ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00037914

Parties:

Complaint:

Date of Adjudication Hearing:  28/03/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of theIndustrial Relations Acts 1969 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Summary of Complainant’s Case:

The employee was four months pregnant and needed to get some items from the deli for break.  Not having cash on her, she phoned her partner to come in to pay for the items.  She told the cashier she was going to have the items paid for later.  The team leader witnessed this but did not say anything.  She then subsequently reported the matter to Management.  An investigation followed.  The employee was not immediately suspended and was extremely distressed by the manner in which she was summoned to the suspension meeting and escorted out the door afterwards. There followed an investigation and disciplinary sanction.  Throughout the disciplinary process, the employee protested her innocence and dissatisfaction about the whole suspension element.  She suffered extreme stress and anxiety and was out sick for a number of weeks.  Following completion of the disciplinary process, she submitted a grievance.  The grievance was not upheld.

It is submitted that in the company outcome report on 18th January 2022, it stated that the team leader was ‘shop minding’ on the day and was inexperienced and had received no training on the disciplinary process or reviewing CCTV.  It is submitted that common sense did not prevail in that not one person checked CCTV to see that the employee had paid for the items.  It was also found in the outcome report that suspension should normally happen as soon as possible and CCTV footage reviewed.  This did not happen in this case. The manager carrying out the investigation knew that the employee had paid for the items, yet the process continued.  He also knew the employee was extremely distressed.  Whilst further training and reinstatement of annual leave are welcomed, it does not compensate for the stress and anxiety caused to the employee.  

Summary of Respondent’s Case:

On 15 August 2021, a colleague at the Deli Counter alleged the Claimant had walked out the side door without paying for items received from the Deli Counter. This was reported to the Manager of Duty, and he subsequently reported it to senior management on 16 August 2021.

The Claimant worked on 16 August 2021 and was off work on 17 August 2021. As the breach of colleague purchasing procedures and clocking procedures had only been reported to senior management on 16 August 2021 the employee was not approached about the issue until she returned from leave on 18 August 2021.

On 18 August 2021, the Claimant was suspended with pay, pending investigation, regarding a breach of colleague purchasing procedures and clocking procedures, in line with the Respondents Disciplinary Policy.

On 20 August 2021, the Respondent sent correspondence to the Claimant with written notification of the paid suspension and the scheduling of an investigation meeting. The Respondent informed the Claimant that a decision had been made to lift the suspension with pay pending the investigation and that she may return to work on Saturday 21 August 2021 as per the Claimant’s roster. This decision was made following the review of CCTV evidence that showed the Claimant had paid for the items and therefore was not a theft. However, it was shown that the payment for these items was after the employee had left the store for her break which was is still considered as a breach of the colleagues purchases and bag search policy.

On 15 September 2021 the Respondent issued a first written warning to the Claimant.

On 26 November 2021, the Claimant attended an appeal meeting for her disciplinary sanction and was represented by a Trade Union representative.  The Claimant, through her Trade Union representative informed the Respondent that she was seeking compensation and additional training for managers on handling these situations.

On 8 December 2021, the Employer issued the outcome of the Claimants appeal. The outcome of the appeal was that it was recommended that store management were retrained in relation to Investigation and Disciplinary Procedures are requested in the appeal. It was further advised that although the Claimant was unaware of breaching the Company Purchases and Bag Search policy, she did indeed breach the policy and was determined that the sanction would not be overturned. The Claimant was further advised that the internal appeals procedure had been exhausted but did not impede her statutory rights.

The Claimant (through her trade union) submitted a formal grievance on 10th of December 2021.

The Claimant’s Trade Union representative appealed the outcome of the grievance on 7 February 2022 expressing their dissatisfaction of the appeals procedure and that the Claimant did not receive adequate compensation.

The Claimant is appealing the outcome of a grievance procedure in relation to her suspension and has categorised this complaint as a Trade Dispute. The respondent acted in accordance with its Disciplinary Process. An allegation of theft, breach of colleague purchase procedures and incorrect clocking procedures are all listed as gross misconduct under the Respondents Disciplinary Policy. The Respondent acted in accordance with the Disciplinary Policy at all times and utilised their entitlement to suspend the Claimant with pay while they established the facts relating to the incident on the 15 August 2021. The Respondent has acknowledged that Senior Management may need more training in operationalising the Disciplinary Policy. However, the Respondent submits that matters concerning alleged theft, breach of colleague purchasing procedures, and incorrect clocking procedures, which may be considered a theft of time, all warrant suspension with pay until the preliminary facts have been established. Accordingly, the Respondent submits that the error in this case is that the Claimant should have been suspended with pay as soon as it had been reported to Senior Management and not that they should not have been suspended with pay. The Claimant suffered no financial loss as a result of the Respondent discharging their Disciplinary Policy.

Findings and Conclusions:

The situation which gave rise to the disciplinary and grievance procedures being invoked in this case could easily have been avoided had the Team Leader who was “minding the shop” properly established that the employee had not been engaged in theft.   I note the employer came to a conclusion that more training was needed for managers engaged in the disciplinary process and that certain flaws in the handling of the incident were put down to inexperience and lack of training.          The employer followed their procedures once the incident was decided as one warranting disciplinary action.  However, the matter should have ended once the employer established that the employee paid for the items later the same day and by their own findings during the process, she had no intention to commit theft.  The whole situation became a matter of extreme stress for the employee particularly as it happened during her pregnancy. I note that she was compensated at the end of the process by the employer restoring 5 days annual leave and this was a good gesture.            I find that, given all the circumstances, some further gesture of compensation should be made to her for the long process of disciplinary and grievance hearings and appeals.  I recommend a sum of €800  would be reasonable and should be given to her in full and final settlement of this dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend a sum of €800 should be given to the employee in full and final settlement of this dispute.

Dated:   25th May 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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