Complainant

Respondent

Anonymised Parties

An Employee

A Beverage Company

Representatives

Vernon Hegarty SIPTU

Patricia McCalum B.L. instructed by Margaret Mulrine of M.M.Mulrine & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034973-001

03/03/2020

This is an Unfair Dismissal complaint arising out of a finding that the Complainant stole two cartons of juice from the Respondent’s beverage production line, when he was working a night shift.

Overall

The procedures that led to the Complainant’s dismissal were flawed. The flawed process resulted in findings of fact which were flawed. The decision to dismiss was prejudged from the start and the Complainant’s explanation was never properly considered.  The sanction of dismissal was disproportionate to the offence.

Complainant Evidence

The Complainant gave evidence under oath as follows:

1.       He started working for the Respondent in 2019 as a general operative.

2.       At the time he was dismissed he was working in product recycling and paper management.

3.       He was dismissed on 3 October 2019 which was confirmed following an appeal on 12 November 2019

4.       The incident for which he was dismissed occurred during a night shift on 13 September 2019

5.       He accepts that he took two cartons of smoothie juice during the shift. He accepts that this is contrary to Company policy however he contends he should not have been dismissed. He described the incident as follows:

(a)    The Complainant took the two cartons off the production line following a conversation with his supervisor (LMcG) at the production line, during which they discussed the product and its digestive benefits. He explained to his supervisor that his girlfriend was pregnant and she often got constipation.  

(b)    LMcG told him that even better product for her would be a beetroot juice product at the back of the store.

(c)     The Complainant then told LMcG that he was going to take two cartons off the line and LMcG did not reply to this. From their conversation and LMcG’s advice (on what would help the Complainant’s girlfriend) the Complainant assumed that LMcG was happy to allow him to take the cartons. He also thought LMcG was suggesting that she also try the beetroot juice cartons, not that he did, but that was the flow of the conversation.

(d)    The Complainant took the two cartons and went to the locker room where he put the cartons on a shelf and went back to his duties. Later when he was on a break, he went back to the locker room and put the two cartons into his bag.

(e)    As he was leaving the plant at 8am he met the Production Manager, DMcG and his supervisor, LMcG stopped him.

(f)      DMcG asked if he could chat to him and asked “have you been stealing from us?”

(g)    This was during a shift change-over a lot of other staff were about. DMcG asked could he look in his bag and the Complainant opened the bag, where the two cartons were found.

(h)    The Complainant said “they will be put into wrong blanks anyway.” By this he meant that too much product was produced that night and the excess product would have gone into temporary cartons (wrong blanks) in any event.

(i)      He denied saying to DMcG “they are in the wrong blanks” because they clearly were in the correct packaging (the right blanks) for the customer which made them a saleable product.

(j)      The Complainant thought that it would all be okay once DMcG managed to talk to LMcG because LMcG would tell him about their conversation about the Complainant’s girlfriend and the Complainant did not want to get into the private health concerns of his girlfriend with everyone present. So when DMcG then said that there would have to be an investigation, the Complainant did not say anything by way of defence.

(k)     He asked DMcG what he was to do with the two cartons of juice and he was told to leave them in the office, which he did.

6.       The Complainant attended an investigation meeting on 20 September 2019 and was represented by his trade union representative (VH). He does not accept the contents of the notes of this meeting that the Respondent produced during the Adjudication hearing to be an accurate account of what was said.

7.       On the night after the incident, 14 September 2019 when the Complainant went in to do his shift he asked LMcG would LMcG attend the investigation meeting as his witness but LMcG said he could not. He did not know then that it was LMcG who had made the complaint against him. He never found this out until the WRC Adjudication hearing. He was very surprised when he discovered this.

8.       The Complainant says that at the start of the investigation meeting on 20 September 2019, VH asked the Respondent HR manager to identify the person who had made an allegation of theft against the Complainant. He also asked for the CCTV for that night and he asked that any witness statements be provided to him so the Complainant could know the evidence against him. The Respondent’s written notes of this meeting do not record that any of these requests were made. And despite these requests, none of this evidence was provided to the Complainant, on foot of which the Complainant contends that fair procedures were not afforded to him.

9.       At the disciplinary meeting the Complainant outlined what happened as set out from (a) to (k) above.

10.   Following the investigation meeting the Respondent HR manager continued with the investigation and asked LMcG to respond to the defence that was raised by the Complainant (the conversation about the Complainant’s girlfriend health condition) by email.

11.   In his reply email (which the Complainant was later provided with) LMcG denied any such conversation had taken place between them; either about the Complainant’s girlfriend or her constipation. LMcG denied that the Complainant told him that he was taking two cartons off the production line. LMcG accepted that they both had drunk juice from cartons off the production line. LMcG said that their conversation about the benefits of beetroot juice took place on the night of 14 September not the 13 September but there was no talk about his girlfriend’s constipation that night either. The Complainant accepts that he was sent this email after the investigation meeting on 20 September, and he responded by saying that his version of what happened was more likely given that the conversation between him and LMcG clearly took a lot longer than LMcG was saying.

12.   Following the investigation, the Complainant was invited to a disciplinary meeting on 3 October 2019 at which the contents of a dismissal letter of the same date was explained to him and he was dismissed on grounds of gross misconduct.

13.    The Respondent found the Complainant’s version of events to be not credible. The Respondent decided that the Complainant had taken two cartons of juice off the production line, in breach of Company policy and this was theft which constituted gross misconduct for which dismissal was the sanction.

14.   The Complainant appealed this decision to Managing Director of the Respondent on the basis that fair procedures had not been applied during the disciplinary process, that the decision was a prejudgment from when the cartons were found and the sanction was disproportionate to the offence, given his cooperation with the investigation and his long years of service.

15.   The finding of theft arose from an absolutist approach to what happened and there was no attempt by the Respondent to understand the Complainant’s misunderstanding which allowed him believe from his discussion with LMcG, that there was nothing that wrong in taking a small amount of product to see if it helped his girlfriend.  

16.   The Complainant’s loss from the dismissal was €29,000 and he made multiple efforts to mitigate his loss. He started looking for work in January 2020 and provided evidence to support this. Since January 2023 the Complainant has worked for an insurance company

Cross Examination

Under cross examination the Complainant said he did not accept DMcG’s evidence that before the Complainant went into the locker room with DMcG and LMcG he said “I have two cartons and they are in the wrong blanks.” The Complainant said instead that what he said to them was “they will be put into the wrong blanks” and this was because he knew that they had produced excess product during the previous night shift, more than the customer needed and more than they had the customers blanks (packaging) for. And because there was excess product, a lot of product would have needed to be recycled, which would involve wastage.  When it was put to him that this was an entirely new explanation, one which was never raised by him at any point during the disciplinary process or appeal, he denied this. He said that is what he meant when he said the carton “will be put into the wrong blanks.”

The Complainant accepted then however that recycling did not mean that the excess product would be thrown away – he accepts it would be recycled for another customer.

The Complainant accepted that he did not explain to DMcG in the locker room that he had a defence (which was that LMcG had implied that he could take the product off the line) and the reason he did not explain it then and there was because that would have necessitated a discussion about his girlfriend’s difficulties, which he didn’t want to do in front of other staff.

He accepted also that he did not explain this (reason for not telling DMcG straight away) at the investigation meeting on 20 September but he says that he said it afterwards in the email correspondence between him and HR.

He accepted that “wrong blanks” does not mean that the product would be wasted because it is recycled. When he said “it will be put into wrong blanks” he meant that there would be excess product. And there is always some wastage when product is recycled, so if product was going to waste anyway, he did not think there was such a problem in taking two cartons.

When it was put to him that he changed his story as the disciplinary process went on; firstly he said “it is in the wrong blanks.” Secondly when questioned he said that he had said “it will be put into the wrong blanks.” Thirdly he said LMcG had given him an implied permission because of their conversation about the product and his girlfriend’s constipation and now he is saying (for the first time) that he didn’t think there was a problem because there would be wastage anyway. The Complainant denied changing his story.  

The Complainant accepts that LMcG never told him (yes or no) that he could take the product.

The Complainant denied giving inconsistent evidence during the Adjudication hearing. He denied ever using the description “non-confirming product.” He had used the term “wrong blanks.”

He accepts that the two cartons were not “wrong blanks,” but he hadn’t said that they were. He says that DMcG and LMcG were incorrect in their evidence in that regard. He said they would end up in the wrong blanks, which is different to saying that they were in the wrong blanks.

The Complainant said that he never was given the CCTV, he was never told the name of his accuser until the WRC Adjudication hearing and he was not given the email exchange between DMcG and LMcG (after the investigation meeting) about the CCTV  - which DMCG said showed what was in the Complainant’s hand as the Complainant was talking to LMCG (which the Complainant only learned about from DMcG’s evidence during the Adjudication hearing.)

He submitted that this created a hole in the Respondent’s defence.

When (on 14 September)  he asked LMcG if he would be his witness at the Investigation meeting and LMcG said no, he felt something was not right.

The Complainant appealed the decision to dismiss him. That appeal was heard by the Managing Director of the Respondent.

When asked why his appeal did not query the findings of fact, he said that they did. That the findings of fact were based on a lack of fair procedures during the disciplinary process so he was querying the facts which were found as a result of a defective process.

When asked what the defects were in the process, given that the “conversation about his girlfriend” defence was only raised by him during the investigation meeting (ten days after the incident) and that the Respondent could not have known that CCTV played any role in the matter until this was said. The Complainant accepted that he only raised the conversation about his girlfriend defence, at the investigation meeting, he did not explain why but having given the explanation at the investigation meeting, the Respondent should have then considered the CCTV and given it to him and he also should been given the emails between DMcG and LMcG after the investigation meeting, dealing with the cartons being in his hands as he spoke to LMCG.  To which it was put to him that he was given the emails that LMcG wrote to HR and he was given a chance to respond to those. He said he had not been given the CCTV or the emails between DMcG and LMcG and he should have been. Despite what the Respondent says, they were asked (verbally) to provide the CCTV and all the evidence against him. 

He said that during his post-investigation email correspondence with HR, he told HR that the CCTV would show how long the conversation he and LMcG’s conversation that night was and it was not a short conversation as LMcG said. This would have contradicted what LMcG version of the night and he should have been given the CCTV. But no one got back to him about that. Now, in light of DMcG evidence to the WRC it is clear that the CCTV from the EloPack room played a pivotal part in the Respondent’s decision to dismiss the Complainant. According to DMcG the CCTV showed the Complainant talking to LMcG with the two cartons in his hand and a decision was taken that because the cartons would not have been visible to LMcG, they dismissed the Complainant’s explanation, without having heard him on it. This failure to provide him with all the evidence prior to dismissing him  prevented from mounting a proper defence to the charge before he was dismissed.

The Complainant submits that the Appeal was part of the disciplinary process and because the Appeal decision maker did not attend the Adjudication hearing, the Respondent is stuck with the Complainant’s version of what happened during the Appeal.

The Complainant denied that he failed to adequately mitigate his loss.

Overall

The Respondent denies that the procedures that led to the dismissal of the Complainant were flawed. The procedures were in accordance with the Company’s disciplinary policy. The findings of fact – that the Complainant took product from the production line, was admitted by him and his excuse that his supervisor had impliedly given him permission to take the product off the line was not credible and was not accepted by the Respondent. His other explanations during the investigation, disciplinary and appeal processes were inconsistent. His first explanation being that the products were in the wrong blanks (which was not true and even if it were it does not mean that the contents wouldn’t be recycled and used later.) The second being that LMcG had implied permission. The third being that taking the product was not serious given that there would have been wastage anyway.

That the Complainant breached company policy is not denied by him. The finding of fact (that he stole from the Respondent) was a reasonable finding based on the evidence available. Theft is a gross misconduct offence for which dismissal is within a range of reasonable disciplinary actions that may be taken.

Respondent Evidence

Evidence was given under oath by LMcG (Production Supervisor), DMcG (Production Manager) and EMcN (HR manager)

LMcG (Production Supervisor)

LMcG has been a production supervisor for 14 years. He was working a nightshift on 13 September 2019. The Respondent makes juices for different customers. These juices are packed in different cartons of different sizes and the export is mainly within Ireland and in the UK. The Respondent produces products for retail outlets nationally.

On the night of 13 September 2019 LMcG was working with the Complainant in the Elo-pack room. This is a room within which juice product is poured into 1 or 2 litre cartons. The production line that night was a smoothie product for a well-known national retail business. During a night shift there is a packaging production run of between 9000 and 18,000 litres. The cartons are then sent to be wrapped and dispatched. Part of LMcG’s job is to do quality checks by drinking the product from the production line. Drinking product on the production line either to quality check it, or simply take a drink if one is thirsty is permitted. But that is very different from an employee bringing product home to consume without paying for it, which everyone knows is not allowed.

The industry term for a carton or any specific packaging is “a blank.” A “right blank” is when the packaging for a particular customer is used and that product becomes a sellable product to that customer. A “wrong blank” is when the juice is put into another carton. This happens when excess product is produced and there is not enough customer-specific cartons.  When this happens the excess product is them put into wrong blanks and it is later pasteurized and recycled for another customer where the correct packaging for the other customer is used. This way product that was put into wrong blanks is recycled, put into right blanks, is not wasted and becomes saleable. A recycled product is not necessarily sold to the same retail customer because the Respondent supplies the same product to a variety of different retail customers nationally, even though the product is exactly the same.

That night (13 September 2019) the Complainant was working a midnight to 8 am shift. For some time that night LMcG was standing at the production line with the Complainant while he (LMcG) tested the juice.

