ADJUDICATION OFFICER DECISION
A Customer Assistant
A Large Retailer
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complain 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.
This dispute involves a claim by the complainant against the respondent that he was subjected to an Unfair Dismissal. The complainant referred this complaint against the above respondent on the 20th of August 2018. He has also submitted a claim under section 6 of the Payment of Wages Act, 1991 in respect of a shared bonus payment which he did not receive. The complainant referred this complaint against the above respondent on the 23rd of July 2018. The complainant has submitted that he was unfairly dismissed by the respondent on the 6th of June 2018. I proceeded to a hearing of these complaints on the 21st of January 2019.
Summary of Complainant’s Case:
The complainant submits that
On the 15th of January 2018 he left the respondent store without paying for an item in his shopping,
He had forgotten to pay for the items due to having taken a double dose of his anti-depressant medication that morning,
He informed one of his colleagues that day that “his head was all over the place” due to the double dose of medication,
He had previously informed the respondent of his depression,
The respondent should have taken on board the complainant’s explanation for forgetting to pay for the item and should have considered a sanction less harsh than dismissal.
Summary of Respondent’s Case:
The respondent submits that
The Claimant’s employment was terminated on the 6th of June 2018, without notice on the grounds of serious misconduct following fair and impartial investigatory, disciplinary and appeals processes,
the Respondent adhered to its own policies and the principles of natural justice and fair procedures at all times,
the investigation, disciplinary and appeals processes were conducted by separate and impartial managers and the Claimant was notified in writing of the allegations against him and afforded a full and fair opportunity to consider and respond to those allegations,
the Claimant was afforded and availed of the right to representation at each stage of the process. The Claimant was provided with the right to an internal appeal, which he utilised, and this appeal was heard by an independent senior manager who found no substantial grounds to overturn the original decision of dismissal.
Findings and Conclusions:
The Unfair Dismissals Act, 1997 stipulates that: Section 6(1)” 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) “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 or more of the following: ...
(b) the conduct of the employee,…”
In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
(7) 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, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.
The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Respondent of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.
Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”
An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).
It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012).
The respondent advised the hearing that the Claimant was dismissed by letter dated 6th of June 2018 on the grounds of serious misconduct following fair and impartial investigatory, disciplinary and appeals processes.
In relation to the complaint under the Unfair Dismissals Acts 1977 to 2015, the Respondent relies on section 6(4)(b) of the Acts in its defence, which states: “…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
The Respondent told the hearing that they had adhered to their own policies and to the principles of natural justice and fair procedures at all times. Specifically, the investigation, disciplinary and appeals processes were each conducted by separate and impartial managers. The Claimant was notified in writing of the allegations against him and afforded a full and fair opportunity to consider and respond to those allegations. The respondent stated that the Claimant was afforded and availed of the right to representation at each stage of the process and was provided with the right to an internal appeal, which he utilised, this appeal was heard by an independent senior manager who found no substantial grounds to overturn the original decision of dismissal.
The respondent advised the hearing that the investigator had gone to great lengths to explore the context and explanations provided by the complainant for his actions.
The respondent told the hearing that Store security reported an incident that occurred on 15 January 2018 when it was alleged that the Claimant had taken stock without paying for the items. Mr C (Manager) commenced an investigation. Mr C informed the Claimant of the start of the formal investigation on that same day, 15 January and that he was on paid suspension pending that investigation. On 17 January 2018, the Claimant was given written notice of a formal investigation meeting on 18 January. The letter confirmed that he was on paid suspension and counselled the Claimant that the outcome of the process could potentially be dismissal, that he was entitled to have a colleague or trade union representative when the investigation reconvened on 18 January and enclosed a copy of the company disciplinary policies including the Serious Misconduct policy.
The respondent stated that Mr C continued to review evidence and consider witness statements, and as well as the investigation meeting on 18 January there was a further investigation meeting on 25 January, of which the Claimant received written notice, so that he could consider and respond to all the evidence including witness evidence, review the relevant CCTV footage and answer the allegations. The Claimant was accompanied by Mandate at these meetings. At the investigation outcome meeting with Mr C on 1 February 2018 where the Claimant was again accompanied, the investigation report was read to the Claimant which concluded that the Claimant had taken stock items without paying and the Claimant was informed that the matter would proceed to a disciplinary hearing.
The Claimant remained on suspension with full pay and was invited in writing to attend a disciplinary hearing on 6 February 2018 with Mr. K (Manager) acting as the Disciplinary Officer. The invitation letter again counselled that the hearing may result in disciplinary action up to and including dismissal. He was accompanied at the hearing by a Mandate official. There were further disciplinary meetings on 13 February and 3 May 2018, of which the Claimant received additional written notice and where he was again accompanied by Mandate.
The respondent advised the hearing that the chronology of the events included periods of certified sick leave by the Claimant as well as delays waiting for the receipt of medical reports which stalled the process. The disciplinary outcome meeting was held on 6 June 2018. After all the evidence and the response of the Claimant were considered, the Claimant was dismissed from his employment with the respondent with immediate effect for breaches of the Honesty Policy. The Claimant was offered the right to avail of the internal appeals mechanism.
The Claimant’s appeal was heard by Mr. R on 25 June 2018. Following the appeal hearing, the Appeal Officer upheld the Disciplinary Officer’s decision to dismiss the Claimant on the ground of serious misconduct.
The complainant advised the hearing that the fact of his having taking items without paying for them was not in dispute but that the respondent failed to have adequate regard to mitigating factors when it decided on the sanction of dismissal. The complainant told the hearing that the explanation provided by him was that he had forgotten to pay for the items due to the fact that he had taken a double dose of his anti-depressant medication that morning which he stated made him forgetful. The complainant advised the hearing that the respondent was aware that he had suffered from depression and that he had in the past advised his manager of this fact. The complainant told the hearing that he had on the day in question mentioned to a colleague of his that his ‘head was all over the place’ due to having taken two of his anti-depressant tablets instead of one earlier that morning. Th e complainant told the hearing that he did not attend his doctor on the day in question and did not report to anyone that he was unfit to work.
The hearing was advised that the complainant at all stages of the process had stated that he was able to carry out his duties on the day in question and that it did not affect his ability to do his job. The complainant in support of his claim that he had taken a double dose of medication provided a note from his GP written a number of days later stating that the claimant had told him that he had taken a double dose of anti-depressants that day and “causes forgetfulness” there was no further detail provided by the complainant or his doctor and no evidence was adduced to show that the complainants doctor was at any stage in the process called to give evidence or to provide any further medical evidence in respect of this assertion. In addition, the complainant stated that he had not at the time of the incidence been prescribed the medication by a doctor or attended a doctor but stated that he had old medication at home which was still in date and he had decided to go back on it a week or two prior to the incident.
The respondent advised the hearing that it had during the disciplinary process referred the complainant to the Company doctor and had considered his report in conjunction with the complainant’s explanation and letter from his own GP before arriving at the decision to dismiss.
The respondent also noted that the complainant had admitted that he had breached the honesty policy by taking stock without paying for it but his explanation for this was that he was not himself due to the fact that he had on that morning taken a double dose of his anti-depressant medication which he claimed resulted in his forgetting to pay for the items. The complainant submits that this had made him forgetful and drowsy. The respondent told the hearing that complainant did not report this to his manager on the day and both parties agree that the complainant carried out his work duties as normal on the day in question and it is submitted that in the CCTV footage of the day the complainant could be seen laughing and chatting with his colleagues as per usual.
The respondent having considered the complainants submission in conjunction with the medical report from the company doctor as well as witness evidence from the day in question concluded that the complainant’s explanation did not justify his actions.
The complainant at the hearing stated that the respondent should have considered the complainants depression as a mitigating factor before deciding to dismiss him. I note that the complainant has not submitted that depression was the reason for his not paying for the item of shopping but rather he has submitted that he took two anti-depressant tablets that day as the explanation for his actions. In considering mitigating factors the complainant submits that the respondent was aware that he suffered from mental health issues anxiety and depression and in support of this he submits s that his absence record was worse than any other staff members. The respondent acknowledged that the complainant’s absence record was very bad but stated that the medical certs and reasons provided by the complainant to justify these absences were many and varied from family illnesses and accidents to stomach bugs and back pain as well as anxiety.
The respondent stated that the complainant has submitted that the reason provided by him for his breach of the honesty policy was that he had taken a double dose of anti-depressant medication that day. The respondent advised the hearing that it had in considering the explanation provided by the complainant referred him to their occupational health doctor who again reiterated that the complainant told him that he had taken a double dose of anti-depressant medication on the day in question. This report went on to state that “forgetfulness” is not a stated side effect of this medication but that taking a double dose “may affect cognitive function”
The respondent told the hearing that it considered the medical evidence provided to them in addition to the fact that the complaint carried out all of his duties that day. The respondent stated that the complainant before taking the item and leaving without paying for it he had earlier in the morning removed the item of shopping from its usual location to place it in an end bay where he could access it easily before leaving. The complainant in response to this stated that he had done this in order that all of his shopping would be in the one place, so he could get it quickly before leaving to get his bus. The respondent stated that no other evidence of forgetfulness on that day had been presented or adduced by the complainant.
