Case Number: ADJ-00002115. Workplace Relations Commission

Court:Workplace Relations Commission
Docket Number:ADJ-00002115
Parties:A Check-out Manager v A Retail Chain

Procedure:

The aforesaid complaints referred under Section 7 of the Terms of Employment (Information) Act 1994, Section 27 of the Organisation of Working Time Act 1997 and Section 8 of the Unfair Dismissals Act 1977 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 24th February 2016. In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, the Director General referred these complaints to me for adjudication. Following a preliminary hearing on 11th July 2016, I proceeded to a full hearing on 5th September 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented, the Complainant by Richard Grogan & Associates and the Respondent by Mr Marcus Dowling BL instructed by Byrne Wallace Solicitors. A number of witnesses gave evidence on behalf of the Respondent. I acceded to the Respondent’s application to have Gwen Malone Stenography transcribe the hearing for the purposes of its own record upon its undertaking that the transcript would not be used for any other purposes and it would uphold the privacy of the hearing. As Solicitor for the Complainant objected to Solicitors for the Respondent furnishing a copy of the transcript to the WRC without charge and to the Complainant only upon payment towards the costs of same, in the interests of fairness, I ruled that I would make my decision without requiring sight of the transcript. At the outset, it was agreed that I would hear the complaint of unfair dismissal first and then proceed to hear the other complaints. I also agreed to view CCTV relating to the unfair dismissal claim in question only if required and as it turned out nothing material arose. All oral evidence, written submissions, supporting documentation and case law presented by both Parties have been taken into consideration when coming to this decision in relation to all the complaints presented.

Background:

The main complaint referred herein is one of unfair dismissal. The Complainant was employed by the Respondent Retail Chain as a Store Check-out Manager from 3rd September 2007 until she was summarily dismissed on 8th January 2016. She earned €33,500 per annum at the material time of her dismissal. After a relatively short period of unemployment, she secured alternative employment in a similar role but on a lower salary of €25,000. She is seeking compensation of €6,979 in respect of her actual loss whilst out of work for a ten week period along with compensation for future loss to reflect her ongoing loss of €178 per week arising from the shortfall in her new salary, which over the remaining 94 week period totals €16,646, giving rise to a claim of €23,625 gross. As the fact of dismissal is not in dispute, it was accepted that the onus of proving that the dismissal was fair under the Unfair Dismissals Act 1977 rests with the Respondent. It was also accepted that the Complainant had the requisite twelve months’ service for the purposes of bringing a complaint of unfair dismissal and it was brought within time. She also seeks compensation in relation to a number of ancillary claims under the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 1997, of which Complaint Reference CA-00002922-007 was withdrawn. The Respondent strenuously refutes all of these complaints which are dealt with in turn hereunder:

 

Complaint of Unfair Dismissal under Section 8 of the Unfair Dismissals Act 1977 - CA-00002922-009

Summary of the Respondent’s Case:

On the evening of 1st January 2016, as one of her normal duties and responsibilities as a Check-out Manager, the Complainant organised for the collection and return of cash float bags from the shop-floor to the cash office. Whilst security staff had offered to accompany her on her route from the shop-floor to the cash office, she declined assistance. The following morning, it was discovered that one of the bags containing approximately €640 was missing. Extensive searches were carried out to locate the missing money, but to no avail. An investigation and disciplinary process took place, during the course of which it was contended that the Complainant had admitted to the following breaches of procedures: (1) she went into the cash office unaccompanied; (2) she did not count the bags as she placed them into the cash office safe and (3) she did not sign the relevant control sheet in the float book with the number of bags. She had been unable to offer any explanations for her actions, save that she was distracted at the time. Given the seriousness of the matter, the Respondent decided to summarily terminate her employment. By way of written appeal, the Complainant appealed against her dismissal which was upheld. At the initial hearing, it was confirmed that the Complainant had not been dismissed for theft but rather because the float bag had gone missing on her watch in circumstances where she was the Manager responsible for same and had not followed procedures. The following relevant evidence was given in support of the Respondent’s position:

Store Manager

The Store Manager outlined the background to the Complainant’s employment as a Check-out Manager at the material time and procedures in relation to her role in collecting and storing cash. He confirmed that one of her duties required her to collect the float bags from each of the tills at the end of the day and transport them to the cash office, place in a time-hold safe overnight and account for the number of bags in a float book. Prior to Autumn 2015, the practice had been for Managers to attend the cash office alone but since then they had been informed at weekly management meetings and directly that they should have a member of security accompany them to the cash office, and extra security had been put on duty later to accommodate. He said that security staff were permitted to go into the cash office and a list on the door referred to those who held key fobs to enable entry. A float bag and float book were furnished in evidence. Under questioning from the Solicitor for the Complainant, the Store Manager confirmed that security staff were available to support cashing-up. He accepted that the procedures for the cash collection and storage were communicated verbally to the staff concerned and there were no written procedures. He submitted that there had been no issue or need for this as everyone had fully understood their roles. It was put to him that the absence of a written procedure created uncertainty as to the process. He could not confirm whether the float book in question was in place on 1st January 2016 when the Complainant was alleged not to have signed the book. It was also put to him that there had been a CCTV blind spot on the route to the cash office. He said that the Complainant had always completed the float book before the evening in question and agreed that up until then, she also had a very good working record with the Respondent.

Security Manager

The Security Manager gave evidence confirming the Store Manager’s position that there had been a recent change in policy and Managers were to be accompanied by security staff to the cash office. He also confirmed that members of security staff had been on hand to accompany the Complainant to the cash office on the evening in question. When the missing cash float was reported missing, he had viewed CCTV of the floor for the time in question. He could see the cashier at Customer Service whose float had gone missing double-check the bag and put it out for collection. He described seeing two security staff on duty and on hand, one of whom assisted with the trolley which appeared to be broken and although the CCTV had no audio, the other appearing to ask if he could help before moving off. He also assisted with the initial investigation, the minutes of which were furnished at the hearing. They include an admission on the part of the Complainant that the security staff in question had offered to assist her in bringing the bags down to the cash room. She had also confirmed that she had not counted the bags in the cash office and had not signed the float book which he said was always there. He had met with and interviewed the security staff in question, one of whom confirmed that he had offered to assist the Complainant with transporting the bags to the cash office after the Store had closed. She had said that she was okay and asked them to let the staff out and do the lock-up as per their statements. He had also questioned the cashier whose bag had gone missing and she had confirmed double-checking her float bag was in the basket. He confirmed that Gardaí had not been called in relation to the incident. Under questioning from Solicitor for the Complainant, he was asked about the Respondent’s CCTV policy and accepted that it was not addressed in the Company Handbook. However, he said that he had gone through the CCTV with the Complainant. He also confirmed that there were no written procedures in place in relation to security staff assisting with the transport of cash and that Managers occasionally went to the cash office alone during the day. His contemporaneous statement was also furnished confirming that he had walked through the route taken by the Complainant to the cash office and searched all possible points where the bag could have gone missing but to no avail. CCTV had also confirmed that the staff member who had retrieved the bags from the safe had not made any mistake when counting them and there had been fourteen instead of fifteen bags there.

Assistant Manager

The Assistant Manager gave evidence confirming the circumstances giving rise to the missing float bag, including of being informed of same the following day of 2nd January 2016, of checking all the points along the Complainant’s route at which it could have gone missing and of asking the Security Manager to go through the CCTV. It...

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