ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013220
Art Accessories Supplier
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 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 16/10/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 complaints.
The complainant worked as an operative in the warehouse of the respondent having commenced employment in October 2006. The complainant was a full-time employee and was paid €490.32 gross weekly. The complainant was summarily dismissed by the respondent following a disciplinary process concerning the taking of materials from the work premises without permission.
Summary of Complainant’s Case:
The investigative / disciplinary process was fundamentally flawed.
The complainant’s explanation of an honest mistake was ignored.
There was no written / formal procedure in place for staff obtaining stock from the respondent.
No sanction short of dismissal was considered by the respondent.
New evidence was introduced at the appeal hearing which was relied on in upholding the decision to dismiss.
The complainant was not paid his minimum notice.
The complainant did not receive a statement of employment when he commenced employment with the respondent.
Summary of Respondent’s Case:
The complainant admitted taking stock from the respondent’s premises.
The complainant was given an impartial investigation, disciplinary and appeal hearings for an act that he admits doing.
The actions of the complainant amounted to gross misconduct as set out in the respondent’s staff handbook.
The relationship between the complainant and respondent had broken down as a result of the complainant’s actions and therefore the decision to dismiss was reasonable. No notice was due in such circumstances.
The complainant was issued with a contract of employment which was signed by him on 16 September 2015.
Findings and Conclusions:
The respondent operates an art accessories supply business and the company has three active Directors plus 9 employees. It is the custom of the respondent to close for two weeks in July for summer holidays. In July 2017, during this break, Director A received a phone call from a woman who was known to her as the ex-girlfriend of the complainant. Certain allegations regarding the complainant were made by the ex-girlfriend during this call and the Director requested that these allegations be put in writing. A written statement was duly furnished in which allegations were made against the complainant in relation to theft, drug-taking and the fabrication of false insurance claims.
Director A noted that the allegation of theft contained details regarding the use of the materials removed from the premises. The allegation was that the complainant requested a customer of the respondent to use the materials to frame two pictures which were then supplied to the owner of a café in return for cash. Director A decided to visit the café and saw the pictures in person. The Director recognised the frames as being identical to the respondent’s stock. In conversation with the owner the Director admired the pictures, said she was interested in getting something similar and asked for details of who had supplied them to the café. The café owner promised to have these details in a few days and when the Director returned to the cafe she used a photo of the complainant that she had on her phone to confirm the identity of the supplier. Giving these details in evidence at the hearing, Director A stated that she then returned to the workplace, reported her findings to Director B and then had no further part in the process leading to the dismissal of the complainant.
Director B, having gotten the ex-girlfriend’s written statement and the report from Director A, decided to meet with the complainant on the day of the resumption of work after the holidays. He approached the complainant first thing that morning (Tuesday, 8 August) and invited him into the office for what was termed an informal chat. The Director gave a copy of the written statement to the complainant. The complainant admitted that he had taken some product that went into the making of the frames for the pictures and that he had given the material to a customer of the respondent in order to frame a jersey and a photo of a sports personality. The complainant also said that the café owner was a friend of his mother. The Director pointed out that goods were always supplied to staff at cost price. The complainant denied any drug-taking or anything to do with insurance claims. The complainant also pointed out that his ex-girlfriend was intent on making life difficult for him. The meeting lasted about 10 – 15 minutes at the end of which the Director informed the complainant that he was suspended on full pay pending an investigation and this was confirmed in writing the following day. In giving these details in evidence to the hearing Director B stated that he had no further involvement in the disciplinary process.
Another letter, also dated 9 August, was sent to the complainant inviting him to attend a disciplinary hearing to discuss “alleged theft further particular being it is alleged that you took frame materials from the premises without management authorisation.” The complainant was advised of his right to be accompanied by a fellow employee and that the matter was regarded as potentially gross misconduct which might result in summary termination of employment. This letter was signed by Director C who conducted the disciplinary hearing. At the disciplinary hearing on Friday, 11 August, the complainant admitted taking the material in question and stated that he had forgotten to record that he had taken it as it had slipped his mind. The complainant again made the point that his ex-girlfriend was ruining his life. Director C in evidence at the hearing stated that following the disciplinary meeting he had consulted with his two other directors regarding the outcome as any decision to dismiss had to be a joint decision. Director C further stated that he did not look at alternatives to dismissal because dismissal was the only sanction set out in the Staff Handbook in relation to gross misconduct. A letter dated 14 August 2017 was sent to the complainant to the effect that he was summarily dismissed as his actions amounted to gross misconduct. The letter noted that the complainant had admitted taking materials without prior consent and further stated that “we have found that this occurred on at least one occasion, possibly more, and this has fundamentally broken the trust required in order to continue this employment relationship.” This letter was, however, signed by Director B who, when queried about this at the hearing, said he had done so in the absence of Director C who had gone on holiday. The complainant was given the right of appeal.
The complainant gave notice of his wish to appeal the dismissal and there followed an exchange of correspondence between the complainant’s legal advisors and Director B of the respondent regarding representation. In the event the respondent appointed an accountant who was employed by the company’s auditors to conduct the appeal and the complainant did not avail of legal representation at the appeal hearing because of the cost of same. Prior to the hearing the respondent forwarded statements from the person who had done the actual framing and suggested that the complainant might wish to comment on same at the appeal hearing. The hearing was held on 5 September 2017. The outcome of the appeal was that the decision to dismiss was upheld and this was conveyed to the complainant by letter dated 13 September 2017. This letter disputed the complainant’s contention that the taking of stock was a matter that slipped his mind and repeated the belief that this may have occurred on more than one occasion.
