In a recent decision in the case of Dunnes Stores v Karen Walsh the Labour Court found that Dunnes Stores was justified in dismissing the Café Restaurant Manager who alleged to have consumed food worth €29 without paying for it. The Appellant was employed by the Respondent from November 1996 to July 2017.
The Appellant was dismissed following four separate alleged incidents at a restaurant at a Dunnes Stores outlet in which Ms Walsh ate food and failed to pay. The allegations were not disputed by Ms Walsh but she did submit a number of excuses for the non-payment.
WRC Decision
The case was heard before Adjudication Officer Pat Brady in the WRC. Curiously, Ms Walsh’s’ solicitor refused to participate in the hearing and withdrew at the hearing stating that he had not received written submissions from the other side in a timely manner. The Respondent apologised for this delay. The Adjudicator noted that while the submissions were received unacceptably late, the Respondent’s submission was “relatively digestible” and that he had formed a sufficient grasp of the key issues in under half an hour to enable the case to proceed. This time was offered to Ms Walsh’s solicitor but was refused. The Adjudicator stated that while he does not wish to discourage compliance with the timely delivery of submissions “where they fail to do so will rarely prevent the hearing from continuing”. The Adjudicator made the decision that on the above basis Ms Walsh’s claims failed for want of prosecution.
Preliminary issue
The Respondent submitted that nothing occurred before the Adjudication Officer that would give rise to an appeal to the Labour Court and that the Labour Court therefore had no jurisdiction to hear the within matter as an appeal. The Appellant submitted that the Adjudication Officer had made a decision and therefore the Labour Court did have jurisdiction to hear an appeal of that decision. The Labour Court decided to deal with this matter as a preliminary issue as this matter had the potential to dispose of the appeal in its entirety. The Labour Court determined that the appeal was valid and the Adjudication Officer had made a valid decision. As a result, a second hearing date to hear the substance of the appeal was scheduled.
Labour Court Hearing
The Labour Court noted that the allegations underlying the dismissal were uncontested. The Appellant took issue with the fairness of the procedure employed by the Respondent and the Labour Court commented on each individually.
Firstly, the Appellant argued that the failure by the Respondent to allow her to be represented by her partner was a failure. The Appellant could not identify when she made such a request and when this request was refused by the Respondent. The Appellant accepted that she had been afforded the right at all stages to be represented by a colleague or manager and so the Court determined that the Appellant had been afforded the right to representation.
Secondly, the Appellant argued that the fact that CCTV footage of the incidents giving rise to her dismissal had been made available to the investigator and the person who decided to dismiss her was a breach of Data Protection legislation. The Labour Court concluded that the CCTV footage was not relied upon to determine the matter at any stage as the incidents were not in dispute and had been reported to management by various staff members and therefore did not impede on the procedural fairness.
Thirdly, the Appellant submitted that various staff members reported the conduct of the Appellant to the Respondent, she was not afforded the opportunity to cross examine those staff members. The Labour Court concluded that the Appellant never sought such an opportunity at any stage of the procedure nor did she contest any of the substance of the reports made by these staff members despite being provided with copies of same. The Labour Court therefore concluded that this did not impede on the procedural fairness.
Fourthly, the Appellant argued that the Respondent’s witness, Mr Tully, stated that he had not made up his mind at the start of the disciplinary procedure but that having regard to the outcome of the investigation he had a fair idea of how he might find as regards the uncontested allegations. He also stated that if anything had come up on the disciplinary procedure he could have changed his mind. The Labour Court, while concerned that Mr Tully could have predetermined the matter before initiation of the disciplinary hearings, stated that any such conclusion based on testimony of the witness would be unreasonable.
Finally, the Appellant argued that she was not given the right to a full appeal i.e. a full re-hearing of the matter, but was instead offered a paper appeal. Despite making such an argument, the Labour Court noted that the Appellant’s representative gave no submission before the Labour Court that supported this contention. The Respondent submitted that no free-standing right to a full re-hearing exists at appeal stage. The Labour Court concluded that no lack of fairness could be found as the appeal in the circumstances was conducted consistent with the procedure set out in writing to employees by the Respondent.
Decision
The Labour Court determined that taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in these circumstances it was reasonable for the Respondent to treat the admitted removal of goods from the store without payment as being very serious.
The Labour Court was satisfied that the conduct of the Appellant could be “regarded as sufficiently grave to give rise to serious disciplinary sanction”. The Labour Court therefore agreed that the Respondent had sufficient grounds to justify dismissing the Appellant.
Take away for Employers
Employers should ensure at all times that they follow a fair procedure when dealing with a disciplinary matter that could lead to the dismissal of an employee. The above decision demonstrates the importance of procedural fairness and to be able to illustrate that the dismissal was justifiable and reasonable in the circumstances.
31st July 2020
Link: https://www.workplacerelations.ie/en/cases/2020/june/udd2021.html
Anne O’Connell Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2
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