ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00005078
Parties:
| Complainant | Respondent |
Anonymised Parties | {text} | A Cosmetics Company |
Representatives | A Solicitor | A Legal Firm |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006426-001 | 08/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00006426-002 | 08/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00006426-003 | 08/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00006426-004 | 08/08/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006426-005 | 08/08/2016 |
Dates of Adjudication Hearings: 11/10/2017 and 11/12/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
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(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).
Overall Background:
These claims were heard over two Hearings with substantial submissions and evidence provided. Witnesses were introduced and cross examined. The parties also agreed to make final summary submissions of their positons after the Hearing. The Complainant withdrew her claims under the Payment of Wages Act 1991 (Ref no CA-00006426-001) and the Terms of Employment (Information) Act 1994 (Ref no CA-00006426-002) at the first Hearing. |
Claim for Unfair Dismissal Reference No; (CA-00006426-003)_
Background:
The Complainant alleged that the decision to dismiss her was not proportionate to her actions and was unfair.
Summary of Complainant’s Case:
The following essential dates/facts (adduced from the documentation and evidence) are of significance:
On 22nd of November, 2008 the Complainant period of continuous employment as Counter Manager of the Respondent at the X Store commenced. She was an employee of the Respondent entitled to salary, commission and grooming allowance. The Respondent had a policy that gave each of their retail staff monthly allocations of the Respondent products, being 4 items in the case of a counter manager. Where the store purchased the stock for sale the allocations were given to staff off the premises by their area Manager – so they couldn’t be mixed up with the store stock. Also, where the Respondent staff purchased the Respondent stock in store, they were entitled to “take a gift” being whatever items were currently deemed by the Respondent to be “GWP” (i.e. gifts with purchase). Furthermore, on occasions of promotions, counter staff were also encouraged to “take a gift” so they may be able to positively recommend product to customers based on their knowledge of same.
Commencing in 2012, various issues arose between the Complainant and X Store Manager, Manager of X Store, which she referred to her area Manager (initially MS O M, subsequently Ms MG) for appropriate intervention/representation.
In January, 2015, the Complainant commenced a formal grievance in accordance with the Respondent procedures, met with Person A (the Respondent HR Executive) on 27th of January and 23rd March, 2015 and was issued with an outcomes letter on 6th May, 2015 recommending that mediation with a Conciliator/Mediator proceed and also stating that the Company would be happy to consider her for transfer to another Store if that is something she would like to pursue.
In or about September, 2015, the Complainant and X Store Manager met a Mediator in Y City; the Complainant outlined in evidence that the outcome was not satisfactory, including no apology being forthcoming from X Store Manager.
On 29th December, 2015, the Complainant made up a gift box containing a number of gifts for Ms. NGG. She put into the gift box a number of items of the Respondent Products that she was personally entitled to under their allocation policy and also their gifts with purchase (GWP). She also set about purchasing with her own money two items in the X Store for the gift box. Because one of the items was the last of its range, she underwent a procedure (common in the X Store) of suspending the transaction, which transaction was finalised later that lunch time by a fellow employee once the gift box was then completed. The gift box was put in a store room for collection by the mother of Ms. NG that afternoon.
On 28th January, 2016 the Respondent Area Manager – in breach of procedure - brought into the Respondent Counter at X Store, X the product allocation items for the Respondent Staff at that store - necessitating the Complainant as Counter-Manager having to bring such items out of the store. In accordance with procedure, she informed Security that she was doing this.
On 3rd February, 2016, Person A, the Respondent HR Executive attended at the X Store with print out of X CCTV footage, regarding the events of 29th December, 2015 and 28th January, 2016 and furnished same to the Complainant, went through CCTV footage with her, then interviewed her. During such process the Complainant related what was in the boxes, the purpose of same and acknowledged that she had been in breach of procedure by initiating the transaction for her purchase (with her own money) of two items from X Store saying “I never done it before. I know I shouldn’t have done that. I will put my hands up...........” Towards the end of such interview, at about 4.00 p.m. Person A stated: “Unfortunately I will have to suspend you pending the investigation.........Ms. C is waiting for you down stairs to escort you to the exit”.
On 23rd March, 2016 a Disciplinary hearing was held by an Area Manager of the Respondent at X, attended by the Complainant and her father.
On 15th April, 2015, the Area Manager issued a decision by letter to the Complainant terminating her employment with effect from such date.
On 19th April, 2016, in accordance with Company procedures, the Complainant made an appeal of such decision to the General Manager of the Respondent.
On 27th of May, 2016, interviews were held to fill the position of Counter-Manager at the Respondent Counter of X Store.
On or by 3rd June, 2017, Ms. H was offered (and accepted) the position of counter-Manager at the Respondent (and gave four weeks notice to her then Employer).
