investigation, disciplinary hearing and the sanction imposed was fully in line with the policy.

The Disciplinary Manager was cross examined by the Complainant’s solicitor. In response to questions about the company policies he said that all of staff are trained and accepted the Complainant was trained about 6 and a half years before the investigation. He said that he was not involved in the investigation but pointed out that the documentation showed that the Grievance and Disciplinary Policy was sent to the Complainant by the Investigator. In response to a question about whether the complainant was made aware of the reason for her suspension, he said that the till discrepancy was the reason for the suspension, and it was during the course of the investigation that the other discrepancies came to light. He said that the Complainant was clear about the allegations put to her during the disciplinary hearing.  He said that he dropped the breach of the mobile phone policy at the disciplinary hearing because he didn’t think it warranted being part of the disciplinary hearing.

It was put to the Disciplinary Manager that nowhere in the notes of the disciplinary hearing does it say that he went through the allegations against the Complainant. He said that he went through the findings of the investigation with her and there was a lack of response. He said that he asked her about viewing the CCTV footage and she said that she didn’t want to see it.   The Complainant said at the Disciplinary hearing that she was forced by her representative to make an admission that it was €150 she put in the money bag.  He was asked if there was an admission about the €150 till discrepancy why he didn’t further action, he said that the Complainant was not responsible for removing the money bag from the till and therefore it didn’t warrant further action.

In relation to evidence about the customers €30 being put in the till, he stated a spot check on the till did not find the €30 and it was not recorded in the spot check book. He accepted that this book was not shown to the Complainant during the course of the investigation. If the money had been put back in the till, it would have an over of €30. It was put to him that the spot check report could be from a different till or that another employee used the till, he said that he was satisfied with the spot check undertaken. Also, the CCTV footage did not show the Complainant putting the money in the till. 

It was put that the Complainant denies not paying for the scratch card and the Disciplinary Manager said that the CCTV footage was examined and showed that she did not pay for it. There were only 2 scratch cards bought that day and neither of them by the Complainant. He said that he asked the Complainant if she wanted to look at the CCTV footage for these transactions and she declined.

Mr Gary O’Regan Appeals Officer (Affirmation)

He has worked in the company for 20 years and has been in management for 13 years. He is trained in employee relations, and he is familiar with the disciplinary policies. He said that he was assigned to hear the appeal against the Complainant’s dismissal. He said that he met with the Complainant on the 25th November 2019 to hear the appeal against her dismissal on the 29th October 2019. She was given an opportunity to have representation, but she declined. He said that that he went through each ground of appeal with her, and she had an opportunity to respond.  He said that there were 12 grounds of appeal, and he went through each one with the complainant and took notes. He said he went through all the investigation notes and the Complainant had an opportunity to give him further evidence if she wished.  He said that after considering all the appeal grounds and he upheld the sanction of dismissal.

In cross examination it was put to the Appeals Officer that the Complainant was not aware of the reasons for her suspension, he rejected this and said that the Complainant told him she knew why she was suspended. He rejected the suggestion that the Complainant was not supplied with all the information from the meetings. He also said that she told him she got the grievance and disciplinary policy.   He said that he reviewed all the investigation materials and the CCTV footage. He reviewed the CCTV footage of the sales of the 2 scratch cards. He said that he did not show the Complainant the CCTV footage of the customers purchasing the scratch cards. The Complainant put forward no evidence that she paid for the scratch card.

In response to a question if the Complainant had been provided with the notes of the investigation in accordance with the company’s policy, he said the Complainant told him at the appeal hearing that she had received everything.

Submission on behalf of Complainant

The Complainant was a good and conscientious employee of the Respondent since August 2008.  The Complainant had no formal warnings noted on her personnel file, either written or verbal and had a good relationship with customers generally.

It was submitted that The Complainant was requested to attend at a preliminary meeting on the 16th July 2019 concerning alleged incidents/issues with her till on the 6th July and 9th July 2019. The questioning of the Complainant during the course of that meeting was extraordinarily vague and no specific allegations were put to the Complainant.  The Complainant was suspended on the same day by letter of 16th July 2019.

The Complainant was required to attend an investigation meeting on the 19th July 2019 at which she was notified of an investigation into monies purportedly missing from a till and a specific accusation that the Complainant had stolen money from the said till.

During the course of the meeting an allegation about a not paying for a scratch was put to the Complainant. CCTV footage was purportedly reviewed, and a further investigation meeting was convened with the Complainant on the 23rd July 2019.  At that meeting it is notable that the Complainant was not shown CCTV footage of the alleged incidents, but multiple references were made throughout to same.

