ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002970
A Team Leader
A Retail Store
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 27/04/2017
Workplace Relations Commission Adjudication Officer: John Walsh
In accordance with Section 41 of the Workplace Relations Act, 2015 and under Section 8 of the Unfair Dismissals Acts, 1977 - 2015 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 complaint.
The Complainant was employed as a team leader in the Respondent’s store from the 16th of July 2012 to the 20th of February 2016. He alleges that he was unfairly dismissed by the Respondent without due process or fair procedures contrary to the Terms of the Industrial Relations Act, 1977. He also alleges that he was not paid his minimum notice entitlements contrary to the terms of the Minimum Notice and Terms of Employment Act, 1973. He filed a complaint with the Workplace Relations Commission on the 25th of April, 2016.
Summary of Respondent’s Case:
During week 32 to week 36 (29th of September 2015 to the 2nd of November 2015) it came to the attention of the Respondent that cash had been going missing from the self-scan tills in the store. Initially it was thought that a systems issue may have been the cause of this but on week 36 (27th of October to the 2nd of November 2015) this was proved not to be the case.
The Respondent decided to track money through the self scan tills by adding cash and counting continually throughout the week to identify if there was a daily cash loss figure.
On the 10th of November 2015, irregularities were spotted by using this process. The Complainant was identified on CCTV regularly accessing the notes dispensers alone when there was no need for him to do so. This was followed by him emptying the bins located under each self scan till beside where he had each of the notes dispensers opened.
The breakdown of the CCTV footage is as follows;
- At 16:26 on the 10th of November 2015, the store manager along with the Regional Head Office assistants added notes to the self-scan till 71.
- At 19:25 on the 10th of November 2015, the complainant accessed the dispensers on the same till alone with his back to the camera, blocking the view of the CCTV. He can be seen emptying the bins and removing the contents to the warehouse where there is no CCTV in operation.
- At 8:36 on the 11th of November 2015, the IT and business support manager checked the cash in till 71 and a loss of €255 was discovered.
- At 12:51 on the 11th of November 2015, the Complainant again accessed the notes dispensers alone with his back to the camera blocking the view of the CCTV, followed immediately by him emptying the bins and removing the contents to the warehouse where there is no CCTV.
- At 15:12 the notes were again checked by the Respondent and a loss of €490 was discovered.
The only times the notes dispensers were removed from the machine are stated above. Although no cash is visible in the Complainant’s hands, it is the Respondent’s belief that he concealed the notes in the bins before removing them to the warehouse.
The complainant was shown the CCTV and asked about the missing cash on the 13th of November 2015. The Complainant denied taking any money and the Respondent suspended him pending a full investigation.
In line with the investigation, all CCTV footage for week 36 (27th of October 2015 to the 2nd of November 2015) was reviewed. This review showed up further suspicious activity which was put to the customer assistant (Ms. D.S) on the 25th of November 2015. She confirmed that the Complainant had been scratching scratch cards and that she had been giving him pay-outs when he won. This was in breach of the cash register policy. The Complainant was invited to a meeting with the Respondent on the 2nd of December 2015. This was a further investigation meeting carried out by the Respondent and the Complainant’s Union Representative was present.
The investigation manager issued her findings to the Complainant on the 17th of December 2015. Her report high-lighted the following;
It is alleged that on the 28th of October 2015 that you were in breach of the Company Staff purchases and Cash Register Policies in that you served yourself, namely that you purchased Lotto scratch cards and completed the transaction yourself.
I note that you have admitted to this breach of the Staff Purchases Policy and that you were aware at the time that this was a breach of the said policy.
It is alleged that on the 11th of November 2015, you were in breach of the Company Honesty and Cash Register Policies in that you are alleged to have removed cash in the sum of Circa €735 from the self-scan till (No. 71) in the store.
Having reviewed all the evidence available I have concluded the following;
On your own admittance, you breached both the Company Honesty and Staff Purchase Policies.
Having reviewed the evidence available I conclude that there is no explanation possible for the short-fall in the self-scan till, no.71, except that you knowingly removed the aforementioned amount. This conclusion is based on the fact that till no. 71, having been filled and checked at 4:30pm on the 10th of November 2015, was subsequently checked at 8:30am on Wednesday the 11th of November when it showed a short-fall of €255 euro, and checked again at 3:15 when it showed a further short-fall of €480. During this period, you were the only colleague to access till. No 71 alone and this is supported by CCTV footage. I conclude that there is no other plausible explanation for the cash short-fall other than you removed it from the till as you were the only person to access till no. 71 alone between 4:30pm on the 10th of November 2015 and 3:15pm on the 11th of November 2015. I have verified and am satisfied that the short-fall cannot be explained by machine or system error.
