Case Number: ADJ-00021665. Workplace Relations Commission.
| Docket Number | ADJ-00021665 |
| Hearing Date | 27 September 2019 |
| Date | 01 April 2020 |
| Year | 2020 |
| Court | Workplace Relations Commission |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021665
Parties:
|
|
Complainant |
Respondent |
|
Anonymised Parties |
Assistant/Cashier |
A Service Station |
Complaint(s):
|
Act |
Complaint/Dispute Reference No. |
Date of Receipt |
|
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00028407-001 |
14/05/2019 |
|
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 |
CA-00028407-002 |
14/05/2019 |
Date of Adjudication Hearing: 27/09/2019
Workplace Relations Commission Adjudication Officer: Gerry Rooney
Procedure:In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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.
Background:
The complaint, refers to a claim of unfair dismissal of the Complainant, a Service Station Assistant and Cashier, due to a lack of fair procedures. The Respondent maintained the dismissal was fair as it relates to an act of gross misconduct by the Complainant.
Summary of Respondent’s Case:
CA-00028407-001Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
The Respondent's submitted that the dismissal of the Complainant on the 10th May 2019 was for gross misconduct due to an incident which occurred on the 2nd April 2019.
The Respondent maintained the on the 2nd April 2019 the Complainant was observed under CCTV purchasing tobacco products for cash from a customer, concealing the tobacco products under a counter, and then later exchanging the tobacco products for cash to another person. The CCTV footage recorded the Complainant taking a telephone call, then withdrawing cash from the till using his personal debit card, subsequently receiving tobacco from a customer, checking the tobacco, exchanging money for the tobacco, concealing the tobacco under the counter, using his phone, and then later exchanging the tobacco for cash with another customer. The Respondent maintained the tobacco did not have the correct duty paid which is in contravention of section 78 (3) of the Finance Act 2005 and contrary to Chapter 4 of the Revenue Commissioners Customs and Excise Enforcement Manual. The Respondent maintained the selling the tobacco at the counter without duty paid was a serious offense in which the Respondent and the Complainant would be liable to criminal prosecution, and conviction of a fine of €5,000 or up to 12 months imprisonment. The Respondent maintained the act was an act of gross misconduct that put the Respondent’s business and livelihood at risk.
The Respondent advised that he discovered CCTV footage by chance some weeks later when he was reviewing another instant. The Respondent advised when he reviewed what happened he gave the Complainant an opportunity to view the CCTV and where the Complainant was also explicitly advised to seek legal advice given the seriousness of the incident. The Respondent maintained that Complainant claimed that that he was doing a favour for a friend and that the tobacco was duty free tobacco he had received as a gift for this favour.
The Respondent submitted that having provided the Complainant with an opportunity to take legal advice he did not do so, nor did the Complainant provide an acceptable explanation regarding his behaviour. The Respondent also submitted that the Complainant refused to reveal the full identity of the vendor of the tobacco. Therefore, the Respondent decided to dismiss the Complainant for gross misconduct.
The Respondent submitted that the Complainant did not seek an appeal to the decision to terminate his employment either directly or through his solicitor. The Respondent advised at the Complainant’s solicitor wrote the Respondent within five days of the Complainant having been dismissed and informed the Respondent they had lodged a complaint to the WRC. The Respondent therefore submitted that the Complainant failed to seek an appeal with regard to his dismissal in advance of issuing the current proceedings.
The Respondent contended that in accordance with s6(4) of the Unfair Dismissals act 1997 the dismissal was a fair dismissal as it resulted wholly or mainly from the conduct of the employee. The Respondent submitted that the reason for the dismissal was that the Complainant had engaged in the illegal sale of tobacco which created a risk for both the Complainant and the Respondent to be open to criminal prosecution, financial loss, and serious reputational damage. Therefore, the Respondent maintained that in accordance with section 6(1) of the Act there was substantial grounds justifying the dismissal. It contended the dismissal resulted wholly from the Complainant’s criminal conduct which destroyed the relationship of trust and confidence that had previously existed between the parties.
In light of what occurred the Respondent submitted the dismissal was proportionate and justified. It further argued that the WRC must not substitute its own view for that of the employer and contended that the function of the WRC is to decide whether, within the band of reasonableness of decision making, the Respondent’s decision was not unfair. It further maintained that the decision and sanction to dismiss was within the range of reasonable responses available to a reasonable employer as set out in McGee V Beaumont Hospital UD136 /1984.
The Respondent maintained that within days of being dismissed the Complainant engaged with a solicitor but did not seek an appeal to his dismissal. It maintained that an appeal had the potential to cure any alleged procedural defects, and further maintained it was incumbent on the Complainant to exhaust all internal avenues before seeking the assistance of the WRC. Referring to jurisprudence, the Respondent stated in Arzyta Bakeries v Vilnis Cacs UDD1812 the Labour Court determined that an employee had an obligation… to exhaust available internal procedures and that failure to do so is a relevant matter to be taken into account when considering whether a dismissal was unfair. In effect the Respondent contended the Complainant failed to meet his obligations to exhaust the internal procedures available to him and submitted that it is not now open to the Complainant to argue that he was unfairly dismissed.
The Respondent further maintained that by the Complainant lodging his complaint to the WRC within four days of being dismissed demonstrated an absence of any despite to appeal the dismissal, or to seek to resolve matters internally. Whilst the Respondent contended there were no procedural defects to any degree that would interfere with the fairness of its...
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