FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: TESCO IRELAND LIMITED (REPRESENTED BY IBEC) - AND - LINDA MAGUIRE (REPRESENTED BY GAVIN MACKAY MACKAY SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00027763 CA-00035625-002 DETERMINATION: Position of the Respondent The Complainant was employed as a Customer Assistant from August 2008 until 25 October 2019 when her employment was terminated on the grounds of serious misconduct following a fair and impartial investigation, disciplinary, and appeals process. The findings of serious misconduct related to two matters: firstly, the Complainant removed a sum of money (€30) that belonged to a customer who had left it behind in the store with the intention of keeping it for her own personal gain, and, secondly, the Complainant took a scratch card without paying for it which resulted in a loss to the Company. The Respondent conducted a fair and impartial disciplinary process. The responses and explanations provided by the Complainant in response to the allegations put to her were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of her actions. The Complainant’s responses differed from meeting to meeting, and were inconsistent and contradictory throughout the investigation, disciplinary, and appeals process. The Complainant’s actions represented a fundamental breakdown in trust between employer and employee. Misconduct goes to the root of the contract of employment. It undermines trust and confidence which is essential to the maintenance of the relationship between the employer and the employee. The Respondent had no alternative but to dismiss the Complainant for serious misconduct, as the bond of trust between had been severed. Her dismissal was not unfair as it resulted wholly from “the conduct of the employee”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977-2015. The employer did what any reasonable employer would do. The Respondent referred the Court to the cases ofHestor v Dunnes Stores [1990] E.L.R. 12, Looney & Co. Ltd v Looney UD 843/1984, Moore v Knox Hotel and Resort Ltd UD 27/2004, andMurray v Meath County Council UD 43/1978in support if its position. Position of the Complainant The Complainant was a good and conscientious employee of the Respondent since August 2008, with no formal warnings noted on her personnel file. The allegations made against the Complainant were that– (1) on 5 July 2019 the Complainant failed to follow the Respondent's Lost and Found process when a customer allegedly left €30 behind at a self-scan till. The monies were purportedly handed to the Complainant; (2) on 6 July 2019 the Complainant removed three notes from the back of a till, which was later found to be short €150; (3) on 9 July 2019 the Complainant gave a colleague (Ms. D) a money bag from her till; and (4) on 9 July 2019 the Complainant took a scratch card from a dispenser at the customer service desk without paying for it. The third allegation only came to light at the WRC hearing itself and the fourth allegation only came to light during the course of an investigation into the €30 purportedly missing from the customer. The Respondent oversaw a fundamentally flawed investigative process into these matters. Various assertions were made by the Investigating Officer which clearly pre-determined the investigation process. The Respondent consistently failed to take the Complainant through any methodical process of dealing with the allegations made. She was not shown CCTV footage of the alleged incidents. Only at the conclusion of the investigation process were any allegations put to the Complainant. The Investigation Outcome Report of 23 August 2019 refers to two allegations, while the termination letter dated 25 October 2019 refers to four allegations. It is unclear how four allegations came to be considered by the decision-maker without forming any part of an initial investigation. The Complainant was pressurised to make admissions regarding certain allegations. The Complainant was asked a number of questions relating to another employee (Ms. D). It appears from documentation that Ms. D was accused of "colluding" with a colleague (namely the Complainant) and removing €150 from the store for her own personal gain. During the investigation the Complainant indicated that she wished to seek legal advice. The Complainant was not given an opportunity to cross-examine the two employees who provided witness statements. She was not furnished with one of the written statements from one employee. The Complainant was not furnished with all documentation relied upon by the Respondent (and which was later produced at the hearing before the WRC). At the Disciplinary Hearing the Complainant raised concerns that she was coerced into making certain admissions. No account appears to have been taken of that fact. The dismissal letter set aside two allegations which did not form part of the investigation, namely that the Complainant has misappropriated €150 and was in breach of the mobile phone policy. The dismissal letter concluded that the Complainant had misappropriated €30. The decision maker did not rely upon any sales data in relation to the allegation of the theft of a scratch card, and relied on CCTV footage only to assume that the Complainant was guilty. The Complainant was dismissed for gross misconduct. The sanction was grossly disproportionate having