ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024927
Retail Credit Company
Scott Jevons Ibec
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 10/02/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The Complainant had parallel proceedings against sister companies of the Respondent – ADJ-00024929, ADJ-00024922. These were withdrawn by the Complainant in favour of the present proceedings as both Respondent and Complainant agree that the Respondent as identified in these proceedings, is the designated employer.
The Complainant is claiming that he was unfairly dismissed by the Respondent by reason of unfair procedures and is seeking compensation. The Respondent contends that fair procedures were used at all times, and that the actions of the Complainant led to serious financial irregularities which contributed to his own dismissal.
The Complainant was employed in various sales roles with the Respondent from 24 October 2016 to the date of dismissal on 29 August 2019. His salary was €648 per week.
The Respondent is a nationwide credit company selling clothes, hardware and general household goods directly to its customers, maintained by weekly personal contact from a sales representative of the company; a role which the Complainant was employed to do. The Respondent’s sister company offers loan products through the same representatives.
Summary of Respondent’s Case:
In August 2019 the Complainant was formally invited to a meeting as there had been financial irregularities that needed to be addressed by management. Twelve serious issues were identified by the Respondent at this meeting, which was conducted by Mr McC, Sales manager. These included, amongst other things, the submission of a third-party cheque in lieu of monies owed to the company which had been cashed by the payee, cash shortages, late lodgements, the theft of money from the Complainant’s unlocked car, false claims for diesel and an overnight stay. The Respondent had a general suspicion that poor cash handling had occurred.
Mr McC believed the Complainant’s responses to the allegations made were not plausible and suspended the Complainant on August 27th, 2019. The Complainant was called to a disciplinary meeting on August 29, 2019 with Mr McC on behalf of the Respondent, with Mr R, Chief Operating Officer, in the capacity of notetaker, and the Complainant. The Complainant was offered the option of having a colleague as a representative but declined the offer.
The Complainant’s employment was terminated at this meeting and the Complainant appealed to the Respondent’s Managing Director, Mr M. The appeal meeting with Mr.M gave the Complainant ample time to quantify and explain the circumstances leading to his dismissal. Mr M reflected for four days but ultimately decided that there was evidence of a serious breach of trust and upheld the decision to dismiss the Complainant.
The Respondent submits that the principle to be applied in cases of gross misconduct can be found in Looney & Co. Ltd. Looney, UD 843/1984 is as follows:
“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”
It is the Respondent’s position that a ‘reasonable employer in the same position and circumstances’ would have reached the same determination in the circumstances in this case. As such the Respondent’s decision to dismiss was reasonable and fair in the circumstances and no unfair dismissal took place.
The Respondent further submits that the Complainant’s actions destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible therefore justifying dismissal. The Respondent cites Knox Hotel and Resort Ltd, UD27/2004, where the Tribunal stated that:
“[the claimant’s actions] destroyed the respondent’s trust and confidence in the complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”.
The Respondent submits that the Complainant in this case was afforded all the benefits of fair procedures in line with the Respondent’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI146/2000) and the universal principles of natural justice.
Summary of Complainant’s Case:
The Complainant submits that he received a call to attend what was termed a routine audit meeting which was ‘just a chat’ by Mr McC. When the meeting commenced Mr McC advised the Complainant that serious issues were to be investigated and that he might opt to be represented by a work colleague. He did not receive warning of this investigation nor did he ever receive, save at the present hearing, a written list of the charges against him. He believes he gave credible responses to the verbal charges that were made against him on the day but found himself facing a disciplinary hearing two days later.
At the disciplinary hearing with Mr McC he states that he refuted the allegation that third-party cheques were not accepted by the Company as the Respondent regularly accepts social welfare cheques as payment from customers. He asserts that cash lodgements and a customer’s loan of €2000 were delayed because of a stay in hospital. He submits that the Respondent gave no consideration to the case he was making. He believes he was denied justice and that his dismissal was unfair because of the unfair procedures that were used in the investigation and disciplinary meetings.
The Complainant gave evidence that he has attempted to find work as a salesperson but had been unsuccessful. He asserts that he has found work in the hospitality sector where he works three days a week and is receiving a social welfare payment for the other two days. His gross pay for part time work is €229. He receives €80 to €98 per week social welfare assistance. He submits that he has a shortfall of €400 per week.
Findings and Conclusions:
Section 6 of the Unfair Dismissal Acts, 1977-2015 provides the relevant provisions in determining what constitutes unfair dismissal:
Section 6(1) of the Unfair Dismissals Act 1977, as amended provides that: -
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.
Section6(4)(c) of the Unfair Dismissals Act provides that: -
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…(b) the conduct of the employee,
Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:
“(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.”
The recent decision of the Court of Appeal in Iarnród Eireann v McKelvey  IECA 346 gives guidance on what are precise employee rights when an employee is faced with allegations of gross misconduct. Mr McKelvey had been accused of fraudulently using a fuel card. Although the case concerned the right to legal representation in a disciplinary case, which was subsequently adjudicated upon this issue in the Supreme Court, the Court of Appeal took the opportunity to positively reaffirm and identify the precise rights to which Mr McKelvey was entitled as part of fair procedures in a formal disciplinary procedure:
(i)his right to know the nature of the complaint/allegation against him
(ii)his right to know the procedure to be followed in the course of the investigation;
(iii)his right to know the potential implications of the complaint/allegation should it be established, i.e. the sanction/sanctions that might be imposed;
(iv)his right to be heard in relation to the complaint/allegation and to make representations in relation thereto;
(v)his right to challenge such evidence as might be called to establish the complaint/allegation and to cross-examine all witnesses;
(vi)his right to call witnesses in support of his stated position.”