On 8th June, 2016, the hearing of the Complainant’s appeal against her dismissal was held in X by the General Manager of the Respondent.
On Friday 8th July, 2016 Ms. H posted on Social Media of about having “started working at the Respondent”.
On 15th July, 2016, the General Manager of the Respondent wrote to the Complainant stating: “Your appeal was unsuccessful”.
At the WRC adjudication hearing on 11th October, 2017 an ex employee gave evidence on various matters. She had been the Complainant’s Area Manager up to end of December, 2015. On 21st December, 2015, the Complainant had asked if she could “take a gift” arising from Purchasers earlier that month, and she had agreed to same. She stated that the Complainant was trustworthy and used to often support/train in New Managers; and that she often went above and beyond her day to day duties and job role. She rated her highest amongst the Counter managers of the various Stores when she was area Manager. The Complainant had said to her about using compacts for gifts etc., and Ms G. had said o.k. Ms. G used to also work for X and stated that there are grey areas in X procedures. Depending on what X store you were in, the procedures would differ, depending on the Department Manager and Store Manager. This was particularly so in X Store, X. Suspending a sale was common practice if it was the last item in stock and this was done by most staff in X when making hampers on gift wrapping products. Upon Ms. G stating that she visited the store, the following questions arose by the Adjudicator.
Adjudicator: How much time? M G: Sometimes 3 hours, others 1 hour.
Adjudicator: In your opinion, did she ever act dishonestly.
MG Genuinely, No, she was most trust worthy. She would tend to follow whatever procedures.
Adjudicator: Who was responsible for procedures?
M G: I was.
Adjudicator: Who decides to terminate?
M G: You would go to the GM or A. Although you are involved and they are very much collective but the final say is with A or GM. You will go to A or the General Manger for advice.
Ms. NG gave evidence of having worked on an adjoining counter. “It is a small Store, we all help each other. All of us used to suspend transactions............” I offered to bring in all of the things I was given and they refused. They said “No need”.
In unfair dismissal, the onus of proof is on the Respondent to show that this dismissal was fair. When Ms. NG was vigorously cross examined (indeed accused of being “disingenuous”) the Adjudicator asked if there was video evidence and was told that there was not. The Adjudicator then made the appropriate observation that where there are two different versions of events, the responsibility is with the Respondents.
The evidence of Ms. MG was not disputed and no evidence was adduced to contradict her evidence (and similar evidence of Ms. NG) that in practice there were grey areas in the operation of procedures at X. Also, her evidence that the Complainant was most trustworthy was not disputed and resonated with the Complainant’s own evidence of having worked in a loyal and dedicated manner for the Respondent for nine years.
The Complainant was quite forthcoming from the outset (at the meeting of 3rd February, 2016) with information regarding what was in the boxes and in acknowledging that she had made a once off procedural error in initiating a transaction where she was purchasing two items of X products on 29th December, 2015. Her being so candid and forthcoming (as well as her previous unblemished and positive record) appeared to account for nothing. Although Person A stated that she only made the decision to suspend the Complainant towards the end of the interview on 3rd February, 2016, she had a security person waiting to escort the Complainant off the premises.
The CCTV footage on 29th December, 2015 shows the Complainant preparing a gift box gradually (over a period of perhaps two hours) in an open manner on the counter in the Respondent, and reaching over to a drawer on an adjacent part of the Respondent Counter to extract an item. A photograph taken by the Security Person shows some remaining discontinued compacts in such drawer consistent with the evidence of the Complainant, Ms MM and Ms MG viz there being a number of such compacts in such drawer which had been discontinued/ written off a couple of years previously.
About the Respondent investigation and disciplinary process, there was no allegation or finding that the Complainant had dishonestly misappropriated any stock for her own benefit or profit. Indeed, all evidence adduced and available clearly pointed to the Complainant having paid herself for two items and utilised product allocation and gift items she was entitled to on 29th of December; as well as having in the box she had to take out of the store on 28th January (following the area Manager’s error) product allocation etc., that she and the other staff member were entitled. MS Ks statement at page 158 of the Respondents submission, details the various checking mechanisms in X Store regarding stock and financial loss prevention, it is noteworthy that in her nine years working the X Store at the Respondent Counter, no issue has ever been raised by X with the Respondent regarding any such stock or financial discrepancy.
Accordingly taking into account the exemplary record of the Complainant up to the 29th of December, 2015, the circumstances of the transaction occurred on that date (whereby she was spending her own money and utilising her own product allocation and gift entitlement in order to prepare a gift box to give to another X employee who had been helpful to the Respondent Counter); and having regard to the fact that her having to bring product allocations out of the store on 28th of January, 2016 arose because of an error on the part of the area Manager; her dismissal from employment at the Respondent was most unfair and entirely disproportionate.