regard to the Complainant's protestations of innocence and her eleven years without any suggestion of dishonesty or impropriety on her part. The purported procedures followed by the Respondent were manifestly unfair and directly contravene the guidelines set out in the Statutory Instrument 146/2000 - Code of Practice on Grievance and Disciplinary Procedures. Mr Mackay referred the Court to the cases ofRyan v CIE, Looney & Co. Ltd v Looney [UD843/84] ,Patrick J. Kelly v Minister for Agriculture, Fisheries & Food, The Minister for Finance, The Goverment of Ireland, Ireland and the Attorney General [2012 IEHC 558],Giblin v Irish Life & Permanent PLC [2010 IEHC 38] andFrizelle v New Ross Credit Union Ltd [1997] IEHC 137in support of his position. Witness Evidence The Court heard sworn evidence from two witnesses on behalf of the Respondent, Mr Karl Moraghan, the Disciplinary Officer, and Mr Gary O’Regan, who heard the appeal. The Complainant, Ms Linda Maguire, also gave evidence. Testimony of Mr Karl Moraghan – the Disciplinary Officer Mr Karl Moraghan said that he reviewed all notes relating to the investigation and the investigation report. He checked the CCTV footage, and the policies. He spoke to the investigation officer to ensure that the complainant had received the policies, as this was not stated in the notes. He did not discuss the allegations with the investigation officer, nor was he involved in any aspect of the investigation. On reviewing the report, he did not believe that two of the matters warranted disciplinary investigation, due to insufficient evidence. He believed that the evidence regarding the scratch card and the €30 left behind by a customer was very strong. The CCTV footage showed the employee taking the money. The Complainant was represented at the disciplinary hearing. Mr Moraghan read the full investigation report to the Complainant and was satisfied that she was aware of the allegations made against her. She was given an opportunity to respond to those allegations. He asked her if she wanted to review the CCTV footage, but she refused. She did not put forward any mitigation for her actions. He asked her if she had any questions. The Complainant did not raise any issues about the investigation process. Having reviewed the investigation report and papers and having watched the CCTV footage he found the bond of trust to be broken. He considered a number of options available to him as a sanction, including transfer and demotion, but the bond of trust was broken. Under cross-examination, Mr Moraghan said that he set aside two allegations relating to the mobile phone policy and collusion with another employee as he did not believe that there was enough evidence for them to be a disciplinary matter. He explained that in the outcome letter to her once the process concluded. Mr Moraghan said that the CCTV footage showed the complainant taking the €30 left behind by the customer. He accepted that the Complainant denied taking the customer’s money. He could not point to where the allegations were detailed in a letter inviting the Complainant to attend the disciplinary hearing. He had no concerns about the investigation process and was satisfied it was fair. Mr Moraghan agreed that the Complainant should have been provided with copies of any policies that the Respondent sought to rely on and understood from the Investigating Officer that she was provided with copies of the relevant policies. When asked to explain the Lost and Found Policy, he said that if a customer leaves money behind it is put into the till. When asked if it was unfair to rely on a policy that was never put to the complainant, Mr Moraghan replied “The Complainant knows right and wrong and should know that if a customer leaves money behind you do not take it home. I think people should know right from wrong”. When asked to explain how the Cash Register policy was breached, he referred to that policy where it states that “checkout operators must not interchange money between registers”. When asked to explain how the Company Honesty policy was breached, he referred to that policy where it states that staff found “converting or attempting to convert to his/her own use... any cash goods supplies or equipment regardless of monetary value the property of the company…will be subject to dismissal and/or prosecution”. Mr Moraghan agreed that an employee did not need to know all policies intimately. When asked how an employee was to know the details of the Honesty policy, the Lost and Found policy, the Cash Register policy, he replied that “maybe she was at a disadvantage”. He said that she raised no issues regarding the policies at the hearing. When asked what weight Mr Moraghan attached to the Complainant’s responses at the disciplinary hearing, he said she did not give any responses, or they were short and to the point. He said that he asked her if she had anything to add, and if she wished to see the CCTV footage, as he thought the evidence on the footage was strong. Mr Moraghan said that he had considered everything, including the Complainant’s unblemished record over 13 years’ service, and did not take the decision to dismiss her lightly. The bond of trust was broken given the seriousness of the incident. He couldn’t in his right mind trust her. When asked to explain what he meant by the bond of trust, Mr Moraghan said if