ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00049752
Parties:
| Complainant | Respondent |
Parties | Daoud Aoun | Musgrave Operating Partners Ireland Limited t/a SuperValu |
Representatives | Derrick Connors D. A. Connors Solicitors | Niamh Daly Ibec |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061084-001 | 19/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00061084-002 | 19/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00061084-003 | 19/01/2024 |
Date of Adjudication Hearing: 26/06/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 6 of the Payment of Wages Act 1991, and/or Section 8 of the Unfair Dismissals Acts, 1977 and/or Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. All parties were afforded the right to give evidence on oath or affirmation and the right to cross examine.
Background:
The Complainant contends that he was unfairly dismissed. He contends that, in contravention of the Payment of Wages Act 1991, he was subjected to a shortfall in wages. Further, he contends that he did not receive breaks in accordance with his entitlements under the Organisation of Working Time Act 1997.
Summary of Complainant’s Case:
A number of issues were raised in the Complainant’s submission, summarised as follows:
In or around 4th August 2023, the complainant was advised that he was the subject of an investigation regarding incorrect clocking in times and was accused of committing theft as a result. Thereafter the Claimant was dismissed from his employment.
Complaint in relation to disciplinary sanctions up to and including dismissal
The Claimant was approached by the store manager who stated to the Claimant that he was in trouble and ordered the Claimant to his office. The Claimant was then informed that he was in trouble for committing theft and that he was going to be disciplined for same. The Claimant queried as to what theft had occurred and then was informed that he had incorrectly clocked into work. The Claimant was not given the opportunity to have a witness present at the said meeting and was not given the opportunity to obtain independent advice when the said accusation were put to him at the said meeting.
It is contended that the Complainant was subjected to bullying and harassment when the management demeaned the Claimant for stating that under health and safety regulations that two people should be in store at all times and he felt unsafe.
Pay
The Claimant claims that he has been underpaid in relation to wages he was owed due to the Claimant being called into work early to deal with persistent shoplifting at the store of which he worked. The Claimant was called to attend work at 9 a.m. outside of his normal working hours and would regularly work through to 9.15 p.m. in addition the Claimant also attended call outs to the store. The claimant claims that he did not receive payment for additional hours worked and is owed in excess of €1029.42 in underpaid wages and holiday pay.
Unfair Dismissal
The Claimant was unfairly dismissed for incorrectly clocking into work. The Claimant states that it was regular practice that if the Claimant was finished work early due to other employees finishing their respective work schedule, then on the dates that this would happen, an arrangement was undertaken between the Claimant and the store management that when work was completed early he could leave and that the claimant would make up hours on subsequent shifts. On this basis the store management would enter a missed clocking request on the company web portal of which was undertaken on numerous occasions by the store management.
It is contended that in or around ten days after the Complainant complained to Store Management that there was an increase in thefts the Claimant was then reprimanded for alleged incorrect clocking schedule, a matter of which the Claimant states he sought confirmation of from the assistant store manager and was duly accepted by the assistant store manager.
Hours of Work
The Claimant was not given correct break periods as the claimant was required to attend on other employees and customers at all times to ensure that no thefts occurred at the store.
The Complainant gave evidence on affirmation. He stated that he often worked many hours for which he did not receive pay.
Summary of Respondent’s Case:
The Complainant alleges that he was unfairly dismissed. The fact of dismissal is not in
dispute. The Complainant was dismissed from his employment with the Respondent for
gross misconduct, following a thorough process, undertaken by the Respondent to ensure
maximum fairness and transparency was afforded to the Complainant, in accordance with
fair procedures and natural justice. Furthermore, as he was summarily dismissed from
employment, he was not entitled to notice under the Payment of Wages Act in line with
Section 8 of the Minimum Notice and Terms of Employment Act, 1973.
The Complainant commenced employment with the Respondent on 11 October 2021 as a
Security Guard.
The employment was terminated on 22 September 2023 by reason of gross misconduct.
On four dates in August 2023 (9th, 10th, 11th, and 12th), alleged incidents occurred
regarding breaches in the Respondent’s clocking policy and disciplinary policy in the
“K” Store. On each of those dates, the Complainant did not clock out from work
when he left the K Store following a night shift and remained clocked in for
work. The Complainant was rostered for to finish his shift on each of the four dates
at 6am.
On 21 August 2023, the Complainant was invited to attend an Investigation Meeting
with Mr D, Store Manager on the 25 August 2023.
On the 22 August, the Complainant was advised that the Investigating Officer was
changed to Ms L, Regional HR Manager, all other details remained
the same.
On 25 August and in advance of the investigation meeting, the Complainant and his
Representative from Mandate Trade Union, reviewed CCTV footage that
was being used as part of the investigation.
At the investigation meeting on the 25 August, it was decided to place the
Complainant on paid suspension pending the outcome of the investigation. The
purpose of placing him on paid suspension was due to allegations of gross
misconduct.