LMcG was outside the Elo-pack room when he saw the Complainant leave the room carrying 2 cartons of juice, one in each hand.

As the night became morning, the Production Manager (DMcG) came on site and LMcG spoke to him. LMcG told DMcG that he had seen the Complainant carrying two cartons walking down the corridor and he asked could DMcG check this. They went to look at the CCTV, in which LMcG could see the Complainant, as he had seen him earlier, walking along the corridor with two cartons in his hands and go into the locker room. He could see the brand markings on the cartons as being the same as that which was on the production run that night.

DMcG then asked LMcG to accompany him while he conducted a bag search on the Complainant before he left the premises.

LMcG accompanied DMcG to speak to the Complainant. DMcG asked the Complainant if he could see his bag and the Complainant said, before he had opened the bag, “it was a non-conforming product.” Nonconforming product means it is in the wrong blanks.

The bag was opened. The cartons were taken out and DMcG straightaway told the Complainant that this would need to be investigated.

After this conversation, LMcG had no more dealings until after the investigation meeting on 20 September 2019.  

Following a meeting on the 20 September 2019, HR contacted him and asked him a few questions via email arising from the Complainant’s explanations at the investigation meeting.

It was via one such email that LMcG learned for the first time that the Complainant said that they had had a conversation on the production line about the Complainant’s girlfriend’s pregnancy problems and that the Complainant said he had told LMcG that he was going to take some product for his girlfriend.

By email LMcG replied to HR. He accepted that they had both drunk product from cartons off the line, as is permitted.  He accepted that on 13 September they had had a conversation while at the production line. He accepted that he had said to the Complainant that he wouldn’t drink much of the smoothie because it is full of sugar and you wouldn’t be able to sleep. However, there was no conversation whatsoever about the Complainant’s girlfriend or pregnancy related constipation. LMcG also completely denied that the Complainant told him that he intended taking some cartons. The Complainant never asked him this.

He explained at the Adjudication that like when products are being tested, operatives are also permitted to drink juice and dispose of the carton when they are on the production line however, they’re not permitted to take product home with them, unless they have bought it from the office.

If a member of staff wishes to purchase product, there is a specific way that they do that through the office. Employees receive greatly discounted prices when they buy from the Respondent. For example, a full crate of 12 litre smoothies can be bought by a Respondent employee for only €4.

LMcG denied that an employee is allowed to take cartons of the production line and pay for them later.

LMcG’s last involvement was again by way of email on the 25 September 2019 which was to clarify to DMG the conversations that he and the Complainant had that night or if he saw the Complainant carrying cartons in his hands. LMcG said that the Complainant never asked him if he could take cartons and he did not see the Complainant had cartons in his hands.

LMcG denied that if a product had been packaged into the wrong blanks, that it could be treated as excess product and could be taken by an employee. That misunderstands the whole recycling of product nature of the business. And besides, this is immaterial given that the cartons found in his bag were correctly labelled. They will become saleable products if they aren’t already.

LMcG accepts that the following evening (14 Sept) when the Complainant started work, the Complainant asked him if he would be his witness at the investigation, but LMcG said he could not.

LMcG is adamant that the conversation about the beetroot juice and its digestive benefits took place the following night, although he denies any conversation ever took place, on either night, about the Complainant’s girlfriend. And he stated this in his email to HR dated the 25th of September.

LMcG accepted that it was he who had made the complaint against the Complainant.

LMcG accepts that he received an email on the 24th of September 2019 from DMcG (Production Manager) with respect to the Complainant evidence (during the investigation meeting)  that he was very open and obvious about the fact that he was carrying two cartons and made no attempt to deny taking it, which demonstrated his belief that he had nothing to hide.

LMcG said before the bag opened that they were in the wrong blanks, which was incorrect and it also showed that the Complainant had reason to explain his actions.

LMcG denied seeing the Complainant carrying the two cartons when he was talking to him on the production line. He said that he would have challenged him had he seen him and he only saw him with the cartons outside the Elo-pack room.

Cross-examination of LMcG

It was accepted by LMcG that an operative, including the Complainant, is allowed to sample juice on the production line and that the juice must be sampled for testing however, this is circumscribed and does not permit cartons to be taken home.

In response to the suggestion that the Complainant believed the product wouldn’t have been saleable anyway, LMCG denied this. He said that even if it was in wrong blanks, which it was not, it would’ve been recycled and would have eventually become a saleable product.

When it was put to him that it’s not credible that a person would steal cartons, and then so openly parade about with a product in his hands. The witness said that he had not seen the Complainant parading around but rather saw him walking down the corridor at a time that the Complainant would not have known that he was looking at him.

The witness said that the conversation about the beetroot juice occurred on the 14 September and  it was that the smoothie product was full of sugar and that you wouldn’t be able to sleep when you get home. There was no conversation on either night about the Complainant girlfriend being constipated.

When asked why he didn’t challenge the complainant when he saw him carrying the two cartons, LMcG said he had no time at that moment, but instead he decided to report it to the Production Manager instead.

When he was asked by DMcG, if he’d seen two cartons being held by the Complainant when they were talking in the Elo-pak room,  LMcG said that he did not see the two cartons in his hand, until later when the Complainant was in the corridor outside the Elo-pak room.

DMcG (Production Manager)

DMcG was met by LMcG on the morning of 13 September. LMcG told him that earlier that morning he saw the Complainant walking down the corridor carrying two cartons that looked liked the ones on the production run during the night.

DMcG said he would look at the CCTV, which they both did.

DMcG said that the CCTV showed, as LMcG had said, the Complainant walking down the corridor carrying two cartons of juice and going into the locker room and coming out without them.

DMcG contacted his manager who told him to search the Complainant’s bag.

DMcG and LMcG found the Complainant and asked him to come into his office, which the Complainant did. He noticed that the Complainant did not have his bag so he asked where it was and was told it was in the locker room. He asked the Complainant if he could look in his bag. The Complainant said “I’ve got two cartons in the bag. They’re no good, they’re in wrong blanks anyway.”

I looked in his bag and there were two cartons in branded packaging for a well-known national retail business.

DMcG knew then that it was a serious offence. Whether they were in the wrong blanks or not, the Complainant was not allowed to take the product. The fact that he said that they were in the wrong blanks and the fact that he had confessed this before he opened his bag, suggested to DMcG that the Complainant knew that he had done something wrong.

The Complainant did not then say anything about LMcG giving him permission or them having any conversation about the Complainant’s girlfriend. That explanation was first said in the meeting a week later on 20 September.

Before he left the premises, the Complainant asked DMcG what he was to do with the two cartons and he told him to leave them in his office, which he did.

DMcG asked the Head of Operations what product was on the production run the night before and he confirmed that it was for the customer on the two cartons. From then on DMcG knew that the Complainant’s “wrong blanks” explanation was incorrect.

The issue then went to HR to deal with and an investigation meeting was held.

DMcG’s next involvement was following the investigation meeting on 20 September and he was asked by HR to look at the CCTV, this time in the Elopak room. DMcG described what he saw. He accepts that the CCTV was not provided to the Complainant. He saw the Complainant taking the two cartons off the line and at this time LMcG had his back turned. In DMcG’s mind this was consistent with what LMCG said – that he never saw the Complainant with the product in his hands in the Elopak room. However, he also saw LMcG talk to the Complainant when the Complainant was holding the cartons. DMcG was happy that the explanation of LMcG – that he never noticed the Complainant carrying the cartons – was understandable because where the Complainant was standing what he was holding would not have been apparent to LMcG.

DMcG explained the policy for sale of product to staff.  This was printed on a notice and pinned to a notice board. Everyone knows this policy and everyone knows that this is the only way that an employee may take product home with them.

DMcG said that the Complainant has said that LMcG gave him permission, only that they had a conversation about the digestive benefits of the product and that he suggested that he would try it out and take some home, to which he says LMcG did not answer. A non-answer is not a permission. This is all denied in any event but even if it were accepted, LMcG saying nothing does not amount to a permission to take the product and LMcG could not have given him such permission anyway and the Complainant, being there as long as he was, knew that.

Cross examination of DMcG

DMcG said there was no circumstances which permitted the Complainant to do what he did, permission or no permission (and whatever assertion that permission was given is denied.)

Everyone knows that taking of stock is gross misconduct. Everyone knows the staff policy on the sale of product.

When asked about the CCTV footage in the Elo-Pak room, when asked why the Complainant was not allowed to view that footage ( in fact they were told that no CCTV footage existed,)  DMcG said having viewed the footage, that LMcG version was more accurate than the Complainant’s.

DMcG accepts that the Complainant was never provided with the CCTV.

It was put to him that the Complainant was not provided with the CCTV or the emails between him and LMcG on 25 September, to which DMcG accepted that these had not bee provided but that was up to HR to manage.

EMcH (HR Manager)

EMcH received a phone call from DMCG on 13 September. He explained what had happened that morning and that he did a bag search and found two cartons of juice in the Complainant’s bag and that he had said “they were in the wrong blanks.”

She gave evidence about the Respondent policy on sales of product to staff.

The Complainant was written an email advising him that the matter was a serious offence and needed to be investigated.

