Complainant

Respondent

Anonymised Parties

Worker

Rehab Enterprises Ltd

Representatives

Joseph Ateb Siptu

Laura Kerin IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00059889-001

09/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059889-002

09/11/2023

In an Unfair Dismissal’s claim the Employer carries the onus to show that the decision they made to terminate the contract was fair and reasonable. That onus requires evidential proof. In this case after reconvening for a second day so that the Employer could call witnesses, no witnesses who made the decision to dismiss and who heard the appeal attended at the reconvened hearing.

While managerial witnesses attended at the hearing, these witnesses were not involved in the decision making to dismiss.  The Respondent representatives detailed the process that was followed; however, they were not decision makers at the first disciplinary hearing or at the appeal hearing.

At the hearing the Complainant accepted that she searched a cloakroom with the intent of taking money from colleagues. She acted out of character and at the time was deeply unhappy as she had been moved from a centre where she had been for many years to a new centre because of Covid and the fact that her work ceased in that centre. Allowing for her personal circumstances this was hugely destabilizing for her.

 Her Shop Steward gave sworn evidence that he had made several representations to management about her mental health, and nothing was done to bring her back to her old centre. That is where she is happy and familiarity and routine is an important factor so that her mental health is supported. No concern about the negative effect of the relocation was demonstrated by management. Her out of character misdemeanour must be viewed in this context.

She accepted that what she did was wrong. However, what the Complainant challenged was the harshness of the sanction.

The Complainant has special needs that must be considered having regard to the purpose and ethos of the organisation and mitigating factors that played a very significant role in her out of character conduct.

The issue is not whether there should have been a sanction; rather that Dismissal, which is a draconian sanction was fairly arrived at as a reasonable sanction having regard to the principle of proportionality.

While it is accepted that a reasonable employer operates within a band of reasonableness, where one employer takes one view and a another quite reasonably takes a different view, that band is not so elastic as to offend the principle of proportionality.

What that means is the reasonable employer must account for why they decided to impose this sanction to this Tribunal and detail the options they considered. They must detail why this option was chosen over others, along with fully considering the consequences of choosing the most severe sanction and the effect it would have on her working life. It that evidence is not given and cross examined; and the onus is on the employer to show that the dismissal was not unfair, how can it be said that the onus has been discharged?

The Complainant accepts what she did was wrong; however, she vehemently contests that the sanction was proportionate and reasonable when all the circumstances are considered. She has unique needs and that is why she was placed in this organisation. She was moved from her centre and where she lives to another centre, which was hugely disruptive and affected her mental health.

Representations were made to move her back which were ignored. That response exacerbated how she view her situation and in turn while not excusing her conduct, provides a context.

The Company followed fair procedures.

Theft cannot be condoned, and an Employer must have trust in their employee. The action of the Complainant goes to the heart of the employment relationship and breaks the bond of trust and confidence to that that the contract cannot continue. It no longer is viable.

This matter has been fairly and thoroughly investigated. The Union Representative cannot fault the fairness of the process and the appeal fully considered what this tribunal is now asked to set aside.

The Employer acted within the band of reasonableness and therefore, it is not what this Tribunal would have done, or another employer, rather allowing for the fact that this was theft, was the sanction within the band of reasonableness. It would be hard to decide otherwise and once that test is met the Tribunal must find for the Respondent and decide that the decision was fair.

The Respondent doesn’t wish to return to her previous employer.

This employee had been with her employer since the 20th of August 1996.

The employee accepts that she was attempting to steal from other colleagues when she went into the cloakroom and went through their belongings.

The mitigating circumstances must be the intellectual understanding of the Complainant, her mental health at the time of the incident and  the fact that she was outside her normal working environment where she had been since 1996.

Prior appeals had been made to management that the Complainant was struggling in her new work environment.

The ethos of the Rehab Group is to enable people with disabilities to live lives of their choosing.

The Employer has presented no evidence to this Tribunal other than from manages who were not directly involved in the decision to dismiss. Those managers who attended gave their opinion why the decision makers arrived at the determination to dismiss.