A full investigation and disciplinary process was followed where the Complainant and his Trade Union Representative attended a disciplinary meeting on 15 September 2024. The Complainant was dismissed with immediate effect from 22 September 2023. The decision was appealed and on 16 October 2023 an appeal meeting was held.
Several witnesses were interviewed in the course of consideration of the Complainant’s appeal. The Complainant was provided with statements and submitted some responses. The appeal outcome was issued on 7 December 2023 upholding the decision and sanction of dismissal.
The Respondent’s position is as follows:
Section 6(4) of the Unfair Dismissals Acts 1977 states:
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal
of an employee shall be deemed, for the purposes of this Act, not to be an unfair
dismissal, if it results wholly or mainly from one or more of the following:
- the conduct of the employee,
The Respondent acted in accordance with Section 6(4) and terminated
the Complainant’s employment as a result of gross misconduct.
Various case law is submitted in support of the Respondent’s arguments:
In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, the
Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden
which must be demonstrated by the Respondent in the matter at hand today:
“The Tribunal is not required to determine whether the Complainant did or did
not carry out the alleged act […]. The Tribunal’s function is to establish whether
the respondent has proven that the dismissal was not unfair, having regard to the
terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established
the Tribunal must be satisfied that the alleged act […] was fully and fairly
investigated by the respondent, that the investigation and disciplinary process
respects the rights of the Complainant, that the conclusion that the offending act
had been perpetrated by the Complainant was reasonable on the balance of
probabilities and that the dismissal was a proportionate response within the band
of sanctions which could be imposed by a reasonable employer.”
It is argued that the Respondent carried out a full and fair investigation which respected the rights of the Complainant and that the conclusion was reasonable and the dismissal was a proportionate response. The Complainant was at all times afforded the right to representation and appeal.
The Respondent contends that this sanction was proportionate in light of the severity of the matter.
Any reasonable employer could not be expected to continue to trust an employee who
carried out acts like this, and who was fully trained in the processes and was well
aware of the procedures in place.
The Respondent contends that the actions of the Complainant contributed wholly to
his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not
entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in
accordance with the position taken by the Employment Appeals Tribunal on multiple
occasions, including in Murray v Meath County Council, UD 43/1978, where the
Tribunal saw appropriate not to award any redress to the Complainant in light of his
inappropriate actions.
The Respondents policies clearly states that:
Disciplinary Policy –
Section 5: Gross Misconduct
Point 4 “Theft’’
Point 5 “Incorrect clocking procedure or alteration of clock card recording”
Point 11 “Any behaviour which renders the continuation of employment untenable”
Point 30 “Any other serious breach of policies and procedures leading to loss of trust and
confidence”
Clocking Policy - 4.3 Abuse of the Clocking Procedure:
Abuse of the Clocking Procedure in any form will not be tolerated and, will lead to
disciplinary action up to and including dismissal.
- Complete incorrect/falsified information on a missed clock form.
- Clock back to work but not return to the Colleagues department / place of workimmediately.
The Complainant has not responded to requests from the Respondent regarding mitigation of losses.
Without prejudice to our position that there was no unfair dismissal within the
meaning of the Unfair Dismissal Acts; we refer to the Complainant’s claim form
and his declaration that he has not worked since the termination of his
employment with the Respondent.
As set out in Section 7 (2) (c) of the Unfair Dismissals Acts 1977 to 2015:
‘(2) in determining the amount of compensation payable … regard shall be had to (c) the
measures (if any) adopted by the employee or, as the case may be, his failure to adopt
measures, to mitigate the loss aforesaid’.
The Respondent would respectfully ask the Adjudication Officer to consider
efforts to mitigate loss and the period of loss between employments.
In conclusion, it is the Respondent’s position that the dismissal of the Complainant was
fair and proportionate given the circumstances. The Complainant was given the full
benefit of natural justice and fair procedure at all stages of the process. In all ways we
believe the dismissal was substantively and procedurally fair and we respectfully ask the
Adjudicator, based on this submission and the evidence presented, to find in favour of the
Respondent in this case.
Claim under section 27 of the Organisation of Working Time Act, 1997
In the WRC complaint form, the Complainant alleges “I did not get a daily rest
period”
The Respondent refutes this claim and can show by the Complainant’s working
time records that he received his daily rest entitlements in the six months within
the cognisable time frame pertaining to this complaint. (Clocking Records provided).
Claim under section 6 of the Payment of Wages Act, 1991
The Complainant alleges that the Respondent has breached the Payment of Wages
Act, 1991 and alleges that he is owed €915.04 in unpaid wages and €114.38 in
holiday pay not received.
It is the Respondents position that it is not required to provide the Complainant
with payment in lieu of notice in situations of serious/gross misconduct as per the
Company’s disciplinary policy and in line with Section 8 of the Minimum Notice
and Terms of Employment Act, 1973.
