ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003113

Complaints for Resolution:  

Date of Adjudication Hearing: 26th October 2016

Parties:                                A Sales Assistant v A Retail Store

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and 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. 

Background

The Complainant was employed from 31^st March 2012 until the employment ended in October 2014. The Complainant was again employed from 22^nd December 2014 until the employment was terminated by the Respondent on 26^th April 2016. The Complainant was paid €10.00 an hour and he worked 40 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 18^th May 2016 alleging the Respondent had breached Section 5 of the Payment of Wages Act, 1991 in relation to payment of Minimum Notice and a complaint under the Unfair Dismissals Act, 1977 that he had been unfairly dismissed.

The Complainant was provided with a written decision of his terms and conditions of employment and following his promotion to Assistant Manager in December 2015 he was issued with an amendment to his Contract of Employment.

Summary of Respondent’s Position. 

The Complainant commenced his employment with the Respondent in March 2012 and he tendered his resignation in October 2014. The Complainant was again employed by the Respondent on 22^nd December 2014 and his employment was terminated on 26^th April 2016.

The Complainant was employed as a Supervisor and he attended a meeting with his Store Manager on 12^th April 2016 to review operations in the Store. The Complainant attended but immediately threw his keys on the table and he walked out stating he no longer wished to work with the Respondent.

The Respondent wrote to the Complainant on 13^th April 2016 asking him to confirm his resignation in writing. The Complainant responded with a medical certificate stating he was unfit for work from 13^th April until 19^th April 2016

The Respondent wrote to the Complainant again on 14^th April advising the Complainant of their confusion as he had clearly verbally communicated his resignation at the meeting on 12^th April 2016 but then had submitted a medical certificate. He was asked to confirm his intentions and he was also provided with a copy of the Company Grievance Procedures as he had indicated in his letter to the Respondent with the medical certificate that he was stressed at work. The Complainant confirmed by letter dated 14^th April 2016 that he did wish to return to work and believed he was being blamed for a situation associated with shoplifting in the Store. He submitted a fit to return to work from 18^th April 2016.

The Complainant returned to work and he attended an investigation meeting with the Respondent on 19^th April 2016 in relation to a number of concerns raised by staff and customers connected with the Supervision in the Store – Minutes of the meeting provided. The Complainant was suspended on full pay pending further investigation. Four employees of the Store provided written statements. Following the conclusion of the investigation the Complainant was invited to attend a Disciplinary Hearing. This took place on 22^nd April 2016.

All the issued were raised by the Respondent with the Complainant at this meeting – minutes provided. The Complainant confirmed that he was aware of the Company policy on shoplifting- that he had informed staff not to prevent shoplifting – he confirmed he was on his phone during working hours – he confirmed his comments in relation to redundancy – he confirmed he was aware that another employee was taking cash from the Till and that he socialised with this employee.

The Outcome was that the Complainant was summarily dismissed as the relationship of trust and confidence was destroyed by letter dated 26^th April 2016. He was advised that as he was summarily dismissed he was not entitled to payment of minimum notice and he was afforded a right of appeal.

The Complainant appealed the decision to dismiss and this appeal was heard on 9^th May by a named senior Manager. Grounds of the appeal were noted and the Complainant was requested to provide any documentation/information in advance and he was informed of his right to be represented at the meeting. The Respondent sought to address all the grounds of appeal but the Complainant insisted on limiting the discussion to his belief that he was being blamed for a robbery at the store and the comments he made about redundancy. The Complainant requested his P45 and left the meeting.

The Respondent issued an outcome letter to the Complainant on 25^th May 2016 upholding the decision to dismiss the Complainant.

The Respondent stated there was a robbery in the Store in October 2014. The Respondent also informed the Hearing that the Complainant had lodged a Personal Injury complaint to the PIAB in October 2014 and that this is outstanding.

Summary of Complainant’s Position. 

