Case Number: ADJ-00007478. Workplace Relations Commission

• Docket Number: ADJ-00007478
• Date: 20 June 2018
• Court: Workplace Relations Commission
• Parties: A Warehouse Selector V A Large Stores Group
• Respondent: A Large Stores Group

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007478

Parties:

	Complainant	Respondent
Anonymised Parties	A Warehouse Selector	A Large Stores Group

Representatives Paul McNulty, Brooks & Company Solicitors Kiwana Ennis B.L instructed by Vincent and Beatty Solicitors.

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00010134-001	08/03/2017

Date of Adjudication Hearing: 26 October 2017 and 9 January 2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance 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.

Background:

This is a claim for Unfair Dismissal in respect of a dismissal for Gross Misconduct in January ,2017. The Respondent denied the claim. Both parties were legally represented and both made extensive oral and written submissions. The Respondent was represented by Counsel and Solicitor and the Complainant by a Solicitor. The Respondent submitted transcripts of key meetings in the case.

Summary of Respondents ’s Case:

The Respondent runs a collection of large Food Discount Stores. The Complainant worked as a Warehouse Selector on this site from 11 March 2013 until the time of his Dismissal for Gross Misconduct on January 10, 2017. This evolved from the removal of sweets from a crate on three occasions during 4 December, 2016. On 21 April ,2016, The Respondent had issued the complainant with a formal written warning in respect of “a work boots issue” some 9 months earlier. This was not appealed. The Complainant was informed that the warning would remain on his personnel file for a period of 12 months and that “any further misconduct will lead to further disciplinary action being taken against you, up to and including summary dismissal”. The Respondent submitted that it had been made clear to the complainant that the company presided over a zero-tolerance policy in respect of theft of goods and this Policy was adopted across the board. The Respondent outlined that the complainant had been reported for taking sweets out of a crate at the warehouse and eating them. The Section Leader reviewed the CC TV Footage an exhibited it to the complainant who minimised the action. The Complainant was then suspended on 14 December ,2016 for investigating the allegation that the complainant had removed and consumed company stock without authorisation. The Complainant was informed that this may lead to disciplinary action up to and including his dismissal. The Respondent submitted that for their business to work, Trust had to be demonstrated to an absolute degree, the value of a product taken was irrelevant. This principle had been communicated to all employees. The Disciplinary Meeting was postponed to 28 December, 2016 based on the complainant’s illness. The Complainant confirmed that he had taken and consumed the sweets without permission. The Respondent invited the complainant to attend a follow up meeting on January 10, 2017. The Complainant telephoned to say that he was unwell and not available to attend. The Respondent then confirmed that the decision had been taken to dismiss the complainant and outlined his right of appeal within 5 days The Respondent contended that the dismissal was reasonable and fair. Evidence of Section Manager. Mr B Mr B had worked for the company for 10 years and oversaw 40/50 staff. He had worked as Section Manager from April 2015. He outlined that the company placed trust in the 15-20 Selectors based in the Warehouse. The Company took a very high stance on theft. Mr B gave an outline of the “work boots issue” in March 2016. The Complainant had taken boots belonging to an employee on sick leave. At that time work boots were not provided by the company. This changed in Summer of 2016. When the complainant was faced with allegations of taking the boots. he asked that the matter be “kept between ourselves and no need to escalate “He also raised that the company’s failure to remove the boots on discovery could have been viewed as acceptance. He received a written warning. Mr B referred to the incident in the warehouse on 4 December, 2017. A Supervisor had reported to the Complainants Line Manager that he had seen a staff member taking sweets. The Line Manager had asked permission to see the CC TV footage. On 10 December, Mr B spoke with the line manager and learned that the complainant had been seen taking sweets on the CC TV and the matter was progressing to Disciplinary. The Complainant was invited to meet but rang in sick and the company pushed it out for another week to December 28 ,2017. The Complainant admitted that there were others involved, but did not name anyone. The Complainant mentioned that sweet distribution to staff had happened in the past but Mr B had not seen it. He checked with the Supervisors and they had no recollection of this practice. The Complainant minimised the removal of the sweets and admitted that he had taken the sweets but rationalised that he understood they were for common usage as had happened during previous Christmas and Easter, 2014. He did not put forward any mitigation. Mr B had difficulty believing the complainant as 60 people would have passed the Ambient based tray where the sweet lay untouched. Mr B submitted that Damaged goods were not left for staff to take. The Complainant cancelled his attendance for the Disciplinary outcome meeting and it was not rescheduled. Mr B got a sense that the complainant was playing games as he called in sick twice. He would have preferred to meet with him. Two other employees surfaced as...