ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027287

Parties:

Complaint:

Date of Adjudication Hearing:  03/09/2021 & other dates

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 27th February 2020.  The Complainant was represented by Roderick Maguire BL instructed by Bolger White Egan & Flanagan Solicitors whilst the Respondent was represented by IBEC.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I commenced hearing this complaint in Lansdowne House on 16th September 2020 and owing to Covid-19 restrictions, resumed by remote hearing on 11th March 2021. In circumstances where there was a conflict between the Parties’ evidence, this complaint was adjourned pending the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the Supreme Court’s requirements in Zalewski 2021 IESC 24.  The hearing recommenced by remote hearing on 3rd September 2021.  On consent, the witnesses who had previously given evidence took the oath and affirmed their evidence given and all of the remaining evidence was heard under oath or affirmation.  This hearing was also held in public pursuant to Section 8(6) of the Unfair Dismissals Act 1977, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Parties were made aware that their names would be published within this decision.  All of the evidence, documentation and oral/written submissions submitted on behalf of both Parties have been fully considered herein. 

Background:

By way of background, the Complainant commenced employment with the Respondent, a retail supermarket chain in 2001.  He was dismissed on 19th September 2019 on the ground of gross misconduct for breaches of the Company Purchase and Honesty Policies.  At the time of the termination of his employment, he was employed as a Night Manager and in receipt of an annual salary of €46,725.  The Complainant seeks reinstatement and/or compensation.  The Respondent refutes the Complainant’s claim that he was unfairly dismissed and contends that he was fairly dismissed for gross misconduct pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 following a fair and impartial investigation, disciplinary and appeal process and should be dismissed.

Summary of Respondent’s Case:

In circumstances where the fact of dismissal was not in issue and hence the burden of proving that the dismissal was fair rests with the Respondent, the Respondent gave evidence first.  By way of background, it was common case that the Complainant commenced employment with the Respondent, a retail supermarket chain on 2nd March 2001 and was employed in its Portlaoise Store.  At the time of the termination of his employment, he was employed as a Night Manager, contracted to work 45 hours per week and received an annual salary of €46,725 per annum including a bonus.  His role entailed managing the Store during the night when closed to the public and included supervising staff and incoming orders.  It was common case that he had received training on all of the Respondent’s policies and procedures including its Company Purchase and Honesty Policies.  Along with other stipulations, the Company Purchase Policy required that goods be paid for at the time of purchase, prohibited staff self-service and required another member of staff to process staff purchases and refunds including over-riding till prompts on age-related products.  Specifically, the Company Honesty Policy provided that if after an investigation, an employee is found to be: “Converting or attempting to convert to your own use, or to the use of another, any cash goods, supplies or equipment regardless of monetary value, the property of the Company (or in the Company’s care) without authority, you will be subject to dismissal and/or prosecution.  Such authority is granted only by your Store Manager or above.”  Gross misconduct under the Company Disciplinary Policy included theft, breach of trust and breach of the Company Honesty Policy.

Direct Evidence of Mr A – General Manager and Investigator

Mr A, the General Manager with the Portlaoise Store gave direct evidence supplementing the Respondent’s written submissions.  He outlined his role in investigating these allegations and the holding of two investigation meetings with the Complainant on 24th July 2019 and 1st August 2019.  He outlined the operation of the Respondent’s Target software programme designed to manage and reduce shrink (loss).  It integrates CCTV and existing security to identify potential risks and provides image-based evidence to enhance the level of protection in stores.  In July 2019, the Target system reported unusual activity in the Portlaoise Store, giving rise to an investigation of the Complainant.

On 23rd July 2019, when the Complainant reported for his nightshift at 10pm, Mr A informed him that he was to be investigated in relation to allegations against him and suspended him on full pay.  He also furnished him with a letter inviting him to attend an investigation meeting the following day at 2pm.  In relation to the matters alleged, it stated (typos included): “The meeting is to obtain allegations regarding: Alleged failure to observe the register policy.  Alleged failure to observe the colleague purchases/privilege card policy.  Alleged breach of the company honesty policy.  Alleged failure to obey illegitimate instruction by your manager.”  It also informed the Complainant of his entitlement to have a representative accompany him and enclosed a copy of the Company Disciplinary Policy.  It further advised: “If you are unable to attend this meeting, please contact me immediately to give me the reasons why and to discuss the possibility of an alternative date/time.” 

Mr A maintained that the investigation meeting had been scheduled with less than the requisite 24 hours’ notice save in “exceptional, justifiable and legitimate circumstances”under the Company Disciplinary Policy as he had a free slot and knew that the Complainant would be anxious to have the matter dealt with as soon as possible and he also wanted “a positive result”.  The Complainant had not indicated any duress.  Mr A had not received a direct request from the Complainant to adjourn the meeting.  However, at around noon before the meeting, another Manager (hereinafter ‘the Notetaker’), informed him that the Complainant was seeking to adjourn but no reason was given.  Mr A had asked him to communicate back to the Complainant that the meeting was going ahead.  The Complainant had attended the meeting at 2pm.  Signed minutes were taken and typed up. 

The investigation meeting had opened with Mr A outlining the basis for same as per the letter.  He then obtained confirmation from the Complainant that he had previously been disciplined for not adhering to the Company Purchase Policy and was subject to a verbal warning which expired in September 2017.  Going forward, he had been instructed not to undertake transactions to himself between 11pm and 7am.  The Complainant said he had forgotten about the warning and admitted that he may have recently lapsed in adhering to this Policy.  Mr A said he had brought this up as he considered it very serious that having previously gone through a disciplinary process for similar, he was having to speak to the Complainant about the same issue.  There was also a high level of trust placed in him as a Night Manager (Mr A’s replacement at night) and his role included enforcing Company Policies.  He had not relied upon the warning in arriving at his investigation outcome.  The Complainant agreed that he was trained on both the Company Purchase and Honesty Policies.

Mr A then proceeded to put a number of receipts and CCTV stills relating to transactions between 26th June 2019 and 13th July 2019 to the Complainant showing him serving himself or processing a refund for himself.  This took the format of showing him a receipt containing his operator number and asking if he recalled the transaction.  Invariably, he did not recall the transaction and on one occasion replied: “no comment”.  He was then shown a corresponding CCTV still.  In response, he admitted to serving himself and/or processing a refund to himself on a number of occasions.  When Mr A had asked why he had done so, the Complainant said that he thought it was permissible to serve himself with a witness present notwithstanding that CCTV clearly showed no witness being present on some occasions.  On one occasion he had sent the staff on their break so there was no one to assist.  He agreed that he could have undertaken these transactions before the Store closed.

Receipts and CCTV stills also confirmed that the Complainant had served himself cigarettes on a number of occasions during the night, also entailing clearing an age prompt which was not permitted.  Most particularly, he was asked about non-payment for a packet of cigarettes on the night of 11th July 2019.  He was shown records confirming that there was no record of sale of that particular type of cigarettes in the Store on that date in question.  The Complainant initially replied that he could not recall but he must have paid for the cigarettes as he always does.  He would not have smoked them without paying and surmised they had been put back.  After a break, he said he remembered what had occurred and 11th July 2019 was a Thursday which would have been pay day.  He had attempted to pay on two occasions but his card was declined as funds had not reached his account.  He had left the Store with the cigarettes and could not say that he had paid for them before going on holidays.  He accepted that he had made a mistake and had known that the cigarettes were not paid for whilst in his possession.  He had forgotten to rectify this despite purchasing cigarettes the following two nights and having ample opportunity.  The meeting had adjourned at 7.20pm and had been lengthy as there was a lot of evidence to put to the Complainant.