he couldn’t trust a colleague to do a job without constantly watching them in his store or any other store. Testimony of Mr Gary O’Regan – the Appeals Officer Mr O’Regan received a letter setting out 12 grounds of appeal. He reviewed the meeting notes and the CCTV footage. The CCTV footage showed the Complainant putting a scratch card in her phone and leaving the desk. It also showed the complainant putting €30 into her pocket. All the evidence was there on the CCTV footage. No issues regarding the CCTV footage were raised as an appeal ground. The Complainant was invited to the appeal hearing and offered representation. He put each appeal ground to her and listened to her response. She was asked to provide evidence of when she paid for the scratch card, as no sales were recorded, and there was no evidence of transactions at the till or on the CCTV footage. A list of sales scratch cards was contained in the appeal pack. She provided no details as to when she paid for the scratch card or when she returned the €30. Mr O’Regan accepted that the process was a lengthy one. This was mitigated by issues that arose during the investigation, and absences on sick leave and annual leave. It was a complex investigation and there were multiple meetings. There was also an issue about €150 relating to another colleague. In his view the disciplinary process was good. He upheld the findings of the disciplinary officer, as there was no reason to overturn the decision. He issued the outcome to the Complainant by letter. Under cross examination, Mr O’Regan said that he was aware of the matter relating to another colleague and an allegation of collusion from the meeting notes. Those matters were not raised as an appeal ground. The Complainant was made aware of the issue relating to €150 when suspended and was notified about the allegations relating to €30 and the scratch card during the suspension and investigation meetings. When asked to point out where in the suspension letters the Complainant was notified of the allegations, Mr O’Regan replied they were set out in another letter. When asked to comment on the disciplinary procedure which states “…You will be provided with any paperwork/evidence which you may be asked to respond to”,Mr O’Regan said that he was satisfied that the Complainant received all of the paperwork. She confirmed that she had received all of the documents, and he could only go by what she said. That matter was not raised as an appeal ground. Mr O’Regan accepted that the meeting notes reflect that the Complainant said that she was only given information when she asked for it. Mr O’Regan confirmed that the Complainant’s training records formed part of his checklist. When asked if the Complainant was given a copy of those records, he said that she confirmed she had received all information. He accepted that the list of scratch card sales was not put to the Complainant for comment. He said that no issues relating to the scratch card were raised as part of the appeal. When asked if the Complainant was given an opportunity to defend herself properly if not provided with all of the documentation relied upon, Mr O’Regan said “yes”. When asked if the Complainant was given an opportunity to cross-examine the two witnesses who provided witness statements, Mr O’Regan said that she never asked for that opportunity, and it was not raised as part of the appeal. When asked on what basis Mr O’Regan found that Complainant “did not participate in the process”, he replied she had made a lot of “no comments”. Mr O’Regan rejected that the €30 given to the customer by the store was a red herring, as he said that the Complainant gave different stories about what happened to the money left behind by the customer. She said that she gave it to another employee, Ms D. She also said that she put the money in a bag. The CCTV footage very clearly shows her putting it into her pocket. Mr O’Regan said that he considered alternatives to dismissal, including relocation or a final written warning, but in his view given the severity of the issues the bond of trust was gone. Testimony of Ms Linda Maguire - the Complainant The Complainant said that she had no issues with her employment until 2017 when she raised a matter relating to bullying. Her employer said that they would sort that out, but it was not resolved. She was not told the purpose of the suspension meeting on 16 July 2019, and not given the right to representation at that meeting. She only became aware of the extent of the allegations at the fourth or fifth meeting, as the issues kept changing from €50 to €150 and then to scratch cards. She did not know that her job was at risk. She was not given a copy of the company’s policies. No one pointed out to her how she had breached the Company Honesty policy, or the Cash Register policy. She signed for the Cash Register policy in 2012. The first time she saw documents about till spot-checks or scratch card transactions was at the WRC. She did not see the CCTV footage at the first or second investigation meeting. When asked about meeting notes dated 23 July 2019 which state that the CCTV footage was available for her to watch, the Complainant said some of the notes are wrong and do not reflect what was discussed. It started off being about €150, then €50, then the scratch cards, and the mobile phone policy. She was told if she