Investigation and disciplinary hearing conducted by same person not fatal

In the recent case of Brendan O’Callaghan v Dunnes Stores UD 54/2012, MN 25/2012, WT 14/2012 the Employment Appeals Tribunal ruled that it could not be said that “having the investigation and disciplinary hearings conducted by the same person was a flawed and unfair procedure”.BackgroundThe claimant commenced employment with the respondent in 1996 whilst still in school and commenced in management in late 2001 and ultimately becoming a store manager in one of the respondent’s most prestigious stores. The claimant was considered to be a very good salesman with an excellent sales record.The respondent had proposed opening a flagship store close to the claimant’s store and the claimant’s job was to control the downsizing of his current store. Many staff were transferred to the new store leaving the claimant with 12/13 staff. The respondent’s regional manager had weekly discussions with the claimant on the store’s sales figures which were compared with the average sales figures for the region. It was observed that the level of refunds (under the return and exchange policy) was high in the claimant’s store and this was raised with the claimant at weekly meetings. It was the claimant’s position that having both stores in such close proximity meant that his store took the majority of returns. The claimant was told to control refunds but was not told how to achieve this.In October 2011 the claimant decided to open the store half an hour early but the refunds on that day outweighed sales which had the net effect of essentially cancelling sales for that period. The claimant ultimately decided to seek some of the refunds from the other store. The transactions resulted in no financial loss to the store or financial gain for the claimant.The store’s regional manager conducted two meetings with the claimant, the first being an investigation meeting. The claimant was fully co-operative and explained he opened the store early to increase sales. He admitted that his instructions to a number of employees amounted to a breach of a number of company procedures and was very apologetic for putting the employee’s jobs at risk. The claimant noted that the large refund issued on 9th October cancelled out any sales that day. Whilst he instructed one employee to conceal his uniform and authorised the other to change into her personal clothes, he did not authorise either to give false names or incorrect addresses for the cash refunds. The claimant viewed the CCTV footage and was informed that a disciplinary meeting would be held some forty minutes later and could lead to disciplinary action up to and including dismissal. The claimant was ultimately suspended on full pay pending further investigation and a further disciplinary hearing was arranged for 24th October. A number of employees were subsequently interviewed.At the re-convened disciplinary hearing, it was put to the claimant that his breach of a significant number of policies and procedures including procedures on sales and refund procedures had a knock on effect on sales figures which affected the company’s KPI’s. The claimant was informed his behaviour amounted to gross misconduct due to significant breaches of policies and procedures and for instructing members of staff to breach procedures. The claimant sought to rely on his unblemished record but accepted he was wrong and apologised. The store’s regional manager noted that trust was an important element in the employment relationship and having manipulated sales through fraudulent transactions, he felt he could no longer trust the claimant. A regional grocery manager heard the claimant’s appeal and gave serious consideration to the sanctions as well as the claimant’s earlier good record and full admission. However it was noted that the position of trust had gone and the claimant’s position untenable. The claimant’s appeal failed.DeterminationThe claimant contended that having the regional store manager conduct the investigation and disciplinary hearing left the respondent’s procedures flawed and unfair. The Tribunal however did not accept that “the circumstances of the case were such that having the investigation and disciplinary hearings conducted by the same person was a flawed and unfair procedure“.The Tribunal accepted that there were some cases where fair procedure required that both hearings are conducted by different personnel (Laffoy J. in Giblin v Irish Life and Permanent PLC 2010 IEHC 36), but noted this was not such a case. In the present case the claimant had made an immediate and full admission to the wrongdoing and the facts of the alleged wrongdoing were not in dispute.The Tribunal concluded that the sanction of dismissal was fair and noted:”Trust and confidence are essential elements in the employment relationship and a particularly high level of trust and confidence is reposed in a manager. Breaching sales and refunds procedure is serious/gross misconduct but instructing subordinates to engage in fraudulent transactions and compromise their trustworthiness is even more serious“.