ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042824
Parties:
| Complainant | Respondent |
Parties | Artur Calun | Hermitage Clinic Unlimited Company |
Representatives |
| Kevin Bell BL Instructed by Russell Rochford of Matheson |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00053250-001 | 13/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00053769-001 | 19/11/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00053770-001 | 19/11/2022 |
Date of Adjudication Hearing: 01/06/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints 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.
Background:
The Complainant worked for the Respondent as a catering assistant from 4th of December 2006 until 6th of September 2022 when he was dismissed.
The Complainant submitted three complaints alleging constructive dismissal. One of the 13th of October 2022, the other two on the 19th of November 2022. The narrative on the forms refer to him being dismissed not resigning. I have considered these complaints together and as an unfair dismissal case.
The Complainant attended the hearing and gave evidence under oath with the assistance of an interpreter.
Ms. Leona Murphy, HR Manager gave evidence under oath on behalf of the Respondent. Mr Nicolas Capcarrere, the Complainant’s manager gave evidence under oath on behalf of the Respondent.
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Summary of Respondent’s Case:
The Respondent made detailed written submissions in advance of the hearing. In late December 2021 a security guard working for the Respondent reviewed cctv and notified management that the Complainant had been observed removing products on 14 separate occasions from the Respondent’s premise. This had happened over a relatively short time period spanning 1st to 18th of November 2021. An investigation was initiated following the Christmas break and eyewitnesses confirmed that the Complainant regularly stole from the Respondent. When confronted the Complainant only offered the excuse that he was stealing food that would normally be disposed of and did not dispute stealing. He was inconsistent in his account of what he took and why he took it. The investigation concluded in late January 2021 however at that point Complainant commenced long term sick leave which delayed matters significantly. A disciplinary hearing was arranged on the 1st of September 2022. The Complainant declined to comment on the findings or offer any defence at the disciplinary meeting. The decision was made to dismiss the Complainant for theft. The Complainant was allowed to appeal the decision which he did. He argued that he had been given permission to regularly take food to a former colleague who was unwell. The Complainant had offered this excuse in the course of the investigation meeting. However his manager had been interviewed also and was clear that the Complainant had no such permission. There was one occasion when the Complainant was given Christmas lunch to bring to the former employee. Ultimately the appeal did not find in the Complainant’s favour and the decision to dismiss was upheld. The Respondent at all times adhered to the Complainant’s rights to fair procedure. The Complainant was notified of the disciplinary policies, his right to representation and that he was at risk of dismissal. He was given all the evidence and due consideration was given to any information he wanted to submit in his defence. He essentially admitted to theft and the excuses he gave did not stand up to scrutiny. In the circumstances the Respondent dismissed him in accordance with the law. |
Summary of Complainant’s Case:
The Complainant was unfairly dismissed for taking leftover food from the Respondent’s kitchen for a former colleague. He did this with the knowledge of his supervisor. Employees taking leftover food was a widespread practice. His colleagues lied about him, bullied him and held him to different standards than everyone else. |
Findings and Conclusions:
It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act. Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal. The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee. In examining the reasons given for the Respondent’s decision to dismiss, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to. Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process. The Respondent has submitted written evidence and Ms Murphy has provided oral evidence under oath. It is clear that she established, in a fair investigation, that there had been 14 incidents where Complainant took items from the Respondent’s kitchen and put them in his car. It was unclear what the items were except in one instance when the Complainant can be seen taking a pack of water mineral water. At times the items were covered by a jacket. The Complainant, when interviewed, stated that he was removing food. This all occurred over a short period of time, just 18 days. The Complainant’s colleagues were interviewed and indicated that his taking food was an ongoing problem, that it was not confined to food waste and that the Complainant was using the food for an Air BnB he was involved with. The Complainant’s manager was interviewed and clarified that the Complainant did not have permission to take food from the kitchen. He also gave evidence in the hearing and confirmed that he had previously erected signs in the kitchen outlining that taking food was not permitted. He had to do this following previous reports about the Complainant. All of this information was put to the Complainant and referred to a disciplinary hearing. The Complainant refused to engage in the hearing and did not respond to the allegations except to confirm that he had nothing to add to them. The Respondent decided to dismiss the Complainant after this meeting for theft. This conclusion was reached following a fair process and fell within the band of reasonableness outlined above. The Complainant then appealed the decision and argued, as he had in the initial interview, that he had permission to take food and that he was bringing this food to a former colleague. Ultimately the Respondent did not accept that this was the case. On review of the transcripts of the Complainant’s interview and of his evidence to the WRC I am satisfied that the Respondent was entitled to prefer Mr Capcarrere’s evidence over that of the Complainant’s. The Complainant has been inconsistent and evasive in his accounts of what he was taking from the Respondent and why he was doing so. While he maintained he had permission to do remove food from the premise for his former colleague has failed to explain why he was taking materials to his car having first covered them with his jacket. He also failed to explain why he was taking so much, so frequently, if he was only taking food for a single former member of staff. At times he appears to have suggested that he was being forced to take food to this colleague but this is contradicted by his evidence that he was voluntarily visiting her. Having regard to all the circumstances I am satisfied that the dismissal was permitted under the act and that the complaint must fail. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claims consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00053250-001 The complaint is not well founded. CA-00053769-001 The complaint is not well founded. CA-00053770-001 The complaint is not well founded. |
Dated: 3rd November 2023.
Workplace Relations Commission Adjudication Officer: David James Murphy
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