Taking everything into account it my decision to send this matter forward to a disciplinary hearing.
A disciplinary hearing was convened on the 7th of January 2016 and the Complainant attended with his Union Official. The outcome of that disciplinary hearing resulted in the Complainant being advised that he was to be dismissed from his employment effective from the 20th of February 2016. He was dismissed on the grounds of serious misconduct under the following heading;
“Theft or fraud or attempted theft or fraud if proven to the company’s satisfaction. This applies equally to property of the company, suppliers, staff members, customers and social committee/fund”.
Breach of the Company Honesty Policy – Converting or attempting to convert to his or her own use or to use of another, any cash, goods, supplies or equipment of monetary value….without authority….if found guilty will be subject to dismissal and/or prosecution.
Furthermore, the bond of trust that needs to exist between employer and employee has been broken.
The Complainant was given the right to appeal the dismissal decision.
The appeal hearing took place on the 16th of March 2016 and the dismissal was upheld by the appeals officer.
Section 6(4)(b) of the Unfair Dismissal’s Act, 1977 states:
Without prejudice to the generality of sub-section (1) of this Section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following;
(b) the conduct of the employee
It is the Respondent’s belief that the Complainant took the money totalling €735 from the self-scan till, no. 71 over the two date period of the 10th of November 2015 and the 11 of November 2015. Although no cash is visible in his hands, the Complainant’s actions reasonably led the Respondent to believe that he had concealed the notes in the waste paper basket as he accessed the self-scan note dispenser. The Complainant accused the IT systems of being faulty which was disproved by two company experts. The Respondent had no other alternative, based on the balance of probabilities but to dismiss the Complainant for his conduct. Apart from the issue of serious misconduct, the bond of trust between the Respondent and the Complainant had been severed. In the Circuit Court case of Hestor v Dunnes Stores, Judge Clarke held
“The issue was not whether the appellant had actually stolen the ham or not, but whether in all the circumstances of the case, the Respondent was justified in the dismissal for misconduct. The Respondent had not acted unfairly nor without justification, since the appellant had been unable to offer a satisfactory explanation for her conduct which had given rise to deep suspicion and required a satisfactory explanation.”
Furthermore, in line with fair procedures, the Complainant was informed of the allegation made against him and provided with the appropriate documentation and evidence. He was afforded the right to representation and given the opportunity to state his case, was informed of the possible outcome of the Disciplinary Hearing and was afforded the opportunity to appeal the Disciplinary outcome.
Summary of Complainant’s Case:
The Complainant was called to a meeting on the 13th of November 2015 with the Respondent. He was not advised that he was the subject to an investigation and the grounds for the investigation. He was not made aware of the remit of the investigation prior to the meeting. There were two strands to the investigation, shortages of €735 from till No.71 on the 10th and 11th of November and that he had scratched a number of Lotto cards on the 28th of November without following the proper guidelines in relation to the purchase of lottery cards.
At the meeting held on the 13th of November the investigation manager advised the Complainant that the store was experiencing till shortages and she would like him to answer a few concerns. The investigation manager also informed the Complainant that the Gardaí were involved and that they would be contacting him in due course. The union discovered that at no time were the Gardaí involved and at no time did they contact the Complainant.
The investigation manager showed the Complainant CCTV footage. At no time was it possible to see the Complainant doing anything untoward or to see the Complainant taking the money from till. No. 71. It would appear that the investigation manager drew an inference that because the Complainant was at till 71 that he therefore must be responsible for the money going missing.
A further investigation meeting took place on the 2nd of December 2015. During this meeting the company references three amounts of money missing from self-scan 71- €890, €255 and €480. For each of those amounts, the Respondent argued that the Complainant was the only person at the till. The Complainant gave a clear explanation in relation to what he was doing and why at all times. It was suggested by the Respondent that only a select few staff members had access to the self scan keys. This does not appear to have been the case as the keys were accessible to all staff.