On foot of the Complainant’s responses, Mr A investigated whether there was any evidence of the Complainant’s card being declined on the date in question.  He held a further investigation meeting with the Complainant on 1st August 2019.  The Complainant agreed that any attempted payments would have needed to be voided to allow the till to serve the next customer.  Mr A produced a list of voids with the Complainant’s operator number showing no voids for him on the night in question.  In response, he agreed that it was not true that he had attempted to pay for the cigarettes.  When asked why he had provided that explanation, he responded: “During our first meeting I struggled to recall the event.  After I’ve had time to think about it I now have a clearer picture in my head of what happened.  I remember taking the cigarettes from the machine with the intent of paying for them between 7 and 8 when my wages were in my account.  However with the business of getting the shop ready for 8, I forgot to pay for them.”  When Mr A had pressed the Complainant on his intention at the time, he denied that he had planned to take the cigarettes without paying for them.  Mr A confirmed his view expressed at the meeting that he did not accept this explanation particularly as pay often comes in later.  When asked why he had still not rectified the situation and paid for the cigarettes, he replied: “I would like to but I wasn’t sure of the rules of the Investigation.”

On 10th August 2019, Mr A furnished the Complainant with an Investigation Outcome Report at an investigation outcome meeting.  The Report set out the allegations and evidence adduced at the meetings.  Based upon same, Mr A had concluded: “I am satisfied that a policy breach did occur and that is unacceptable” and that a disciplinary hearing with a different manager was warranted.  The Complainant was also informed that given the seriousness of the issues, it would proceed on the ground of serious misconduct and that a potential outcome was dismissal.  Reflecting on his findings, Mr A said that the Complainant had misled him in the process and he expected more from a senior manager.  The alleged failure to observe the Register Policy and obey a legitimate instruction by his manager were not pursued.  Mr A said that he had no further involvement in the process thereafter.

Cross-examination of Mr A – General Manager and Investigator

Under questioning, Mr A confirmed that none of the evidence relied upon at the two investigation meetings had been furnished to the Complainant beforehand.  When it was put to him that he had been involved in the appeals process, he said this was only in the context of being interviewed for the appeal.  He confirmed that his reason for not giving the Complainant 24 hours’ notice of the investigation meeting was that he knew that he would be anxious to proceed and he could only facilitate it then as he was due to be away.  It was put to him that as he had been aware that the Complainant had sought an adjournment via the Note-taker this was not correct.  Mr A maintained that the Complainant had not contacted him directly as required by the invitation letter and he would have contacted him directly if he was serious about postponing.  He also maintained that the seriousness of the alleged misconduct for someone in a position of responsibility justified departure from the requirement of 24 hours’ notice and as such, constituted “exceptional, justifiable and legitimate circumstances”.  It was put to Mr A that the Respondent is a large retail company and the provision of 24 hours’ notice for investigations into serious matters was to enable staff to prepare.  Mr A said that he wanted to afford the Complainant the earliest opportunity to resolve the matter.  It was put to him that in so doing, he had not afforded the Complainant the procedures he was entitled to under the Company Disciplinary Policy and an opportunity to prepare for the meeting. 

When asked why he had suspended the Complainant the night beforehand, Mr A said that he was fearful of a repeat of the breaches and hence the need to remove him from the workplace.  It was put to Mr A that he had not informed the Complainant of the specific breaches so as to enable him to prepare for the investigation meeting.  Mr A said that he had not been in a position to do so as he was still gathering evidence and the purpose of the meeting was to share the allegations with the Complainant and record his responses.  The second investigation meeting had afforded him ample opportunity to respond.  It was further put to Mr A that without knowing specifically what he was accused of and how serious the matter was, the Complainant could not have known whether representation was required.  Mr A replied that the meeting clearly related to breaches of Company Policies which do not get any more serious.  The Complainant was well aware of his entitlement to representation and did not avail of same.  He had also been invited to have a witness present.

It was put to Mr A, that as a night worker, compelling the Complainant the night beforehand to attend a meeting the following day was akin to making him attend a meeting during the middle of the night and he would have been tired.  As the Complainant was required to attend this meeting under his contract, this was also akin to changing his working hours with less than 24 hours’ notice.  Mr A repeated that he had justifiable reason for shortening the notice period; that he should not have to investigate a senior manager for Policy breaches, being a ‘a big unforgiven’ in the retail trade; he had been hoping to get “a positive result” quickly and everyone back to their day jobs and looking after the customer which was more important; he had made a judgement call and “if I was wrong I was wrong”, but it had not been done it out of malice.  It was further put to Mr A that the meeting-room windows had been covered and the meeting had gone on for 5 hours and 20 minutes without any scheduled breaks.  Mr A did not recall whether the windows of the meeting-room had been covered but said that the room was well ventilated and the Complainant had been afforded three breaks.  It was put to Mr A that when the Notetaker and witness took a comfort break around 4pm, the Complainant had asked for the meeting to adjourn so he could collect his children which had not been noted.  Mr A recalled him needing to take a call outside and having to drop his car back to his partner but nothing about children and this had not been noted as the Notetaker was not present.  The Complainant had been facilitated with returning his car so the meeting could continue.  Other perceived discrepancies between the handwritten and typed minutes were put to Mr A. 

Mr A was also challenged on his reliance on the previous warning for the Complainant and the fact that it had remained on his file despite expiring in 2017.  Mr A said that the reason for revisiting the warning was because he was aware that the Complainant had been disciplined for similar and did not form the basis of his findings.  He maintained that warnings remained on the employee’s file after expiration for administrative reasons.  The recommendation of the Labour Court (LCR21928) in a dispute against the same Respondent was put to him, essentially finding that when a final written warning against an employee expired, it ceased to exist in keeping with the Disciplinary Procedure.  Therefore, reference to an expired warning within a subsequent investigation could not be correct. 

It was further put to Mr A that it was unfair that the specifics of the allegations were not outlined at the outset of the investigation meeting on 24th July 2019 and instead he was presented with evidence.  Mr A was asked whether he had considered giving the Complainant time to consider the allegations when he had repeatedly responded that he could not remember.  Mr A maintained that the Complainant gave very specific detail on some aspects and had ample opportunity to respond.  He had been afforded a second meeting required to confirm information which turned out not to be true.  His change of story about trying to pay for the cigarettes formed part of the evidence.  It was put to Mr A that none of the positive findings in the Complainant’s favour were included in the Investigation Outcome Report and the finding made did not detail the Policy breaches being upheld.  It was further put to Mr A that the Complainant had asked him about a return to day work owing to his family commitments and Mr A had offered to shake hands on a lesser role on an hourly rate.  Whilst Mr A agreed they had discussions around a change of work hours nothing had been agreed. 

The Complainant’s position was put to Mr A, being that whilst he accepted that he had breached the Policies in terms of serving himself and overriding age prompts, he had intended to pay for the cigarettes in question.  Mr A denied that the Complainant had not been afforded an opportunity to rectify the situation.  When asked what he meant by “a positive result”, he said he had hoped that that there was a reasonable explanation and an apology for the Complainant’s conduct.  However, he would still have sent the matter forward for disciplinary based on the breaches of Policies alone.  He did not accept that the Complainant had unfairly been put on the spot by the approach adopted.  Under re-examination, Mr A confirmed that there was nothing else going on in the background.

