ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00030458
Parties:
| Worker | Employer |
Anonymised Parties | A Former Sales Assistant | A Lifestyle Goods Store |
Dispute/s:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00040195-001 | 30/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00040195-002 | 30/09/2020 |
Date of Adjudication Hearing: 15/07/2021
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
This dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 30th September 2020. Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence. I held a remote hearing on 15th July 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, which designates the WRC as a body empowered to hold remote hearings. There was no objection to an investigation of this dispute by an Adjudication Officer of the WRC within the requisite time-limit under Section 36(1) of the Industrial Relations Act 1990. The Worker attended at the hearing whilst the Employer did not. I was satisfied that the Employer had been properly notified of the hearing and noted that the Managing Director had emailed the WRC on 10th June 2021 stating: “Thank you for your recent correspondence regarding the above complaint. We hereby notify you that we will not be engaging in this claim and will not be attending the listed hearing. Thank you for your understanding.” Accordingly, I proceeded to hear the Worker’s evidence. However, subsequent to the hearing and by email dated 23rd July 2021, the Managing Director emailed a statement of the Employer’s position which has been set out hereunder and considered herein. This was in apparent response to additional supporting documentation requested from the Worker. Nothing material arises from the post-hearing documentation submitted by the Parties such that would require a further hearing. All evidence, submissions and documentation received have been taken into consideration. As two dispute reference numbers were generated in error, this recommendation shall be given in respect of CA-00040195-001 and CA-00040195-002 will be treated as being withdrawn.
Background:
The Worker was employed by a Lifestyle Store as a Sales Assistant on 31st October 2019. He earned €336 gross per week. He contends that he was summarily dismissed on 25th August 2020, and not having the requisite one year’s continuous service for a complaint under the Unfair Dismissals Act 1977 seeks recourse under Section 13 of the Industrial Relations Act 1969. The Employer maintains that his employment was properly terminated in accordance with its obligations as an employer, having less than 10 months service.
Summary of Worker’s Case:
The Worker outlined the background facts to this dispute with reference to the documentation submitted. The Employer is a lifestyle goods store selling items to the public from its store and also online. After applying to an internet advert and successful interview, he was employed as a Sales Assistant with the Employer on 31st October 2019. He worked 32 hours per week at €10.50 per hour so earned approximately €336 gross per week. He was subject to periods of lay-off whilst the store was closed owing to the Covid-19 pandemic during which time he was in receipt of PUP. He was not furnished with a written statement of the terms of his employment or a contract. Under cover of a generic note, he received an Employee Handbook setting out the Company’s policy and procedures including ‘Performance Management’ and ‘Disciplinary Procedure’. He received informal training on the floor but no specific training on dealing with shoplifters. There was no security guard and no particular written policy on dealing with shoplifters.
The Employer did not raise any issues with the Worker until an incident on 25th August 2020. Usually there were two members of staff on the shop floor but as it was coming to the end of the day, the Worker was alone whilst management were upstairs. He received a phone-call from a customer who wanted to order an item online and requested that he pack it then and there so that it could be shipped that evening. He went to the back of the store to retrieve the item sought to bring it back to the front for packing. He had been aware that there was another customer browsing in the store. He was then alerted to the fact that the ‘customer’ was using an open book to hide the fact that he was placing items in a bag. The Worker started to walk towards him at which point he left the store. The Worker felt that he could not leave the store unattended so alerted management to the incident. They viewed the CCTV and reported the matter to Gardaí. The value of the items taken was approximately €500. The Worker continued with closing-up procedures. The General Manager summonsed him to her office upstairs after he was finished closing-up. She informed him that she was going to let him go with four weeks’ notice as the Employer could not afford the level of loss arising from the theft. She mentioned that he should not have been at the back of the store unless he was dealing with a customer which he had been doing. Neither was there any formal procedure for organising cover whilst away from the front of the store. He felt overwhelmed and became upset. He tried to leave the room but she prevented him and told him to calm down and a general conversation ensued. He said that he knew she was doing her job but did not agree with her decision.
The Worker attended for work the following day and beforehand asked the General Manager for a letter with the reasons for the termination of his employment. She replied that it was in his best interest to give reasons in her letter confirming same. She verbally informed him that the reason for his dismissal was because he had been at the back of the store in variance with the reason given the previous evening. That day he was asked to do tasks that were not in his job specification including climbing a ladder to change lighting fixtures. He collected the letter of termination after work and upon opening it on the way home saw that it contained no reasons and simply stated: “Further to our meeting yesterday evening, I write to inform you that your employment with (the Employer) is terminated with 4 weeks’ notice as of yesterday. Your last day will be 22nd September 2020.” He was extremely upset and went on sick leave from the next day and messaged the Employer accordingly. By email dated 30th August 2020, he wrote to the General Manager setting out his position and view that his dismissal was unfair and not in accordance with law, fair procedures or the Disciplinary Procedure in the Employee Handbook. In particular, he pointed out that the theft of the merchandise had been exceptional, unforeseeable and outside of his control. He was “saddened and shocked” to receive notice of his termination on this basis particularly as he had not been afforded any opportunity to outline his version of events and had never received any verbal or written warnings or indication that he could be dismissed. He also pointed out that he had never received any clear instructions for managing shop-lifting until a written memo dated 25th August 2020 was issued to staff after the incident stating: “You are not, under any circumstances, to be doing another task at the back of the shop in the packaging area or on the till (unless you are serving a customer).” As he had been serving a customer at the time, this compounded his confusion as to why he was being dismissed. He subsequently received a letter dated 2nd September 2020 from the General Manager giving him a formal warning for not turning up that morning and the prior three days without notifying management in line with the Employee Handbook or providing medical certification after three days’ absence. He furnished a medical certificate later that day confirming his unfitness to work owing to work-related stress until 14th September 2020.