Summary of Respondent’s Case:
The Respondent supplies luxury, high end, expensive beauty and cosmetics products into selected department stores and pharmacies throughout Ireland. Within that retail environment the protection and security of stock is paramount.
The Respondent operated a beauty counter within a Department store in X. The Complainant was employed as its Counter Manager and was the Respondent’s most senior store based employee. She held a position of trust and responsibility. She was expected to follow the Company and store rules and police the adherence of other counter staff to them.
The store and the Respondent made the Complainant aware of their respective policies and procedures.
The Complainant was trained and issued with Cosmetics Stock Control, Profit Protection Guidelines and Till Operation & Security documentation by the Store. She signed those documents. They told her how to handle cosmetics items and that she could not initiate or complete a transaction for herself, that staff reserves were not permitted and that breach could lead to disciplinary action and potentially dismissal.
The Complainant was aware that she required permission to remove items from the Store. Indeed, as Counter Manager she instructed Ms MM y one of the Beauty Advisors on the counter who she managed that store permission was required to remove items.
The Complainant was made aware of the Respondent’s policies and procedures. She was provided with the Respondent’s Employee Manual. She attended training with the Respondent in relation to the Employee Manual. The Manual contained (i) an introduction which said “Employees who work at or visit retail outlets should be aware that they must comply with any relevant store procedures notified to them (ii) a Stores Rules Policy which also said that they had to adhere to store rules and procedures and breach could result in disciplinary action which could result in dismissal and that the fact that other store based staff fail to abide by rules or procedures will not be a defence (iii) a disciplinary procedure (iv) general rules that state “You are not permitted to remove material or equipment of any kind from the Company premises or your place of work without prior permission.” (v) a Misuse of Products Policy which defined misuse as use of the Company’s products without appropriate authorisation for purposes other than sales and demonstration at your place of work and at authorised events or for personal training. It mentioned that items couldn’t be removed without management permission. It explained that breach could result in dismissal.
On 28 January 2016 the store contacted the Respondent’s HR Executive about concerns relating to the Complainant’s actions on 29th December 2015. They provided a summary of events taken from CCTV footage and the Complainant’s training record. There were concerns that the Complainant appeared to have initiated and suspended a transaction involving two items, deactivated an alarm on one of the items, put the two items in a box, added additional items from the Respondents area into the box, closed the box, wrapped it, and went to another till with the suspended transaction receipt and paid for only two items. It was reported that the items from the Respondent drawers/presses were unaccounted for.
On 2nd February 2016 the store contacted the HR Executive about additional concerns regarding the Complainant’s actions on 28th January 2016. Further commentary on CCTV footage was provided. There were concerns that the Complainant had put items from the Respondents drawers into a box containing her monthly product allocation and taken it off counter and out of the store.
On 3rd February 2016, the HR Executive met the Complainant to investigate the reports.
The Complainant was suspended with pay. That decision was reasonable and proportionate. (Further details relating to the suspension decision are set out in the summary relating to penalisation).
Further investigatory meetings took place on 19th February 2016 (by phone) and on 29th February 2016 when the Complainant questioned a member of the Store’s security team.
The HR Executive obtained details of staff purchases made by the Complainant, obtained statements from the store security staff, contacted the Complainant’s Area Manager and two previous Area Managers and counter staff and got notes of a meeting the store had with their employee Ms. NG.
the HR Executive prepared a detailed statement which attached documentation gathered during the investigation and summarized what had occurred. The statement explained the HR Executive decision that the Complainant should be invited to a Disciplinary Hearing to answer allegations that :
On 29th December 2015, she:
In breach of X Store Profit Protection Guidelines initiated her own transaction
In breach of X Store Profit Protection Guidelines reserved an item for herself
Sourced items, initiated and suspended a transaction, deactivated security on an item, packed and wrapped a gift box for herself during working hours
Presented at a point of sale a wrapped box with a suspended transaction receipt which related only to some of the contents of the box and (i) deliberately concealed the contents of the box and (ii) knowingly removed from the store items which were not authorized by store management or seen by anyone else in store other than herself
On 28th January 2016 she (i) Misled two of the Respondents staff about the contents of a box she wanted to remove from the store and (ii) knowingly removed from the store items other than her product allocation which had been delivered by Ms. AR which were not authorized by store management or seen by anyone else instore other than her
She had undermined the trust and confidence necessary for the employment relationship to continue
The HR Executive gave detailed evidence regarding the investigations she carried out.
