Case Number: ADJ-00002115. Workplace Relations Commission

• Docket Number: ADJ-00002115
• Date: 01 June 2017
• Court: Workplace Relations Commission
• Parties: A Check-out Manager v A Retail Chain

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002115

Complaints for Resolution:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994	CA-00002922-001	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994	CA-00002922-002	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00002922-003	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00002922-005	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00002922-006	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00002922-007	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00002922-008	24/02/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977	CA-00002922-009	24/02/2016

Date of Adjudication Hearing: 05/09/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Davitt House, Adelaide Road, Dublin 4

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 24^th 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 11^th July 2016, I proceeded to a full hearing on 5^th 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 3^rd September 2007 until she was summarily dismissed on 8^th 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 1^st 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 ...