On 11th September 2020, the Worker furnished a further certificate certifying him as unfit to work until 16th September 2020 owing to work-related stress. He received a letter from the Managing Director on the same date confirming: “Your appeal against your termination has been considered and on review, unfortunately we have decided to uphold the decision and your appeal is hereby rejected. I note that you have also indicated that you do not wish to return to work following the absence covered by your medical certificate. We do not therefore expect to roster you for any further shifts.” It also confirmed that he would be paid in lieu of annual leave and asked him to arrange for the return of the keys and collection of his belongings. The Worker clarified his position by email to the General Manager on 12th September 2020 clarifying that it was incorrect to say that he had indicated that he did not wish to return to work following the period covered by his medical certificate but he would return the keys and collect his belongings. He confirmed that the Employer had not paid him in lieu of his notice period. Thereafter, he was in receipt of social welfare for a period of six months and has since returned to third-level education with occasional part-time paperwork. He referred this dispute to the WRC on 30th September 2020. He contends that he suffered financially and seeks compensation and vindication of his employment record and good name.
Summary of Employer’s Case:
As outlined above, the Employer did not attend the hearing as indicated in writing to the WRC and hence did not proffer any viva voce evidence. However, by email dated 23rd July 2021, the Managing Director emailed the following statement of the Employer’s position to the WRC: “(The Worker) worked with (the Employer) from October 31st 2019 until September 2020 (-10 months). (The Worker’s) employment was terminated in compliance with our obligations as his employer and was given a 4 week notice period. Unfortunately (the Worker) did not turn up for work at (the Employer) again. Following a subsequent warning for unauthorised absence, (the Worker) submitted two medical certificates to cover absences up to and including 16th September 2020. (The Worker) was not rostered between 17th September and 19th September but was granted previously requested paid holiday leave from 20th until his last day on the 23rd September 2020. As the company does not pay employees for periods of sick leave, (the Worker’s) last payslip includes only payment for due holiday pay. Copies of relevant communications are attached.”
Findings and Conclusions:
Effectively this is an unfair dismissal claim where the Worker has less than one year’s service and hence has referred a dispute to the WRC under Section 13 of the Industrial Relations Act 1969. In this respect, I am guided by S. I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), which requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises / organisations) must comply with the general principles of natural justice and fair procedures, also confirmed in jurisprudence. Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the employment fora recommending awards of compensation in respect of dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures. In particular, the Labour Court has consistently found that employers are required to afford due process to employees before a decision to terminate employment is taken, where there is less than a years’ service.
In the instant dispute, I found the Worker to be an impressive witness and his account of the circumstances giving rise to his dismissal to be wholly credible and well-documented. I am satisfied that for whatever reason the Employer saw fit to summarily dismiss the Worker following a shop-lifting incident on 25th August 2020. I am further satisfied that the Worker was completely blameless in relation to this incident particularly given the absence of any written protocol or formal training for managing shoplifting until after the event. The Employer has not proffered any evidence in rebuttal and the written statement only serves to confirm its summary dismissal of the Worker based upon a misconceived view that it was acting in accordance with its legal obligations. On the balance of probabilities, I am therefore satisfied that there has been a complete absence of fair procedures in accordance with the general principles of natural justice as required byS. I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) and jurisprudence. There is also a complete absence of any adherence to the Employer Handbook and the Employer’s own procedures. This is supported by the absence of any procedures whatsoever and any reasons in the Employer’s letters confirming termination of his employment and upholding same. Other aspects of the Employer’s treatment of the Worker are wholly unreasonable including the absence of written terms and the manner in which he was treated when he went on sick leave after being informed of his dismissal, issuing him with a “formal warning” and declining to roster him for the remainder of his notice period. I accept that this has caused him upset and financial hardship. Unfortunately, there remains a common misconception amongst a minority of employers that fair procedures are not required when an employee has less than a year’s service and they can simply be dismissed without due process, perhaps based on a misapprehension that they will not be legally exposed.
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute. In light of the above, I recommend that within 42 days hereof, the Employer makes an ex gratia payment of €6,000 to the Worker in compensation for the manner in which he was dismissed. I also strongly recommend that the Employer’s management undergo human resources training in relation to its statutory obligations towards its employees and update its practice and procedures accordingly.
Dated: 07-09-21
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Section 13 of the Industrial Relations Act 1969 – summary dismissal of employee with less than one year’s service without stated reason – S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) – breach of fair procedures and due process