The first investigation meeting did not suit the Complainant’s representative (VH) so it was adjourned until a date that did suited, namely 20 September.

The Complainant left work early on the night following the discovery and thereafter by letter dated 16 September that he was suspended on full pay pending an investigation.

The purpose of the investigation meeting was to get the Complainant’s version of what had happened.

The meeting took place on 20 September. The Company took notes during the meeting although it is accepted that these were not formal minutes (the Complainant was not asked to sign the notes as being minutes) rather the Complainant’s representative took his own notes.

The Complainant’s explanation at the investigation was that he had been having a conversation with LMcG in the Elopak room and he discussed with LMcG the fact that his girlfriend was “backed up” (ie constipated) because she was pregnant.

He said at the meeting that there were “no more blanks” and he also said “non-conforming product”

At the meeting Complainant accepted that he knew the staff protocol about the sale of product to staff but he said that he never intentionally took anything. VH advocated that it was not stealing as such and that, had it been theft, the Complainant would not have walked about so openly and obviously with the cartons and leaving them in the locker room before putting them in his bag only towards the end of the shift.

At the meeting EMcH read from the Company handbook on what constituted gross misconduct, which included theft.

EMcH said that it only was at this meeting, a week after the event,  that the “girlfriend conversation” defence was first raised by the Complainant. He did not say this to DMcG in the locker room or since. EMcH said that she would need to investigate the matter further and the meeting was closed.

EMcH then emailed LMcG asking him if the Complainant had discussed with him on 13 September his girlfriend’s health issues and if the Complainant had told him he was taking a couple of cartons.  LMcD said he did not but admitted that they had had a conversation about sugar in the smoothie and beetroot juice the following night, ie the night after the incident. LMcG denied any conversation at any stage about the Complainant’s girlfriends health issues. He also denied that the Complainant had said he was going to take the cartons.

This information was then shared by EMcH with the Complainant and she asked him to reply.

The Complainant replied that he had said to DMcG that “there were no more blanks left anyway.” He said he couldn’t explain to DMcG about his girlfriend problems in front of other staff. He said that the conversation with LMcG was a lot longer than LMcG had said and that he did tell him about his girlfriend and they discussed beetroot juice on 13 September.

EMcH denies that there was ever a request to provide CCTV to the Complainant. The CCTV had no sound so it could not have helped anyway.

EMcH says that the decision to dismiss the Complainant was not taken lightly.

The disciplinary procedures were fully complied with and the Complainant was informed by letter dated 3 October that he would be dismissed. There was a disciplinary meeting  at which he was informed of the decision.

Gross misconduct is defined in the Employee handbook as including theft of stock and while the Complainant denies that he meant to steal the product, he accepted that he took stock without express permission to do so.

Cross examination of EMcH

The Complainant’s defence is that excess product had been made that night anyway so there would be natural wastage in that process and that permission was implied by LMcG’s failure to reply to the Complainant saying that he was going to take the juice, which EMcH denied.

Counsel for the Respondent objected to this question on the basis that this was the first time that anyone had suggested that the product would be wasted. Unused product is recycled and used again and the Complainant knows this well. The Complainant said there is always a good bit of wastage when product is recycled.

EMcH said that there was no such thing as excess product that is not used. It is recycled by way of pasteurisation made into saleable product.

When it was put to EMcH that the Complainant had never said that the cartons were in the wrong blanks, she said that even if he had said or meant that there was excess product which would end up going into the wrong blanks, that is not a defence to what he accepted he did and it is not a good explanation for what he did.

EMcH said that this is not what he said on meeting of 20 September anyway.

EMcH said that the defence of implied consent was found as not likely given the changing story of the Complainant, given that LMcG denied any conversation about the Complainant’s girlfriend ever took place. Also failing to answer a suggestion is not the same as saying yes.

EMcH did not accept that CCTV was looked for at the disciplinary meeting. It was put that all witness statements and CCTV were sought at the disciplinary meeting and through-out the investigation, which EMcH denied.

EMcH denied that the decision to dismiss was prejudged or that company procedures were not followed.

EMcH said that she was not obliged to tell the Complainant who his accuser was. He was given the email evidence of LMcG and was given a full opportunity to respond.

EMcH denied that the offence was less than theft. She denied that the Respondent had applied an absolutist interpretation about what theft was. She denied that the Respondent had not heard the Complainant’s explanation.

EMcH denied that the minutes of the meeting on 20 September were inaccurate or were designed to suit the Respondent.

EMcH said that the CCTV was not relevant because there was no sound, to which it was put that its relevance was up to the Complainant to decide, that his job was on the line and he should have been provided the CCTV. The CCTV would have shown the length of time that the Complainant and LMcG talked in the EloPack room and that would support the Complainant’s evidence but he wasn’t given the CCTV.