A detailed letter of invite to a disciplinary hearing dated 11th March 2016 was sent to the Complainant. It set out that the purpose of the hearing was to consider the allegations set out above. The documentation generated during the investigation was attached. The Complainant was advised that she could have representation and that a potential outcome could be the termination of her employment. The Complainant was notified that CCTV would be available for viewing.
Ms. DG who was then a Retail Expert conducted and decided the disciplinary proceedings. A Disciplinary Hearing took place on 23rd March 2016. The representations made and statement submitted by the Complainant at the Hearing were thoroughly considered by Ms. DG . She made appropriate enquiries of the Complainant’s previous Area Manager, the Beauty Advisor on the counter and X Store. A matter in dispute was what the Respondent items not owned by the Complainant she had gifted to Ms. NG. The Manager provided the Complainant with additional statements from X Store security staff, Ms. NG and a photograph of the Respondent press. The Complainant was given the opportunity to respond.
The Manager gave detailed evidence regarding the Complainant’s representations, her investigations and basis for her decision. She decided the allegations were upheld and took a decision to dismiss the Complainant. A detailed letter of outcome dated 15th April 2016 was sent to the Complainant which explained that decision. In summary, she found that the Complainant as Counter Manager and most senior store based employee was expected to exercise sound managerial judgment, lead by example and ensure she and staff followed the rules. She was provided with rules by both the Respondent and the store which she flouted. She carried out personal tasks in work, initiated and suspended her own transaction, deliberately concealed the contents of a box she presented at a till, gifted items to a friend/colleague that weren’t hers, removed items from the store on two occasions without store permission or anyone seeing them and misled security. She displayed no insight. The Manager decided that trust had been completely shattered and the Complainant had abused her position. She took account of the Complainant’s previously clear disciplinary record and service. She did not believe a lesser sanction or demotion was appropriate or feasible. The Manager confirmed this in her evidence. The decision to dismiss was reasonable and proportionate.
The Complainant was notified of her right to appeal. On 19th April 2016 she submitted a letter of appeal. The Respondent’s General Manager conducted and determined the appeal proceedings. He gave evidence regarding that process. An appeal hearing took place on 8th June 2016. On 10th June 2016 the Complainant sent an email with further observations. The General Manager considered all the representations made by the Complainant. He carried out further enquiries with X Store, the Beauty Advisor on the counter, the HR Executive and the Manager. On 15th July 2016 he sent a detailed letter of outcome to the Complainant explaining why her appeal was dismissed. He gave evidence explaining that decision and that he would not have hesitated to overturn the decision to dismiss had he believed it to be unfair or disproportionate and things had changed on appeal before.
The investigation, disciplinary and appeal processes were conducted fairly and reasonably. The time taken was appropriate given the Respondent’s operational requirements and the seriousness of the issues under examination. The Code of Practice, the Respondent’s Disciplinary Procedure and natural justice were observed. The Complainant was not entitled to notice given the misconduct based dismissal.
This was a fair conduct related dismissal.
As the Complainant was fairly dismissed no compensation whatsoever is due to her.
In the event that, despite the protestations of the Respondent, there is a finding that there was a technical unfair dismissal then it would not be just and equitable to award any compensation. The Complainant was 100% responsible for her dismissal due to her misconduct.
The Respondent submits that the financial accounts adduced by the Complainant are not worth the paper they are written on and call the Complainant’s integrity into question. The Complainant admitted that she told her accountant that she commenced trading on 1st May 2016 when she had in fact set up her business in March 2016 pre- her dismissal. She also admitted that she worked for X Model Agency and at Y Hotel in March 2016, that she opened her Beauty Room on 9th April 2016, worked throughout April and that none of that income was declared. She admitted that it was a cash business. She admitted receiving money which did not go through her books and said that if she wasn’t making a profit it didn’t need to be declared. The accounts are clearly not representative of the level of business the Complainant is transacting or of her income. The Complainant’s Facebook activity is indicative of a flourishing business. It appears from recent Facebook activity (copies furnished) that just following the adjudication hearing the Complainant posted pictures of a revamp of her beauty rooms. It is not accepted that the Complainant has suffered any loss.
The Respondent submits that the Complainant advised her accountant that she commenced trading on 1st May 2016 and said the same at the adjudication hearing to disguise that she had created the business and was trading in advance of her dismissal. Under cross examination she accepted that she had been taking advance bookings for her business from March 2017 during what would have been her hours of work with the Respondent had she not been dismissed. The Complainant had committed to operating that business and was not intending to carry on working with the Respondent.
The Respondent wishes to address a number of points made on behalf of the Complainant at the Hearing namely:
That the Complainant offered to retrieve the items from Ms. NG and bring them back in so things could be “cleared up” and an identification made of what had been taken. It was suggested that the Respondent had erred in some way by not asking for the items to be returned.
