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Employment Update: Disciplinary Procedure Pitfalls

11 August 2017

Employers should be wary of leaving themselves open to claims of failure to fairly and consistently apply their own disciplinary procedures.

We review a recent decision of the Workplace Relations Commission awarding 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”.

Background

In this case [1] 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 on 5 January 2016. A disciplinary meeting was then held with the Employee on 8 January 2016 and the Employer decided to immediately terminate the Employee’s employment. It was confirmed that the Employee had been dismissed not for theft, but because the float bag had gone missing on her watch while she was manager and had not followed procedures. The Employee appealed against her dismissal by way of written appeal, but the Employer upheld the dismissal.

Employer Submissions

The Employer submitted that there were substantial grounds justifying termination of the Employee and that her 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”.

Employee Submissions

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;
  • Failed 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 the witnesses.

Adjudication Officer’s Decision

  • The Adjudication Officer stated 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 the meetings, failure to do so “did not materially alter her position”. Yet, the conduct of the investigation and disciplinary meetings by the same person 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.

Conclusion

Some practical takeaways for employers:

  • Where an employer wishes to adopt a zero tolerance policy surrounding certain workplace practices, these need to be spelt 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; and
  • Employers should document the consideration of alternative sanctions as part of an appeal by an employee.

[1] (ADJ-00002115, Adjudication Officer: Aideen Collard)

If you would like any further details on the above, please contact our Employment Law & Benefits team.


The content of this article is provided for information purposes only and does not constitute legal or other advice.

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