EMcH was asked why she had not provided the Complainant with the email correspondence on 24/25 September between DMCG and LMcG (which was part of the investigation) as he had been provided with other emails. These emails were highly significant because they refer to the CCTV and describe that it shows the Complainant talking to LMcG in the Elo-Pak room and that he was holding the cartons. It was suggested that the failure to provide the CCTV or these emails are highly prejudicial. It was clear from the email that LMcG accepts that the CCTV showed the Complainant talking to LMcG with the cartons in his hands but he said he didn’t see the cartons.

EMCH accepts that these emails were not provided to the Complainant but nothing turns on it because of what the Complainant admitted to, which alone is an acceptance of unauthorised taking of product. EMCH said that CCTV was useful in some cases but not this one.

EMcH denies that fair procedures were not applied.

Special Circumstances

Applying section 41 (14) of the Workplace Relations Act 2015-23 I find that special circumstances in this Adjudication prevail on foot of which, I determine that the identity of the parties should be anonymised in this published decision. The evidence in relation the health or medical condition of a third party, who is not involved in this Adjudication, is canvassed within this decision and were the parties to be identified, the identity of the third party would also be revealed. Her right to privacy, unless it is waived, should be protected.

Test to be applied

1. The questions to be applied in this case are:

(i)      Was the finding of fact that the Respondent reached following the disciplinary procedure (that on the balance of probabilities, the Complainant stole product) reasonable?

(j)      Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

(k)     Was the finding of fact reasonably capable of amounting to gross misconduct?

(l)      Was the sanction of dismissal appropriate in all the circumstances?

Analysis of Evidence

1. Given that there is no dispute that the Complainant took the product, a central point is was he given permission by LMcG or was he not?  The Complainant accepts that no express permission was given to him by LMcG. He also accepts that taking product off the production line to take home was in breach of the company policy.
2. The Respondent found that the Complainant, on the balance of probabilities, stole the product. This was based on his admission and also on inconsistent explanations for what happened as the disciplinary action proceeded.
3. I find that this finding, was reasonable for the Respondent to conclude, based on the available evidence. Most particularly:

(i)                  During the Adjudication hearing DMcG was not cross examined - and the Complainant did not contest his evidence - that in the locker room he gave an explanation for what was in his bag, before he opened his bag. From this it was reasonable for the Respondent to conclude that the Complainant knew that something needed to be explained before the bag was opened.

(ii)                What he then said is contested. It was either “there are two cartons in the bag which were wrong blanks” or “they would have been put into wrong blanks anyway”.

Even accepting the Complainant’s version, I am satisfied that this explanation makes no sense. The product would not have been wasted, even if there had been excess product produced that night. The Complainant more than anyone (given that he worked in recycling) knew that excess product would have become saleable on a later date, so he knew that he was taking product that the Respondent could have sold. Even if there is some natural wastage this was not a basis to conclude that taking product, particularly given that it was not in the wrong blanks, was permitted.

(iii)               It is significant that it took until the investigation meeting on 20 September, a week after the incident for the Complainant to raise the “girlfriend conversation” defence.

(iv)               It is significant that he did not give DMcG this explanation straight away in the locker room given that LMcG was there (although I accept that there may have been sensitivities around disclosing his girlfriend’s condition, given that there were other staff present.)

(v)                 But it is significant too that he did not remind LMcG during their conversation on 14 September of the fact that they had the girlfriend conversation the night before

(vi)               The conversation about beetroot juice occurred either on the 13 or the 14 September.

(vii)             If it is the 14 September as LMcG would have it, this could not have been an implied permission for the complainant to take the product on the night before.

(viii)           If it happened on the 13 September, the Complainant still accepts that LMcG never positively responded to the complainant’s comment that he was going to take product from the production line and bring it home. This is the Complainants own evidence. Failure to not intervene is not the same as giving permission. If he is relying on an implied consent, he should have clarified again with LMcG if it was okay to take the product, in case he hadn’t heard, instead of assuming permission was a given.

5.       Ultimately the Respondent gave evidence that the Complainant took product on an unauthorised basis and the Complainant does not disagree with this.