The Respondent submits that it was reasonable for it to believe that the bringing in of items would not prove that those were the items that had been removed. The Complainant could simply arrange for the items she described to be produced.
The reason authorisation is needed to remove items from the store is so that someone other than the person removing them knows what has been taken and that there is permission to do so. It was an extremely serious thing for the Complainant to have removed items on two occasions without store permission or anyone else seeing them.
The Complainant’s representative stated that the Respondent had not called evidence to refute evidence he said was given by Ms. NG and Ms. MG that procedures in X Store were lax.
Ms. MG actually said that once she gave authorisation for someone to have an item that was her involvement finished i.e. she was not involved in the store authorisation process.
The evidence of Ms. MG and Ms. NG be discounted. Neither attended the Disciplinary Hearing or provided statements at it that the procedures were lax. The Complainant was aware that the Respondent’s Disciplinary Procedure allowed her the opportunity to make representations and call witnesses. She did not call either Ms. NG or Ms. MG to the Disciplinary Hearing.
The Complainant made many representations but none that procedures in store were lax. She said at the outset of the investigation that the X Store manager had to authorise the removal of items for her. She later said that it was any member of management or available security. She also said that 29th December 2015 was the first time in her 7 years of employment that she removed items without store permission. Not once did she say authorisation wasn’t required. She also accepted that she told Ms. MG who she managed that store authorisation was required before items could be removed from the store. In addition, when she wanted to remove her allocation box on 28th January 2016 she spoke to security which was further affirmation that she knew authorisation was required. She confirmed all of this in her evidence before you.
The procedures in X Store were not lax. The Complainant’s own evidence confirmed that. The evidence of the HR Executive and the Manager was that the procedures were not lax. The store had a profit protection team dedicated to the security and protection of stock.
There was ample evidence including the Complainant’s own evidence to refute what Ms. MG and Ms. NG said.
The appointment of Ms. H
Ms. H was employed as Counter Manager after the Complainant’s dismissal. She commenced employment on 4th July 2016. The Complainant was dismissed on 15th April 2016.
Ms. H was employed on a contract of employment which meant that she could be required to work at any of the Company’s locations. You heard evidence from the General Manager that in the event that he had decided to uphold the Complainant’s appeal then he would have reinstated her and Ms. H would have been moved. It is submitted that the appointment of a counter manager after the Complainant’s dismissal does not compromise in any way whatsoever the fairness of the Complainant’s appeal.
Decision on Unfair Dismissal (CA Reference No CA-00006426-003) :
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. CA Ref no
Section 6.1. of the Unfair Dismissals Act 1977 states the following” 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”.
There are three core issues in this definition relevant to this case;
A dismissal is deemed unfair initially
All the circumstances must be considered in assessing the situation and finally
There were substantial grounds justifying the dismissal.
I will now deal with the submissions on dismissal and evidence to assess all the circumstances and were there substantial grounds for the dismissal. Interesting the first definition of “substantial grounds” in the Oxford Dictionary is “of considerable importance, size or worth”.
The Complainant denied that she had taken any product of value from the Company premises and that she only took what had been given to her or what were useless and old sample products. The Respondent believed the Complainant had taken goods of greater value and masked them up as old sample products. Different samples of each were shown in evidence.
The Respondent also showed that the Complainant had breached company policy by using her own till to purchase products and by “holding it back” to get a personal benefit.
The Respondent also presented evident that the Complainant had set up in business well in advance of the alleged incidents and that she had a thriving business and could not be showing the small income/loss as presented by the Complainant in her evidence. This is not critical to the Adjudicators decision making process as the facts are hard to verify, either way. But are important to assessing the Complainants loss.
The test to be applied in cases of alleged misconduct is whether the employer had a genuine belief following a fair investigation that the employee was guilty of wrongdoing of which she was accused and the dismissal was a proportionate sanction. In this case the Complainant admitted to the breach of procedures but denied taking good of any significant value.
Having considered the evidence the Adjudicator is satisfied that it was reasonable for the Respondent to conclude that procedures were broken and that the Complainant took goods of greater value than she said she had. The Complainant was in a position of responsibility including the control and security of the company stock. Her action breached the trust imposed on her. However, the Respondent played its part in this outcome by being responsible, inadvertently, for bringing sample goods into the Complainants shop and giving them to her. The core question following this, is given the Complainants long service and previous good track record and her character being vouched for by a past Manager and staff was the investigation fair and was dismissal a proportionate disciplinary response in the circumstances. Whilst the Employment Courts do not distinguish between the value of goods inappropriately removed from a premises, and the bond of trust was broken severely in this case, I find that the Complainants dismissal was a disproportionate response to the situation, given the Respondents contribution to the circumstances and the Complainants past service and good character references. However, she also significantly contributed to her dismissal by her actions. I do not see the recruitment and appointment of Ms. H as being of any real significance to the claim.