Direct Evidence of Mr B – A Second Store Manager – Disciplinary Process

Mr B, a Second Store Manager was appointed to deal with the Disciplinary process and gave evidence outlining his role.  He confirmed that he had a lengthy service with the Company and experience of dealing with disciplinary matters.  He also confirmed that by letter dated 12th August 2019, the Complainant was invited to attend a disciplinary meeting on 15th August 2019.  He chose not to have a representative accompany him and minutes were taken.  Mr B read through the Investigation Outcome Report and asked the Complainant whether he had any comments to make.  The Complainant had read out a pre-prepared statement outlining mitigation including his lengthy service and the fact that he had forgotten to pay for the cigarettes.  In particular, he admitted to serving himself on a number of occasions in breach of the Company Purchase Policy stating: “I understand these policies are in place to protect the stock and our colleagues.  I realise it was arrogant of me to assume that these policies did not apply to me and they could be breached as they were.  I wholeheartedly apologise for this.  It was stupid carry-on.”  Regarding taking the cigarettes without payment, he stated: “I want to say that I honestly regret that this occurred.  I truly could not remember that this happened.  I immediately denied it when questioned on it, this was because I would NEVER do anything like that.  It was only when I began to think about it that I remembered what had happened.  This has only occurred this one time.  I will never do it again.  I can only explain my actions in that I was extremely tired and made a poor judgment.  I was fully committed in my mind to paying for the item after work but when the time came I was rushing out the door to drive my partner to work and kids to creche.  And after that I had completely forgotten about the whole thing.  There was a lot going on that week outside of work and I was extremely busy…  My actions were completely out of character and will be 100 percent improved upon.”  He also outlined his lengthy service, pride in his work with the Respondent and the significant financial consequences and hardship his family would have to endure in the event of his employment ceasing.  Mr B noted that this was his first sign of remorse and would be taken into account when making his decision. 

Mr B then proceeded to ask the Complainant about signing off on the Company Purchase Policy retraining after his breach of that Policy in 2017 and to recount what had led to his warning.  Mr B then asked the Complainant why therefore had he knowingly breached the Company Purchase Policy.  The Complainant responded: “2 months ago we stopped making purchases through self-scan at night requested by Mr A.  He requested we serve ourselves at break time through main bank checkout, as we entered this transition period there were many nights where I was unorganised in my work to arrange that I purchase my products at break time, only reason I gave to Mr A is organisation, forgetfulness and those are the reasons why I didn’t follow the rule on most occasions.” 

Mr B had then put the breach of the Company Honesty Policy in relation to taking the cigarettes (valued at €11) without paying for them to the Complainant stating: “You took cigarettes knowing you didn’t have money to pay for them.  What would you call that?” to which the Complainant responded “Theft”.  Regarding why he had taken the cigarettes without payment, the Complainant reiterated: “When Mr A put it to me in the first meeting that cigarettes were missing I struggled to recall the incident, me genuinely struggling to recall the incident.  All I could say was it was a genuine forgetful moment for me.  I remember subsequently to the meeting because I had time to think.  I would experience a small bit of forgetful moments at home.  I feel this is due to working nights and sometimes not getting enough sleep.  I have no evidence to back this up or medical report that is just something that occurs to me.  In saying that I understand at same time it is my responsibility I get a good night’s sleep and I’m fit for work.”  Mr B had put it to the Complainant that going behind the counter and taking cigarettes in the knowledge that he did not have the money to pay for them was not forgetfulness.  He also questioned him about his honesty within the investigation process and the discrepancies between his initial explanation for the matters put to him and his subsequent explanation given to Mr A.  In response, the Complainant stated: “When I came to work after my holidays, Mr A was here to meet me and inform me that I was on suspension pending investigation.  He invited me to a meeting the following day.  I had no idea what this was in regard to.  The first investigation meeting occurred 14 hours after I was notified there was a meeting, when the allegations were first put to me I genuinely could not recall most of it and when he supplied evidence I started to remember.”  When asked if there was anything he would like to challenge, the Complainant said it had been put to him in the investigation meetings that he still had not paid for the cigarettes.  He wanted to pay for the cigarettes but was unsure of the rules.  Mr B responded: “No, it’s not within the remit to do that.”  The Complainant reiterated his remorse and mitigation.

The Complainant attended the disciplinary outcome meeting with Mr B on 19th September 2019 where he was furnished with a letter and verbally informed of the outcome by Mr B.  It was confirmed that further to the investigation outcome finding that his actions on various dates were in breach of the Company Purchase and Honesty Policies, there had been grounds to move onto a disciplinary hearing for serious misconduct.  Having given very careful consideration to all of the issues arising, Mr B found: “…I am satisfied based on the facts that have been established into your own conduct and behaviour, that your conduct and behaviour is totally unacceptable to the Company.  Furthermore arising from this, the bond of trust placed in you by the Company has been broken to such an extent that it is beyond restoration.  In view of this, I am satisfied that the appropriate disciplinary sanction in this case is to dismiss you from your employment, effective immediately, on the grounds of serious misconduct.”  The Complainant was advised of his right to appeal.  Reflecting on his decision to dismiss the Complainant, Mr B said that once an employee had taken something without paying for it, you could not trust that person to continue working for you.  He confirmed that he had not taken the previous warning into consideration in making this decision.

Cross-examination of Mr B – A Second Store Manager – Disciplinary Process

Mr B was asked whether he had looked at the written and typed minutes from the first investigation meetings closely enough to notice the differences regarding the taking of breaks and there being more information contained in the typed version.  Mr B said that he had not noticed any difference.  He was unaware that the Complainant had sought to adjourn the first meeting.  He had not noticed or considered the fact that the meeting had taken place less than 24 hours after notification and suspension.  He agreed that dismissing someone was a very serious matter.  However, at no stage had the Complainant informed him that he had any difficulty attending the meeting.  It was put to Mr B that the onus was on the Respondent to ensure compliance with its disciplinary procedures.  It was further put to Mr B that the minutes noted that the Complainant had raised a concern about attending an appointment at 5pm.  Mr B responded that this had been resolved at the meeting.  He agreed that the meeting was very lengthy lasting from 2pm until 7.20pm as a lot had been discussed.  Mr B said he had not thought anything of the fact that the Complainant was a night worker at a day meeting and had not considered whether the first investigation meeting should have been adjourned.  He also agreed that the Complainant had difficulty remembering things and had proffered tiredness from night-working as an explanation for forgetting to pay for the cigarettes. 

It was put to Mr B that he had wrongly brought up the 2017 verbal warning during his meeting with the Complainant.  Mr B said he had asked the Complainant about his training and he had brought this up.  He had noted that the Complainant had no live warnings.  He confirmed that he had made his decision to dismiss the Complainant based upon the fact that he admitted to breaching the Company Purchase and Honesty Policies.  It was put to Mr B that this was not clear from his letter of dismissal.  Mr B confirmed that he had taken the difference between the Complainant’s explanations given in relation to taking the cigarettes without payment at the first and second meetings into consideration as another layer of dishonesty in breach of the Honesty Policy.  He did not believe that Mr B had forgotten to pay for the cigarettes given his varying explanations between the meetings.  Accordingly, he considered that the Complainant’s actions amounted to theft although he had not explicitly stated this in his letter of dismissal.  It was put to Mr B that there is a big difference between taking something accidentally and taking something intentionally.  Mr B replied that this finding had been made on the balance of probabilities.  It was further put to Mr B that findings made in the Complainant’s favour had not been considered.  Mr B responded that these were just matters discussed at the investigation meeting.  Although not stated, Mr B confirmed that he had considered all alternative sanctions to dismissal.  Demotion to a role with less responsibility that did not entail handling the tills was available but was not an option given that the bond of trust was broken.  Under re-examination, Mr B confirmed that the Complainant had not raised any procedural issues.