The Complainant was summarily dismissed on 26^th April 2016. The Complainant has been subjected to robbery at knife point and at gun point in the course of his employment. On 12^th April 2016 the Complainant felt stressed and left work to see a Doctor. On his return to work he was subjected to a disciplinary hearing and a summary dismissal. He alleged that the dismissal was both procedurally and substantially unfair. The Complainant has at all times acted in the best interests of the Company and is devastated that he has been dismissed.

The Complainant stated at the Hearing that he had not worked since his dismissal but that he has been in receipt of jobseekers benefit from the Department of Social Protection. The Complainant was requested to provide a statement from the Department of Social Protection to confirm he was in receipt of Jobseekers Benefit from April 2016 to date. The Complainant did not do so.

The Complainant is seeking compensation.

Findings 

On the basis of the evidence and a written submission I find as follows 

The Complainant did not contradict the Respondent’s evidence that at the meeting of 12^th April 2016 called by the Respondent to discuss issues concerning the Store and his role as Assistant         Manager. The Complainant walked out of the meeting, and then submitted a medical certificate which states that he was unfit for work from 13^th April until 19^th April. He submitted a fit to resume certificate dated 18^th April 2016 which states that the Complainant was fit to return to work on 18^th April 2016.

The evidence was that the Complainant did return to work on 18^th April 2016 following which the Respondent met the Complainant on 19^th April 2016 to discuss a number of concerns in relation to the Store. The Complainant was informed that he was suspended on full pay pending an investigation.

The Complainant was invited to attend a Disciplinary Hearing on 22^nd April 2016. He was provided with statements from four named employees – he was informed of the three issues to be discussed at the meeting – He was informed of his right to have the witnesses, who signed the statements present at the meting – he was informed of his right to be accompanied by a fellow employee or a Trade Union Official and he was provided with a copy of the Disciplinary Procedures of the Company.

The Complainant did not request the witnesses who signed statements to be present at the meeting. The Complainant was not accompanied by a work colleague or a Union Official. A five page report/minute of the meeting was provided to the Hearing. The outcome was communicated to the Complainant by letter dated 26^th April 2016 and the decision was to summarily dismiss the Complainant with immediate effect for gross misconduct. The Complainant was afforded a right of appeal to a named Manager.

The Complainant appealed the decision to dismiss him by letter dated 27^th April 2016 setting out the grounds of his appeal. The Complainant was informed that the Appeal would take place on 10^th May 2016 and would be a rehearing of the case and his grounds of appeal – six grounds – were acknowledged. He was afforded a right of representation. The minutes of the Appeal Hearing show that the meeting commenced at 12 noon and concluded at 12.10. It is clear from the minutes of this short meeting that the Complainant was refusing to engage with the grounds of his appeal with the exception of two issues, namely the robbery in the store and his conversation in relation to redundancy. The outcome was to uphold the decision to dismiss the Complainant and he was informed of this by letter dated 25^th May 2016

Decision – CA- Payment of Wages Act, 1991 CA-4535-002

The Complainant was summarily dismissed without notice by the Respondent on 26^th April 2016. The Complainant is seeking payment of Minimum Notice.

Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides as follows – Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”.

The Complainant was summarily dismissed by the Respondent therefore in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.

Decision-Unfair Dismissals Act, 1977 –CA-4535-001

On the basis of the evidence and my findings above I declare the Respondent conducted the investigation, Disciplinary and Appeal Hearings in accordance with the Disciplinary Procedures of the Company and in accordance with S.I. 146/2000 – Industrial Relations Act,1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Complainant and his legal Representative did not advance any argument or evidence at the Hearing as to why they considered the dismissal “to be both procedurally and substantially unfair” as stated in the complaint form.

The Complainant stated at the Hearing that he was in receipt of Job Seekers Benefit from the Department of Social Protection since the date of his dismissal. He was requested to provide evidence of this but did not do so.

In accordance with Section 8 (1)(c ) of the Act I declare the complaint of unfair dismissal is not well founded.

Date:               16^th December 2016