admitted taking the €150 the investigation would be dropped. She did not admit to taking the €150. She raised this with Mr O’Regan at the appeal hearing. She was not aware of an allegation regarding collusion. She was aware of an issue with another employee Ms D but was not given an opportunity to cross-examine that employee. She was never given a copy of the statements by Ms SB and Ms LM. Under cross examination, the Complainant said that she did not review the CCTV footage. She just signed off on the meeting notes even those that she didn’t agree with them. When invited to comment on a letter dated 19 July 2019 advising the Complainant that the outcome of the investigation could result in disciplinary action, up to and including dismissal, the Complainant replied, “I can’t recall”and that “the same letter was issued for all of them”. When asked about the appendix to the investigation outcome report which detailed material considered as part of the investigation, including witness statements, the complainant replied that she received the letter but no documents.When asked why she did not raise that at the disciplinary hearing, the Complainant replied “Ican’t recall.I wasn’t asked that question at the disciplinary hearing. I can’t recall receiving the documents”. When invited to comment on the fact that there was clear CCTV footage relating to the €30, the Complainant replied “I didn’t hand the money in. I handed it to Ms D. I put it in an envelope and handed it to her. I did not steal it. I did not see the CCTV footage. I refused to watch it”. When invited to comment on the CCTV footage relating to the scratch card, the Complainant said“! don’t know what card. There was a €10 scratch card. I put it under my mobile phone, not on my mobile phone. Mr Moraghan said my phone was black, mine had a red case I didn’t see the CCTV.” When invited to comment on the disciplinary hearing notes where it states that the Complainant confirmed that she had seen the CCTV footage, the Complainant said that “it’s not acceptable to take money. I did not take money from the store”. In response to questions from the Court, the Complainant confirmed that she was accompanied by an employee representative at the suspension meeting. She said that she was told she could bring a work colleague or a union representative but was not allowed to bring a solicitor to the meetings. She agreed that she was trained in the policies in 2014 and that she received the policies at that time. She said that did not look at the CCTV footage and was never shown the CCTV footage. When asked why she did not look at the CCTV footage, the Complainant replied,“it all became too much”. When asked why she gave the €30 to another colleague, the Complainant said that she gave it to the team leader who was the only person on that night. She put it in a plastic envelope and left it out for her. She left it at the till. When asked to clarify whether she gave it to Ms D or not, she said that she put it in the till. The Relevant Law: Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
Where the fact of dismissal is not in dispute, it is for the Respondent to identify the reason for the dismissal and justify it by showing that it was a fair and proportionate response in all of the circumstances. In this case the Respondent was satisfied that the Complainant removed €30 left behind by a customer for her own personal gain, and failed to pay for a scratch card, amounting to serious misconduct under the Disciplinary Policy. The Respondent held that the bond of trust between employer and employee had broken to such an extent that it was beyond restoration and that the appropriate sanction was dismissal. The Respondent placed heavy reliance on CCTV footage, which was not opened to the Court, in arriving at the decision to dismiss. Mr Moraghan said that the evidence in relation to both matters was very strong, while Mr O’Regan said that all the evidence was there on the CCTV footage. He saw the Complainant put the €30 into her pocket. He saw the Complainant put a scratch card in her phone and leave the desk.The Complainant’s position is thatshe did not see the CCTV footage and was not offered an opportunity to see that footage. In assessing the evidence before it, the Court had some difficulty with the Complainant’s testimony about the CCTV footage, which it found to be vague and lacking credibility. When asked at the hearing why she did not watch the footage, the Complainant said“I did not see the CCTV footage. I refused to watch it.”When asked why she did not look at the CCTV footage, the Complainant’s evidence was that “it all became too much”. In the view of the Court, and having regard to the evidence, the Court does not accept that the Complainant was denied an opportunity to review the CCTV footage. It is clear that the decison not to watch the CCTV footage at the disciplinary hearing was the Complainant’s own decision. Furthermore, the Court notes that the Complainant’s testimony differs from the investigation meeting notes and the Investigation Outcome Report which state that she viewed the CCTV footage and which the Complainant signed off on. While the Court heard no direct evidence from the Investigating Officer, or the note-takers who attended the investigation meetings, to verify what happened during the investigation process, it is satisfied that they