The Respondent deemed the Complainant’s actions to amount to gross
misconduct, resulting in the Complainant being summarily dismissed and not
being entitled to receive notice or payment in lieu of notice.
All wages were paid to this employee. There was no notice requirement or
payment for notice due to the Complainant because of his gross misconduct
dismissal.
This is supported in Joseph Callaghan v Omniplex (Cork) Limited (ADJ-00029574),
where the Complainant took a claim of non-payment of notice under the Payment
of Wages Act, 1991. The Adjudicating Officer stated in their decision that:
The claim here relates to non-payment of Notice as required under the Minimum Notice
and Terms of Employment Act 1973. Section 8 of that Act states:
8.—Nothing in this Act shall affect the right of any employer or employee to terminate a
contract of employment without notice because of misconduct by the other party
As the complainant was dismissed for gross misconduct no payment in lieu of notice was
required.
Evidence was given on affirmation by the Managers who conducted the investigation, disciplinary and appeal process. The Assistant Store Manager and the Store Manager also gave evidence. Managers confirmed the strict rule that staff must be clocked in when they are in work and clocked out when they are not. This rule is clear in the employee induction and the Complainant was fully aware of this. It was also clarified that staff are paid for every hour worked. The Store Manager stated that if security staff had to come in following an alarm, they received 4 hours pay. He stated that while the Complainant was conscientious, he was sometimes in the Store when he was not rostered on, and he was sometimes in the security room looking at the CCTV. The Store Manager told him he shouldn’t be in the Store unless clocked in. The Assistant Store Manager confirmed that the Complainant was told of his entitlements to breaks and his one hour unpaid break.
Findings and Conclusions:
The Complainant’s representative raised a number of issues which were not contained in the original complaint. A reference under the Industrial Relations Act was closed as in accordance with Section 13(3)(b) of the Industrial Relations Act, 1969 an Adjudication Officer cannot investigate a trade dispute where a party to the dispute objects to that investigation. Reference to Protected Disclosures/Whistleblowing is contained in a separate complaint.
The findings, conclusions and decision in this instant case therefore refer to the complaint references properly before me as follows:
CA-00061084-001 Payment of Wages Act 1991
The claim here is that the Complainant was not paid for all hours worked. The complaint was received on 19 January 2024. The cognisable time period therefore is from 20 July 2023. I note the Complainant’s claim on his complaint form is set at €915.04 for wages and €114.38 for annual leave.
I note the evidence that the Complainant was observed in the Store when he was not clocked in. The Complainant has not particularised his complaint in relation to circumstances and dates on which he alleges he was in work and was not paid wages. In order for the claim to succeed, the Complainant must demonstrate that wages “properly payable” were withheld.
The applicable law
Section 5 (1) of the Act provides:
5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— |
( a ) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, |
( b ) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or ( c ) in the case of a deduction, the employee has given his prior consent in writing to it. |
Section 5 (6) of the Act provides:
(6) Where— |
( a ) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or |
( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, |
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.
In this instant case, the Complainant has made broad allegations that he often had to come in and was not paid. The Respondent gave cogent evidence of the system for clocking and paying employees for every hour worked and compensation for afterhours work legitimately approved and worked. I accept the Respondent’s evidence and I find the complaint to be not well founded.
CA-00061084-002 Unfair Dismissals Act 1977
The evidence shows that (a) the Respondent has clear and unambiguous policies in relation to clocking procedures and (b) abuse of such procedures is considered gross misconduct.
In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal. The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that “It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..” In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated: “The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”. In this instant case, I base my findings and conclusions on three key questions (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation? (2) Was there a fair investigation? and (3) was the penalty proportionate? From the evidence it is clear that the Respondent carried out a full fair and thorough investigation into the charge that the Complainant had abused the clocking procedures. In assessing whether the penalty was appropriate, I note the evidence that particularly as a Security Guard the Respondent required confidence and trust which was sundered by his actions. I find the complaint of unfair dismissal to be not well founded. CA-00061084-003 Organisation of Working Time Act 1997
Section 12 of the Act provides: “12. – (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”
The Complainant’s complaint is that there was a breach of the Act by the Respondent when he was called in while on a break. No evidence was provided to particularise and support this claim. The Respondent has records to demonstrate no breach of the Act. I find the complaint to be not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint under that Act.
CA-00061084-001 Payment of Wages Act 1991
Based on the evidence and submissions, and the reasoning above, I have decided the complaint is not well founded.
CA-00061084-002 Unfair Dismissals Act 1977
Based on the evidence and submissions, and the reasoning above, I have decided the complaint is not well founded.
CA-00061084-003 Organisation of Working Time Act 1997
Based on the evidence and submissions, and the reasoning above, I have decided the complaint is not well founded.
Dated: 18th December 2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Payment of Wages Act 1991, Unfair Dismissals Act 1977, Organisation of Working Time Act 1997. Complaints not well founded. |