ADJ-00038937 - Workplace Relations Commission Niamh Carroll V Newbridge Merchant Limited

• Jurisdiction: Ireland
• Judgment Date: 21 June 2023
• Court: Workplace Relations Commission
• Date: 21 June 2023
• Docket Number: ADJ-00038937
• Respondent: Newbridge Merchant Limited

Procedure:

In accordance with 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 complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Both parties submitted detailed written submissions in support of their positions prior to and during the hearing. These submissions and the oral evidence of the parties have been taken into consideration by me in reaching my findings.

The hearing was held in public, and the parties were advised that my decision would be published with the names of the parties.

At the outset of the hearing the parties agreed that the correct respondent in this case was Newbridge Merchant Limited. The complainant withdrew complaints CA-00051245 and CA-00051269.

This complaint of constructive unfair dismissal was referred to the Workplace Relations Commission (WRC) under s 13 of the Industrial Relations Act 1969. Prior to the hearing the representative for the complainant wrote to the WRC advising of its inadvertence in selecting the option of ‘less than 12 months’ service rather than the option of ‘more than 12 months service’. Both parties made submissions in relation to this preliminary issue at the outset of the hearing. After a period of adjournment to consider a decision of the High Court in GMIT v EAT and Ors [2007] IEHC 210, the respondent agreed to proceed with the hearing on the basis that the complaint would be heard under the Unfair Dismissals Act 1977. This decision template was amended accordingly to reflect that the complainant was seeking adjudication under s 8 of the Unfair Dismissals Act 1977.

The complainant called one witness Mr Tim Carroll (the complainant’s husband). The respondent called five witnesses: Ms Tracey Flanagan (Head of Human Resources); Ms Amanda Barry (Operations Manager, East Region); Ms Linda Elliott (Visual Merchandiser, East Region); Ms Paula Neylon (Head of Operations); and Mr Michael Callaghan (Head of Commercial Finance).

At the end of the hearing, I requested specified documentation from both parties which was duly provided and copied to the other side.

Background:

The complainant worked for the respondent from 1 October 2012 until 4 November 2021. The complainant alleges constructive unfair dismissal. The respondent submitted that the complainant voluntarily resigned from her employment.

Summary of Complainant’s Case:

Evidence of the Complainant - under oath The complainant was employed as a store manager at the retail outlet in Portlaoise. The complainant outlined that she had over 10 years’ service with the respondent and that there were no complaints in relation to her performance, conduct or attendance during that time. The complainant outlined that her employment was uneventful until June 2021. On 18 June 2021 the complainant noticed a discrepancy concerning a transaction and a suspicious refund relating to the previous day which had been made by a senior sales assistant (“Ms X”). The complainant reported this discrepancy to Ms Barry, the Operations Manager. This prompted an investigation into the conduct of Ms X. The complainant as store manager was asked to conduct the investigation hearing. The complainant outlined that she was not qualified to do an investigation hearing. However, she received guidance from management on what to do. The complainant outlined that her involvement in the investigation resulted in an uncomfortable working atmosphere given that she was questioning staff she worked with in the store. Ms X as a senior sales assistant had keys for the store. The complainant was instructed not to have Ms X on opening or close pending the outcome of the investigation. This caused operational difficulties for the complainant as only two other members of staff had keys to open and close the store. In July 2021 Ms X resigned from the employment of the respondent. At the same time Ms X submitted a written complaint to management alleging several acts of misconduct over the previous year on the part of the complainant. Counsel for the complainant opened Appendix 8 of the respondent’s submission (Booklet 1) which contained the written complaint. That written complaint contained several allegations as follows: (1) the failure of the complainant to investigate €100 missing from the float; (2) approving 10 hours work for a member of staff which that member of staff did not actually work; (3) requesting a member of staff to withdraw €100 from the complainant’s bank account to make up the float discrepancy; (4) approving hours of work for a member of staff but requiring her to paint the complainant’s house instead of working for the respondent; (5) taking two products without paying for them; (6) writing off fashion stock and taking them for personal use; (7) cancelling a layaway and not paying for the item; and (8) instructing staff to sign customer names on receipts contrary to company policy. The complainant stated that she was being accused of theft and outlined to the hearing that she did not do any of the acts of misconduct alleged by Ms X. The complainant outlined that these allegations were retaliatory because of the complainant’s role in reporting and investigating Ms X. The complainant added that she should not have had to conduct the investigation into Ms X’s conduct in the first place. Counsel for the complainant submitted that the complainant was not the appropriate person to conduct the investigation into the alleged wrongdoing of her colleagues and that this was indicative of the way the respondent conducted its business. The complainant was instructed by Ms Flanagan, Head of HR, to discontinue her involvement in a separate investigation concerning another staff member as the complainant was now herself the subject of a workplace investigation due to Ms X’s allegations. It was very upsetting and stressful for the complainant to now be the subject of an investigation herself having raised the initial discrepancy in good faith and because she had nothing to hide. An investigation meeting into the allegations made by Ms X against the complainant took place on 3 August 2021. The complainant was advised in writing in advance of the meeting about what was to be discussed at the meeting and the meeting was confined to those issues. The complainant outlined that Ms X was invited to participate in the investigation but declined as she had left the employment of the respondent and was in employment elsewhere. The complainant stated that as a result she was not afforded an opportunity to confront her accuser Ms X or to question the allegations Ms X made against her. Counsel for the complainant opened minutes of the hearing of 3 August 2021 (Appendix 14 of the respondent’s submission, Booklet 1) and highlighted a reference to another matter relating to a discrepancy concerning another member of staff which was detected on 14 July 2021 which had nothing to do with Ms X’s allegations. Counsel submitted that the investigation meeting went beyond the scope of Ms X’s allegations. Further, the investigation was tainted with unfairness, and based solely on the uncorroborated evidence of Ms X. The complainant outlined the details of the staff incentive fund which was based on exceeding sales targets. The complainant detailed that in July 2021 she spent the incentive money to purchase a voucher for herself only as the other staff entitled to part of this incentive money had left. The complainant followed the prescribed receipt process and authorisation requirements. However, she availed of the full amount for herself because she was angry with everything that was going on. On the direction of Ms Barry, Operations Manager, the complainant refunded the amount spent. The complainant stated that she took two weeks annual leave in August and two weeks sick leave due to workplace stress. The complainant was invited to a second investigation meeting while she was on annual leave. This added to the complainant’s feelings of stress, and she felt she should not have been contacted about this matter while on annual leave. The complainant described a period of eleven to sixteen weeks which were very stressful. During this time the complainant saw her doctor on four occasions. The complainant availed of counselling services in September 2021. The complainant stated that her doctor and the counsellor helped her to manage the workplace stress she was experiencing. The work environment was stressful because colleagues were being investigated and two staff members had resigned due to the investigation. This also gave rise to staff shortages and the complainant was trying to replace these members of staff. The complainant detailed how everyone in the store and other store managers at other locations knew she was under investigation. The complainant described being totally tormented and feeling suicidal by the time she left her employment in October 2021. The complainant outlined that she cried out for help several times in the form of asking for additional personnel as the store was understaffed not only because of two resignations but also due to the sick leave of two other staff members. Covid Regulations and the ongoing...