On the 28th of October 2015, the Complainant accepts that he breached the staff purchasing policy by purchasing himself. He also pointed out that other staff members did the same. There is no suggestion that the Complainant had not paid for the scratch cards or that he had given himself any payments for the cards.
The investigation manager in her outcome letter dated the 17th of December 2015 was disgraceful. She went beyond her role as an investigation manager to determine whether or not there was a cause to answer by the Complainant and if so to move it on to the next level, that being a Disciplinary Hearing. What the investigation manager did was to make a number of serious accusations that the Complainant took €735 from till 71 on or between the 10th and 11th of November 2015. The investigation manager made her decision solely on the basis that the Complainant was the only one who had access to the till. This was stated without showing the Complainant any evidence that he was in fact the only person accessing the till on these dates. The investigation manager issued her report on the 17th of December 2015 and stated in that report that she “had verified and was satisfied that the short-fall cannot be explained by machine or system error.” This is not true as the IT manager had only confirmed with the investigation manager on the 13th of January 2016 that he was confident that the “cash losses on lane 71 and 72 in this store were not as a result of system error”. Therefore it was not possible for the investigation manager to have taken this fact into account when she issued her investigation report.
At the Disciplinary hearing which was held on the 7th of January 2016, the Respondent was accusing the Complaint of breaching the Company’s Honesty Policy and yet they failed to give the Complainant a copy of the policy. Yet, the disciplinary manger saw fit to question the Complainant in relation to the policy quoting sections of the policy relating to theft, fraud or converting or attempting to convert the use of cash, goods, supplies or equipment. It would appear that the disciplinary manager just confirmed the investigation manager’s report.
The Complainant’s representative requested the opportunity to cross examine witnesses on key issues. The Respondent refused to allow this on the grounds that this would be out of process. This was totally unfair to the Complainant.
An appeal hearing was held on the 16th of Mach 2016. The Complainant’s Representative high-lighted that due process and fair procedures was not followed by the investigation manager. She also highlighted that she did not receive all of the CCTV footage. She also pointed out that other staff may have had access to the tills. The Respondent upheld the dismissal decision.
Findings and Conclusions:
The Complaint attended at two investigation meetings which were held on the 13th of November 2015 and on the 2nd of December 2015. The investigation manager issued an investigation report on the 17th of December 2015. This report included the following statement;
“I conclude that there is no other plausible explanation for the cash-shortfall other than you removed it from the till as you were the only person to access till no.71 alone between 4:30pm on the 10th of November 2015 and 3:15pm on the 11th of November 2015. I have verified and am satisfied that the shortfall cannot be explained by machine or system error.”
The investigation report is flawed in a number of areas.
The investigation manager called the first investigation meeting on the 13th of November 2015 without writing to the Complainant and advising him that he was the subject of an investigation and the grounds for the investigation prior to the meeting. He should also have been provided with the company’s honesty policy in advance of the meeting.
The investigation manager was not in a position to state that she had “verified and was satisfied that the shortfall cannot be explained by machine or system error” in her report on the 17th of December 2015. That information was only made available to her by the IT manager on the 13th of January 2016, when he stated “based on the checks that we carried out on the self-service tills and the validation of the data on the back office systems and the physical counting of the cash I am confident that the specific cash losses on lane 71 and 72 in this store were not as a result of the system error.”
I also note that the IT manager highlighted that cash losses also occurred at till 72. There was no mention of the Complainant being involved in any alleged theft relating to till 72.
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.
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.
Reference No: CA-00004040-001- Re. Complaint taken under Section 8 of the Unfair Dismissals Act, 1977.
Based on the evidence presented on the hearing, I find that the complaint is well founded. The investigation manager went beyond her role in relation to the findings of the investigation. As a result, this report may have influenced the decision of the disciplinary manager in the overall process.
Taking all circumstances of his case into account, I order the Respondent to pay to the Complainant compensation in the sum of €5,000 for breaches of the Unfair Dismissals Act, 1977.
Reference No: CA-00004040-003- Re. Complaint taken under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.
Based on the evidence presented on the hearing, I find that the complaint is well founded. I order the Respondent to pay to the Complaint €942 compensation for breaches of the Minimum Notice and Terms of Employment Act, 1973.
These sums must be paid within 6 weeks of the date of this decision.
Dated: 17 July 2017
Workplace Relations Commission Adjudication Officer: John Walsh