EMPLOYERS SHOULD BE wary of leaving themselves open to claims of failing to fairly and consistently apply their own disciplinary procedures.
We review a recent decision of the Workplace Relations Commission to award an employee €12,000 in compensation for an unreasonable dismissal after cash went missing.
The reaction of the employer dismissing the employee was deemed not within the “band of reasonable responses”.
In this case, the employee was dismissed from her employment as a store checkout manager following the disappearance of €640. One of the employee’s normal duties was the collection and return of cash float bags from the shop floor to the cash office.
It was part of the employer’s procedures that employees must be accompanied by security personnel when carrying out this task.
On the evening of 1 January 2016, security staff offered to accompany the employee to the cash office but she declined assistance.
The following morning, it was discovered that one of the bags containing €640 was missing. Extensive, but unsuccessful, searches were carried out to locate the missing money.
An investigation meeting was held and a disciplinary meeting three days later. The employer decided to immediately terminate the employee’s employment.
It was confirmed that the employee had not been dismissed for theft but because she had not followed procedures when the float bag had gone missing on her watch as manager.
The employee appealed against her dismissal by way of written appeal, but the employer upheld the dismissal.
The employer argued that there were substantial grounds justifying termination and that that the employee’s dismissal was reasonable.
It was further submitted that it was not the role of the adjudication officer to substitute her views for that of the employer but to establish whether the decision to dismiss was within the “band of reasonable responses”.
The employee admitted breaches of procedures in the lead up to the money going missing.
She acknowledged that she went into the cash office unaccompanied despite normal procedure being that the person lodging the bags was accompanied by a security officer.
However, there were no written procedures confirming the requirement to be accompanied by security.
She also admitted failing to count the bags as she placed them into the cash office safe.
The employee submitted that she had made one mistake against a backdrop of an exemplary employment record.
She argued that it did not amount to gross misconduct where there were no allegations of theft, and the penalty of dismissal was disproportionate.
The employee also contended that she had never been afforded the opportunity to confront her accusers or cross-examine witnesses.
The adjudication officer said that if a zero-tolerance policy is to be enforced around cash collections, the employee was at least entitled to written notice of this in the employer’s disciplinary procedures.
This should include details of the serious consequences of not adhering to the procedures.
The adjudication officer conceded that, while it would have been best practice for the employee to be furnished with witness statements, CCTV and minutes of disciplinary meetings, failure to do so “did not materially alter her position”.
However the conduct of the investigation and disciplinary meetings by the same person within the company was found not to comply with the general principles of natural justice.
The adjudication officer concluded that the employer’s procedures “fell short of what one would objectively expect from a reasonable employer of the size and status of the respondent”.
Furthermore, the absence of any consideration of the employee’s written appeal of the dismissal was heavily criticised.
Here are some practical takeaways for employers:
- Where an employer wishes to adopt a zero tolerance policy surrounding certain workplace practices, these need to be spelled out to the employee by way of formal notification or, ideally, in the disciplinary procedure.
- Investigations and disciplinary processes should not be conducted by the same person. A lack of delineation between the two processes will hinder an employer’s argument that fair procedures have been followed.
- Employers should document the consideration of alternative sanctions as part of an appeal by an employee.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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