The hearing was reconvened for a 2nd hearing to facilitate the decision makers attendance. They failed to attend.

The Complainant accepts that a sanction should apply and that it should have been a final warning. However, it was not proportionate to dismiss her.

The Complainant has detailed reasons why she should have been given a second chance.

This Organisation exists to help people with disabilities to engage in meaningful work. There has been no issue with this employee’s work since 1996 and what occurred was clearly out of character.

The band of reasonableness test provides for a range of options that includes dismissal where another employer would not make that decision. In this case the principle of proportionality is being relied upon not as a counter to the band of reasonableness test, rather to challenge the reasonableness of the decision based on the facts of this case. It is the case that theft normally would give rise to a dismissal.

Dismissal is the most severe sanction. This employee has a disability. The facts clearly show that she was making representations prior to this incident about the change to her new working environment and not settling in. The Employer was requested to provide evidence concerning the disability and whether that was material or not. No such evidence has been presented.

The Complainant knew what she was doing was wrong. Theft of work colleagues’ belongings is very serious. While managers who were the decision makers did not attend, the process prima facie appears to be fair. However, the failure of the decision makers to attend where they have the onus to prove that the decision was fair, technically compromises the Respondent’s case. This means technically the decision to dismiss is unfair. However, the conduct of the employee gave rise to the decision and while there are mitigating grounds at play; the fact that the Complainant was attempting to steal from colleagues must bear on what redress is just and equitable having regard to all the circumstances. To reinstate the employee after such an event would undermine the right of the employer to have trust in their employee. Reengagement is not an option as theft undermines the employment relationship such that it is fractured. As this is an unfair dismissal primarily for the failure of witnesses to attend for the Respondent; there is no questioning of the fact of theft, just the severity of the sanction. In these circumstances a small amount of redress is only merited. While the Complainant has a disability, she has the moral compass to know what she did was wrong.

Theft breaches the trust and confidence required from both parties. The absence of the decision makers in this case to attend, must lead to a determination that the decision to dismiss was technically unfair as the onus is placed on the Employer to show that the decision was fair.

 However, the employee is faced with the fact that she was attempting to steal from colleagues. I determine that the Complainant was unfairly dismissed and based on her contribution and conduct that I must have regard to; I award €2500 in compensation.

The Complainant knew what she was doing was wrong. Theft of work colleagues’ belongings is very serious. While managers who were the decision makers did not attend, the process prima facie appears to be fair. However, the failure of the decision makers to attend where they have the onus to prove that the decision was fair, technically compromises the Respondent’s case.

The Complainant knew what she was doing was wrong. Theft of work colleagues’ belongings is very serious. While managers who were the decision makers did not attend, the process prima facie appears to be fair. However, the failure of the decision makers to attend where they have the onus to prove that the decision was fair, technically compromises the Respondent’s case. This means technically the decision to dismiss is unfair. However, the conduct of the employee gave rise to the decision and while there are mitigating grounds at play; the fact that the Complainant was attempting to steal from colleagues must bear on what redress is just and equitable having regard to all the circumstances. To reinstate the employee after such an event would undermine the right of the employer to have trust in their employee. Reengagement is not an option as theft undermines the employment relationship such that it is fractured. As this is an unfair dismissal primarily for the failure of witnesses to attend for the Respondent; there is no questioning of the fact of theft, just the severity of the sanction. In these circumstances a small amount of redress is only merited. While the Complainant has a disability, she has the moral compass to know what she did was wrong

Theft breaches the trust and confidence required from both parties. The absence of the decision makers in this case to attend, must lead to a determination that the decision to dismiss was unfair as the onus is placed on the Employer to show that the decision was fair.

I determine that the Complainant was unfairly dismissed and also allowing for the circumstances of this case an award of compensation should be made.

 The employee is faced with the fact that she was attempting to steal from colleagues. I determine that the Complainant was unfairly dismissed; however, based on her contribution and conduct that I must have regard to; I award €2500 in compensation.

Proportionality-Theft