Section 6(1) of the Unfair Dismissals Act, 1977, 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.
Section 6(4) of the Act states:
Without prejudice to the generality of subsection (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 of the following:
(b) the conduct of the employee…
In considering this matter I note that the Directors of the respondent had no experience of dealing with this type of matter. I further note that he complainant had worked with the respondent for 11 years and that the working relationship had always been good. I also note that the value of the stock was approximately €10.00 cost price.
It is apparent that there was no formal procedure in place for staff taking stock items from the respondent. The evidence was that an employee could request permission to take stock and that they could have it at cost price. There were also occasions when the Director concerned would not charge for the item. The complainant accepted in evidence that prior permission for taking stock was required and that the items concerned would have to be recorded as leaving the premises on what was termed a green slip. In this instance the complainant, through what he claimed to be forgetfulness, neither sought permission nor filled in the green slip.
The respondent’s knowledge of this was triggered by a phone call and subsequent statement from the complainant ex-girlfriend. This person was, by her own admission, someone with an agenda who made a number of allegations against the complainant. The only issue that was openly pursued by the respondent was the allegation of taking stock without permission. There followed the actions of Director A in visiting the café on two occasions in order to view the framed items and confirm that it was the complainant who supplied them to the owner.
The complainant’s representative argued that the procedures used by the respondent in the investigative / disciplinary / appeal process were fundamentally flawed.
Section 6(7) of the Act states:
Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –
(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…
I have therefore looked carefully at the various stages of the process. Within minutes of the return to work after the holiday break Director B approached the complainant and invited him into the office for an informal chat. During this chat the complainant admitted that he had taken stock without permission and denied the other allegations. The complainant was suspended pending an investigation. In fact there was no further investigation and the admission of the complainant during the informal chat became the basis for the disciplinary hearing. The disciplinary hearing took place conducted by Director C. At the adjudication hearing both other Directors stated in evidence that they had no involvement in the matter following the completion of their roles which, in particular, would mean no involvement in the decision to dismiss the complainant. This was flatly contradicted by Director C who stated that he consulted with both other Directors following the disciplinary hearing as any decision to dismiss had to be a joint decision. The letter confirming the decision to dismiss also referenced the belief that goods had been possibly taken on more than the one occasion, a statement which had no foundation in any evidence adduced during the process. This letter was signed by Director B and not by the person whom the respondent states made the decision to dismiss. With regard to the appeal procedure I accept that the accountant was meticulous in her approach to the matter but, nevertheless, statements were considered at the appeal hearing which did not form part of the disciplinary process. Finally, it was stated, both in regard to the dismissal and appeal, that no consideration was given to an alternative sanction other than dismissal because the sanction of dismissal was the only sanction set out in the Staff Handbook.
That Staff Handbook is quite detailed with regard to the investigative module of the disciplinary procedure. It states that an investigation will be carried out by a designated member of management or by an agreed third party. It further states that “the person nominated will have appropriate training and experience and be familiar with the procedures involved.” As noted above this stage of the disciplinary process did not take place and indeed all three Directors admitted that it was the first occasion that they were involved in such a situation. I believe that all three Directors were involved in the decision to dismiss which is a breach of the principle that persons involved in the initiation and investigation of disciplinary matters should not be involved in the actual disciplinary decision. Together with the other shortcomings identified above I find that the process which resulted in the decision to dismiss was flawed and therefore unreasonable and that as a result I find that the complainant was unfairly dismissed.
As regards the actions of the complainant, I find that he was aware of the informal procedure whereby prior permission for taking stock was required and that such stock should be recorded on the green slip before leaving the premises. I do not find that failure to do either of these actions due to forgetfulness was a reasonable explanation. I do accept that the payment that he received from the café owner, a family friend, had not been sought by the complainant. In all the circumstances, therefore, I find that the actions of the complainant contributed significantly to his dismissal.
I note that the complainant got employment with effect from 1 October 2017 albeit on a wage about €100.00 per week less than he had with the respondent and that as from May 2018 he changed employment initially for a slightly lower wage but from July 2018 on a higher wage.
Having found the complainant to be unfairly dismissed it follows that his claim under the Minimum Notice and Terms of Employment Act, 1973, must succeed. In accordance with Section 4(1)(d) of the Act an employee who has been in the continuous service of his employer for more than ten years but less than fifteen years is entitled to six weeks’ notice.
The complainant also brought a complaint under the Terms of Employment (Information) Act, 1994 to the effect that the respondent was in breach of Section 3(1) of that Act.
The evidence at the hearing was that the complainant did not receive a statement of employment when he was initially employed. A document entitled “Statement of Main Terms of Employment” was issued to the complainant in August 2015 and signed by him in September 2015 and this is accepted by the complainant. This document was presented at the hearing. No complaint with regard to this matter was made by the complainant during his employment with the respondent.
Section 41(6) of the Workplace Relations Act, 2015, states:
Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
I therefore find that the presentation of this complaint is out of time.
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.
Complaint No. CA-00017397-001:
This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons stated above I find that the complainant was unfairly dismissed but that his actions had contributed significantly to that decision. Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €3,000.00 as compensation in this regard.
Complaint No. CA-00017397-002:
This is a complaint under the Terms of Employment (Information) Act, 1994. I find this complaint to be out of time for submission and it accordingly fails.
Complaint No. CA-00017397-003:
This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €2,941.92 (€490.32 x 6) in this regard.
Workplace Relations Commission Adjudication Officer: Joe Donnelly