represent an accuracte contemporaneous record of both meetings. The Court is fortified in this view by the Complainants own admission that she refused to watch the footgae. In relation to the Complainant’s evidence that she signed off on the meeting notes even though she did not agree with their contents, the Court is of the view that her explanation is not credible given that she had a representative present at both meetings. Furthermore the Respondent’s evidence that no issue about the CCTV footage was raised by the Complainant on appeal was not contradicted by the Complainant and it is clear to the Court from reviewing the letter of appeal that was the case. The Respondent submits that, in arriving at the decision to dismiss, the responses and explanations provided by the Complainant in response to the allegations put to her were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of her actions. It said that the Complainant’s responses differed from meeting to meeting, and were inconsistent and contradictory throughout the investigation, disciplinary, and appeals process. It asserts that ultimately her actions gave rise to a fundamental breakdown in trust between employer and employee. The role of the Labour Court is not to consider what it would have done in the same set of circumstances, but rather to assess whether the response of the employer lay within a range of reasonable responses, which might reasonably be expected of a reasonable employer. The Court found the Complainant’s evidence about what happened to the €30 left behind by a customer to be contradictory. It was not clear whether she gave the money to a colleague or put it in the till. At times her evidence was evasive, and she was vague and unforthcoming in her replies. This accords with testimony from Mr Moraghan and Mr O’Regan that the Complainant’s responses and explanations were not considered reasonable or sufficient. When asked what weight Mr Moraghan attached to the Complainant’s responses, he replied that she did not give responses, or when she did, they were short and to the point. When asked about the finding in the Appeal Outcome letter that the Complainant did not participate in the process,Mr O’Regan said many of the Complainant’s replies were “no comment”. The Respondent submitted that the decision to dismiss the Complainant was based on the Complainant’s own inability to proffer a credible explanation for the allegations that were put to her. Based on the evidence presented, the Court finds that in circumstances where the Complainant refused to watch the CCTV footage during the disciplinary hearing, and failed to provide any explanation for her actions, that it was reasonable for the Respondent, given the evasive answers from the Complainant during the disciplinary process, to conclude that the Complainant was guilty of serious misconduct in accordance with the company’s disciplinary policy. Were the procedures followed by the Employer fair? Mr McKay, on behalf of the Complainant, submitted that the investigation process was flawed, and the procedures were manifestly unfair for the following reasons: the Complainant was not told why she was suspended; she was denied the right to representation; she was never told that her job was at risk; the Investigating Officer made various assertions that pre-determined the investigation outcome; it was not clear to the Complainant what the allegations were as the issues kept changing and she was only made aware of the full extent of the allegations towards the end of the investigation process; she was not made aware of an allegation regarding collusion; she was told if she admitted taking €150 the investigation would be dropped; she was not provided with all documentation relied upon by the Respondent; and she was not allowed to cross examine witnesses; the Investigation Outcome Report refers to two allegations whereas the dismissal letter references four allegations. The Complainant was not told why she was suspended. In reviewing the evidence before it, the Court notes that two letters given to the Complainant on 16 July 2019, when she was suspended, refer to an investigation but do not specify the reason for her suspension. The notes for the suspension meeting refer to till discrepancies. The Complainant’s own testimony was that she did not understand why she was suspended, but she understood there was an issue was about €150 and money in a plastic envelope that she gave to another colleague, Ms D. The Complainant was denied the right to representation. In relation to representation the disciplinary procedure states that:- “…if you want to be accompanied to an investigation, disciplinary, or appeal hearing by a union representative, or a colleague representative, it is your responsibility to organise this.” It is accepted by all parties that the Complainant was represented at each stage of the investigation and disciplinary process by a colleague. It is accepted that she declined to be represented at the appeal hearing. The question of whether or not an employee is entitled to legal representative during a disciplinary process is now settled law. On the facts as presented in this case the Court does not consider that the matters under investigation in this case were of such complexity, or that they raised matters of legal interpretation such as to warrant legal representative during the investigation, disciplinary, or appeal process. The Complainant was never told that her job was at risk. The Court notes that the correspondence sent to the Complainant throughout the investigation process advised that the outcome of the investigation and disciplinary process may include a disciplinary sanction up to an including dismissal. The Investigation Outcome Report dated 23 August 2019 advised that the outcome of the investigation and disciplinary process may include a disciplinary sanction up to an including dismissal. In light of the above, the Court cannot accept the assertion that the Complainant did not know that her job was at risk. The Court is satisfied that by the end of the investigation process the Complainant was clearly advised that her job was potentially at risk, prior to attending a disciplinary hearing. The Investigating Officer made various assertions that pre-determined the investigation outcome. No evidence was provided by the Complainant to substantiate what assertions were made by the Investigating Officer that may have pre-determined the investigation outcome.~ The allegations against the Complainant were not clear and she was only made aware of the full extent of the allegations towards the end of the investigation process. In reviewing the evidence before it, the Court notes that correspondence sent to the Complainant in advance of the four investigation meetings (19 July, 23 July, 3 August, and 10 August 2019) advise that “the purpose of the meeting is to obtain information concerning an allegation of a till discrepancy on 06/07/2019 and the events that followed that date”. The Investigation Outcome Report of 23 August 2019 sets out findings under two headings titled Allegation 1 and Allegation 2. Allegation 1 refers to two matters as follows:“…you removed €30 belonging to a customer from the store for your own personal gain. …you in collusion with another colleague, gathered €150,put it in a money bagand concealed it in your till for no apparent reason and then permitted the other colleague to remove this from your till”.Allegation 2 details that“…you took a scratch card, concealed it in your phone and failed to pay for same thus causing a loss to the Company”.The Report further states that the Investigating Officer was satisfied that the Complainant has breached the Company Honesty Policy, the Mobile Phone Policy, the Lost and found Policy, and the Register Policy. In light of the above, the Court cannot accept the assertion that the Complainant was not furnished with specific allegations. The Court is satisfied that by the end of the investigation process the Complainant was fully aware of the allegations made against her, and she was clearly advised that her job was potentially at risk, prior to attending a disciplinary hearing. The Complainant was not made aware of an allegation regarding collusion. As cited above, the Investigation Outcome Report includes a finding that “…you in collusion with another colleague, gathered €150,put it in a money bagand concealed it in your till for no apparent reason and then permitted the other colleague to remove this from your till”. The testimony of the decision maker, Mr Moraghan, was that he set that matter aside due to insufficient evidence. As a result, the Court does not accept that the Complainant was not made aware of an allegation regarding collusion. The Complainant was told that if she admitted taking €150 the investigation would be dropped. The Complainant said that she did not take €150 and she raised this matter with Mr O’Regan at the appeal hearing, but nothing happened. The Court notes that no disciplinary finding was made against the Complainant relating to the taking of €150. The Complainant was dismissed for findings of serious misconduct relating to the removal of money (€30) that belonged to a customer who had left it behind in the store and the removal of a scratch card without payment. The Complainant was not provided with all documentation relied upon by the Respondent. The Court was referred to an appendix attached totheInvestigation Outcome Reportwhich details material taken into account as part of the investigation. The Court was also referred to the disciplinary procedure which states:“To establish the whole story, the investigating manager may also look at other information such as CCTV footage, stock reports or customer feedback, and may also need to interview some of your colleagues. You will be provided with any paperwork/evidence which you may be asked to respond to”. The Court was faced with a clear conflict of evidence regarding what documentation was provided to the Complainant during the investigation process. The Complainant’s evidence is that she did not receive the documents listed in the appendix. Furthermore, she said that she was not given any company policies or advised how she had breached those policies, and that she only became aware of certain documents at the WRC hearing. The Respondent’s position is that the Complainant received copies of all relevant documentation, and Mr Moraghan confirmed with the Investigating Officer that she received the relevant policies. The Investigating Officer did not attend Court to verify this matter, so this aspect of Mr Moraghan’s testimony is regarded as hearsay and lacks any probative value. Mr Moraghan gave evidence thathe did not