In deciding whether the Complainant was not afforded all the rights and benefits of fair procedures, as he claims, or whether, as claimed by the Respondent, that it always acted fairly and in line with natural justice, it is necessary firstly to determine whether the Complainant’s precise right to know the allegations made against him, was observed by the Respondent.
Evidence was given by the Complainant that he was called to for a ‘chat’ by Mr McC in the understanding that it was part of a normal audit process that regularly occurred. In the Respondent’s submission I note the heading of the notes of that meeting is titled: “Audit Issues Review Meeting” The Complainant gave evidence that he felt he was “ambushed” by Mr McC. This turn of phrase of the Complainant is referenced also in Mr M’s notes of the appeal hearing. Mr McC, for the Respondent, accepted in evidence that the Complainant was not advised in writing, or otherwise, about the serious charges to be laid against the Complainant, prior to the investigation meeting. Later that day the Complainant, received an email from the Respondent which read “Further to our meeting this morning where you were suspended with pay for procedural and financial irregularities, please be advised that you are invited to a disciplinary hearing in my office in (X) on Thursday the 29th of August.” The disciplinary meeting occurred two days after the investigation meeting, but I note that the email does not list, or in any way gives further indication of the nature or detail of the procedural and financial irregularities alluded to.
Based on the evidence presented to me, I conclude that the Complaint received no proper notification of the detailed and serious charges made against him. In McKelvey  above the Court of Appeal, in addressing the scope of procedural fairness defined a precise right of an employee faced with serious allegation provided, firstly, as: “(i)his right to know the nature of the complaint/allegation against him. Furthermore, The Respondent submits that the Complainant was afforded all the benefits of fair procedures in line with the Respondent’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI146/2000) and the universal principles of natural justice. At provision 7 of the General Principles of this statutory instrument it provides that: “These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee be allowed to confront or question witnesses.” It is evident that the allegations made against the Complainant were very serious. This in turn necessitated, in the interests of natural justice, that the Complainant should have been made aware of the specific allegations prior to any investigatory meeting, or the imposition of any disciplinary sanction. The Respondent obviously did not do so. These omissions and actions by the Respondent in the context of a two-day period between a purported normal audit review and dismissal suggests undue haste and a disregard for fair procedures and natural justice.
Further concerns arose at the meetings in relation to the well-established principle of natural justice: “nemo iudex in causa sua.”; no person must be a judge in their own case. In a 2019 case the Labour Court in Dunne (complainant) v Medical & Industrial Pipeline Systems Limited (respondent)  30 E.L.R. 312 found that the respondent breached fair procedures when it allowed the same representative to take part in both its investigatory and disciplinary meetings. In a somewhat similar package of facts, the Court found:
“The court is of the view that he did not receive sufficient prior notification of the investigatory meeting to enable him to prepare properly for it. It was at that meeting that he was suspended to allow an investigation into the allegation made against him.
The disciplinary meeting which followed, on 29 January 2016 was conducted by Mr Sheeran, whom it turned out had chaired part of the investigation meeting on 8 January. While Mr Sheeran put it to the court that he should not have done so and had left the meeting after preliminary matters had been attended to, the court notes that in fact he had suspended the complainant before leaving the meeting. As Mr Sheeran was also the manager who made the decision to dismiss the complainant the court must find the respondent to be in breach of fair procedures. when it allowed one particular representative to take part in both the investigatory and disciplinary meetings.”
In the instant case, Mr McC gave evidence that he had conducted the investigation meeting and that he had also made the decision to dismiss the Complainant. The Respondent made the point that a more senior member of management, Mr R, had attended this meeting. I note however that the Respondent’s submission, which was read into the record, states that Mr R attended in the capacity of note taker. The Respondent also made the point that it was a small company and had not the spread of supervisors and management that larger companies might have, therefore there was a doubling up of roles when conducting a disciplinary process. I found this argument to be unconvincing in a company described in the Respondent’s submission as a “nationwide credit company”.
I must find that the circumstances outlined above, where the allegations were not set out properly before the Complainant and where the Respondent breached the natural justice principle of a person not being a judge in its own case, were of such a gravity as to imperil the fairness of the process. I therefore find that the Complainant’s case is well founded and that he was unfairly dismissed.
The Respondent argues that an online search of sales representative’s jobs shows up 154 vacancies in the location where the Complainant lives and that further, no documentary evidence was submitted by the Complainant of having applied for work in the sales field. The Complainant submits that he has been unsuccessful achieving full time employment and is now working part time, at a substantial loss to himself.
I have considered the losses suffered by the Complainant as well as the lack of documentary evidence of a diligent search for like work. However, I am minded that he is presently working and is actively seeking full time work.
I also considered the extent to which the Complainant’s conduct contributed to the dismissal, as is required under section 7(2)(b) of the Acts. I found that the Complaint’s responses to certain allegations of financial irregularities to be less than convincing and this in turn credibly damaged the Respondent’s trust and confidence in him. Having taken all the foregoing circumstances into account, I award the Complainant €5,000 in compensation.
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 the Complainants case of Unfair Dismissal is well founded, and I award him €5,000 in compensation.
Dated: 18th May 2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Unfair Dismissal, Gross Misconduct, Unfair Procedures.