Complainant

Respondent

Anonymised Parties

Caretaker

Supermarket

Representatives

Self-Represented

Ms. Kiwana Ennis BL, instructed by by Vincent & Beatty Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00044116-001

17/05/2021

The Complainant commenced employment with the Respondent on 17th June 2013. The Complainant was a permanent employee, engaged as a caretaker for one of the Respondent’s stores. The Complainant was dismissed by the Respondent on 13th November 2020, with the final date of employment being considered in the preliminary decision below.

On 27th May 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the sanction of dismissal was disproportionate to the wrong-doing alleged. In denying this allegation, the Respondent submitted that the Complainant as dismissed on foot of his own admitted misconduct and that the sanction was proportionate in the circumstances.

A hearing in relation to this matter was convened for, and finalised on, 12th May 2022. The Complainant gave evidence in support of his application, whilst the Respondent called two witnesses, a store operations director and an area manager to give evidence. At the outset of the hearing, the Respondent raised a preliminary objection as to jurisdiction. As this matter is potentially determinative of the proceedings, it will be considered in advance of the substantive matter.

As both the preliminary application and the substantive matter refer to the medical history of a person that is not a party to the proceedings, I have exercised my discretion to anonymise the names of the parties in the published decision.

The Respondent submitted that in circumstance whereby the Complainant was dismissed on 13th November 2021 and the complaint form was received by the Commission on 17th May 2021, the complaint was referred in excess of six months from the date of dismissal and the matter is consequently statue barred.

The Respondent further submitted that the Complainant has not established reasonable cause by which an extension of time may be granted.

In correspondence, the Complainant applied to extend the relevant time period for the lawful referral of a complaint. He submitted that that the complaint form was referred in excess of six months from the date of his dismissal as he was the primary carer for his wife during the period of the Covid-19 pandemic. He further submitted that he was initially unaware of his ability to refer the present complaint. As soon as he became aware of the same, he referred the complaint without further delay.

Section 8(2) of the Unfair Dismissals Act, 1977 states that,

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”

The established test for establishing such for “reasonable cause” is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the present case, the Complainant has submitted that he was initially unaware of his right to refer the present complaint. He stated that once he became aware of the same, he referred the complaint without further delay. In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

Having regard to the same, I find that the complaint has not established reasonable cause on this ground.

In addition to the foregoing, the Complainant submitted that he was the primary carer for his wife during the relevant period and as such experienced a delay in referring the complaint. Notwithstanding the same, I note that during the period the Complainant sought out, applied for and commenced alternative employment within a number of weeks of his dismissal and well in advance of the referral of the complaint. This being the case, the rationale offered by the Complainant cannot be said to have prevented him from lodging the complaint in time.

Having regard to the foregoing, I find that the complaint has not established “reasonable cause” to extend the relevant period for the referral of the complaint.

This, however, is not the end of the matter. The Respondent’s preliminary application is predicated on the fact that the Complainant’s dismissal was communicated, and took effect without notice, on 13th November 2019. Notwithstanding the foregoing, Section 1(B) of the Act (as amended) defines “date of dismissal” in the following terms,

“…where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

         i.            the earliest date that would be in compliance with the provisions of the contract of employment,

       ii.            the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,”

Redmond On Dismissal Law, Ryan, 3rd Ed 2017at paragraph 21.77states that,

“…the Unfair Dismissals Act, as amended, deems the date of dismissal to be the date on which notice, had it been given, would have expired. In practice, this can mean there is a crucial distinction between the employee’s date of termination (when he or she ceased to be an employee pursuant to the contract of employment,) and his or her, date of dismissal (the date that is reckonable for the purposes of establishing the length of services qualification and the time limit rules under the Unfair Dismissal legislation)”

In circumstances whereby the Complainant had accrued in excess of seven years’ service, his normal statutory notice would be a period of four weeks. As a consequence of the foregoing, in the event that the Complainant is entitled to a statutory notice payment, the date of dismissal for the purpose of the present Act is 11th December 2019, a date that falls within six months of the referral of the dispute.

Notwithstanding the foregoing, the Respondent has submitted that the Complainant was dismissed on the ground of gross misconduct. Section 8 of the Minimum Notice and Terms of Employment Act, 1973, provides 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.

In the matter of J&D O’Brien -v- Raymond Morrin MND 194 the Labour Court stated that,

“…the dismissal of the Complainant has been determined to have been unfair and the Court cannot allow the (Respondent), by operation of the Act at Section 8, to avoid its obligations under the Act arising from the unfair termination of the Complainant’s employment.”

The accumulation of the foregoing points creates a situation whereby if the Respondent can demonstrate that the Complainant was guilty of gross misconduct, he will not be entitled to statutory notice and the matter will consequently be deemed to be out of time. Conversely, if the Complainant is successful in demonstrating that he was not guilty of gross misconduct, by operation of the Minimum Notice and Terms of Employment Act, the date of dismissal is 11th December 2019, and the complaint is lawfully referred.

Having regard to the foregoing, the substantive matter falls to be considered.

At the outset of the hearing, the Complainant agreed that his allegations related to the substantive rationale for dismissal, without any allegation of a defect or unfairness regarding the process adopted by the Respondent.

On 8th October 2020, the Respondent became aware that the Complainant had removed two boxes of face masks and a two litre bottle of hand sanitiser from the premises. The Complainant was observed placing these items beside the till, placing them in a bag and then taking the products to his car. When queried in relation to this sequence of events, the Complainant accepted that he had removed these products for his personal use and accepted that his actions were wrong. During an investigation meeting dated 8th October 2020, the Complainant again accepted that he had removed the products for his personal use and accepted that his actions were wrong. The Complainant was duly invited to a disciplinary meeting. In the course of this meeting the Complainant sought to explain his conduct on the date in question. He stated that he believed that the items were supplied for staff use and that they were free to bring the same home. He stated that he was the primary carer for his wife, who suffered from a chronic condition, and that he was extremely vigilant in his efforts to avoid the Covid-19 virus. He accepted that his actions were wrong on the date in question but stated that he was not in a good state of mind at the time. By subsequent correspondence, the Area Manager stated that the Complainant had removed the Respondent property without permission and for his personal use. He stated that the employee handbook expressly states that theft of any amount of the Respondent’s property, irrespective of value, would be treated as grounds for dismissal. In evidence, the Area Manager stated that the Respondent treats the unauthorised removal of company property extremely seriously. He stated that in this regard, no distinction is drawn between merchandisable stock or other company property. The area manager stated that he did consider the Complainant’s mitigation factors, however these did not have any bearing on the outcome. Having regard to all the relevant factors, the Area Manager determined that the Complainant was guilty of gross misconduct and consequently his employment was terminated. The Area Manager stated that he considered other sanctions to dismissal but stated that these were not appropriate in the circumstances.

The Complainant elected to appeal this outcome, with an appeal hearing being chaired by the Operations Director of the Respondent. Again, the Complainant stated that he believed that the stock was for staff use and believed that he was permitted to take the same home. He stated that the CCTV footage demonstrated that he did not attempt to hide the stock and submitted that he did not seek to deceive the Respondent at any point. The Complainant accepted that he committed a misdeed but suggested that his long service and unblemished disciplinary record should serve to prevent his dismissal, with a lesser sanction being applied. By correspondence dated 8th December 2020, the Complainant was informed that he appeal was dismissed and that the sanction of dismissal stood.

By submission, the Respondent submitted that the Complainant was well aware that the Respondent had a zero-tolerance approach to the removal of stock for personal use. They submitted that this policy is clearly outlined within the contractual documentation and is uniformly applied across the business. They submitted that at all times the Complainant accepted that he removed the Respondent’s stock for his personal use. While the Complainant did put forward various mitigating factors, and these were considered by the relevant parties, ultimately these did not have a material effect on the outcome.

Having regard to the foregoing, the Respondent submitted that the dismissal of the Complainant fell well within the band of reasonable responses available to them and, consequently, the Complainant’s application should fail.

The Complainant submitted that he was a long-standing employee of the Respondent. He stated that he enjoyed his job and never faced any form of disciplinary sanction prior to his dismissal.

He stated that following the imposition of the restrictions arising from the Covid-19 pandemic, the Respondent began to supply all staff members with personal protective equipment, in particular face masks and hand sanitiser. The products were placed in a common area, with staff being permitted to avail of the same at any point throughout the working day.  The Complainant stated that he was particularly concerned regarding contracting the Covid-19 virus as his wife suffered from a chronic condition and he was extremely cautious regarding potentially passing the virus to her.

On 8th October 2020, the Complainant removed some of this personal protective equipment for his personal use. He stated that he placed the same in a bag, left the same outside for a period of time whilst he completed some tasks and then placed the items in the boot of his car. He stated that he did all of this in full view of the other members of staff and the store CCTV. The Complainant stated that at the time, he understood that personal protective equipment could be brought home for personal use but later accepted that this was not the case. Notwithstanding the same, the Complainant adamantly submitted that he did not steal the items, he simply removed the same under the mistaken belief that he was entitled to do so. He submitted that had he intended to steal the same he would been more covert in his actions, rather than simply walking out the door with the products in full view of staff and CCTV.

In addition to the foregoing, the Complainant submitted that the sanction of dismissal was disproportionate in the circumstances. He submitted that the value of the products was minimal and if asked, he would have gladly paid for the same. He stated that his long service and unblemished record should have been taken into account in applying the sanction. Finally, the Complainant stated that the products in question were not for sale to the general public but were for staff use only, in this regard the Complainant was going to use the products for their intended use i.e., protecting staff members of contracting Covid-19.

Having regard to the foregoing, the Complainant submitted that the sanction of dismissal was disproportionate in the circumstances and that his dismissal should be deemed to be unfair for the purposes of the Act.

In answer to a question, the Complainant accepted that he was aware of the Respondent’s position regarding the removal of property but submitted that, at the time, he believed that he was entitled to bring PPE home with him. In answer to a question posed by the Adjudicator, the Complainant stated that he had occasionally taken a mask home but had never removed any greater amount of PPE prior to the date in question.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

In the present case, the Respondent has submitted that they maintain a strict policy regarding the unauthorised removal of property by an employee. They stated that this policy is expressly set out in the Complainant’s contractual documentation and is uniformly applied across all its stores.  In the alternative, the Complainant, whilst accepting that the incident in question occurred, submitted that he did not believe it was misconduct at the relevant time and submitted that various mitigating factors should have been taken into account.

The relevant clause of the of the Respondent’s employee handbook states that the following misconduct may warrant summary dismissal,

“Theft of stock or property, even of the smallest amount, which belongs to the Company, an employee of the Company, or to a third party on Company property”.

From the evidence provided, it is apparent that the Respondent views any issue regarding the unauthorised removal of stock to be an extremely serious matter. From the wording of the relevant clause, it is apparent that the value of the stock involved is largely irrelevant, the concern for the Respondent is that they must implicitly trust their employees not to remove anything from the store for personal use without authorisation. Whilst this position may result in significant disciplinary sanction for relatively minor (in terms of monetary value) issues, given the nature of the Respondent’s business, such a position is not unreasonable.

In the matter of the Dunnes Stores -v- Karen Walsh UDD2021, the Labour Court held that,

“Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment the Court finds that in the circumstances it was reasonable for the Respondent to treat the admitted removal of goods from the store without payment as being very serious.”

The Court went on to state they were,

“…satisfied that the conduct of the Appellant could be regarded as sufficiently grave to give rise to serious disciplinary sanction. In all of the circumstances the Court finds that the sanction of dismissal falls within the responses which might be expected of a reasonable employer.”

Regarding the instant case, at all times the Complainant accepted that he removed the Respondent’s property for his own personal use without authorisation to do so. In evidence, the Complainant drew a distinction between the nature of the property he removed and merchandisable stock. He stated that as the PPE in question was for employee’s use, he formed the opinion that he could take some home with him. In this regard, I note that the policy is clear that the prohibition in question extends beyond stock that is for sale by the Respondent and relates to any property belonging to the Respondent. In this regard, it is not disputed that whilst the PPE was distributed for use by employees, it remained the property of the Respondent. In this regard, I am also conscious of the amount of PPE removed by the Complainant. While the removal of a small amount of PPE may be explainable by inadvertence or mistake, the removal of two boxes of masks and two litres of hand sanitiser is an entirely different proposition.

In the matter of Tesco Ireland Limted -v- Ann Faherty UD1866, which also involved an allegation of theft from a retailer,  the Labour Court held that,

“…the procedure employed to investigate the matter and determine an appropriate response had the potential to facilitate a full weighing of all the circumstances of the incident and to facilitate consideration against that background of proportionality of the Respondent’s response. That potential of the procedure places a requirement on all actors within it to operate with scrupulous attention to fairness.”

In the present case, the Complainant has not raised any issue regarding the process adopted prior to his dismissal. He has however submitted that the outcome of dismissal is a disproportionate sanction given his long service and clean disciplinary record. In his complaint form, he stated that the outcome was “harsh” and that a lesser sanction should have been imposed in the circumstances.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

Having regard to the same, there is no doubt that the dismissal of a long-standing employee for the removal of PPE of negligible value is a harsh outcome. There is also no doubt that it would have been open to the Respondent, either in the first instance or on appeal, to apply a lesser sanction given the mitigating factors submitted by the Complainant. However, it is further apparent that the dismissal of the Complainant was not outside the band of reasonable responses open to the Respondent. From the outset of the Complainant’s employment, their position regarding the unauthorised removal of property could not have been more clear or unambiguous. Indeed, under cross examination the Complainant accepted the Respondent’s rationale for the maintenance of such a rule. In dismissing the Complainant, the Respondent is simply seeking to enforce a contractual term agreed at the outset of employment. While the Complainant clearly takes issue with the same, such enforcement cannot be said to be outside of the band of reasonable responses in the circumstances. As a consequence of the foregoing, I find that the dismissal of the Complainant was not unfair within the meaning of the Act. 

I find that the Complainant was not unfairly dismissed within the meaning of the Act.

Dismissal, Proportionality