Tribunal highly critical of investigation process and revisits obligations of employers towards our changing workforce

In the case of Ying Liu v Dunnes Stores (UD 1751/2010, 1705/2010) a decision sent on 20th July, the Employment Appeals Tribunal were particularly critical of the Respondent (Dunnes Stores) treatment of a chinese national employee concerning the investigation process undertaken by them concerning alleged loyalty card fraud.BackgroundThe Claimant, a Chinese national, was employed as a sales assistant by Dunnes Stores. The Claimant had previously received training on the Respondent’s loyalty card scheme in September 2009. On 15th May 2010, a Security Manager in the store received a data mining report from head office concerning use of the Respondent’s loyalty card. An investigation meeting was held on 28th May 2010 and the Claimant admitted that she had used the customer’s points when the customer did not have a loyalty card but had their permission to do so. After the meeting the Claimant was asked to wait in the canteen for 20 minutes and then asked to attend a disciplinary hearing where she was suspended with pay until 31st May 2010. The Store Manager met with the Claimant on 31st May 2010 and she was dismissed due to “the bond of trust” being broken. The Claimant asked for another chance at the meeting but her dismissal was confirmed by letter dated 2nd June 2010. The Claimant appealed her dismissal by letter dated 31st May however the appeal was upheld on 18th June 2010.The Claimant stated that she was unsure as to what was being said at the meetings due to level of english. In addition it was highlighted that the HR Manager had asked a passing employee to accompany the Claimant to the meeting and that various minutes of the meetings had not been given to the Claimant.Determination

1. In relation to the internal appeals procedure, the Tribunal noted that the various documents requested by the Claimant to complete the appeals procedure were not provided and she was essentially deprived of her right to appeal.
2. Concerning our changing multicultural workforce, the Tribunal stated that employers cannot assume that employees are capable of understanding complex documents such as handbooks, training manuals etc and that the “uniqueness of employees in this respect must be recognised”. The Tribunal questioned “how hard it would be for a large employer to provide appropriately translated versions of documents and give employees time to consider and digest”…….”Such documents must be provided in a manner accessible to and in a language the employee understands”.
3. The Tribunal noted that the system governing the investigation and disciplinary process failed the Claimant as the roles of those involved became blurred. The decision maker was actively involved in the decision-making process.
4. Various matters alleged to have been said were not noted in the minutes taken and a further issue of customer change being documented in the minutes and given to the decision maker was wholly inappropriate and tainted the decision-making process.
5. The Tribunal noted the investigation process was flawed in several respects.

The process lacked openness and transparency, the Claimant was not informed initially of what was being investigated, the Claimant was not given time to prepare and was not adequately represented, the Claimant did not get the opportunity to fully participate in the investigation nor given a copy of the relevant minutes. The Claimant also did not fully understand the consequences and should have been “represented and assisted by suitably capable representation”.The Tribunal ruled that the Claimant was unfairly dismissed and awarded her €20,000 in compensation and four weeks notice pursuant to the Minimum Notice Acts.CommentaryAs highlighted, the Tribunal appeared to be particularly scathing of the processes undertaken and in particular to the obligations towards those who may not fully understand the process or the potential outcome. Employers are reminded that under Section 10 of the Safety Health and Welfare at Work Act 2005 (as amended) that employers “shall when providing instruction, training and supervision to his or her employees….ensure that….instruction, training and supervision is provided in a form, manner and, as appropriate, language that is reasonably likely to be understood by the employee concerned”.