Direct Evidence of Mr C – A Third Store Manager – Appeals Process

The Complainant availed of the internal appeals mechanism.  Mr C, a Third Store Manager (unknown to the Complainant) was appointed to conduct the appeal meeting which took place on 21st October 2019 with the Complainant who opted to attend without representation.  The Complainant had appealed on the basis that the sanction of dismissal was too harsh and a written warning or demotion would have been fairer given his length of service with relatively few disciplinary issues.  Mr C confirmed that he had gone through the seven areas of appeal in his letter of appeal.  Following the meeting, he had followed up in relation to some of the issues raised entailing the checking of records and speaking to Mr A before issuing the appeal outcome on 28th November 2019.  Firstly, the Complainant had contended that he was given just 14 hours’ notice of the investigation meeting and having sought clarification as to what the allegations were, was told by Mr A that he could not say at that point and he must wait until the meeting.  The following morning he had experienced difficulty arranging alternative childcare for the afternoon and had sought an adjournment from the Notetaker.  He was told he had to come up with a childcare solution and attend the meeting which he did but felt under duress.  In relation to this area of appeal, Mr C found that whilst the short notice was not ideal, the Complainant had not raised this as an issue at the time.  In direct evidence, Mr C elaborated that the Complainant had not made direct contact with Mr A as required by the invitation letter.  He had also been able to resolve his childcare issues and attend the meeting on the day.  The Complainant had also taken issue with the fact that Mr A had refused to adjourn the investigation meeting to enable him to collect his children at 5pm.  Having interviewed Mr A, Mr C had found that the Complainant had not asked for the meeting to be adjourned as contended but had requested a number of breaks which had been facilitated. 

Regarding the appeal ground that the investigation meeting was too long (5 hours and 20 minutes) and had put him under duress, Mr C found that the length of the meeting was due to the volume of evidence that had to be put to him to ensure a fair process; that he had never indicated to Mr A that he was under duress; that he was obliged to participate in the investigation based on his own actions; that he was afforded representation which he had declined and he had been given every opportunity to respond to the allegations.  The Complainant had also submitted that when he had breached the Company Honesty Policy, he had worked 8 or 9 nights straight and his judgement might have been off due to tiredness which should have been considered when deciding his fate.  Mr C looked into his records and found that he had never worked 9 nights in a row.  Further, he found that he had not raised this as an issue for consideration by either Mr A or Mr B.  In direct evidence, he said that he had found one instance of the Complainant working 8 nights in a row.

In relation to the Complainant’s ground of appeal that he had subsequently offered to pay for the cigarettes he had taken, Mr C found that it was not correct process to offer to pay for the cigarettes after being made aware of the allegations and suspended.  He further found that products must be paid for at the time of purchase and he had failed to do so on this occasion.  The Complainant had also submitted that he was unhappy with the way Mr A had posed some of the questions at the investigation meeting.  He had used the phrase “I put it to you…” and expressed disbelief at the explanation given by the Complainant.  Mr C found that the right questions had been asked by Mr A to come to a finding of fact about the allegations.  The Complainant also contended that working nights had had a negative impact on his life and his health and had requested a return to day shifts but was told that there were no positions available.  Mr C found that this had no bearing on his appeal.  Finally, the Complainant submitted that he had requested a positive employment reference but had not received one, without which there was no future for him in the workplace.  Mr C found that a statement of employment in line with Company policy had been sent to the Complainant.

Consequently, Mr C had upheld the Complainant’s dismissal concluding: “Your actions were a serious breach of Company policy and the manner in which you did so are of serious concern.  I also find that you misled the investigation by giving false responses that were later confirmed through evidence provided by the investigation officer.  Through your actions, the bond of trust that needs to exist between an employee and an employer has been broken beyond restoration.”  In direct evidence, Mr C emphasised the fact that as a Night Manager, the Complainant was on a bigger salary than a Day Manager and entrusted to manage the Store during the night like a Store Manager would during the day including enforcing Company Policies and minding the stock and he had breached their trust.

Cross-examination of Mr C – A Third Store Manager – Appeals Process

A list of alleged breaches of procedures were put to Mr C.  He was asked why the appeals process had taken so long when there had been an apparent urgency with the investigation process.  Mr C responded that he had required time to follow-up.  When asked about the fact that the Complainant had been afforded less than 24 hours’ notice of the investigation meeting, Mr C said that from experience it was better for employees to have disciplinary matters dealt with as quickly as possible.  It was put to Mr C that he had taken Mr A’s word that the Complainant had not sought an adjournment of the meeting over that of the Complainant without reverting back to him.  His finding that the Complainant had worked 8 nights in a row had been omitted along with anything favourable.  When asked to explain his view that the Complainant had misled the investigation, Mr C said that he should not have been serving himself in the first place and goods should not be removed from the shop floor without payment.  Mr C also refused to accept that the Complainant had simply been mistaken in relation to the differences in explanation given and also maintained a view that the Complainant had wilfully taken the cigarettes without payment.  Finally, Mr C confirmed that his reference to ‘XX’ instead of the cigarettes was a typo and he had intended to insert the brand.

Respondent’s Submissions

In written submissions on behalf of the Respondent, it was pointed out that suspension itself is not a disciplinary sanction.  It was submitted that the Respondent places trust in staff to do the right thing for customers and the business.  As a business that involves handling cash, it is important that this trust is maintained throughout the employment relationship and particularly in relation to someone in management.  The Complainant was the Night Manager and the only manager responsible for the Store at the time.  His actions which were not denied had caused a breach of the trust which the Respondent had placed in him.  In relation to the breach of the Company Honesty Policy, he had selected a packet of cigarettes in the knowledge that he did not have the money to pay for them.  Therefore, his excuse that he had forgotten to pay for them could not be contemplated when coming to a decision on a disciplinary sanction.  Having considered all of the facts, his responses and explanations were not considered reasonable or sufficient such as to mitigate the extreme seriousness of his actions.  His actions amounted to gross misconduct whereby he was in breach of the Company Purchase and Honesty Policies on a number of occasions.  He was properly dismissed by reason of his own actions.  Accordingly, the Complainant was dismissed in accordance with Section 6(4) of the Unfair Dismissals Act 1977-2015 which provides that dismissal shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. 

It was submitted that when considering what sanction should apply, the Respondent had regard to the seriousness of the breaches of the Company Policies and the Complainant’s representations regarding same.  In this respect, the principles to be applied in cases of gross misconduct have been clearly established and the test is set out in Looney & Co. Ltd -v- Looney, UD 843/1984 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 is to be judged.”  Accordingly, a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of this case.  As such, the Respondent’s decision to dismiss the Complainant was reasonable and fair in all of the circumstances.

It was submitted that the Complainant’s actions had destroyed the Respondent’s trust and confidence in him and rendered continuation of the employment relationship untenable thereby justifying dismissal.  This position has been upheld by the Employment Appeals Tribunal in a number of cases including Knox Hotel and Resort Ltd UD 27/2004 wherein it stated: “[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, it was submitted that the Complainant had been afforded all of the benefits of fair procedures in line with the Company’s Disciplinary Policy, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) and the universal principles of natural justice.  In particular, the Complainant had been informed in advance as to the nature of the allegations against him.  The investigation is the process by which those allegations are put to an employee.  The Complainant was afforded the right to representation.  He was further provided with a number of fair and impartial hearings (two investigation meetings, a disciplinary meeting and an appeal meeting), wherein he was given every opportunity to respond to the allegations against him.  All of the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken.  In light of the above, the Respondent maintains that the dismissal of the Complainant was procedurally fair in all respects.  In the event that this Adjudication Officer disagrees, the Respondent places reliance on CUH -v- O’Reilly UD 18/198, wherein the Labour Court took the view that procedural flaws in the investigation process were not fatal to the overall disciplinary process as the disciplinary officer had made the decision to dismiss. 

