ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006647
John M. Spencer , Solicitor
Deirdre Malone Ronan Daly Jermyn Solicitor
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 10/05/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint 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 retail assistant from 10th August 2015 to 28th December 2016 when he was dismissed for fraudulently removing stock from the shop. The complainant states that he was unfairly dismissed and that his dismissal was connected to a personal injuries claim he was pursuing against the respondent.
Summary of Complainant’s Case:
The complainant’s representative stated that the complainant was unfairly dismissed by the employer by letter dated 28th December 2016. It is his contention that the respondent decided to terminate his employment because he suffered a workplace accident and he filed a personal injury claim. The injury happened in November 2015. His solicitor wrote to the employer on 27th May 2016. The complainant was put through an unfair disciplinary process on foot of email dated 26th May 2016 alleging that a customer had made a complaint that someone (allegedly the complainant) had items in his basket for which he did not pay. The complainant’s representative alleges that the date of the email purported to issue on 26th May 2016 could have been changed. An article entitled ‘How to change the date on outgoing mail on Outlook Express’ was submitted. The complainant did not receive any notification of the claim against him until late June 2016 even though the email containing the details of the complaint against him was dated 26th May. The complainant was not afforded fair procedures, was pressurised to attend a disciplinary meeting and CCTV footage was unable to be accessed by his solicitor. To date, the solicitor was not able to access the footage due to technical issues. It is contended that no representative from the respondent replied to the solicitor’s office request for a readable form of CD with the footage. Following a viewing of the CCTV footage which the respondent alleges proves theft, it is contended that the footage proves no such thing. The footage does not show the complainant entering the premises and what items he may have had in his possession. It is argued that the whole disciplinary process was flawed and that the complainant was not given due process especially as English is not his first language. The delay in bringing the complaint to him involving around 4 weeks is unacceptable and would cast doubt on the veracity in a criminal case. For all the reasons cited, the complainant submits that he was unfairly dismissed.
Summary of Respondent’s Case:
The respondent submits that the complainant was dismissed by reason of gross misconduct following a full investigation and disciplinary process. It is strenuously denied that his employment was terminated because he issued a personal injury action against the respondent.
The respondent objects strongly to the complainant’s solicitor’s veiled allegation of fraud in relation to alleging the possibility to change the date on the 26th May email.
On 26th May 2016, a customer shopping in the respondent’s store complained that the cashier and the person in front of the customer seemed to know each other and were speaking in Polish, that the complainant had put some items on to the till belt but had a “basket full of meat that was not scanned through by the cashier”. An email from Customer Services to the Sales Operations Manager dated 26 May 2016 notified him. He was tasked with investigating the allegation in accordance with company disciplinary policy and procedures. He was on annual leave for two weeks in June. He commenced his investigation and invited the complainant to attend an investigation meeting by letter dated 30th June 2016. There were two investigation meetings, and the complainant was advised of his rights before each meeting. He stated in the meetings that he did not remember being asked by the cashier if he paid for the items and maybe he brought the items in from another store. The investigation outcome was that the complainant had a case to answer given the serious nature of the incident. Four attempts were made to hold a disciplinary hearing with the complainant present. Letters were written to the complainant in August, September and November 2016 seeking the complainant to attend a disciplinary meeting and advising him of his rights. The respondent sent a copy of the CD containing CCTV footage to the complainant’s solicitor and asked that the solicitor’s office get in touch with the Data Protection staff in the respondent company for access to the password. The respondent’s records show that the package containing the CCTV was received and signed for at the complainant’s solicitor’s office but no contact had been made to request the password. The CCTV footage was password protected for data protection reasons. By letter dated 24th November 2016 the respondent wrote to the complainant for a fourth time seeking to reschedule the disciplinary meeting. The complainant was notified that in the event that he did not attend the disciplinary hearing without good reason, the hearing would proceed in his absence and the outcome would be transmitted by letter to him. On 30th November 2016, Managers A and R attended and Notetaker L. The complainant did not attend and no explanation was given. On 28th December 2016 the respondent issued the written outcome to the complainant. It was found that the complainant had fraudulently removed stock from the shop and such action amounted to gross misconduct. In the circumstances, given the irreparable breakdown of trust in the relationship between the respondent and the complainant, the complainant’s employment was terminated in accordance with the respondent’s employee handbook with immediate effect. The complainant was provided with a right to appeal. He did not file any appeal with the respondent.
Section 6 (4) (b) of the Unfair Dismissals Act 1977, as amended, provides that
“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….
The conduct of the employee”.
The complainant was dismissed for gross misconduct and his claim must fail.
Findings and Conclusions:
The complainant was dismissed following an investigation and disciplinary process in which he was advised of his rights. He was also provided with the right to appeal and I note he did not exercise this right. I find that the complainant was given every opportunity to attend the disciplinary process and every effort was made to provide him and his legal representative with the opportunity to view the CCTV footage. I do not accept the complainant’s representative’s point that in this situation the date on the email of 26th May 2016 may have been altered due to the personal injury claim being submitted on 27th May 2016. I prefer the evidence of the respondent and I consider the evidence of the complainant to have been evasive and not convincing. For all the reasons cited above I find the complainant was not unfairly dismissed and I do not uphold his complaint.
The complainant was not unfairly dismissed and the complaint is not upheld.
Dated: 14th June 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham