Complainant

Respondent

Parties

Geraldine  O'Donnell

St. Munchin's Community Centre Company Limited By Guarantee

Representatives

Victoria Stephens SIPTU

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-00055115-001

15/02/2023

The complainant was dismissed for allegedly misappropriating a pair of socks. The Complainant states that it was a simple misunderstanding and that the Respondent failed to listen to her mitigating facts.

The Complainant transferred over to the Respondent in April 2019 under TUPE. She was on a job initiative scheme 27 years ago.  Back then she was in a violent relationship. When she left her husband, she was alone with five children to feed. She decided to go back to work.

She has never had an issue during her employment over all on those years. On the day in question, she saw a load of boxes in the reception area. She saw some socks on the top of the boxes. She took them because she thought they were going to be thrown out.  Later that day she was approached by Ms Ledger. She was asked about the sock. She told her that she had taken them. She was suspended on that day. Then on the 17th she was taken to view the video that had been recorded on the reception CCTV. She was advised by Mr. Cusack to bring the socks back. She did that immediately and she gave them to Ms. Ledger.  She really thought the socks were going to be dumped with the boxes.

She thought that she might only get a warning. She has never had a problem with her employment before. She couldn’t believe it when she was fired. She is now down €400 per week and is finding it very difficult.  She can’t claim the pension until she is 66. She can’t find a job because she is 65. It is almost impossible.

The Complainant states that she never asked that “no correspondence be sent to her house”.

On the morning of the 7th November the Complainant gave a letter to her employer dated the 6th November. It was about her wages for when she was on holidays. She was due three days. Following her leave she had been informed by Austin Quinn that she would be getting a written warning because she hadn’t shown up for work. She was shocked. She was shocked because she had informed Mr. Quinn that she was taking the three days leave. The Respondent contested that and stated that the meeting of the 7th was about the Complainant’s mental health due to an issue she had in relation to bullying in the workplace. It was in relation to Austin himself. The Respondent alleges that the bullying issue was resolved on the day and the complainant took the letter back. The paid that was due was paid the following week. Then on the 8th, the following day,  all this happened. The timing of it all is a bit suspicious.

Micheal Cusack after taking the affirmation, gave evidence as follows:

On the 8th November 2022 the Complainant was suspended with pay pending an investigation in relation to the alleged misappropriation of a pair of socks. On November 14th Mr Cusack was contacted by Linda ledger and asked to commence an investigation in relation to the pair of socks that that been taken from St Lelia’s. That venue was at the time being used as a hub for Ukrainian Refugees. On the following day, November 15th, he came to St Munchin’s community Centre. By that date the socks had not been returned. She was asked by Mr Cusack to return the socks and she did do that.

On the 15th November, the Complainant was with Brenda Gardiner, who was a supervisor. Mr. Cusack was shown the CCTV footage from St Lelia’s reception area and he was also told by Hannah Boklach’s husband and twin daughters, who can be seen passing through the reception area on the CCTV. Hannah owned the socks. Her husband had reported to Linda that the socks had been taken from the art materials. Those materials were at reception awaiting collection by Patricia Gordon. She was a voluntary art teacher who came into the venue to help the refugees. On the same day Mr. Cusack met with Geraldine O’ Donnell who was accompanied by Marie O’ Shea, Shop Stewart. The meeting took place in St Lelia’s. They all came from the meeting to St. Munchin’s to view the CCTV footage. On 16th November 2022 Mr. Cusack forwarded the report of the investigation to Ms. Ledger. Ms. O’  Donnell’s  excuse was that she thought the material was being thrown out as rubbish. Mr. Cusack did not talk to Hannah Boklach as the facts were not in dispute.

Under cross examination Mr. Cusack admitted that he did put in her report that the socks were sitting with a load of boxes which were due to be collected later that day.

Ms. Linda Ledger – CEO of the Respondent, after taking the affirmation gave evidence as follows:

 Ms. Boklach reported to Ms. Ledger stating that the pair of stocking that she had knitted as a present for someone had been taken. She asked if we would go through the CCTV. The Complainant was seen on the CCTV taking the socks. Ms. Ledger went to her and asked her if she had taken anything and she said no. She then told her that she had been seen on the CCTV taking the socks and that she was being suspended with pay. The Complainant then asked that nothing be sent to her house by registered post. That is why no correspondence was sent to her. She had a copy of the policies and procedures in 2021 when she transferred to the Respondent under TUPE. That is refuted by the Complainant who states that she did get a copy of her contract but not of the policies and procedures.  Her team leader was Austin Quinn. He gave them to her, and she signed for them. Ms. Ledger contacted her shop steward to ask her to come to a meeting. The Complainant states that she was written to on the 16th November inviting her to the meeting. The meeting was held on the 17th November 2022. The purpose of the meeting was to give her an opportunity to put forward any mitigating circumstances and to give her a decision.  The Complainant said she was going to get legal advice, but she wanted a quick outcome. Ms. Ledger told her that she would get onto the board of management and would give her a response by Friday, the next day. She and her daughter came back into Ms. Ledger on the 18th.  Ms Ledger told her she was being dismissed and she had the right to appeal.  The letter was handed to her.

She appealed the decision. That was on the 25th November. The Appeal hearing was on the 1st December. Her appeal failed. The Appeal’s officer is not available to give evidence.

The Complainant has worked for the Respondent scheme since 1989. She has an impeccable track record. On the day in question, she stated that she saw a pair of knitted socks sitting on a load of boxes at reception. She thought they were to be dumped. She didn’t want them to go to waste so she put the in her handbag. She is the mother of five Children, all grown up now, who she cared for by herself after leaving a violent relationship almost thirty years ago. She states that immediately upon being asked about the socks she stated that she did take them. Ms. Ledger for the Respondent stated that she was initially asked if she had taken anything. She said that she had not. The Respondent seemed to use that reply to bolster their case that the Complainant was a dishonest person. Ms. Ledger did state that when the Complainant was asked specifically if she had taken the socks, she said that she had.  The Complainant was suspended on the 8th November. When asked why she had been suspended she was informed that she was suspended because theft is gross misconduct and that needed to be investigated. This was before any investigation had taken place. The investigation itself was carried out by Mr. Cusack. He showed the Complainant the CCTV and asked her for her version of events. The Complainant again said that she thought the socks were sitting on a pile of rubbish and were going to be thrown out. Mr. Cusack in his findings stated that the Complainant had stolen the socks and that theft is gross misconduct and that can lead to dismissal. That goes far beyond the purpose of an investigation. The purpose of an investigation is to establish facts, not to make findings. That is for the disciplinary process. The disciplinary process itself, left a lot to be desired. From Ms. Ledgers’ evidence it seemed to be nothing more than a box ticking exercise. Initially she stated that the purpose of the meeting was to dismiss the Complainant. She then changed that to, the purpose was to allow the Complainant set out any mitigating factors she might have. Mitigating factors should only come into play after a finding of wrongdoing has been made.  Those mitigating facts were completely ignored by Ms Ledger who again stated “theft is gross misconduct and can lead to dismissal”.  When asked if she considered proportionality, she said that she had not because the offence was one of gross misconduct.  The following day the Complainant was dismissed. She was afforded the opportunity to appeal but I was given no evidence in relation to that.

The Complainant is a lady who has worked for 27 years with an unblemished record. She was due to retire in January of 2024. There were failings in the Respondent’s handling of the situation. Firstly, they suspended the Complainant.

In the decision of Bank of Ireland v Reilly [ unreported ][2015 IEHC 241 Noonan J stated:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”.

In the 27 years of the Complainant’s employment, she had never received a warning. She had given an explanation as to why she took the socks. That explanation was a reasonable one in the circumstances. In those circumstances it was an inappropriate measure for the Respondent to take and could have had a very detrimental effect on the Complainant’s untarnished reputation.

Secondly, the investigation report goes far beyond its purpose. Findings of theft and gross misconduct are made by Mr Cusack. The sole purpose of the investigation is to establish facts and from there to decide if a disciplinary process is warranted.

Thirdly, Ms Ledger admitted that proportionality was not something that was considered. Taking the Complainant 27 years of unblemished work history into consideration it should have been.

Fourthly, Ms Ledger stated that the Complainant’s mitigation that she took the socks in the mistaken belief that they were to be thrown out was also not considered at all.

Having considered all of the circumstances, I find that the complaint is well founded. Taking the breakdown of the employee/employer relationship into consideration I find that the most appropriate remedy is compensation. The Complainant’s employment was terminated on the 1st December 2022. She was due to retire in January 2024.  In all of the circumstances, I find that the appropriate award of compensation is €15,000.00.

The Complaint is well founded. I award the Complainant € 15,000.00

Dismissal. Proportionality. Procedures. Mitigation.