1. The height of the Complainant’s case is that a conversation with LMcG allowed him to believe that LMcG implied a permission to take the product, even though he accepts that no express permission was given. The Complainant knew the policy for sales to staff and he knew that LMcG did not have the authority to allow the Complainant to take product off the line.
2. The policy for staff sales is posted on the noticeboard and that explains how product may be bought by staff. There is no provision for and indeed the Complainant doesn’t contend that he didn’t know about this policy. His explanation is more that, that he needed it then and there for his girlfriend to try it out.
3. It is my view that the Complainant was influenced by the small quantity of product involved. That he was dismissed for taking only two cartons of juice. He contends that the dismissal was an over-reaction to a minor offence. I do not accept that.
4. In production line businesses, particularly when a large production run is concerned, it is extremely easy for an employee to take product off the line. Therefore the rules preventing theft need to be very tightly controlled. Without a tight rein on this the Respondent business would become unmanageable. If all the 170 employees thought they could lift product off the line when they needed it, the Respondent would be out of business and the 170 employees would be out of work. The Complainant does not seek to argue that he fell into a different category than any of the other employees.
5.  During the Adjudication hearing when the Complainant was asked to describe what his response would be, were he to be an employer and one of his employees took some of his saleable product off his production line without paying, he accepted this would cause difficulty.
6. I accept that the Complainant regrets this whole episode. I accept that he has a clean record and long service prior to this event. However, just because theft is of a small amount does not change the character of the action. Theft in the workplace - even if it is low value - is still the unauthorised taking of somebody else’s property and it constituted a breach of trust.  It is pernicious in that if not addressed, it would allow others to behave similarly. The fact that what was taken was worth very little in this case, doesn’t change the fact that the action was theft and just because one doesn’t consider it to be theft, does not make it not theft.
7. Theft inevitably gives rise to a breach of trust and on that basis I accept that the decision to dismiss was within a reasonable range of responses that were open to the Respondent to make following the finding of gross misconduct. And I am satisfied that the Respondent has proven that gross misconduct occurred.
8. During the appeal the admissions made by the Complainant remained the same;  that he took product without having permission to do so.

Flaws

There were flaws in the disciplinary process. However, these were not fatal to the decision because, as outlined above, the findings of fact and decision to dismissal could have been made by the Respondent on the evidence of the Complainant alone. I wish to identify these flaws however so that they can be some learning from them.

A.      The Complainant was first invited to investigation meeting by letter in which “serious misconduct” as opposed to “gross misconduct” was to be discussed. The contract distinguishes between these two offences.  The reason I find this is not material to this finding is that Complainant accepted that from the locker room moment that he was suspected of theft and was being investigated for theft. So he did not go into the investigation meeting unaware of the charge against him. 

B.      The failure to provide CCTV evidence to the complainant is a more serious flaw. The Respondent relied on this to reach its decision and the Complainant certainly should’ve been provided with it. The evidence of an investigation, both evidence that incriminating and exonerative, should have been furnished to the Complainant. It is not satisfactory for the Respondent to say that in certain cases, CCTV evidence is determinative but in this case it was not and for that reason it was not given the Complainant. With respect, that should have been a matter for the Complainant to decide on, not the Respondent alone.  Just because it wasn’t helpful to the Respondent doesn’t necessarily mean it may not of helped the Complainant. Where a person is being investigated for misconduct that might result in him losing his job,  he is entitled to have all the evidence put to him.

The Complainant said that he never tried to hide the fact that he taken the product and the CCTV footage would’ve shown that, which was precisely why DMG looked at it again and why the Respondent should’ve shared with the Complainant. According to DMcG the CCTV showed that LMcG could not have seen what the Complainant was carrying. Whether that is so or not, we will never know because the CCTV evidence was not provided.

So let us assume that the CCTV did show the Complainant talking to LMcG clearly holding  the cartons in his hands, the Complainant’s own admissions still remain that he was not given permission by LMcG to take the product. So even if the CCTV favoured his explanation, this does not change the fact that LMcG did not answer him when he said he was taking the cartons and therefore at that point,  he became the author of his own actions, actions which he knew were prohibited and in contravention of Company policy.

Conclusions

It is upon evidence of the Complainant alone that the decision to dismiss him was justifiable. He knew that he was not permitted to take the product off the production line and bring it home. He admitted that LMcG didn’t answer him when he said he would take it home. The conversation that he had about his girlfriend, even if it happened on the 13 September did not provide him with a good reason to take the product. A good reason perhaps, to buy the product for her, but not a reason to take it off the production line without authorisation.  A clean record and long service does not alter this fact.

It is for these reasons that, regardless of the two flaws identified above, based on the Complainant evidence alone together with inconsistencies in his evidence during the disciplinary process, I am satisfied that the Respondent’s finding of theft was reasonable. It amounted to gross misconduct and the decision to dismiss the Complainant was reasonable.

Based on the above reasons, I find that no unfair dismissal occurred

I find that no unfair dismissal occurred

Unfair Dismissal – Theft