A recent decision by the Labour Court highlights the need for procedural fairness and probity when conducting a workplace investigation. Tesco (the “Employer”) dismissed a worker after she admitted taking a bottle of wine valued at less than €20 and not paying for it. Ms. Ann Faherty (the “Employee”) was dismissed on 29 March 2016, arising from an incident that January, when she was intercepted by a security officer after she left the store at the end of her shift, having a bottle of wine in her bag. Ms Faherty maintained that she had forgotten to pay for it.
During the investigation, Ms. Faherty’s representative raised issues as regards being invited to the investigation without being provided with any evidence, statement or CCTV in advance of the hearing, or notes thereafter. Ms. Faherty was subsequently awarded €4000.00 for Unfair Dismissal, by the Workplace Relations Commission, a decision which the Employer appealed to the Labour Court.
The Law Around Unfair Dismissal
6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Subsection (4) of Section 6 states:
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
The fundamental fact of this case were not in dispute. The Employee did leave the Employer’s store with goods for which she did not pay. The Employer carried out an investigation and disciplinary procedure throughout which the Employee was represented by her Trade Union and ultimately dismissed the Employee for breach of the Employer’s Honesty Policy and the Employer’s Staff Purchase policy and because the bond of trust between employee and employer had broken down.
However, the Labour Court found that the Employee contributed substantially to her own dismissal.
Taking account of the nature of the Employer’s business and the trust that must exist between employer and employee in such an environment the Labour Court found that in the circumstances it was reasonable for the Employer to treat the admitted removal of goods from the store without payment as being very serious.
The Labour Court noted that the Employee was not supplied with notes of meetings with management until the commencement of the second investigation meeting and also notes that the written statement of outcome of that process was drawn up prior to that second meeting. In that circumstance the Labour Court concluded that the Employee was not given an opportunity to set out a response to the notes of the meetings with management prior to conclusion of the investigation or to have her response taken into account.
The Labour Court noted that the Employee was not, at any stage of the investigative or disciplinary process, supplied with a copy of the Employer’s Honesty or Staff Purchase policies which she was contended to have breached. Indeed, it was not clear to the Labour Court what was meant by the finding that the Employee had breached the Staff Purchase policy or how she had done so. The manager who made the decision to dismiss was unable to clarify that matter to the Labour Court in evidence notwithstanding that the alleged offence against the policy was one of the cited reasons for the Employee’s dismissal.
In all the circumstances in this case, the Labour Court came to the conclusion that the decision to dismiss the Employee was tainted with procedural unfairness.
The Labour Court took account of the losses suffered by the Employee arising from her dismissal. The Labour Court has also took into account, as it is required to do by section 7(2)(b) of the Unfair Dismissal Act (being the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee), the extent to which the Employee’s conduct contributed to the loss that she suffered. In that regard, the Labour Court was satisfied that the Employee, by her conduct, contributed to a significant degree to her dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.
The Labour Court also took particular note of what appears to have been a lack of clarity on the part of the manager who acted as the appeals person as to what aspects of the Staff Purchase policy the Employee was found to have breached.
The Labour Court was satisfied that the admitted action of the Employee could be regarded as being sufficiently grave to justify consideration of dismissal. However, the Labour Court also found that the procedure employed to investigate the matter and determine an appropriate response did not have the potential to facilitate a full weighing of all the circumstances of the incident and to facilitate consideration against that background of proportionality of the Employer’s response.
That potential of the procedure places a requirement on all actors within it to operate with scrupulous attention to fairness.
If you have any questions about unfair dismissal or employee law, please do not hesitate to get in touch with us today.