ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000855

Complaint(s)/Dispute(s) for Resolution:  

Date of Adjudication Hearing: 16/03/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the above mentioned Acts, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

00001290-001: - The complainant submits that the dismissal was unfair on both substantive and procedural grounds. There was no gross misconduct as alleged. The investigation was unfair and inappropriate in all of the circumstances. No forensic audit was conducted and the claimant was singled out from other employees. There were three persons with continuous access to the safe including the complainant and the two company owner/directors and the investigator failed to see the company owners as being potentially responsible for the alleged theft or to distinguish that the monies belonged to the company and not directly to the owners. The appeal was flawed in that it was conducted by one of the owners. No correspondence was provided to prove the alleged amounts were missing. The investigation was based on the assumption that the money went missing from the safe and no attempt was made to investigate whether or not they could have gone missing from other areas. A garda investigation was conducted into the alleged theft pursuant to the advice of the complainant’s solicitor and no charge was ever pressed. The investigator found that “on the balance of probabilities …. due to the fact that these identified parties had unfettered access to company cash and most particularly to cash contained in the safe which was clearly not available to other members of staff, the loss of these funds is most likely confined to one of the above parties. The investigator also concluded that it was impossible to clearly and completely establish who may be ultimately responsible for the loss of funds in the absence of a specialised forensic accountancy review.

00001290-002: - The complainant submits that she was entitled to 8 weeks notice under s. 11 of the Act. She had 23 years of service.

Respondent’s Submission and Presentation:

00001290-001: - The respondent submits that the claimant was fairly dismissed by virtue of her gross misconduct. It was found that on balance of probabilities the complainant was the person responsible for funds missing from the business in the amount of €160,000 following a full and impartial investigation. The respondent was alerted by its accountant during the audit for the year to end of December 2013 (reported in correspondence of September 2014) that a substantial deficit between cash on hand and financial record was apparent. It was quantified as above as having taken place in the period January to December 2013 and appeared to have been taken in stages over a period of approximately 10 months (March to December). An investigation of the matter was undertaken by an independent external HR consultant commencing in September 2014. The matter was reported to the garda in October. The report of the HR consultant issued in June 2015. A disciplinary meeting was held on the 27^th of July at which the complainant’s legal representative attended. The meeting established that she was the person with primary responsibility for cash in 2013 and that on the balance of probabilities that she was thus responsible for the missing funds. As a result of these findings she was dismissed for gross misconduct on the 30^th of July 2015. The dismissal was upheld on appeal following a hearing on the 3^rd of September 2015.

00001290-002: - The respondent submits that the complainant was dismissed for gross misconduct and was not therefore entitled to payment under this Act which itself provides for termination without notice in these very circumstances. Similar provision is made in her contract of employment.

Decision:

00001290-001: - I have carefully read all of the papers presented to me in this case and I am left with the abiding impression that there was an absolute failure to properly conclude matters and to afford a full opportunity to the complainant to defend herself in all of the circumstances. Despite the fact that a third party advising the complainant has properly in my opinion outlined what can be regarded as the best practice approach in matters of this nature I do not say that conducting an investigation which had a HR focus in the first instance was fatal to the respondents case. However having received the report of the investigation, which inter alia noted the points of divergence in the statements as referenced in the report it was incumbent on the respondent to extend the nature of the investigation and move to a forensic audit review.

The respondent has argued and cited authority (Hestor v Dunnes Stores Ltd [1990] E.L.R. 12) that an employer can terminate employment on the reasonable belief that an employee committed an offence of gross misconduct. I do not accept that the authority is legitimate or related. There was no ambiguity in that case and all the facts were clear and uncontested. The complainant in that case was given every opportunity to defend herself and no stone had been left unturned.

I find that this was an unfair dismissal and therefore declare that the complaint is well founded. The appropriate redress is compensation in the amount of €30,000 (say thirty thousand euro).

00001290-001: - The complaint is well founded and the claimant is hereby awarded €4,396 (say four thousand three hundred and ninety six euro) amounting to eight weeks wages.

Dated:   15^th July 2016