For the above reasons the Adjudicator finds that the dismissal was unfair and the disciplinary action was not appropriate in all this circumstance and that a slightly lesser disciplinary action would have been more appropriate given all the circumstances. I effect having considered all the circumstances in this case the grounds for dismissal were not substantial. However, given the Complainants contribution to her dismissal any award must be significantly tempered by her contribution, breach of procedure and the conflict of evidence regarding her business and income. Her evidence regarding her own business income and resultant loss was also not convincing. I award the Compliant 4,000 Euro compensation for her unfair dismissal. The potential quantum is reduced as a result of her contribution to her dismissal and lack of credibility as to her loss.
Claim for Penalisation (CA Reference Number CA-00006426-004)
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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).
Background:
These claims were heard over two Hearings with substantial submissions and evidence provided. Witnesses were introduced and cross examined. The parties also agreed to make final summary submissions of their positons after the Hearing. The Complainant alleged that she was penalised by being dismissed in an organised campaign against her for making a bullying complaint against a third-party Store Manager. |
Summary of Complainant’s Case
The Claimant submits that the following demonstrate that by late 2015/early 2016 X Limited as a Corporate Entity had taken a negative view of the Complainant utilising their grievance procedure to cause an investigation to be instigated into alleged bullying behaviour by the Manager of X Store and decided to utilise the first issues to be brought to their attention by X concerning the Complainant in January, 2016 to remove her from employment at the Respondent Counter in X (irrespective of the significance or otherwise of such issues and irrespective of the Complainant’s good record as a trusted and dedicated employee of the Respondent).
Matters of compliance with procedures would normally be addressed by area Managers with counter-Managers in their area in the first instance; however in respect of these first ever issues arising with the Complainant, Person A HR Executive based in Dublin gave evidence that she was chosen to go and meet with the Complainant on 3rd of February, 2016.
There was some significant coordination between the HR Department of X and HR of the Respondent from early January, 2016 by way of contacts by telephone, preparation of summaries of CCTV footage or 29th December, 2015 and transmission of same to Person A on 28th January, 2016 by email; with further transmission on 2nd of February, 2016 of additional notes on CCTV footage Re allocations box issue (which arose on 28th January, 2016) to which Person A positively responded: Thanks for the update!
From the outset of the meeting on 3rd of February, 2016, the Complainant wished to volunteer information and did not require time to consider – go through the CCTV transcripts and Person A was insistent on giving her time and went off for a significant period – during which the Claimant asserts that she made arrangements for her to be escorted off the premises following her intended suspension at the end of this initial investigation meeting (and the Claimant asserts that it would have been more appropriate for Person A to have spent such time contacting Ms. MG for confirmation of the Complainant’s assertion that she got permission on 21st December to “take a gift” which gift she had included in the Gift box for Ms NG ). In evidence, Person A denied that any such arrangements had been made in advance and stated that she only made her decision to suspend towards the end of the investigation meeting on that day. However, when cross-examined regarding how the Complainant’s departure from the Store occurred immediately after suspension, she agreed that Ms. CK (Security) was waiting at the bottom of the stairs which Lesley descended followed by Person A and that no discussion occurred as Ms. CK led the Complainant to her locker in the locker room where she emptied same and was escorted from the premises.
The considerable number of documents and email communications (comprising over 250 pages) comprising the Respondents submission to the WRC show that the process leading to suspension and dismissal of the Complainant from her employment proceed in a controlled manner. Examination of the actual products was not sought (although Ms. NG had volunteered same for examination). Email communications which Ms. DG had with X HR on 4th April and 8th April 2016 were not forwarded/put to the Claimant for her to make observations about. Also the Claimant sent a significant email to the General Manager 10th June 2016 on the issue of proportionality (setting out examples of disciplinary outcomes at X). That email was forwarded by the General Manager to X H.R who couldn’t trace a record of same without names. The General Manager did not get back to the Claimant seeking any such names (of other workers at X, who has simply been warned regarding such conduct. Rather the process of hiring a replacement Counter Manager for the Respondent in X continued and the Complainant’s appeal against her dismissal was refused.