In addition, the complainant stated that he had not at the time been prescribed the medication by a doctor or attended a doctor but stated that he had old medication at home and had decided to go back on it a week or two prior to the incident. The complainant has submitted that the respondent by dismissing the complainant has failed to provide the complainant with reasonable accommodation for a disability. The respondent in response to this submits that the complainant’s explanation for his action s that day was that he had taken a double dose of medication and not that his actions were due to a disability. In addition the respondent submits that the complainant in this case has chosen to pursue a claim of Unfair Dismissal and not a claim of discriminatory dismissal and/or a claim of failure to provide reasonable accommodation but is now seeking to assert that the respondents responsibility to provide reasonable accommodation goes further than an obligation to provide special measures to enable an employee to carry out his job but that that it also obligates the respondent to excuse an employee who is found to have breached the honesty policy and to grant him immunity from the penalties such a finding carries with it.
Having considered the totality of the evidence adduced I am satisfied that the respondent in the present case did consider the mitigating factors and the explanation provided to them by the complainant. The respondent also advised the hearing that the complainant at the time of the incident had been on a written warning since November 2017 due to a previous incident of misconduct. The respondent stated that no mitigating factors were presented by the complainant in defence of that incident. The respondent added that the written warning had elapsed on 22nd of May 2018 and was live at the time of the incident the subject of this claim and throughout the investigation and disciplinary process but it had expired before the outcome of the disciplinary process issued.
The respondent submits that the dismissal arose wholly as a result of the employee’s conduct and that they are entitled to terminate on that basis and in accordance with their disciplinary procedure. The respondent also submits that it did consider the mitigating factors and explanation provided by the complainant and it has gone to great lengths to explore the context and explanations provided by the complainant for his actions.
Taking all the above into consideration, I am satisfied that the investigation and disciplinary process was conducted in accordance with the requirements of fair procedure, due process and natural justice.
Accordingly, I am satisfied from the totality of the evidence adduced that the respondent has shown substantial grounds justifying the Complainant’s dismissal, and I am satisfied that the complainant’s dismissal was “within a band of reasonable responses” given the circumstances of this case.
I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate in the circumstances and I also find that the process was fair. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.
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 find that this complaint under the Unfair Dismissals Act is not well founded and does not succeed.
Summary of Complainant’s Case:
The complainant submits that the respondent failed to pay him a bonus of €1,100 to which he was entitled on 15th of June 2018 having dismissed him on 6th of June 2018.
Summary of Respondent’s Case:
The respondent submits that the complainant was not entitled to the bonus which was paid on 15th of June 2018 as he was no longer employed by the respondent at that date, the Claimant’s employment was terminated on the 6th of June 2018, without notice, on the grounds of serious misconduct following fair and impartial investigatory, disciplinary and appeals processes.
Findings and Conclusions:
Section 5(6) of the Payment of Wages Act, 1991 – 2015 provides as follows – “Where – (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with the Act), or (b) none of the wages that are properly payable to the employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.
The complainant has claimed that he the respondent has breached Section 5 by failing to pay him an amount of €1,100 which he submits he was entitled to receive on 15th of June 2018 as part of a shared bonus scheme.
The respondent submits that the payment of this bonus scheme is governed by criteria set out in a Mandate agreement of 2006. The respondent submits that eligibility for the scheme is dependent upon employees having 2 years’ service at the end of the financial year and that they are still employed by the respondent on the date the bonus is awarded.
The respondent submits that the bonus was paid on the 15th of June 2018 at which time the complainant was no longer employed by them. The complainant was dismissed on the 6th of June 2018, without notice, following a disciplinary procedure which concluded that the had breached the respondent’s honesty policy following an incident which took place in January 2018. The investigation and disciplinary procedures took place between January and May 2018 as some delays in the procedures took place due to the complainant being absent on sick leave and unavailable to attend disciplinary meetings and due to the respondents referring of the complainant for medical assessment as part of its exploration and investigation of the explanations provided by the complainant following the breach of the honesty policy.
The respondent states that the complainant was no longer employed by them on the 15th of June 2018 and was therefore not entitled to receive the bonus.
In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant.
Having carefully considered all the arguments and the circumstances of this claim I am satisfied that the payment claimed is not remuneration that is properly payable to the complainant.
Accordingly, I am satisfied from the totality of the evidence adduced that he complainant is not entitled to payment claimed and accordingly I find against the complainant in this regard.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I conclude the investigation and find against the complainant.
Dated: May 23rd 2019
Workplace Relations Commission Adjudication Officer: