UDD2273

1. Appeal Of Adjudication Officer Decision No. ADJ-00031351 CA-00041628-001


BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 26 April 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 30 November 2022. The following is the Determination of the Court:-




DETERMINATION:

This is an appeal by Olwale Noah Olade o’ Noah (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00031351 given under the Unfair Dismissals Act 1977 to 2015 (the Acts) in a claim that he was unfairly dismissed by his former employer Musgrave Operating Partner Limited Supervalu (hereafter the Respondent). The Adjudication Officer found that the decision to dismiss was not unfair and that the complaint failed.

Background

The Complainant was dismissed for gross misconduct on the 3^rd July 2020. At time of dismissal his hourly rate was €14.67, and he worked a 35-hour week. The Complainant submits that the dismissal was unfair

Summary of Respondent’s case

The Complainant commenced employment with the Respondent on the 20^th October 2008 as a sales assistant. The Respondent gives all employees a ‘Real Reward Card’ which allows them avail of a discount (10%) on any purchase in the Respondent’s store. There are restrictions in terms of the use of the card and allowing other people to use the card. These restrictions are contained in the ‘Real Reward Policy’ which is given to all staff and on a yearly basis staff are reminded of the terms and conditions attaching to the ‘Real Reward Card’.

In May 2020 an issue arose in respect of the Complainant’s card, a meeting was arranged, and the Complainant was accompanied at the meeting. At the meeting the Complainant confirmed he had given his card to someone who was not a family member of part of his household. The Complainant was advised at that meeting that there could be an investigation arising from what he had confirmed at the meeting.

On the 12^th June 2020 the Complainant was suspended from work on full pay pending an investigation into alleged gross misconduct by “failing to observe the exact full procedures of the Real Reward Card scheme”. The suspension was confirmed in writing on June 16^th, 2020, and the Complainant was invited to an investigation meeting on the 18^th June 2020.

The meeting was held by zoom and the Complainant was accompanied by his Trade Union Official. At the commencement of the meeting the Complainant and his Trade Union Representative were given an opportunity to review CCTV footage which showed customers using the Complainant’s reward card to avail of the staff discount. This resulted in the points from their shopping accruing to his card. The Complainant denied giving his card to the customers. The Complainant confirmed that he had given his Real Reward Card to his football coach. The Complainant was asked about transactions on his card between April 1^st and June 4^th, 2020. In particular 11 transactions on one day and high value transactions. For part of the period in question the staff discount had been increased to 25%. The Complainant could not provide an explanation for the transaction. It was also put to him that a card he had replaced in 2014 had been used for purchases in 2020.

As the Complainant was unable to provide a satisfactory explanation, he was invited to attend a disciplinary hearing on the 26^th June 2020 and was advised that dismissal was one of a number of possible outcomes. At the disciplinary hearing the Complainant accepted that he had given his card to other people but stated that it was common practise in the store. The disciplinary hearing was adjourned to investigate this allegation.

The meeting reconvened on 30^th June 2020 in advance of the hearing the Complainant was given copies of the statement of two colleagues he had named., both of whom denied breaching the policy and their purchase records on their cards showed no unusual transactions. By letter of 6^th July 2020 the Complainant was advised that the outcome of the disciplinary process was that he was being dismissed on the grounds of gross misconduct. He was advised of the appeal process if he wanted to appeal the decision. An appeal meeting was held via Zoom on 15^th July 2020 the Complainant was represented by his Trade Union Official. The appeal was not upheld, and the Complainant was dismissed with effect from 3^rd July 2020 for gross misconduct.

The Complainant in this case was dismissed by reason of his own conduct. The Complainant at all times was afforded all the benefits of a fair procedure. The Respondent submits that the decision to dismiss falls within the band of reasonableness and is relying on the case of Looney & Co. Ltd UD 843/1984

Summary of Complainant’s case

The Complainant submitted that the process was carried out in a textbook fashion which he felt was unfair to him. It was his submission that there was no proof that he had given a named member of staff his card and the fact that it was used did not mean he had given it to someone. In terms of the customers using his card he stated that he did not know how they used his card as he had not given it to them. The Complainant stated that he was allowed bring his Trade Union Representative to all the meetings, but he felt the Union Representative might not have represented him fairly. He confirmed that he was given an opportunity to review the CCTV footage. He stated that he did not recall getting the reward card policy but later stated that once a year it would come with his payslip. It was his submission that he did not believe dismissal was warranted.

The Law

Section 1 of the Act defines dismissal in the following manner

1. “dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)……

Section 6(1) states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case there were substantial grounds justifying dismissal.

Discussion

The Complainant’s case is that his dismissal was unfair. It was clear form the submissions to the Court including the Complainant’s submission that the Respondent had a policy in respect of the usage of the Real Reward Card. This policy was given to all staff and at least once a year staff were reminded of the contents of that policy. the policy also provided that misuse of the Card could constitute gross misconduct. There was no argument before the Court that the process followed in coming to the decision to dismiss was unfair. The Court finds that in all the circumstances of this case there were substantial grounds justifying dismissal.

Determination

The Complainant was not unfairly dismissed.

The decision of the Adjudication Officer is upheld. The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
OC	______________________
13 December 2022	Deputy Chairman