ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00002176
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: 25/07/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
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 complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Respondent’s Case:
The claimant was employed as a clerk with the respondent from the 21st.May 2001 to the 16th.Feb. 2016 when it was submitted she was dismissed , that the dismissal was justified and fair in substance and that she was afforded fair procedures and natural justice throughout the process.
On the 17th.Dec. 2013 , the claimant’s Branch Manager (Mr.F)reported a suspicious payment that had been processed by the claimant – the matter had been drawn to the manager’s attention by the claimant’s colleagues Ms.MC and Ms. DB.The report was based on a customer who attended the office to collect 5 X weeks pension on the 14th.Dec.2013 – he had been in line to be served by Ms.DB – it was submitted that the claimant intervened and invited him to her counter.It was asserted that Ms.DB heard the claimant using a calculator and ripping paper which it was submitted was abnormal as the system calculates the payments and the transaction on a receipt with a total at the bottom.When the customer left the counter , it was submitted that the claimant placed an envelope in her bag – Ms.DB became concerned the claimant may have been shortchanged and had concerns over potential shortchanging in the previous number of months. MsDB advised her colleague Ms.MC of her concerns – Ms.MC searched the bin at the claimant’s work station and retrieved the bottom part of a DSP transaction in the name of the customer and the tally roll with figures for 4 weeks pension.MS.C retained the items and handed them to Mr.F.The matter was referred to the investigation branch who interviewed Ms.MC and Ms.DB and called to the home of the customer.” Following an examination of the receipt it would appear that the bottom part of the receipt which .the customer ….received with his payment that day had the details of the final €229 payment and the total amount of €1,145 torn off.It was submitted that counter records confirmed that a DSP. payment of €1,145( €229 x 5) was processed on the 14th.Dec. 2013 under the claimant’s user name.” The investigation branch commenced further urgent enquiries regarding alleged short changing of customers in transactions processed by the claimant.
Following a case review it was decided that covert cameras would be installed and on the 7th.Feb.2014 they were installed in the claimant’s office.It was submitted that on the 8th.Feb. investigators observed images that appeared to show the claimant removing company cash from her counter drawer and placing it in her handbag.The claimant admitted to removing cash and was invited to give a written statement on the matter. The claimant was interviewed by the investigators accompanied by a colleague .It was submitted that the claimant stated that the previous evening she balanced her stock and found it was €36 short and she put €35 into the cash drawer.She checked her stock on arrival at work , and it was €35 over , so she took the money out.It was submitted that when an audit ensued it emerged that the claimant’s accounts indicated that she was over by €38.16 –“ the cash figure recorded by her on the 8th.Feb.2014 did not agree with the audit of cash in her drawer as the note figure was not correct.It was understated by €20.The claimant was suspended from duty with pay to allow for further enquiries.
The respondent set out a chronology of the ensuing disciplinary process and the correspondence exchanged between the parties throughout the process.During the course of this process a further issue arose with respect to a transaction by the claimant and an account of the respondent’s processing of that matter was presented.Ultimately, the claimant was notified of her dismissal on the 12th.August 2015 “ on the grounds of loss of trust and confidence in you as an employee due to:
Short-changing of customers at ………………..
Removal of Company Cash from your counter cash drawer without authority”.
The claimant appealed her dismissal but her complaint was not upheld.
It was submitted that the decision to dismiss was the only option in circumstances “ where the claimant was effectively caught red handed by her colleagues and by the subsequent Security Services investigation.It was submitted that the claimant had been afforded all of her rights under natural justice and in accordance with the respondent’s procedures”.
The provisions of Read & Write Shop Ltd. were invoked in support of the respondent’s position.It was advanced that the correct approach is to look at the enquiry that took place and the conclusion arrived at by the respondent as to whether the employee should be dismissed.It was submitted that if the enquiry and the conclusion reached was reasonable, the dismissal should be deemed to be fair.It was advanced that the evidence against the claimant was compelling and on a par with the criminal standard of proof rather than the civil standard.It was submitted that the enquiry was reasonable as was the conclusion reached by the respondent and that the claimant’s dismissal was fair in substance and procedure.
In their direct evidence the respondent’s witnesses set out the chronology of events leading up to the decision to suspend the claimant .It was advanced that the customers transactions that were investigated were too much of a coincidence and raised questions about “ where did the money go”.It was submitted that the use of covert tv for security purposes was now the subject of agreement with the CWU and was acknowledged that there was no collective agreement on the matter in place at the time of the investigation into the claimant’s activities.It was strenuously argued that the respondent was not relying on the covert tv footage to dismiss the claimant but was taking account of the findings of the transactions with the customers and accepted that the claimant’s colleague and line manager were acting in good faith.It was asserted that while there may be some tolerance within the company of staff putting money into a cash drawer there was no tolerance of taking money out notwithstanding the arguments advanced by the union.
Summary of Complainant’s Case:
The union, on behalf the claimant set out the complaints that had been made against the claimant.It was submitted that when the claimant was interviewed by the Investigation Branch on the 8th.and 10th.Feb. 2014 , she was unaware of the allegations against her or of the circumstances leading up to the counter transactions at issue. The union set out a chronology of the ensuing exchanges between the parties and the disciplinary process initiated by the respondent.
It was submitted with respect to the JW transaction that JW never made a complaint ; the figures on the calculator tally roll did not match the transaction on the payment receipt and that neither of the claimant’s colleagues witnessed the short changing of JW or saw the claimant printing the piece of paper in question from her calculator .It was also submitted that there were discrepancies in the witness statements and it was advanced that the claimant did not recall the transaction – on any given day she could process a couple of hundred transactions. It was contended that the claimant never deliberately short changed a customer.
It was submitted that MF never made a complaint , that the respondent was relying upon a torn piece of paper from MF’s payment receipt , that the claimant did not recall the transaction and that payment receipts can tear and the claimant had stated they may have got torn in the printer.
As regards the removal of cash from the drawer , it was accepted by the claimant that she should not have put the money in and taken it out the following day “ but it was the practise in her office in maintaining a balanced drawer”.It was submitted that given that it was her own money , she saw no wrong in what she was doing and that it was not unusual for clerks to make good small shortages as they arise .It was submitted that the company did not have CCTV footage to verify that the claimant did not put in her own money.It was submitted that the claimant’s drawer was found to be over when checked.
With respect to the EJ transaction, it was submitted that the claimant made an error by recording the €100 figure as a deposit and a withdrawal and that it was unsound to draw a link between a reduction “ of €190 in cash recorded on the system at the close of business and Ms.J’s transaction which it equally has to be said is impossible to prove beyond doubt”.It was submitted that this matter was only raised with the claimant some 14 months after the event when the claimant was in no position to recall exactly what happened.
It was submitted that the respondent had built a case against the claimant on flimsy and tenuous circumstantial evidence .It was submitted that the allegations were unsubstantiated and based on accusations made by her work colleagues which breached the company bullying procedures.
It was submitted that the respondent was relying on witness statements from colleagues who expressed a suspicion and whose statements conflicted in relation to the location of the tally roll.It was submitted that CCTV footage failed to show the claimant short changing customers and the claimant’s colleagues did not witness the claimant short changing customers.
While it was acknowledged that the claimant’s actions in putting in her own money to balance a shortage was procedurally incorrect , it was submitted that this was common practise and she had given an explanation to the company of what and why she had done this.
With respect to the EJ transaction ,it was submitted that Ms.J did sign to confirm a €100 withdrawal on the 2nd.Oct. 2013 and signed a document a year later contradicting this and claiming it was a deposit with the respondent choosing to rely on the latter position to support their allegation of short changing.
It was submitted that the claimant was shocked and traumatised from the gruelling interrogation and the manner in which it was carried out by the company.It was submitted that the claimant was at a disadvantage as “ she was not aware of these complaints and was never informed or given any chance to explain her actions”.
It was submitted that there are no agreed procedures for monitoring staff with covert cameras and the claimant had never consented to being monitored.
It was submitted that the evidence did not confirm wrongdoing , that it was insufficient to warrant dismissal and that it was unfair and disproportionate.
In her direct evidence the claimant was adamant that she was innocent of any wrongdoing and asserted that she had been unaware of how her colleagues felt about her.She submitted that both of their statements had to be read together and were indicative of inconsistencies in their evidence.She asserted that she was unaware of the nature of the investigatory meeting when she was summoned to attend and felt threatened by the investigator. She outlined her history of balancing problems and stated that the transactions at issue were very difficult to recall.The claimant gave an account of her recollection of the transactions and asserted that there was no evidence of short changing of customers.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.]
I have reviewed the entirety of the evidence presented at both hearings and the voluminous submissions made by the parties.I accept the claimant’s contention that the failure to give the claimant notice of the nature of the initial investigatory meeting and the use of covert tv cameras without the claimant’s permission constituted procedural flaws. Notwithstanding this , I find the contention by the respondent that they were relying on the statements by the claimant’s colleagues and the series of transactions that were put to the claimant and her response to same and not on the CCTV footage, to be credible and compelling - as a consequence , I cannot accept that the procedural deficits are of sufficient significance to render the dismissal unfair.I am satisfied that the investigation was thorough and that it was not unreasonable for the respondent to conclude that the claimant’s defence to the allegations was unconvincing. On the basis of the evidence presented at the hearings and the undisputed records of the exchanges between the parties , I have concluded that it was reasonable for the respondent to come to the conclusion that their trust and confidence in the claimant as an employee had been lost and consequently I find against the complaint of unfair dismissal.
Workplace Relations Commission Adjudication Officer: Emer O'Shea