A further investigation meeting was held on the 3rd August 2019 during which the Complainant indicated that she wished to seek legal advice. Notwithstanding this, the Respondent’s representatives left the Complainant to watch CCTV footage themselves and subsequently returned to her. The predominant focus during that investigatory meeting was an allegation that the Complainant had misappropriated €150.00.

The Complainant was furnished with a statement from another employee but at no stage was given an opportunity to cross-examine that employee. Furthermore, numerous references were made to what another employee had purportedly said but the Complainant was not furnished with any written statements from that other employee, nor was she given an opportunity to question or cross-examine that individual. There was no discussion, during the course of that meeting, of the incident which is the subject matter of the dismissal.

The Complainant was required to attend at a further meeting on the 10th August 2019 at which the scratch card incident was raised. During the course of all of the meetings, but in particular the meeting of the 10th August 2019, the Respondent consistently failed to take the Complainant through any methodical process dealing with each allegation specifically. In addition, the Complainant was repeatedly taken through the same incident repeatedly requiring the Complainant to repeat her explanation on multiple occasions.

It is clear from the meeting notes of the 10th August 2019 that the CCTV footage was reviewed but it is unclear by whom and what incident was specifically reviewed. The Complainant was pressurised, during the course of that meeting, to make certain admissions about the €150 allegation which ultimately did not result in any action being taken against the Complainant.

The Complainant was called further meeting on the 26th August 2019 at which the Complainant was furnished with a letter from the investigator dated 23rd August 2019 setting out findings in respect of two allegations against her and referring the matter to a disciplinary hearing.

It was submitted that in respect of the allegation about the scratch card that certain evidence was relied upon by the Respondent without formally putting that to the Complainant during the course of any meeting or giving her an opportunity to deal with that purported evidence. Furthermore, certain conclusions were reached by the investigator which did not form any part of the investigation nor were they same put to the Complainant for her comment. 

In relation to the allegation about collusion with another employee (placing €150 in a money under the till and permitting another employee to remove it from the till), it was submitted that no prior reference was ever made to collusion during the course of the investigative process.

The Complainant was referred to a Disciplinary Hearing on the 30th August 2019. During that meeting the Complainant specifically raised with the Disciplinary Manager her concerns that she was coerced into making certain admissions. No further enquiry was undertaken by him in relation to these very concerning and specific allegations by the Complainant.

In relation to the allegation of the theft of a scratch card, the Disciplinary Manager did not rely upon any sales data as outlined by the Investigator, but merely indicated that there was no CCTV footage to prove that the Complainant has paid for the card and therefore assumed that the Complainant was guilty.

The Respondent by letter dated 25th October 2019 dismissed the Complainant having come to the conclusion that the Complainant had misappropriated €30 from the Respondent. The dismissal letter set aside two other allegations which were never the subject matter of an investigation namely that the Complainant has misappropriated €150.00 and had been in breach of the mobile policy.

 It was submitted that there was no investigation or an investigation that would have complied with fair procedures to determine the matters in respect of which disciplinary action was brought against the Complainant.  In particular it is notable that in the Investigation Outcome Report dated 23rd August 2019, it appears that two specific allegations were investigated by the Respondent. However, in the correspondence of the disciplinary manager dated 25th October 2019 he considered four specific allegations. It is unclear how those allegations came to be considered by the ultimate decision maker without forming any part of an investigation which resulted in certain conclusions being reached by the investigator.

The ultimate sanction of dismissal was grossly disproportionate having regard to the allegations, the Complainant’s protestations of innocence and the Complainant’s history with the Respondent which, theretofore, was a period of employment of eleven years without any suggestion of dishonesty or impropriety on the part of the Complainant.

The Complainant appealed the decision to dismiss which was upheld. It was submitted that the Respondent grossly breached the Complainant’s rights to fair procedures and natural justice. It was submitted that the onus is on the Respondent to prove the procedures applied to the investigation were fair and they were not able to do so as the Investigator did not attend the hearing.

The Complainants Evidence

The Complainant said that she was employed by the company since 2008 and she never had any difficulties and got on with her colleagues and customers. 

She said that she was invited to a meeting on the 16th July and suspended she understood the suspension related to a till discrepancy of €150. She said that she said it was €30 left behind by a customer.  She got a letter next morning inviting her to an investigation meeting on the 19th July to investigate till discrepancies on the 6th July and the events which followed. At this meeting the Investigator told her they were investigating the till and the €50 x3. The Complainant said that she told her that a customer gave her €30 left behind at the self-service till. She said that she told the team leader, Ms. X, and she was supposed to put it in the cash office, but she didn’t. She said that she was not shown any CCTV footage of this complaint.

