Complainant

Respondent

Parties

Emma  Harris

DCK Concession Ltd

Complainant

Respondent

Representatives

Self-Represented but assisted by Mr J Tumulty

Ms. G Creckendon, People Partner & Company Managers

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-00068585-001

13/01/2025

The Complaint concerns a Retail Associate who alleged that she had been Unfairly Dismissed by an In Store Concession Group. The employment had begun on the 28th June 2021 and ended on the 29th July 2024. The rate of pay, as stated by the Complainant, was €669 paid monthly, for a 13.5-hour week.

CA: 00068585-001

The Complainant was self-represented but was effectively and very ably represented by Mr J Tumulty - her Partner.

An initial written and a later supplementary Submission was provided, and considerable Oral testimony was given.

In essence the Complainant’s case was that she had been working on a concession stand, without incident, in a Multinational Clothing Chain store in a North Leinster Town.

On the 24th June 2024 the Complainant was virtually overwhelmed by the physical heat in the Store (circa 25 degrees) and needed to get outside into the open air. Her background condition made her susceptible to a hot environment. She accordingly left her Concession Stand and went off site.

Later that evening it now appears that the Multinational Chain Manager, Ms R, communicated with the Complainant’s employer regarding the behaviours of the Complainant and the alleged physical appearance of the Concession Sales Stand. When later queried by the Respondent Employer Manager, Ms X, it was confirmed that the Multinational had withdrawn their permission for the Complainant to be in their Store.

The Respondent held an Investigative Meeting on the 8th July and a follow up Disciplinary Meeting on the 15th July 2024. The Respondent acted with extreme haste and did not afford any proper procedures to the Complainant. No opportunity to cross examine the Multinational Manager was allowed. This was in clear breach of all fair procedures. Most of the Respondent evidence proffered to the Hearing was alleged by Mr Tumulty to be at best “retrospective construction of evidence”.

The Complainant was dismissed for Gross Misconduct which the Respondent stated was the loss of the Multinational concession permission to be in their Stores. The dismissal for Gross Misconduct in this context was argued by Mr Tumulty to be “outrageously disproportionate” and clear case of Unfair Dismissal. Furthermore, no allowance was made for the Complainants’ Learning issues.

CA-00068585-001

The Respondent submitted two detailed Written Submission and gave extensive oral testimony to the Hearing. The People Partner, Ms Creckendon (Ms C) was the principal spokesperson. She gave very comprehensive and well-argued Managerial evidence.

In essence the Respondent case was that their business model depended on having concession Stands in Large Stores such as the Multinational in this case. If the Multinational withdrew permission for a Respondent Staff member to be on their premises, then that staff member was effectively out of work. In the Handbook it was stated that a staff member losing a main Store permission was Gross Misconduct and dismissal would result.

In this case all proper procedures, correspondence etc were followed. A full investigation meeting had taken place on the 8th July 2024. A disciplinary meeting had taken place on the 15th July 2024. The Complainant was afforded full representation (Mr Tumulty), and all evidence was presented. The written Complaint from the Multinational was provided in evidence. Witness statements, fellow Managers, who had spoken to Ms R in the Multinational were provided.

It was clear that Ms R was not going to change her mind. The removal of Permission stood and the Dismissal of the Complainant, while most regrettable, was the only realistic option. In questioning from the Adjudicator as to other possible penalties short of dismissal, Ms C, stated that there were no other openings available at the time in other locations. More importantly the loss, by a staff Member, of a Main Store permission, was a really fundamental issue for the Company and could not be ignored by moving a staff member to another location.

All procedures, correspondence etc had been properly followed per the Handbook and Disciplinary & Grievance procedures (Submitted in evidence). It was important to note that the Complainant had declined the offer of an Appeal as set out in the Dismissal letter of the 15th July 2024.

3:1       Legal discussion

This case is clearly covered by the Unfair Dismissals Act 1977 and the supporting statutory Instrument SI 146 of 2000 – Statutory code of Practice on Grievance and Disciplinary procedures. In addition, there is a very extensive body of case law in Ireland and the UK on Unfair Dismissal cases.

The landmark case is Justice Flood in Frizelle v New Ross Credit Union

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Following from Mr justice Flood there are a number of questions to be addressed.

The first has to be the veracity and quality of the evidence used by the Respondent employer. This was essentially a written statement with two accompanying photographs from Ms R in the Multinational. It was accepted that a Respondent Manager had phoned her to seek clarification to be told that she was not going to change her mind -the removal of the Complaint was not going to be rescinded. It was clear that the incidents on the 24th June 2024 was not an alleged “once off” incident but had followed an alleged pattern. Quoted Respondent Supervisor e mails confirmed this fact. The Adjudication issue was, to quote Mr Justice flood, one of determining a bona fide complaint unrelated to any other agenda of the Complainant.

Multinational Manager, Ms R, was not called as a witness to the Disciplinary Hearing and could not accordingly be cross examined by Mr Tumulty for the Complainant. Likewise, any previous issues, which may or may not have coloured the decision and which, ironically, could have helped the Respondent case, could not be explored.

The Respondent Policy of not involving Main Store personnel in Disciplinary cases involving Concession staff is not a policy that an outside observer would rank highly in any consideration of Natural Justice. This is particularly the case where a potential Dismissal from employment is a possible outcome. Dismissal on grounds of “Serious Misconduct” from employment is a most grievous outcome for an Employee and warrants a full Natural Justice procedure.

The Removal of a Respondent staff member Concession Permission by the Multinational is a matter for their own internal decision-making processes. However, where the removal of a Permission involves the staff member being Dismissed by the Respondent Concession holder as a result Natural Justice requires, it would be generally accepted, the Multinational Manager to explain the decision to the Representatives of the Complainant in any Dismissal proceedings even if in a legally unrelated Company.

The second issue is the Procedural aspects of the case. Here no fault can be applied to the Respondents who operated in a highly professional manner.

The third issue was the “Proportionality” of the Dismissal.  An Adjudication Officer is Legally strongly cautioned from seeking to make his or her own judgment of the Employer chosen Outcome of a case. The question is one of reviewing, after all the Rules of Natural Justice have been observed, the proportionality of the decision. To quote again Mr Justice Flood above “a decision proportionate to the gravity and effect of dismissal to the employee”.

In this case the Adjudication Officer would have cause for concern in relation to a Dismissal penalty. However, Ms C, for the Respondent explained very cogently the business model of the Respondent and the impact for an employee of losing a Main Store Authorisation -which happened here. The employee effectively became “unemployable” for the Respondent at the Main Multinational here but it was unclear if this extended to all opportunities in the Respondent portfolio of concessions.

The fourth issue was the Complainant’s failure to engage in an Appeal Process despite it being clearly flagged in the Dismissal letter of the 15th July 2024. The Complainant advised that “she had lost faith” in the Respondent processes. The “Loss of Faith” argument has to be very strongly argued by a Complainant and supported by very cogent evidence of almost manifest bad faith on the Respondent employer side. None of this was in evidence here.

Legal precedents are overwhelmingly of the view that failure to fully engage with a Respondent Internal process, including an Appeal Opportunity are very damaging to an Unfair Dismissal case. This failure to lodge an Appeal is not helpful, at all, to the Complainant’s case here.

3:2        Adjudication Summary.

The Adjudication view is that, on Natural Justice Grounds, (failure to afford the Complainant an opportunity to interview/ cross examine Multinational Manager, Ms R) an Unfair Dismissal took place here.

The Proportionality of a total Dismissal was also open to question. The Adjudicator felt that it was Disproportionate. Describing it a Gross Misconduct, in line with Theft or Assault or Drug offences in the Handbook, would appear to be unusual in accepted HR Policy Terms.

However, the above comments are balanced by failure of the Complainant to lodge an Appeal.

Thes issue will be reflected in the discussion on Redress below.

Unfair Dismissal