ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054178

Parties:

Complaints:

Date of Adjudication Hearing:  27/01/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 12 of the Minimum Notice & Terms of Employment Act 1973, 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.

Background:

The Complainant contends that she was unfairly dismissed and the Respondent failed to give her minimum notice.

Summary of Respondent’s Case:

The Respondent is a real estate investment firm which was established in 2017 and is based in Cork. The Company specialises in providing comprehensive real estate solutions across various sectors including retail, residential, office, logistics and industrial properties. Their services encompass the entire real estate process, from planning and development to sales, retail and property management. In recent years the Company has acquired properties and have taken over the management of IPAS centres hosting Ukrainian families. The Complainant was employed as a cleaner at a Shopping Centre in Co. Clare which is managed by Coolmore Properties.

The Complainant’s employment commenced on the 18th of October 2021 and her employment was terminated on the 12th of August 2024 following an investigation into an incident involving the unauthorised removal of Company property from “P House”, which is another property also managed by the Company. Ms. Higgins was furnished with an employment contract, (supplied) and a copy of the updated Employee Handbook, (supplied) was also sent to her. 

The Complainant has raised 2 claims against the Company, and we would like now to address each claim in order as mentioned above. In relation to CA-00066266-001, which has been taken under the Unfair Dismissals Act, 1977, this submission addresses Ms. Higgins’ claims that she was unfairly dismissed in relation to the removal of the company property from P House in Shannon. This submission also addresses Ms. Higgins’ claim that permission was granted for the removal of the items, based on statements provided by managerial staff and evidence from the investigation.

The incident occurred in P House, where company property, including two dryers, a washing machine, a fridge, 2 industrial soup pots, 1 black refuge bag of bed sheet, 1 duvet, fire drill grammar phone, 2 laundry rails, lamp, 3 wet floor signs and a bin, was removed by the applicant without proper authorisation.

In her claim form, the Complainant states that she was made aware by a colleague that a number of used beds at “C House” were being disposed of as well as a washing machine and tumble dryer which she was very interested in obtaining. C House is another property owned by the company which houses Ukrainian families. The Complainant claims that Mr. JMG told her the beds were available at C House and she organised a van and driver to collect the beds on the 30th July 2024. She goes on to state that JMG directed her to C House, and she then arranged collection of the washing machine and tumble dryer from “P House”. She claims she subsequently received a text message from JMG informing her that the washing machine and tumble dryer were not available to be disposed of and she needed to return them. She claims that JMG sent her a text message stating that it was a genuine mistake. Ms. Higgins claims that she returned the machines to P House. Ms. Higgins in her claim states that she received a request to attend a meeting the following day, the 8th of August to discuss her role as a cleaner and her employment with Coolmore Property Developments following an incident that occurred in P House on the 30th of July 2024. Ms. Higgins defended the allegations at that meeting and claimed that she did not take anything without permission. Ms. Higgins claims she was invited to a second meeting on the 12th August 2024 whereby she was informed that she was being dismissed from employment with immediate effect and would be paid any outstanding annual leave. Ms. Higgins claims she did not receive fair process as she was not afforded the opportunity to have representation nor was, she provided with a copy of the investigation report or given the opportunity to cross examine any person making accusations against her. It is important to note that Ms. Higgins throughout this process denies that she removed any company property without permission. The incident was reported by Mr. JR the manager overseeing the property to Ms. NS, Operations Manager. Ms. S was informed that Ms. Higgins entered P House with her partner and removed multiple items without prior consent. Ms. S as the manager conducted an initial review to ascertain the details of the incident relating to P House. Upon receiving the report, Ms. S spoke with the Area Manager, Mr. R, who confirmed that only two broken dryers had been authorised for removal by Mr JMG, the on-site manager. Mr. R provided a statement confirming that Mr. JMG’s authorisation was limited to these specific items, and no additional property was to be removed. Ms. Higgins was invited to a meeting with Ms. S to discuss the incident. During this meeting which took place on the 8th August 2024, Ms. S informed Ms. Higgins of the allegations and gave her the opportunity to explain her actions. Ms. Higgins claimed she had received permission from Mr. JMG to remove the dryer and a washing machine, but she did not address the removal of the additional items. Ms. S informed Ms. Higgins that she was there to explore the allegations, she asked Ms. Higgins for a written statement outlining her side of the story so she could consider all evidence.  Ms. S then informed Ms. Higgins that she was suspended with full pay while this process was ongoing. Ms. S requested Ms. Higgins to attend a second meeting on the 9th of August and she informed her that she was entitled to bring a representative.