She said she was accused of taking a €10 scratch card folding and putting it under her mobile phone without paying for it. She said that she was shown the CCTV footage in relation to this issue. The Complainant said that she took a €3 scratch card and put it underneath her phone before her break and she paid for it during her break. She said that she was not allowed to buy a scratch card while working and she took the scratch card and put it under her phone so that she would have everything ready when she was going on her break.

She attended a further meeting on the 23rd July. The Investigator told her that she had reviewed the CCTV.  She was told that she could see her taking the scratch card and putting it underneath her mobile phone. She wanted to seek legal advice, but the Investigator continued with the meeting.  She was told that she could watch the CCTV footage if she wished. She said she told the meeting she was not willing to watch until she got legal advice.  She said that the issues discussed at the meeting were the €150 issue, the €30 left behind by the customer and there was a statement read to her from another employee who said that she had received a telephone call from a customer about money left behind at the self-service till.

She was called to a further meeting on the 10th August. This meeting started with the scratch card, and she was told that the CCTV showed her taking the scratch card after her lunch and not paying for it and there were 2 scratch card transactions for the day. She said that there was no CCTV footage in relation to the transactions.

She said that when the customer gave her the €30 (3 x€10) she put them in a money bag with a note in red pen at the customer service desk and then put it underneath the till box. She also told Ms. X her supervisor. She said that the money underneath the till would not have been counted in the spot check carried out on the till on the 6th July. She said that she was not given any documents re the spot check.

She said scratch cards are kept behind the customer service desk and must be paid for at that desk. She accepted she took the scratch card and didn’t pay for it there and then. She said that she didn’t leave the customer service desk before paying for it before her break.

She said that she attended a disciplinary hearing on the 25th October. She said that she was never asked about colluding with another employee in relation to the €150 and neither was she asked about a breach of the mobile phone policy. She had a further meeting with the disciplinary manager on the 2nd January 2020 and she was informed that she was dismissed. 

In cross examination the Complainant said that she understood that the investigation concerned the €150 till shortage, the €30 left behind by the customer and the scratch card. It was put to her that the CCTV footage showed that she put the customer’s €30 in her pocket and leaving the store 7 minutes later. She said that she put it in a money bag. She said she saw the CCTV footage of the customer handing her the €30 but she could not recall if there was anything else on it.  She accepted that the footage was played during the investigation, and she refused to watch it. She said that she wanted to get legal advice.

She accepted she signed the notes of the meeting of the 19th of July.

At the meeting on the 23rd July, she wanted to get legal advice and she replied to any questions with no comment.  She was asked why she didn’t stand up for herself and she said that she had no one to defend her and wanted legal advice. She accepted that she did not watch the CCTV footage at the meeting of the 3rd August.

She said that she paid for the scratch card a package of crisps and a sandwich, but she couldn’t recall who she paid. She said that it was a €3 scratch card and not €10 scratch card as claimed by the Investigator.

She couldn’t recall if the minutes of the meeting were attached to the letter of the 23rd of August which set out the outcome of the investigation and sending her forward to a disciplinary hearing.

She attended 2 Disciplinary hearings and her solicitor was not allowed to attend. She accepted that she did not avail of the opportunity to respond to the allegations. She said that she believed that she was going to be sacked.

Unfair Dismissal  CA-00035625-002

The Respondent submitted that the Complainant was dismissed for serious misconduct, following a fair and impartial investigation, it was concluded she misappropriated €30 belonging to a customer who left it behind at the self-service till and she removed a scratch card without paying for it.  The Complainant denies the allegations and states that it was 3 x €10 notes (the money left behind the self-service till by a customer) that she put in the money bag and not 3 x €50 as alleged by the Respondent.

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(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) …

(b) the conduct of the employee”,

Section 6(7) provides:

“(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 section7 (2) of this Act.”

Reasonableness Test

In a decision of the Circuit Court in Allied Irish Bank PLC vs Purcell 2012 23 ELR 189, Linnane J. stated as follows: "the correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view."

Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd vs Swift [1981] IRLR 91. stated:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the Respondent to make the decision it made rather than necessary the one the EAT or the court would have taken.”

 In the Bank of Ireland –v- Reilly 2015 IEHC241, the High Court stated;

“That is however not to say that the Court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

In the Circuit Court Case of Hestor v Dunnes Stores Judge Clarke held that “the issue was not whether the appellant had actually stolen the ham or not, but whether in all the circumstances of the case, the respondent was justified in the dismissal for misconduct. The respondent had not acted unfairly nor without justification, since the appellant had been unable to offer a satisfactory explanation for her conduct which had given rise to deep suspicion and required a satisfactory explanation.”

In Looney & Co. Ltd v Looney, UD 843/1984 the EAT stated:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

The burden of proof pursuant to Section 6 cited above rests with the Respondent to demonstrate that the dismissal was neither substantially nor procedurally unfair.

The Respondent called the Complainant to a meeting on the 16th July 2019 concerning a shortage on her till on the 6th July and suspended her pending a full investigation. I note that there were 4 investigation meetings with the Complainant, and she was represented at each of them and given an opportunity to view CCTV footage of the relevant till incidents. The Investigator concluded that the Complainant was in breach of the Company Honesty Policy and referred the matters under investigation to a disciplinary hearing.  The Disciplinary Manager carried out 2 disciplinary investigations and concluded that the Complainant was guilty of serious misconduct in that she took the €30 for her own personal gain and that she failed to pay for a scratch card. He imposed the sanction of dismissal. The Complainant appealed the outcome and the decision to dismiss was upheld.

It was submitted that the company has acted reasonably in accordance with applicable procedures and, in imposing the sanction of dismissal was within the band of reasonableness

I note that the initial meeting and suspension of the Complainant was called to investigate the €150 till shortage and the Investigator was not aware until the meeting that a customer left €30 behind at the self-service till on the 5th July, and the Complainant gave this as an explanation about the CCTV footage showing her putting money in the money bag on the 6th July. The overall explanation provided by the Complainant at the investigation meetings for the denomination of the money put in the money bag lacked clarity and credibility given the amount of the till shortage. Her account about how she handled the €30 left behind by the customer was inconsistent. I also note that the Complainant made an admission at the last investigation meeting that it was €150 she put in the money bag under the till. In relation to the scratch card, I am satisfied, on the Complainant’s own evidence, that she was in breach of the Respondent’s policy that staff could only purchase scratch cards during their break. The Complainant accepted that she removed the scratch card from its window behind the customer service desk before her break without paying for it at that time. I note that the Respondent’s evidence the CCTV showed the scratch card was removed by the Complainant after her break. I am satisfied that her explanation for her actions were inconsistent and not credible.

However, it is not my function to determine if the Complainant was guilty of serious misconduct but to assess if the decision to dismiss, following an investigation and a finding of serious misconduct, was the correct sanction. I have to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases. I am guided by the jurisprudence of the High Court in the case of Bank of Ireland and the other decisions cited above. In all the circumstances of this case, I find that the action of the Respondent in dismissing the Complainant for serious misconduct came within the range of reasonable responses open to the Respondent. It was reasonable for the Respondent to conclude following the investigation that substantial grounds did exist to justify the Complainant’s dismissal. I am satisfied, that the way the Respondent conducted the investigation, disciplinary hearing and appeal hearing in this case fully complied with the company’s Disciplinary and Grievance procedures and fair procedures and natural justice were applied. The Complainant was offered to have representation at each stage of the process, was given an opportunity to view the CCTV footage and given an opportunity to respond to the allegations made against her. I am satisfied that fair procedures were applied by the Respondent.

I find therefore that the Complainant was not unfairly dismissed.

 CA -00035625-001  Minimum Notice

The Complainant claims that she was dismissed without notice and is seeking pay in lieu of notice. The Respondent submitted that the Complainant was not entitled to receive notice as per section 8 of the Minimum Notice & Terms of Employment Act 1973 which sets out that:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

The Respondent contends that the Complainant’s conduct was one of serious misconduct and therefore, she was not entitled to minimum notice or payment in lieu thereof.

I am satisfied that the Complainant was dismissed for reasons of serious misconduct and pursuant to Section 8 of the Act cited above I find she is not entitled to notice.

Unfair Dismissal  CA-00035625-002

I find that the Complainant was not unfairly dismissed pursuant to Section 6(1) of the Unfair Dismissals Act 1977-2015.

CA -00035625-001  Minimum Notice

I find that the Complainant was dismissed for reasons of serious misconduct and pursuant to Section 8 of the Minimum Notice and Terms of Employment Act, 1973  I find she is not entitled to notice.

Unfair Dismissals Act Section 6(1) – substantial grounds justifying the dismissal, Section 6(7) - reasonableness, Minimum Notice and Terms of Employment Act, 1973 – Section 8