Sarah Clancy was dismissed for gross misconduct.
She was found to have been using customer loyalty cards for her own benefit. The amount concerned, however, was small: €5.65.
The employer fired her for gross misconduct and on the grounds that it had lost trust and confidence in her.
Her legal team argued that the employer should have considered alternatives to dismissal and that the employer had not acted reasonably. It was, therefore, an unfair dismissal.
They also argued that the claim that the employer had lost trust and confidence in her was undermined by letting her continue to work during the course of the investigation.
And also that the ‘gross’ nature of the misconduct of which the employee was accused was undermined by permitting her to work whilst the investigation was ongoing.
The question of ‘gross misconduct’ was important in this case.
Reference was made to the definition of ‘gross misconduct’ in “Redmond on Dismissal Law” which states
“gross misconduct has recently been described by the Workplace Relations Commission as being “at the zenith of possible charges relating to disciplinary procedure”.
It is clear that gross misconduct is at the extreme end of misconduct.
However, case law has established that an employer, in arriving at an appropriate sanction, must ensure that the sanction is proportionate to the complaint and alternative sanctions to dismissal must be considered.
Cases cited on this head included DHL Express (Ireland) Limited -v- Michael Coughlan (Labour Court Determination Number UDD1738) and Social Care Worker v Care Services Provider (ADJ-00025193). These cases are authorities for the obligation on the employer to consider the proportionality of the sanction and alternatives to the ‘nuclear’ option of dismissal.
The employer in this case noted that Ms Clancy had failed to make any admissions or accept responsibility for having used her loyalty card to take customers’ points for herself. The employer also concluded there was no reasonable explanation offered by the employee as to how her customer loyalty card was used in transactions involving 11 different customers over a range of dates, save for the employee logging onto the till herself and scanning the card for her own benefit.
It is settled law that the WRC adjudication officer is not to make the decision as to whether he would have dismissed or not in the circumstances. What he must do is consider if the decision to dismiss fell within a band of reasonable responses from the employer.
Decision of the Adjudication Officer
The adjudication officer did not believe the version of events put forward by Ms Clancy.
He said her explanations as to how her card was used ‘are not believable’. He concluded the only logical explanation was that she used the card herself to get the benefit of the customer transactions.
He also found her responses to the investigation were not believable as she did not own up to the situation as soon as it was put to her. Her denials and excuses were not credible.
The decision not to suspend the employee during the investigation was not a core issue, the adjudicator found. He said there were many different arguments for suspending or not suspending an employee during an investigation.
He also found that thee employer did not give adequate consideration to alternative disciplinary remedies.
The adjudicator decided this was an unfair dismissal for two reasons:
- Alternative disciplinary sanctions were not considered adequately by the employer
- She may not have been dismissed if she had owned up to her actions, but her denials and actions during the investigation may have contributed to the decision to terminate
The adjudicator noted that her claimed financial loss was €10,644.11 but the award was reduced to €5,322.05 as she had contributed significantly to her own dismissal.
She was also awarded €830.20 in respect of her claim under the Minimum Notice and Terms of Employment Act 1973.
I would be surprised if the employer did not appeal this decision to the Labour Court.
Read the full decision here. Sarah Clancy v Nespresso UK Limited