A number of hours later on the 8th of August, Ms. S contacted Ms. Higgins by text message requesting to reschedule the meeting to the following Monday 12th August at 12.30. Ms. S sent written notice of this meeting to Ms. Higgins which outlined her entitlement to bring a representative with her.  After the initial meeting on the 8th of August 2024 and in order to gain further clarity with regards to the property removed, Ms. S reviewed CCTV. Ms. S also reviewed Mr. JMG’s statement which clearly states that he actually physically pointed out to Ms. Higgins what could be taken.   Mr JMG’s statement was as follows:

“When Shannon was closing down, Ms. Higgins approached me and explained that she was experiencing personal hardship and asked if there were any items she could take from P House. I directed her to two old, inoperable machines—a washing machine and a dryer—on the third floor that were due to be disposed of. I explicitly informed her that these were the only items she was allowed to take. I was horrified to later discover that additional items were also removed without my knowledge or consent. I immediately contacted Ms. Higgins and instructed her to return the unauthorised items. Unfortunately, I was not present to oversee the removal process as I was attending to duties at C House at the time. I sincerely regret not being on-site to supervise and ensure that only the permitted items were taken”.

During the second meeting on the 12th August 2024, Ms. S asked Ms. Higgins if she had taken any other property from the company on the 30th July 2024. Ms. Higgins denied taken any company property, stating “I swear on my life, that I didn’t”. Ms. S then provided CCTV footage for Ms. Higgins to review. The CCTV footage showed Ms. Higgins and her partner entering P House and removing items beyond the authorised machines, including a fridge, 2 industrial soup pots, 1 black refuge bag of bed sheet, 1 duvet, fire drill grammar phone, 2 laundry rails, lamp, 3 wet floor signs and a bin. Upon being confronted with the CCTV evidence, Ms. Higgins admitted to taking the additional items without authorisation. Ms. Higgins showed remorse and apologised for her actions. Ms. S provided a statement outlining her role in the process and the steps taken to address the incident;

"When I was informed of the incident, I immediately sought clarification from JMG, the manager of P House, and JR, the Area Manager. JMG confirmed he had authorised Ms. Higgins to remove two old machines that were broken and marked for disposal. However, the removal of additional property was not authorised. After reviewing CCTV footage, it became evident that Ms. Higgins removed other items without permission”.

Based on the evidence, including Ms. Higgins' admission of unauthorised removal, Ms. S determined that Ms. Higgins had engaged in gross misconduct. The company had no alternative but to follow the guidelines laid out in its handbook where it states;

In the extreme circumstances of gross misconduct, as outlined above, an employee will be suspended pending a full investigation of the matter(s). If, after investigation, the case is proven, then the employee’s employment will be terminated without previous warning.

Consequently, Ms. Higgins' employment was terminated in line with company policy.

Ms. Higgins was provided with a letter confirming the termination and informing her that she had the right to appeal the decision within 5 days. The company did follow its policy as outlined in the handbook on arriving at its decision and Ms. Higgins was given the right to representation and to defend herself.

Conclusion

In relation to the first claim CA-0066266-001, The company believes that Ms. Higgins' dismissal was in line with our policies and as the incident in question involved the theft of company property from P House, we believe that dismissal was the only outcome available to us. The company conducted two meetings with Ms. Higgins, provided her with an opportunity to explain her actions. Having shown Ms. Higgins the CCTV footage of her removing items without permission and taking into account Ms. Higgins own admission and expression of remorse for taking the items, the company having reviewed all the facts established that gross misconduct had occurred. The company followed its procedures, including offering the right to representation and documenting the process, and determined that the dismissal was fair under the circumstances.

CA-0066266-002, Minimum Notice under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

Under the Minimum terms of notice act, Ms. Higgins would normally be entitled to two weeks’ notice. As Ms. Higgins was paid for four days during her suspension period, and due to the serious matter of her termination resulting from stealing of company property, the company did not feel obliged to pay her the balance of her notice. On the final matter of the appeal, the company did offer Ms. Higgins the opportunity to appeal within 5 working days. Ms. Higgins is suggesting to us that because of a family matter that she overlooked making the appeal. The reality is that the company was not aware of any such family matter and Ms. Higgins never made us aware of any. If she had, we perhaps would have extended the appeal date even though the explanation provided in her claim form is dubious and she is well aware of her daughters’ condition for quite some time, so this is not new to her.

