Case Number: ADJ-00003434. Workplace Relations Commission
| Docket Number | ADJ-00003434 |
| Date | 01 November 2016 |
| Court | Workplace Relations Commission |
| Parties | A Shop Assistant V A Retailer In Liquidation |
Adjudication Decision Reference: ADJ-00003434
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-00004240-002 |
05/05/2016 |
|
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00004240-003 |
05/05/2016 |
Date of Adjudication Hearing: 24/08/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment Act, 1994 Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
The complainant commenced work as a shop assistant on 6 November, 2000. She received payment of €135.00 for a 15 hour working week .The complainant claimed constructive dismissal and sought redress for the failure of the respondent to furnish her with a statement of her terms of employment. The complainant was a widow who went back to work when her husband died.
The complainant had worked without incident and had an unblemished employment record .She submitted that the owners had been friendly towards her and she enjoyed her job. She submitted that she had been loyal to the respondent. The trading pattern at the store had reduced and the complainant had found that she had more time on her hands. She developed a practice where she would purchase an array of “scratch cards” for her own perusal. She then reconciled the payment for the cards at the end of the business day. She added the amounts to grocery transactions at the store for administrative purposes.
The complainant received a call on 15 December from the owner of the store asking her to change her working hours from 16 December to 17 December. She agreed to this .She came to work at 2pm on 17 December and was met by Mr O, the owner of the store and a lady she had never seen before, Ms I.
She was escorted into a tiny room at the back of the shop without a window. She sat down and was confronted by reference to CCTV footage of December 12 which showed her scratching lottery tickets. She was accused of stealing and sought to explain that she had handed the owner €50 cash in recompense for the scratch cards that evening .She also sought to draw his attention to a series of three receipts from the same day business which explained the context of the payment .
The owner refused to look at her and she was not heard on her protestations that this was not theft, but a habit that she had developed for which she reconciled in cash payments to the respondent. The complainant offered to make amends by paying “on the double” but this was not accepted. She was threatened by the respondent and Ms I that she would be suspended from her employment and was informed by them that trust between the respondent and her had disappeared.
The complainant felt that she was to be fired if she did not resign and submitted her resignation there and then, under duress.
The complainant’s representative submitted that the conduct of the respondent was unreasonable, that her client was faced with false allegations, an absence of a grievance procedure and was ambushed .Statutory Instrument 146/2000 was disregarded and there was a complete lack of natural justice or fair procedures. The complainant was treated in a wholly unfair manner and at 69 years of age, she was treated in a haphazard fashion and ambushed at work. She had no option outside resignation.
The complainant disputed the admissibility of CC TV footage on grounds that it was selective and not reflective of her working week as a whole. The complainant’s side had sought all the CC TV footage but had only secured some snap shots .They also disputed that the hand written minutes were accurate. The complainant’s representative submitted copies of business receipts for the relevant period.
In March, 2016, Solicitors for the respondent offered an independent investigation of the case but this was judged to be too late in the day and was not acted on.
Evidence of the Complainant
The complainant worked a three day week, where she received a composite payment of cheque and cash to the value of €135 per week. She worked at the store opposite a Bangladesh worker, who had resigned before her.
She described the evolution of her habit of securing scratch cards at the shop, scratching them and making an end of business day payment for them. On 12 December, 2015,this practice occurred around 2.30pm by purchasing 6x€2 scratch cards and this was followed up during the day by securing and scratching more cards and ultimately by her handing €50 in cash to the owner at close of business ,which he put into his pocket . She detailed the amounts on the cash register. She had bought some scratch cards as Christmas presents.
The complainant was aware that there was a surveillance camera in the store. It was there before a robbery had taken place some years earlier.
She attended the store on 17 December at 2 pm for her shift .She was approached by Mr O, who described himself as the “go between” between Ms I and the complainant .When she heard the detail of the allegations of theft, she asked Mr O, why had he not come to her directly as she could prove that the money paid for the scratch cards could be accounted for .She was informed that she would be suspended with pay and felt outnumbered 2:1.
The complainant submitted that she was shocked to hear this and asked both Mr O and Ms I “How can I tell my family that I have been accused of stealing? “. She was asked by the respondent if she was resigning and she agreed to resign. She heard Ms I instruct Mr O to obtain a signature. The complaint wrote her resignation in her informal name and was instructed to attach her formal name to the document. She heard Mr O state “I owe the bank”, which she understood to be money worries.
During cross examination, the complainant confirmed that she had reduced her hours from 28 to 15 earlier in 2015. Working relations were good with the respondents and they accommodated one another. The owners normally cashed up and she handed the till to them for that purpose and added whatever she had spent herself on both groceries and scratch cards.
She recalled the phone call from Mrs O on the 15 December as being unusual in that it was short and cut off quickly. The complainant phoned the respondent at home to say that she was sorry about the events of December 17 only to inform by Mr O that the respondents were both sorry also .She understood that they were to call her again.
She was admitted to hospital on the following Tuesday and she received a call from Mr O stating that she owed the business €11,000
€5,000 for the respondent
€3,000 for Hr Consultant
€3,000 for the Accountant
This sum was requested to be paid before Christmas .The sum was to go up to €20,000 if it remained unpaid after Christmas. On 31 December, Mr O called again and the complainant informed him that she did not owe him. She contacted her solicitor who represented her from that point forward.
In response to further questions, the complainant recalled that the meeting on December 17th occurred over an hour long period and that she walked home as she was too upset to get the bus. She arrived home by 3.30pm
She had not worked since December 17, 2015. She was reliant on social welfare for income.
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