Finally, it was submitted that reinstatement of the Complainant would be inappropriate when the bond of trust had been broken.  Furthermore, as the actions of the Complainant had contributed wholly to his dismissal, he is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015 and this complaint should be dismissed.  This position has been adopted by the Employment Appeals Tribunal in a number of cases including in Murray -v- Meath County Council, UD 43/1978 where it saw it appropriate not to award any redress in light of the claimant’s inappropriate actions.

Summary of Complainant’s Case:

Complainant’s Direct Evidence

The Complainant gave direct evidence supplementing detailed written submissions on his behalf.  He confirmed that he had commenced employment with the Respondent on 2nd March 2001 and progressed to Night Manager in 2015.  All was well at the start but night work began to have an adverse impact on his personal life.  He was struggling with tiredness and always in a rush to have the Store ready for opening.  In 2016, he had discussed a return to day work with Mr A who suggested that he could take a step back from management on an hourly rate.  As he had worked so hard to get to a managerial level this was not an option for the Complainant.  He worked a 45 hour week, 5 nights a week and his rostered hours of work were from 10pm-8am including an hour’s break and a 15 minute break.  He was contracted to work one Sunday in every four Sundays but in fact was rostered for more than his contracted Sundays.  He also confirmed that based upon Store needs he occasionally worked up to 8 nights in a row at times including between 18th-26th June 2019. 

Regarding the circumstances giving rise to his dismissal, the Complainant was referred to the CCTV stills of the incidents of him serving himself on 26th, 29th & 30th June 2019 and 3rd, 4th, 11th, 12th & 13th July 2019.  He pointed out that a colleague was standing nearby as a witness to these transactions in some instances.  He confirmed that he had to go to the Customer Service desk to obtain the cigarettes from a vending machine before proceeding to an open checkout to pay for them.  This also entailed an age-prompt override.  He agreed that the Company Purchase Policy did not permit staff to serve themselves at night.  Previously, self-scan machines had been left open for staff to serve themselves.  This should have been supervised but there had been a culture of self-service by staff during the night.  This had changed under Mr A’s management of the Store in 2017 and he had enforced the Policy.  The Complainant acknowledged that he should not have been serving himself.

The Complainant recalled the night of 23rd July 2019 when he attended for work and was met by Mr A (and the Notetaker) who informed him that he was under investigation for alleged breaches of four Policies and being placed on suspension until further notice.  He was told to attend a meeting the following day at 2pm and told to leave.  He confirmed he would normally be sleeping at that time.  He took some personal belongings and left in “a bit of a haze”.  He picked up a coffee and stayed up talking to his partner pondering what was alleged against him and hence did not get much sleep.  They had also discussed childcare difficulties and agreed that he would seek an adjournment.  He rang the Notetaker and sought an adjournment.  The Notetaker called him back and said that he had spoken to Mr A who had informed him that the meeting was going ahead at 2pm so he had to make alternative childcare arrangements.  He was not given a reason as to why the meeting had to go ahead.  When he arrived at the meeting, Mr A and the Notetaker asked him if he had a witness.  Mr A said: “this is serious stuff, you’re going to need a witness”.  The Complainant asked a Manager from the shop floor to be his witness.  The Manager agreed to do so and asked the Complainant what the meeting was about.  He replied that he did not know just that he was suspended. 

The Complainant was brought through the minutes of the investigation meeting and confirmed that he had not been told what the specific breaches of the Policies were at the outset of the meeting and this information was revealed to him during the course of the meeting.  He recalled that the windows in the meeting room were blacked out and the meeting lasted for 5 hours and 20 minutes.  He accepted that he had a verbal warning from 2017 for serving himself including clearing age-prompts.  As this had expired it should not have been on his file.  This warning was put to him at the meeting.  He outlined the hierarchy of warnings used by the Respondent.  Regarding his responses to the effect that he could not remember the various instances of self-service being put to him by Mr A, he recalled that he had been extremely tired throughout the meeting.  Regarding the incident of the non-payment for a packet of cigarettes on 11th July 2019, he said he had forgotten to pay for them.  He recalled the night’s events.  He had been low on cigarettes when he went into work but thought that he had a few left.  About 3.30am he went to have a cigarette and realised he had none left.  Owing to poor judgment on his part, he decided to take a packet of cigarettes and pay for them at 7am when the Store opens.  He was also due his monthly pay by 7am as it was a pay day.  He took a packet of cigarettes from the vending machine, smoked one and kept them on his person for the remainder of his shift.  When 7am arrived, he was under pressure to get the Store ready for opening and leave by 8am to drop his partner to work and children to creche.  With being so busy and tired he said that he had “clean forgot” to pay and “one hundred percent” had intended to pay for them. 

The Complainant was brought through the minutes of the first investigation meeting and asked about his state of mind.  He recalled seeking an adjournment of the meeting at 4pm to collect his children from the creche at 5pm (whilst the Notetaker and witness took a comfort break).  He said he had not expected the meeting to go on for so long.  Mr A had refused the adjournment stating that there was much more to go and the Complainant should have cleared his day like he had.  Mr A permitted him to call his partner to make alternative arrangements.  He arranged to drop his car back to his partner’s workplace in convoy with his witness who then drove him back to the meeting.  It was four and a half hours into the meeting when he was first asked about non-payment for the cigarettes, being the first allegation put to him.  He had no recollection of this and took a five minute break to gather his thoughts and check his calendar.  He could see that 11th July 2019 had been a pay day and thought that he must have tried to pay for them but the funds were not yet in his account.  This materialised not to be correct with confirmation of no voids on the date in question as put to him in the investigation meeting of 1st August 2019.  He had acknowledged this in subsequent meetings.  When Mr A had put it to the Complainant that he still had not paid for the cigarettes or rectified the situation and he had responded that he would like to but was unsure of the rules during the investigation, Mr A did not tell him how he could do so and simply ended the meeting.  He recalled the investigation outcome meeting of 10th August 2019 when Mr A had furnished him with an Investigation Outcome Report.  He confirmed that the Report did not address any findings made in his favour and simply found that a policy breach had occurred without going into any specifics.

The Complainant also recalled his disciplinary meeting with Mr B on 12th August 2019 wherein he had submitted a pre-prepared statement and was brought through the minutes of the meeting.  He confirmed receipt of the outcome letter dismissing him based on two findings i.e. that his actions were a serious breach of Company Policy and he had misled the investigation by giving false responses.  He had submitted a written appeal against this decision to Mr C and had attended a meeting with him.  He had been unaware that Mr C had spoken to Mr A after their meeting.  Mr A had given direct evidence that he was aware that the Complainant had sought an adjournment via the Notetaker yet Mr C had accepted his word and found that no request for an adjournment had been sought.  Having rejected his grounds of appeal, Mr C had upheld the Complainant’s dismissal.

The Complainant also gave evidence of his ongoing and future losses as a consequence of his dismissal and efforts to mitigate same with reference to vouching documentation submitted.  He had not received any reference from the Respondent just a standard letter confirming his employment.  He had experienced financial hardship and had been unable to pay his rent, utility and other bills.  Initially, from October 2019-January 2020, he worked in a butcher’s shop at €200 per week, being a large shortfall on his salary with the Respondent.  When this employment terminated he was in receipt of Job Seeker’s Benefit.  In July 2020 he undertook a course to qualify as a Manufacturing Technician during which time he received an allowance and worked the permitted hours in an off-licence.  In September 2021, he completed the course and secured employment as an Electrical Engineer on €40,000 per annum.  Combining his actual losses with future losses claimed owing to the shortfall in his salary, his losses were approaching the 24 months’ remuneration ceiling.

Cross-examination of the Complainant

The Complainant confirmed that he was responsible for supervising up to ten staff on any night.  When asked what he would do if any of his staff had served themselves or taken something without paying, he said he would bring this to the attention of senior management and an investigation process would ensue.  He agreed that a warning deactivates and cannot be used against an employee rather than being physically removed from their file.  When asked why he had not contacted Mr A directly to seek an adjournment of the investigation meeting, he said he knew the Notetaker so had rang him and the number provided had been the General Store number.  It was put to him that he had given different responses to taking the cigarettes without paying.  He said that this allegation had not been put to him clearly and had come four and a half hours into the meeting.  He had tried to recollect the incident and surmised that he must have attempted to pay.  When asked why he had taken the cigarettes in the knowledge that he did not have the money to pay for them, he said he was tired and had made a poor judgment call and this was a mistake.  He had told himself that paying for them in the morning was the same as paying for them at the time but of course it was not.  Regarding the incidents of self-service, he was asked why he had not asked a colleague to serve him.  He said he had become lax regarding the rules as he was the only manager on at the time and had told himself that it was okay as nothing improper was occurring.  He had come into a culture of self-service during the night, received a warning and improved for a period before slipping.  He accepted that it was wrong.  Regarding the process, he was told that he was being investigated for breaches of Policies.  He agreed that the allegations had been put to him at the two investigation meetings and he had the opportunity to respond.  He had been trying to be compliant and answer the questions put and did not question the process at the time.  He also agreed that he had the opportunity to put his position across at the disciplinary hearing and appeal.

Under re-examination, the Complainant confirmed that he thought by ringing the General Store number to seek an adjournment via the Notetaker, that he was getting an answer from Mr A.  He also confirmed that he had not received any specifics of the allegations before the investigation meeting.  He confirmed to this Adjudication Officer that age-prompts should be cleared by another member of staff and the rule against self-service was to protect staff and stock.  He also agreed that a culture of casualness in terms of protocol can be a slippery slope to forgetting to pay for goods.  Finally, the Complainant stated that in hindsight, he regretted everything that had occurred.

Complainant’s Submissions

A written submission on behalf of the Complainant was supplemented with oral submissions.  It was submitted that there is both a fundamental procedural and substantive unfairness in relation to the treatment of the Complainant.  The Complainant was a long-standing employee of the Respondent with over 18 years’ service who had worked his way up and achieved a managerial role.  He was given a warning in 2017 that had expired.  As a Night Manager, he had worked long hours at night, sometimes up to 8 nights in a row and in excess of his contracted Sundays and had requested a change.  He had forgotten to pay for a packet of cigarettes which he had intended to pay for and this was not theft.  He was suspended and subjected to an entirely unfair process in breach of the legislation and the Respondent’s Disciplinary Policy.  His employment was terminated for unclear reasons and was disproportionate as well as being procedurally unfair.  Accordingly, he should be reinstated to his position with the Respondent and/or with compensation in respect of his losses.

It was submitted that the evidence adduced showed that the Respondent had breached the requirements of due process and their own Disciplinary Policy in the following respects:

1. By suspending the Complainant pending investigation: The Courts have noted the serious nature of a holding / suspension regardless of whether for the purposes of an investigation or sanction.  The circumstances in the instant case did not meet the criteria set out in Bank of Ireland -v- Reilly (2015) IEHC 241 and particularly the danger of repetition as no details of the allegations had been provided.
2. By providing inadequate notice of the first investigation meeting and failure to adjourn same: The Complainant was not afforded the benefit of the Company Disciplinary Policy providing: “You will usually receive a letter inviting you to an investigation meeting giving you 24 hours’ notice and a copy of this policy.  In exceptional, justifiable and legitimate circumstances we may ask you questions with less than 24 hours’ notice, which will later form part of the investigation e.g.: If a search finds you in possession of property which we reasonably believe you intended to steal; or due to an accident we may carry out drugs/alcohol testing.”  It was submitted that this case did not fall within the realm of “exceptional, justifiable and legitimate circumstances” for giving less than 24 hours’ notice of an investigation meeting and the examples given were of a completely different nature.  The reason given for only allowing 14 hours’ notice was Mr A’s view that the Complainant would be anxious to deal with the matter notwithstanding that he had sought an adjournment and it suited his schedule.  This was also akin to requiring a day worker to attend a meeting during the night. 

It was further submitted that Mr A’s refusal to grant the Complainant’s request for an adjournment of the investigation meeting via the Notetaker owing to his difficulty arranging childcare was unreasonable.  In this respect, it was noted that the Disciplinary Policy expressly provided for adjournments of up to 7 days to enable an employee to avail of representation and yet it was not granted when requested here.  It was further noted that had the Complainant not turned up, he would have been considered as “absent without authorisation” under the Disciplinary Policy.

The Organisation of Working Time Act 1997 was also breached.  By requiring the Complainant to attend the investigation meeting with 14 hours’ notice, he was required to report for work with less than 24 hours’ notice as required by the Act, constituting an impermissible change of work hours.

3. By failing to give any notice of the actual allegations against the Complainant before or during the investigation meeting: The Complainant was not told the basis for the investigation or made aware of what he was accused of and the letter inviting him to attend an investigation meeting stated: “The meeting is to obtain allegations regarding: Alleged failure to observe the register policy.  Alleged failure to observe the colleague purchases/privilege card policy.  Alleged breach of the company honesty policy.  Alleged failure to obey illegitimate instruction by your manager.”  There was no dates given or indication of when these breaches occurred or what the specific breaches were.  The reason for giving an employee notice of the allegations being made is so that they can prepare to answer questions regarding same.  The alleged “failure to obey illegitimate instruction by your manager” was in fact a reference to a spent warning which never should have been considered. Without knowledge of the matters he was accused of, the Complainant could not know the level of their seriousness in order to avail of representation and hence he was denied such opportunity.
4. By the aggressive interrogation of the Complainant during the investigation meeting such that the meeting was not impartial: The first investigation meeting of 24th July 2019 was conducted in an oppressive manner without the reason for the meeting being made clear for the significant amount of time required, with impermissible matters put to the Complainant and without adequate breaks.  Specifically, the meeting took place in a windowless room with only a few short breaks.  It was also conducted as an aggressive interrogation contrary to the principles set out in Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137.  The specific allegations were never explicitly put to the Complainant at the meeting.  The nebulous allegations were repeated at the outset and the Complainant was asked a series of questions in relation to his actions.  As the meeting progressed, it was clear from his responses that he was having increasing difficulty recalling certain matters at issue.  The Complainant had requested an adjournment of the meeting at 4pm so that he could collect his children from childcare.  This was refused and instead he was permitted to drop his car to his partner.  The meeting concluded at 7.20pm and was over five hours in length.  Furthermore, the Complainant was not afforded a full opportunity to explain his point of view and any mitigating circumstances as provided for by the Disciplinary Policy and also in breach of S.I. 146 of 2000. 

There was no necessity to refuse the request for the adjournment of the first investigation meeting or for it to last over five hours when it was ultimately adjourned by Mr A and not resumed for 13 days.  Furthermore, the decision was not given until 10th August 2019, the disciplinary hearing did not take place until 15th August 2019 and a decision was not given until 19th September 2019.