Although it was accepted that the Complainant was entitled to the various gifts that she had included in the gift box she made up for Ms. NG on 29th December, 2016 and to the product allocations (along with other staff members) erroneously brought into the Store by the area Manager on 28th January, 2016 which necessitated the Complainant having to remove such box from the Store; and to the three gifts entitlements she put into that box and while a significant issue was made by the Respondents with the Complainant regarding the manner in which items were included in the boxes and the mode of removal of the boxes from the store; no assertion or finding was made that the Complainant was not entitled to the various items – until on 11th December, 2017 General Manager of the Respondent, on giving evidence to the WRC hearing stated that the conduct of the Complainant amounted to “stealing”. He repeated such assertion on cross-examination until (upon having the relevant evidence/information recapped to him) he retracted the assertion. While he then expressed regret for having made such assertion, the fact that he had such erroneous perception of the Complainant’s behaviour allied to the fact that he conceded in cross-examination that he had not familiarised himself with any aspect of the Complainant’s HR record prior to making his Appeal decision on the issues raised by X, reveals an extraordinary determination at the top of the Respondent’s company structure that the claimant should be removed from employment at their counter at X store.
Summary of Respondents submission
The claim of penalisation is disputed.
The Complainant submitted a grievance in which she raised issues about Mr. B, the manager of the X Store in January 2015.
The HR Executive the Respondent’s HR Executive investigated the grievance and met with the Complainant on 23rd January 2015 and again on 23rd March 2015 to do so. A detailed letter of outcome to the grievance dated 6th May 2015 was sent from the HR Executive to the Complainant which contained some adverse findings against X Manager. The Complainant was made aware that if there were issues in the future that were not resolved at store level, The HR Executive should be notified and these would be dealt with between the Respondent’s Head Office and X Store Head Office. The Complainant was also offered an opportunity to be considered for a transfer if she wished and part take in mediation through the WRC. The Complainant was given a right of appeal and did not exercise it.
The Complainant accepted during cross examination that her Area Manager and The HR Executive were supportive of her throughout this process and there was nothing more the Respondent could have done in relation to her grievance. The Complainant accepted that X Manager agreed to mediation, but that she withdrew from mediation because of her wedding and that she did not appeal against The HR Executive’s decision.
The Respondent was an employer who fully supported the Complainant to her own satisfaction when she encountered a difficulty with a store manager. The HR Executive gave evidence that she has had differences of opinion with other Stores in the past; would not penalise anyone because of a complaint or at the behest of a store and was offended at the suggestion that she would. She also pointed out that a store could withdraw store approval for an employee at any time and this would result in that person being unable to carry on working at that location. The Respondent had no need or particular desire to appease the store or store manager.
The Complainant did not give any evidence regarding anything untoward that occurred after the grievance outcome between her and X Manager and did not complete mediation for her own personal reasons.
The Respondent’s witnesses all gave evidence that the Complainant’s grievance was not relevant to or in any way responsible for any of their respective decisions.
The HR Executive’s decision to suspend the Complainant on 3rd February 2016 (more than a year after she raised her grievance) was made after she and the Complainant had viewed the CCTV footage of 29th December 2015 and 28th January 2016 and investigatory meetings had taken place. The Complainant herself accepted when cross examined that at the point at which The HR Executive suspended her, she had admitted that on 29th December 2015 she had initiated a transaction for herself; suspended it; put 7 items into a box, 5 of which were the Respondent items; wrapped the box; paid for only 2 items and took the box out of the store without anyone in store having authorised the removal of the items she hadn’t paid for. The Complainant had, at this point in the process, also admitted that on 28th January 2016 she had added three items to her allocation box and taken it out of the store. There were legitimate concerns about the security and protection of stock and lack of adherence to fundamental rules and the Complainant’s suspension was reasonable and proportionate and unrelated to her complaint about X Manager the year before. It was implemented on a precautionary basis and with pay. It did not constitute penalisation.
At the Disciplinary Hearing conducted by the Manager, Retail Expert on 23 March 2016, the Complainant was given the opportunity to explain what relevance her grievance had to the disciplinary proceedings and she declined to do so. The Manager gave evidence that the store had explained to her that when the Complainant initiated and suspended a transaction for herself, that was a trigger for the profit protection team to enquire further. The investigation started not because of the Complainant’s past grievance but because of her own actions when she initiated and suspended a transaction for herself and that would have been the same for any other employee. The Manager gave evidence about why she decided to dismiss the Complainant and these reasons were set out in a lengthy disciplinary outcome letter dated 15th April 2016. The decision to dismiss was not to penalise the Complainant for a past complaint but simply because her conduct warranted it and trust was shattered.
The General Manager gave evidence that whilst a ground of the Complainant’s appeal was that the disciplinary procedure was contrived to accommodate the commercial need of the employer to appease the X Store manager, the Complainant was unable to tell him what the commercial need was. He was clear as were The HR Executive and the Manager that the Respondent had no need whatsoever to appease the manager.
The Complainant failed to adduce any evidence whatsoever or establish that she suffered a detriment because of or in retaliation for having made a complaint or that the complaint was an operative cause in her suspension and dismissal. She has not discharged the burden of proof on her.
