Background:

The Complainant commenced employment with the Respondent supermarket chain in 2001. He was employed as a Night Manager. He was dismissed on 19th September 2019 on the ground of gross misconduct for breaches of the Company Purchase and Honesty Policies.  The Respondent contended he was fairly dismissed for gross misconduct following a fair and impartial investigation, disciplinary and appeal process. The Respondent submitted it was common case that the Complainant had received training on all the Respondent’s policies and procedures including its Company Purchase and Honesty Policies.  Gross misconduct under the Company Disciplinary Policy included theft, breach of trust and breach of the Company Honesty Policy. In July 2019, the Respondent’s company loss prevention system reported unusual activity in the Portlaoise Store, giving rise to an investigation of the Complainant.

On 23rd July 2019, when the Complainant reported for his nightshift at 10pm, the Respondent informed him he was to be investigated in relation to allegations against him and suspended him on full pay.  The Respondent also furnished him with a letter inviting him to attend an investigation meeting the following day. It also informed the Complainant of his entitlement to have a representative accompany him and enclosed a copy of the Company Disciplinary Policy. The Respondent maintained the investigation meeting had been scheduled with less than the requisite 24 hours’ notice save in “exceptional, justifiable and legitimate circumstances” under the Company Disciplinary Policy as he had a free slot and knew that the Complainant would be anxious to have the matter dealt with as soon as possible. During the investigation meeting, the Respondent proceeded to put a number of receipts and CCTV stills relating to transactions between the 26th June 2019 and the 13th July 2019 to the Complainant showing him serving himself or processing a refund for himself. Receipts and CCTV stills confirmed the Complainant had served himself cigarettes on several occasions during the night, also entailing clearing an age prompt which was not permitted.  He was asked about non-payment for a packet of cigarettes on the night of 11th July 2019.  The Complainant admitted serving himself at the till in breach of company policy, but submitted he forgot to pay for a pack of cigarettes. The Respondent contended the Complainant accepted that taking the cigarettes amounted to “theft” at a disciplinary hearing. The Respondent submitted the Complainant’s actions amounted to gross misconduct. The Complainant submitted he sought an adjournment of the initial investigative meeting as there were difficulties with childcare arrangements. His request was denied. The Complainant recalled that the windows in the meeting room were blacked out and the meeting lasted for 5 hours and 20 minutes.  It was submitted by the Complainant the evidence adduced showed the Respondent had breached the requirements of due process and their own Disciplinary Policy by providing inadequate notice of the first investigation meeting and the Respondent’s refusal to grant the Complainant’s request for an adjournment of the investigation meeting owing to his difficulty arranging childcare was unreasonable.  The Complainant stated the Respondent failed to give any notice of the actual allegations against him before or during the investigation meeting. The Complainant was not told the basis for the investigation or made aware of what he was accused of.

The Adjudication Officer (AO) highlighted it is well established an employee has a contractual, constitutional, and statutory entitlement to fair procedures within a disciplinary process.  The substantive issues leading to the dismissal of an employee and the fairness of the procedures adopted should be considered together. The AO stated their role is not to conduct a further factual investigation and substitute their own judgment for that of the employer, but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances. The AO found the Complainant was not afforded adequate time to prepare for the first investigation meeting some 14 hours after notice was given particularly given the seriousness of the allegations.  For the same reason, the AO found the refusal to grant him an adjournment unreasonable regardless of how and to whom the request was communicated.  Ultimately, the AO found the process giving rise to the Complainant’s dismissal was both substantially and procedurally unfair and concluded the Complainant had been unfairly dismissed.

Outcome:

The AO concluded that the Complainant was unfairly dismissed and ordered the Respondent to pay the Complainant the sum of €23,363 in compensation.

Practical Guidance for Employers:

The AO considered the ‘premises’ set out by Frizelle v New Ross Credit Union which must be established by an employer to support a decision to terminate for misconduct. These are:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/january/adj-00027287.html