Evidence was given on affirmation by the Operations Manager who carried out the initial review and investigation and dismissal.

Evidence was given on affirmation by the Area Manager and by the On-site Manager.  All Managers stated that the Complainant had no permission to take the number of items she took without authorisation.

Summary of Complainant’s Case:

The Complainant commenced employment as a Cleaner with the Respondent on 18th October 2021.  She was dismissed for gross misconduct on 12th August 2024.  The Respondent managed a number of properties C House and P House which at the time housed Ukranian people fleeing the war.

Following a conversation with a fellow employee Mr JMG she became aware of a number of beds and a Washing Machine and Dryer becoming available.  As her daughter and grandchildren had moved in with her, and due to some difficult personal circumstances she was in need of the items. She arranged to have them collected and did so on July 30th. Shortly after that she received a text message from JMG telling her to return the items as it was a genuine mistake.

She was the given a letter on 8th August 2024 calling her to a meeting to discuss “her role as a Cleaner and incident.. on 30.07.24”.

There was a meeting on 9th August and 12th August 2024.  The meeting on 12th August 2024 was called on the same day and she was given a letter terminating her employment.

It is argued that the dismissal of the Complainant was substantially and procedurally unfair.

The process did not meet the requirements in Statutory Instrument S.I. 146/2000 which sets out the procedures to be followed to ensure natural justice and fairness.

In particular, the allegations or complaints must be set out in writing, the source of the allegations or complaint must be given and the right of the employee to question or confront witnesses.

In this case, the Complainant did not receive the outline of the complaints in writing, nor did she receive the opportunity to cross examine witnesses.  In any disciplinary process, the employee should be given the investigation report.  In this case she was not given any investigation report.           The person investigating the matter should not be the person imposing the discipline.  

Further, the Complainant was not given the opportunity to outline any mitigating circumstances.

Rather than rushing through a process to terminate the employment, the Respondent ought to have acted as a compassionate employer given the personal circumstances of the Complainant.  It is submitted that in these circumstances, the Respondent did not act as a reasonable employer.

The Complainant also claims payment in lieu of 2 weeks’ minimum notice.

Findings and Conclusions:

CA-00066266-001             Unfair Dismissals Act 1977

The Complainant in this case was dismissed for gross misconduct when the Operations Manager reviewed CCTV footage of items being taken from one of the Respondent’s premises.  I note and accept the evidence that she had not been given permission to take the number of items she did take.

In considering whether the Respondent acted reasonably in the matter of the dismissal I take into account the following case law:

The Employment Appeals Tribunal held, in Looney & Co v LooneyUD843/1984 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 HotelsUD1469/2003, 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? 

I find that having been advised that the Complainant took a number of items and having reviewed CCTV footage, the Operations Manager formed a genuine belief that the Complainant took possession of a number of items from the premises without authorisation.

However, in the circumstances where the Complainant (a) was not given the detail of the complaints against her in writing, (b) was not given the opportunity to question essential witnesses and (c)  was not provided with the information that a real and imminent threat existed to her employment, the investigation was flawed.  The fact that the Investigation Manager was the same Manager who carried out the disciplinary is a further flaw in the process.  I note the personal circumstances of the Complainant and I find that had the Respondent full knowledge of the personal circumstances of the Complainant there may have been consideration of a lesser penalty.

In all the circumstances of this case, I find the Complainant was unfairly dismissed.  I find that compensation is the appropriate remedy, as the employment relationship is clearly ended.

I uphold the complaint and award the Complainant the sum of €4,160 compensation.

CA-00066266-002             Minimum Notice & Terms of Employment Act 1973

The Complainant, having more than two years’ service and less than five is entitled to 2 weeks minimum notice.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,040.

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.

CA-00066266-001             Unfair Dismissals Act 1977

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.

Based on the reasons outlined, I have decided that the complaint of unfair dismissal is well founded and I award the Complainant the sum of €4,160 compensation.

CA-00066266-002             Minimum Notice & Terms of Employment Act 1973

Section 12 of the Minimum Notice & Terms of Employment Act 1973 requires that I make a decision under the provisions of that Act.

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,040.

Dated:   12th March 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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