rely on sales data in considering the allegation of theft of a scratch card, and instead based his decision solely on CCTV footage. Mr O’Regan gave evidence was that the Complainant confirmed to him that she had received all documentation, and the matter was not raised as an appeal ground. The Court notes that the meeting notes for the appeal hearing record the Complainant as stating that she was “only given information when (she) asked for it”.When asked why not query the matter if documents were not included with the report, the Complainant said, “I can’t recall …I wasn’t asked that question at the hearing”. Having regard to all of the above, the Court found the Complainant’s testimony on this matter to lack credibility given the gravity of the allegations that she faced. On balance, the Court is of the view that the Complainant was in receipt of all relevant documentation relied upon by the Respondent. The Complainant was not allowed to cross examine witnesses. Mr Regan’s testimony was that the Complainant never asked to cross-examine any witnesses, and it was not set out as a ground of appeal. In those circumstances, the Court finds that the Complainant was not wrongly deprived of fair procedures. The dismissal letter refers to four allegations whereas the investigation report refers to two. Mr Moraghan gave a cogent explanation as to why the dismissal letter refers to four allegations, two of which he set aside due to insufficient evidence. This was fully explained in the outcome letter. Finding of the Court in relation to the process. The Court must assess whether the dismissal was a fair, proportionate, and appropriate sanction to the finding of serious misconduct. In doing so, the Court is required to examine the conduct of both parties, and whether the procedures followed by the employer were substantially fair. In this case the Respondent acknowledges that the investigation process was protracted but refutes that the process was flawed. The Court notes that the Investigating Officer did not attend Court to respond to matters raised in relation to the investigation process. The Court is satisfied that the Complainant was fully aware of the allegations made against her in advance of the disciplinary hearing. It is further satisfied that she was afforded ample opportunity to respond to those allegations at the disciplinary hearing. The Complainant availed of her right to appeal the decision to terminate her employment. The Court is satisfied that the Appeals process was a robust and comprehensive process. The Court, having regard to all of the circumstances and having considered the totality of the evidence adduced, is satisfied that the disciplinary and appeals processes followed by the employer were in accordance with its own procedures and substantially fair. Was the sanction proportionate? The Court must assess whether in all of the circumstances of this case the sanction of dismissal was proportionate and appropriate. Mr McKay, on behalf of the Complainant, submits that the sanction of dismissal was grossly disproportionate having regard to the Complainant’s protestations of innocence and the fact that she had eleven years’ service without any suggestion of dishonesty or impropriety. Mr Moraghan said that he had considered everything, including the Complainant’s unblemished record over 13 years’ service, and did not take the decision to dismiss the Complainant lightly. He said that the bond of trust was broken given the seriousness of the incident. He explained that in his view the bond of trust was broken if he couldn’t trust a colleague to do a job without constantly watching them in his store or any other store. Having regard to all of the foregoing, the Court is satisfied that the Complainant was dismissed following a substantially fair disciplinary and appeals process. The Court is of the view that it was not unreasonable for the Respondent to decide that the Complainants behaviour constituted serious misconduct. TheComplainant refused to watch the CCTV footage during the disciplinary hearing or to provide any reasonable explanation for her actions. Having regard to the nature of the Respondent’s business, the Court finds that the Complainant’s refusal to watch the CCTV footage and her failure to put forward any explanation for her actions undermined the trust and confidence that the Respondent held in her as an employee. In such circumstances, the Court finds that it was reasonable for the Respondent to conclude that the bond of trust between employer and employee was broken. In such circumstances, the Court is satisfied that the Respondent had substantial grounds to justify its decision to terminate the Complainant’s employment for serious misconduct, and that the decision to dismiss was not disproportionate. The Court is also satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice. Having regard to all of the circumstances of this, the Court accepts the Respondent’s submission that the sanction of dismissal imposed on the Complainant was within the band of reasonable responses open to a reasonable employer in the circumstances. On the basis of the foregoing, the Court finds that the complaint of unfair dismissal contrary to the Act is not well-founded. Accordingly, the decision of the Adjudication Officer is upheld. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary. |
