Case Number: ADJ-00000042. Workplace Relations Commission

• Docket Number: ADJ-00000042
• Date: 08 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000042

Complaint(s)/Dispute(s) for Resolution:

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-00000059-001	05/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00000059-002	05/10/2015

Date of Adjudication Hearing: 29/01/2016

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The claimant commenced employment on 1 November 2003 as a deli assistant in a Fuel and Convenience Filing Station with the respondent until his employment was terminated on 10 June 2015 by reason of gross misconduct. The decision to terminate was appealed internally by the claimant but was upheld.

Complainant’s Submission and Presentation:

The claimant commenced employment on 1 November 2003 as a deli assistant with the respondent. On 27^th April 2015 he was requested to attend a meeting and was shown CCTV footage. During this meeting the claimant was questioned around the filling of his car with fuel and consuming food. The claimant admitted to breaches in procedure namely that he had served himself fuel and that he had eaten wasted stock. He claimed that he did not pay for the fuel at that time but that he paid for it later on as his till balanced and he apologised. He was suspended with pay pending an investigation.

Subsequent meetings took place during which time the claimant was given an opportunity to review further CCTV and at the oral hearing his representative confirmed that the content of the CCTV was not in dispute albeit they did dispute the ‘over-reliance’ by the respondent of the CCTV. An initial 10 allegations of breaches in procedure was subsequently reduced to 3 namely in relation to 3 incidents on the night of 24/25^th April where it was alleged that the claimant breached procedure in relation to Staff Meal and Beverage Policy , Cash Handling Policy and the Honesty and Integrity Policy. On 10^th June the claimant was advised that that he was dismissed and appealed his dismissal. This appeal meeting took place on 23^rd June and the decision to dismiss was upheld.

The claimant alleges that the process was flawed in that allegations relating to incidents investigated earlier on were later ignored with no explanation given for. Furthermore, it was stated that allegations relating to one particular shift become the focus of attention and was the reason for dismissal.

The claimant accepted that he had been trained up in the company’s procedure but argued that such training did not occur regularly and that if the claimant had been advised that he was breaching procedure, he would have desisted from the practice. The claimant accepted that it was not custom and practice to breach these procedures.

The claimant argued that the decision to dismiss was made without a full and fair investigation and the sanction of dismissal was both inappropriate and disproportionate. The claimant also argued that he was dismissed summarily, unfairly, and did not receive minimum notice nor payment in lieu of notice.

Respondent’s Submission and Presentation:

The Respondent is a retail subsidiary company of a fuel and convenience brand with stations across the country. In mid-April 2015 they undertook a review of staff uptake of meal and beverages and noticed a number of irregularities. This resulted in a spot-check review of CCTV footage. The respondent showed CCTV to the claimant and suspended him with pay pending an investigation. A subsequent investigatory meeting took place wherein the claimant was represented by SIPTU and the claimant was advised that he was being investigated in relation to up to 10 alleged breaches in the Company Staff Meal and Beverage Policy and Staff Cash Policy regarding a number of alleged irregularities. These irregularities were said to have occurred over a period from February 28^th until April 24^tharound the claimant’s alleged consumption of goods without payment, the fuelling of his car and failure to make payment and his failure to process items purchased through the till despite receiving payment for same.

It was the respondent’s case which was not disputed by the claimant that a number of opportunities were given to the Claimant to review the CCTV and that the claimant later emailed the respondent to say that there was no need to show anymore footage to the claimant as it would not assist them further in the matter.

The Respondent met with the claimant on 8^th June2015 and advised him on the 10^th June 2015 that he was being dismissed in relation to breaches of the company Staff Meal and Beverage Policy, the Staff Cash Policy and the Honesty and Integrity Policy that occurred over one shift (April 24^th/25^th). The latter breach was in relation to money removed from a charity box. The claimant was offered an opportunity to appeal the decision to dismiss. This appeal meeting took place on 23^rd June 2015 and the Claimant was advised that the decision to dismiss was upheld. The respondent referenced in their submission that their decision to dismiss was owing to a “pattern of behaviour over…a 2 month period”.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) including in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Legislation involved and requirements of legislation:

(CA-00000059-001)

Section 6 ( 1 of the Unfair Dismissals Act 1977 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“

(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 rights commissioner, the Tribunal or the Circuit 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

(CA-00000059-002)

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides that:

1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be….(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks…

Decision:

Having considered the evidence adduced at the hearing, the submissions and the authorities relied, I must consider my function in the case of alleged misconduct which has been well established and is set out in Looney & Co. Ltd. v. Looney (UD 843/1984):

“It...