5. By considering an expired verbal warning in the course of the investigation meeting: The first issue raised at the investigation hearing on 24th July 2019 was an expired verbal warning from 2017 that should not have been on the Complainant’s file some 24 months later when the Disciplinary Policy specifically provided that: “a verbal warning remains live on your record for 3 months.”  It was submitted that the Respondent had a history of considering spent warnings in relation to its staff as evident from Tesco Ireland Ltd -v- A Worker CD/18/195, Tesco Ireland Ltd -v- A Worker CD/18/199, Tesco Ireland Ltd -v- A Worker CD/18/338 & Tesco Ireland Ltd -v- A Worker CD/18/339, wherein the Labour Court had found that spent warnings had wrongly been retained and/or relied upon.
6. By making nebulous, inconclusive and inaccurate findings in the Investigation Outcome Report: Mr A made conclusions showing that he had pre-judged matters including stating during the investigation meetings that he did not believe that the Complainant had forgotten to pay for the cigarettes and did not accept that he had not intended to take cigarettes from work without paying.  He had made such conclusions known before hearing all of the evidence and affording a fair hearing.  Numerous complaints were made in relation to the manner in which the allegations were put and findings made at all stages of the process.  In particular, the first time that specific allegations with dates were set out was in the Investigation Outcome Report and there was no findings in relation to any of the allegations which were unsubstantiated and/or in favour of the Complainant.  It was further submitted that the findings did not accurately reflect the evidence recorded.  Mr A had concluded: “I am satisfied that a policy breach did occur and that is unacceptable.” and “matters should go forward as grounds to be considered at a disciplinary hearing” without stating what breach had occurred and what matters were to be further considered at the disciplinary hearing.
7. By making an inaccurate transcription of the meeting notes when typed-up: The typed-up version of the minutes of the first investigation meeting merely record that the Complainant had to make a phone-call as opposed to needing to leave the meeting to collect his children.  Presumably, the typed-up notes were circulated to the other decision-makers providing an inaccurate account.
8. By conducting the disciplinary meeting improperly and again considering a spent matter: The letter inviting the Complainant to the disciplinary meeting was on the basis of “unsatisfactory conduct details” in the Investigation Outcome Report and not on the basis of a particular Policy breach, contrary to what Mr B had concluded.  It was also based on “what was discussed at the ultimate investigation meeting” without being clear as to what this was.  The Complainant was again questioned about the spent verbal warning by Mr B despite no investigation finding in this respect.
9. By considering in the disciplinary meeting, the Complainant’s responses from the defective investigation meeting: Mr B considered that there should have been remorse and admittance of wrongdoing by the Complainant during the investigation meetings, the first of which had been procedurally defective.  He further considered that there was dishonesty on the part of the Complainant arising from his responses to matters put to him at the first investigation meeting.
10. By not giving reasons relating to any factual matters for the Complainant’s dismissal, not considering alternative sanctions and making a disproportionate decision to dismiss: Mr B stated in his dismissal letter of 19th September 2019 that the disciplinary hearing “was called following the outcome of the investigation, where it was found that your actions on 26th, and 29th July, 3rd, 4th, 11th, 12th and 13th July 2019 were contrary to the behaviour that is expected of you and is a serious breach of our policies giving rise to the following:  Breach of the company honesty policy.  Breach of the colleague purchases policy.”  No such conclusion was made.  The only conclusion from the Investigation was that “a policy breach did occur and that this is unacceptable.”  There was no consideration of any alternative sanction and the Complainant’s dismissal was disproportionate. 
11. Did not provide a proper appeal process in breach of its own Policy and S.I. 146 of 2000: The appeal was not conducted as a hearing and instead, on the basis of the Complainant’s written submission, Mr C had made enquiries and drawn conclusions without affording him a right of reply.  Specifically, the following complaints were made in relation to the appeal process adopted herein:

(a)         Unspecified evidence was considered from Mr A (no minutes were provided) without allowing the Complainant to respond or know what was said and formed Mr C’s findings;

(b)         No account was taken of the notice requirements in the Respondent’s own Policy;

(c)          No account was taken of the Complainant’s request for an adjournment on the day of the first investigation meeting and an incorrect finding was made that there was no request;

(d)         Evidence in relation to the Complainant’s long working hours and tiredness was not considered on the basis that he had the opportunity to raise it throughout the process;

(e)         The packet of cigarettes was referred to ‘XX’ and hence was not properly considered;

(f)          No adequate information was provided as to what evidence had been considered.

12. The appeal findings relied upon the findings made against the Complainant following the initial defective investigation meeting when upholding his dismissal: In particular, it was concluded that the Complainant’s actions were a “serious breach of company policy” without any specific findings and he had “misled the investigation by giving false responses that were later confirmed through evidence provided by the investigation officer” without any consideration of the meeting defects.

No consideration was given to the fact that the Complainant was required to work up to 8 days in a row including from 18th-26th June 2019, required to work more than 8 hours per night and required to work Sunday hours without remuneration (by rostering him more than his contracted Sundays).  Whilst specific complaints were not referred, this was relevant to his level of tiredness when the allegations arose and during the first investigation meeting when he had struggled to recall matters.

Overall, it was submitted that the Respondent had failed to provide proper reasoning in circumstances where differing and conflicting findings were made, and in all the circumstances the Complainant’s dismissal was unfair and disproportionate.  Section 6 of the Unfair Dismissals Acts 1977-2015 imposes the burden of proof on the employer to show that the dismissal was fair.  Section 6(7) provides for the Adjudication Officer to have regard to the reasonableness of the employer’s conduct, the extent of compliance with Section 14(1) of the Act and any Codes of Practice made thereunder.  In JVC Europe Ltd -v- Panisi [2011] IEHC 279 (para 14), the High Court summarised these provisions: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.”  Reliance is also placed on the High Court’s consideration of Section 6 in Bank of Ireland -v- Reilly (2015) IEHC 241 and conclusion that “the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”  The decision to dismiss herein was not within the range of reasonable responses and in particular, the implicit finding in relation to the Complainant’s honesty was not fair or reasonable. 

It was further submitted that the Complainant was denied his contractual, constitutional and statutory entitlement to fair procedures as per the Supreme Court in Re: Haughey (1971) IR 217.  Additionally, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.  In particular, the Complainant was not given adequate notice and adequate rest in advance of the first investigation meeting and was not afforded an opportunity to rebut matters considered or cross-examine in relation to evidence adduced at the appeal stage. 

In relation to weighing the fairness of procedures and the substantive issues leading to the dismissal, both should be considered together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17 where Browne-Wilkinson L.J. held that: “The correct approach is to consider together all the circumstances of the case, both substantive and procedural and reach a conclusion in all the circumstances.” 

In Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, the High Court also set out the list of ‘premises’ which must be established by an employer to support a decision to terminate for misconduct (which are set out in the findings below).  In this respect, it was submitted that the Complainant was not afforded fair procedures for all of the reasons already outlined above.

Finally, reliance was placed on cases of a comparable factual nature.  In Kinsella -v- Tesco UD 1584/2013, the EAT found that the combination of procedural and substantive unfairness resulted in an unfair dismissal where an employee had forgotten to pay for a meal even though she had always paid for such meals.  In DHL Express (Ireland) Ltd -v- Michael Coughlan (UD/17/27) UD 1738, the Labour Court found that consideration of a spent warning and failure to consider alternative sanctions was fatal.  It also found that the actions of the employee in that case did not constitute “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer” and therefore did not justify dismissal.

Findings and Conclusions:

It is necessary to examine the factual matrix giving rise to this complaint of unfair dismissal in light of the applicable statutory provisions and caselaw as comprehensively set out above.  Section 6 of the Unfair Dismissals Acts 1977-2015 provides the legal framework.  Whilst Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly arising from the conduct of the employee, Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for the Adjudication Officer to have regard for “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”  

As set out above, the High Court in JVC Europe Ltd -v- Panisi (2011) IEHC 279 and Bank of Ireland -v- James Reilly (2015) IEHC 241, elaborate on what is required by this legal framework.  It is well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures within a disciplinary process.  [Re: Haughey (1971) IR 217 & S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures].  The substantive issues leading to the dismissal of an employee and the fairness of the procedures adopted should be considered together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. 

