This is an appeal by the employer against the decision of the Adjudication Officer. The complainant had claimed he had been unfairly dismissed following his dismissal on the grounds of serious misconduct. The misconduct complained of was his failure to follow the respondent's policy in relation to 'card not present transactions'. At the time of the alleged incident the complainant was on a final warning for another issue. The complainant alleged that he was summoned to a meeting on the 24th June 2016 following the completion of his shift. He was asked if he wanted representation but he declined as he was not advised what the meeting was about. He was informed there was an issue regarding him carrying out a 'card not present transaction' the previous day, contrary to company policy, and in breach of an instruction from his manager.

The complainant was immediately placed on suspension pending investigation. The complainant alleged that he did not recall the company policy being brought to his attention and that other staff were doing 'card not present transactions' at the relevant time. The complainant subsequently attended investigation meetings and following the circulation of the investigation report was invited to a disciplinary hearing. This hearing was chaired by Mr O'Kane, the person who initially suspended him and who had previously dealt with the separate final warning. At the end of the hearing Mr O'Kane took a short break and informed the complainant that he had made the decision to dismiss him. The complainant appealed the decision and the dismissal was upheld.

The complainant's manager gave evidence that she had verbally relayed the policy regarding 'card not present transactions' to staff in September 2015 on a day when the complainant was not present. She confirmed that she did not forward staff the email with the instruction not to process 'card not present transactions' without managerial consent nor had placed it on any notice board. However, she claimed that she informed the complainant of the policy in December 2015/ January 2016 after he had carried out a 'card not present transaction'. She stated that when she became aware of the June 2016 transaction she contacted Mr O'Kane, the area manager, without speaking to the complainant, despite the company's procedures.

Mr O'Kane stated in evidence that the outcome of the investigation was that the complainant had a case to answer, in that he had breached his manager's instruction. He explained that he felt the trust had been broken and that the complainant had already been given the benefit of the doubt in earlier matters. He said he had considered an alternative role for the complainant but concluded that the complainant was an individual who could not handle cash and instructions were not getting through to him. Mr O'Kane also told the Court that he felt the complainant would re-offend and that the earlier warning did have an impact on his decision to dismiss.

The individual who heard the internal appeal also confirmed that the final written warning was a major factor in his decision and that if it had not been in place then he would have considered dismissal too severe. The complainant's case was that his dismissal was unfair as the process which led to the decision to dismiss him did not meet the standard of fair procedure. The Court noted that the respondent was seeking to rely on a failure to follow an instruction in circumstances that the instruction was allegedly given on the shop floor in the course of work sometime within a 2 month timespan. In addition, no written copy of the instruction or policy was given to employees, it was not displayed anywhere in the workplace and staff had not been advised that a breach of the policy could lead to disciplinary action up to and including dismissal.

The Court felt that in the circumstances an impartial manager should have conducted the disciplinary hearing as Mr O'Kane had admitted that following the latest incident he felt the trust was gone as he had given the complainant the benefit of the doubt before. Accordingly, the Court found the dismissal unfair and awarded the complainant the sum of €12,500 in compensation.
http://www.workplacerelations.ie/en/Cases/2018/June/UDD1830.html