The accepted method of analysing a situation where there is a protected act, but some other reason proffered by the employer for the detrimental act, is to require both a deviation from fair procedures and proximity in time to the protected act.
There was no proximity in time between the Complainant raising issues about X Manager and her suspension and subsequent dismissal. She raised issues about X Manager in January 2015. There were grievance meetings on 27th January and 23rd March 2015 and a grievance outcome was delivered on 6th May 2015. The Complainant was suspended on 3rd February 2016. She was dismissed on 15th April 2016.
The Complainant accepted under cross examination in relation to The HR Executive’s investigation, that she knew it was an investigation; was provided with transcripts of the CCTV footage; given time to consider them before viewing the CCTV footage and having an investigatory meeting with The HR Executive; that she was told she could have someone with her throughout; got to give her account of what she said occurred and got to cross examine X Store security staff. The investigatory process was fair.
The Adjudicator heard extensive evidence from the Manager regarding the Disciplinary Proceedings she conducted and determined. Strong evidence was adduced that fair procedures were applied; that the Respondent’s Disciplinary procedure was followed; that the Code of Practice was followed; that natural justice was afforded and as set out in the Unfair dismissal summary, a fair, reasoned and justified decision to dismiss was taken based on the Complainant’s conduct alone.
The Adjudicator heard evidence from the General Manager regarding the appeal proceedings he conducted. Again, the Complainant had an opportunity to make representations which were considered. A fair, reasoned and justified decision to uphold the dismissal on appeal was taken based on the Complainant’s conduct alone.
The Respondent submits that there was no deviation in fair procedures in relation to the suspension or the dismissal or decision to dismiss the Complainant’s appeal.
The General Manager was correct when he said in the appeal outcome “It appears to me that this Company’s personnel were unconcerned about appeasing X Store Manager during that process and were supportive of you……It is my view that the fact you had a grievance was irrelevant to the investigation and disciplinary process. It was your conduct that lead to the action taken. It would be wrong to suggest that just because an employee has a grievance at one time they are immune from conduct related disciplinary action in the future.”
The penalisation claim is entirely without foundation.
Decision on Penalisation (Reference No CA-00006426-004)
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. The Complainant lodged a complaint that she was penalised for making a complaint under the Health and safety Act 2005. The alleged complaint was made in writing in January 2015.
The fact that a separate decision finds in favour of the Compliant for unfair dismissal, but with significant contribution on her part, does not automatically render this claim successful. It must be adjudicated on in its own merits.
The main suggestions that the Compliant was penalised are as follows.
That the Respondent in late 2015/early 2016 took a negative view towards the Complainant due to her utilising the Grievance Procedure regarding the alleged bullying by the X Store Manager and removed her from her employment as a result.
That the Respondent organised and colluded a sequence of events regarding certain store issues to do with the Complainant to unfairly dismiss her
That the Respondent put a specific person in to investigate the issues rather leave it to local management.
That the Respondent had made decisions regarding her suspension and removal form the store prior to hearing the Complainants versions of events
That the General Manger had not involved himself fully in the appeal process and had a pre-determined decision made.
The Respondents positon can be summarised as follows; they fully investigated the Complainants compliant of bullying, they offered a move to another store if wanted by the Complainant, they got the parties into mediation but the Complainant after the process of her own accord, that they gave the Complainant a right of appeal but she did not exercise it, that the Management staff and the Investigator were supportive of the Complainant in the whole process.
Having considered al the evidence, I find that the Complainant was given the proper opportunity to have her allegations of bullying heard and investigated, that she choose voluntarily to withdraw from the process and she choose not to appeal the outcome. There was no direct causal link established by the Complainant between her making a complaint and her dismissal. The dismissal arose because of two separate incidents and the bond of trust being broken. The claim for penalisation fails according.
Claim for Minimum Notice (CA Reference Number ca-00006426-005)
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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).
Background:
The Complainant claimed she was entitled to minimum notice as per her statutory laws and that this was not paid to her. |
Summary of Complainant’s Case
As the Complainant was summarily and unfairly dismissed without payment of notice she is entitled to four weeks notice.
Summary of Respondent’s s Case
As the Complainant was dismissed for gross misconduct she was not entitled to any notice as per company policy.
Decision (Reference Number CA-00006426-005)
As the Complainant was successful in her claim for Unfair Dismissal she is entitled to payment of 4 weeks’ notice pay. The Complainant was employed from November 22nd 2008 to April 15th 2016, a period of seven and a half years (approximately). In accordance with Section 4.c of the Act a person with between five and ten years’ employment is entitled to 4 weeks notice of termination of their employment. I award the Complainant four weeks’ notice pay.
Dated: 5th April 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Multiple Claims |