Where a dismissal for misconduct is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, being as follows:

“1.  The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Thus, the role of the Adjudication Officer is not to conduct a further factual investigation and substitute their own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances.

It is not proposed to repeat all of the facts as set out above in circumstances where there is little by way of factual dispute.  Rather, the Parties take diametrically opposing views as to whether the Complainant’s conduct giving rise to the investigation and throughout the disciplinary process constituted dishonesty and consequently, whether dismissal was both procedurally and substantially fair.  It is not in issue that the Respondent’s Target security system reported unusual activity in the Portlaoise Store, properly giving rise to an investigation of the Complainant.  Nor is it disputed that he had served himself in breach of the Company Purchase Policy on the dates alleged.  However, the Complainant vehemently disputes (1) the finding that he breached the Company Honesty Policy and contention that he had intentionally taken a packet of cigarettes without payment on 11th July 2019 (in other words, ‘theft’ as confirmed in direct evidence as being the view of the decision-makers) and (2) the appeal finding that he had “misled the investigation by giving false responses” by providing an explanation for his actions at his first investigation meeting subsequently found not to be correct.  Ultimately, this conclusion had a bearing on the sanction imposed and accordingly, the Complainant maintains that his dismissal was disproportionate and seeks reinstatement and/or compensation.

Applying the principles in Frizelle, I am satisfied that the first premise is met and the complaint against the Complainant was a “bona fide complaint”.  The Respondent’s Company Purchase and Honesty Policies prohibit staff self-service and the taking of goods without payment respectively, and unusual activity by the Complainant had been identified by its Target security system.  It was also common case that he had been both aware of and trained in these Policies.  On a related issue, I am of the view had the investigation meeting invitation letter clearly specified the allegations and basis for suspending the Complainant, his suspension would have been justified in circumstances where there was apprehension of a repeat as per Bank of Ireland -v- James Reilly (2015) IEHC 241.

However, I find that the second premise in Frizelle and requirement that the complaint should be stated “factually, clearly and fairly without any innuendo or hidden inference or conclusion” has not been satisfied in circumstances where the invitation letter to the investigation meeting is framed in the vaguest terms, referring to breaches of Company Policies without any dates or details of same.  Aligned to this is the fact that the Complainant was not furnished with any of the evidence (receipts and CCTV stills) supporting the allegations to enable him to prepare for the investigation meeting.  Whilst each case will turn on its own particular facts, this was a matter of the utmost seriousness where the Complainant herein was a senior manager in retail effectively facing an investigation into alleged theft, the outcome of which would have far-reaching consequences for his livelihood and reputation.  It is quite possible that had the Complainant been furnished with this material before the first investigation meeting and afforded time to prepare, that the issue of a differing explanation for taking the cigarettes without payment would not have arisen and a lesser sanction imposed.

Likewise, I find that the third premise in Frizelle and requirement that “The employee should be interviewed and his version noted… and again without comment” was not satisfied in circumstances where Mr A adopted an interrogative approach and made his disbelief of the Complainant’s explanation that he had forgotten to pay for the cigarettes known at the second meeting before making any findings.  Any indication of pre-judgement will undermine confidence in a decision-making process.  Although relevant to the Complainant’s awareness of the necessity to adhere to Company Policies, it would have been better practice to omit reference to the verbal warning for similar given that it had expired.  Although not expressly relied upon in the findings, its pre-existence was clearly of significance to Mr A and Mr B and may well have influenced the decision to dismiss.

Again, I find that the fourth premise in Frizelle and requirement that “The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered” was not satisfied at the investigation and disciplinary stages.  The findings of Mr A are set out in generic terms i.e. “I am satisfied that a policy breach did occur and that is unacceptable” and the findings of Mr B follow suit.  They do not make findings of fact flowing from the evidence adduced confirming what allegations are being upheld so as to enable the Complainant to know what case he has to meet.  Furthermore, Mr C refers to factual findings not made in the Investigation Outcome Report and prefers Mr A’s account over that of the Complainant without providing any minutes of the evidence taken from Mr A and affording him a right of reply.

Consequently, without sound factual findings for reaching the decision to dismiss the Complainant, the fifth premise in Frizelle cannot be satisfied, being that “the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”  Whilst Mr B and Mr C both attested to considering alternative sanctions before concluding that dismissal was the only available sanction owing to the breach of trust, any such consideration should have been properly included in their findings.  It also follows that without sound factual findings, it is not possible to conclude whether a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of this case or “whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned” as per the established caselaw.

Perhaps most seriously in terms of affording natural justice, I find that the Complainant was not afforded adequate time to prepare for the first investigation meeting some 14 hours after notice was given particularly given the seriousness of the allegations.  For the same reason, I find the refusal to grant him an adjournment unreasonable regardless of how and to whom the request was communicated.  In circumstances where the Complainant had been suspended, there could be no concern about repetition of the alleged breaches of Company Policies and hence an urgency.  Therefore, I cannot accept that there were “exceptional, justifiable and legitimate circumstances” for departing from the requisite 24 hours’ notice under the Company Disciplinary Policy.  I also accept the Complainant’s position that the first investigation meeting was conducted in an oppressive manner, lasting some 5 hours and 20 minutes without any indication of the length beforehand and not adjourning when it was quite clear that the Complainant had a difficulty at 5pm regardless of whether for childcare or other reasons.  It is thus unnecessary to consider further the effect of any tiredness either from the night before, working consecutive nights or more Sundays than contracted. 

In the event of finding a breach of fair procedures, the Respondent has urged a finding akin to that in CUH -v- O’Reilly UD 18/198, where investigation procedural errors were remedied at the disciplinary stage.  I cannot accede to this in the instant case as the view that the Complainant had acted dishonestly in the process carried through to the appeal decision to uphold his dismissal.  Hence the procedural defects at the investigation stage were not remedied at the disciplinary or appeal stages.

For the aforesaid reasons, I find that the process giving rise to the Complainant’s dismissal was both substantially and procedurally unfair, the substantial unfairness flowing from the procedural defects.  It is thus unnecessary to adjudicate further on the numerous other issues raised with the process. 

For the record, I am also satisfied that there was no bad faith on the part of the Respondent or any of its witnesses in relation to the disciplinary process adopted in this case and appreciate the candid manner in which they gave their evidence particularly when subjected to lengthy cross-examination. 

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this unfair dismissal complaint in accordance with the relevant provisions.  For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977-2015 and conclude that the Complainant was unfairly dismissed by the Respondent.  Section 7 sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as deemed appropriate providing: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed… as is just and equitable having regard to all the circumstances,…”  Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of most relevance to this case is the extent (if any) to which the conduct of the employee contributed to his losses and measures adopted to mitigate such losses.  Given the breakdown in relations and fact that the Complainant has moved career and is excelling in his current position, I do not consider reinstatement to be an appropriate remedy.  There is no issue that the Complainant did all that was possible to mitigate his losses during a challenging time.  In circumstances where it is undisputed that the Complainant’s admitted actions led to this disciplinary process, I am satisfied that he contributed to a large degree to the circumstances giving rise to his dismissal and consequent losses.  Therefore, I consider it just and equitable in all of the circumstances to award the Complainant €23,363, representing 25% of the maximum 104 weeks remuneration that may be granted.  The Respondent is therefore ordered to pay the Complainant a total of €23,363 in compensation.

Dated: 19th January 2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 6, 7, 8 & 14 of the Unfair Dismissals Acts, 1977-2015 & S.I. No. 146/2000 - 2015 – gross misconduct – fair procedures – Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137