Unfair Dismissal and Flawed Procedures – Mistake Did Not Justify Dismissal

The recent case of Salma Ayouby v Marks & Spencers Ireland Limited UD 731/2012 illustrates the importance of proper and fair procedure when terminating employment. Here an employee was dismissed for gross misconduct who had overpaid a customer in a transaction involving a gift card and credit voucher. It is also a useful decision insofar as it sets out the tribunal policy in respect of adjournments and stresses the importance of applying for an adjournment within the provided timeframe of three working days from receipt of notice of the date of the hearing.Respondent’s CaseThe respondent’s HR manager gave evidence of the procedures used in the organisation. The HR manager provided that sales advisors similar to the claimant are given a two-day induction which includes staff policies, staff handbook and training on tills as well as who has responsibility in the store. New sales tills were introduced in September 2011 and staff received training. If queries arose in relation to the tills section, management dealt with them. If an issue arises an investigation takes place and an individual is given one hours notice and the right to be accompanied. The decision is made by the investigating manager to move it to a disciplinary investigation and if the incident was serious an employee could be suspended without pay. A scribe or note taker records the minutes of the meeting and the employee is asked to read and sign these once they are happy that they accurately record the meeting. An investigation report is completed and any witness statements issued. The employee subsequently receives a letter in respect of any disciplinary meeting. The respondent gave evidence that unions receive all notes of the meetings and are given the opportunity to cross-examine witnesses. Any disciplinary hearing is conducted by another manager from another store. The investigating manager makes the decision to dismiss and may consult with the HR manager. The decision is based on the investigation and disciplinary process. When the disciplinary investigation takes place a decision is made within 24 hours unless new information becomes available. Verbal warnings can be appealed and an HR manager is selected who is not involved in the process.The HR manager dealt with the claimant’s appeal hearing on 16th March 2012 but was not involved in the disciplinary investigation concerning the claimant. The claimant read from a prepared statement at the meeting and the decision to dismiss the claimant was upheld. The respondent considered that fair procedures were adhered to and the claimant didn’t engage with the respondent on the day of the appeal hearing. The respondent also stated that the agreement with the unions was adhered to and the claimant was also offered the right to be accompanied.It was put to the respondent during cross-examination that the claimant had a very good record. The HR manager stated that had the claimant raised the fact at the appeal hearing that she had made a genuine mistake and was prepared to pay back the money or take a demotion he would possibly have spoken to the respondent about it. He noted that the claimant had reported the incident an hour after the event and she should have reported the incident immediately. The respondent noted that if the claimant appealed the severity of dismissal and if she produced it as part of the appeal he would have considered it.Claimant’s CaseThe claimant told the tribunal that she was dismissed by the respondent on 11th February 2012 and she started on the job bridge scheme in June 2013. It was also submitted on behalf of the claimant that the respondent hadn’t justified the dismissal and sought that the Tribunal so find.DeterminationThe tribunal observed that the respondent had not fulfilled its obligations under Section 6 of the Unfair Dismissal Act 1977 (as amended). It also referred to Section 14 of the Act which provided that an employer must provide an employee a notice in writing setting out the dismissal procedure. This must be done within 28 days of entering the contract.The claimant in this case had overpaid a customer in a transaction involving a gift card and credit voucher when re-doing a transaction another employee had been unable to complete. The claimant brought the overpayments to the attention of her manager an hour later and was subsequently called to an investigation meeting on the same day. At the end of the investigation meeting the claimant was suspended on full pay. The claimant was then invited by letter dated 1st February 2012 to a disciplinary hearing on 10th February 2012. The purpose of the meeting was stated to be the investigation of an “alleged misconduct” and not “serious misconduct“. The tribunal noted that the claimant was provided with a copy of the investigation report which contained a section on general observations but was not provided with notes taken at the investigation meeting.The claimant was accompanied to the disciplinary hearing on 10th February 2012 and the purpose of the meeting as set out in the handwritten notes of the meeting was:”to establish if there is reason to believe that (the claimant) breached the named respondent’s till procedures on 28th January 2012 during transactions where the company incurred monetary loss as a result of her actions and if there is a disciplinary case to answer“.The tribunal noted that the notes of the disciplinary hearing showed that the claimant had apologies for making the mistake and overpaying the customer and had offered to repay the respondent the money it had lost. The next day the claimant was notified by telephone call of her dismissal and by letter dated 12th February 2012. The reason cited was”gross misconduct in that you did not follow company procedures in administering the transactions on 28th January 2012 resulting in a monetary loss to the company of €95. You stated in the investigation meeting and the disciplinary hearing that you were unclear about carrying out the transaction however at no point did you attempt to resolve the transaction by calling another section manager or even commercial manager“.The claimant’s union wrote on 13th February 2012 asking for the grounds of dismissal in line with Section 14 of the unfair Dismissal Acts and the specific procedures relied on by the respondent in the form of training documents, policy documents etc. The respondent had provided that the breach was for gross misconduct for not “following company procedures in administering the transaction which incurred the financial loss“. The union had also noted that the claimant had not been provided with details regarding the witness statements. The appeal was scheduled for 8th March 2012 and the claimant’s solicitor had requested a stay pending the outcome of a previous stage 4 sanction before the Rights Commissioner which if successful could be reduced to stage 3. Statements were again requested. The respondent replied that the appeal would proceed and after the internal process the claimant then had “every right to engage a solicitor in this matter“. The claimant’s representative again requested an adjournment and the respondent replied effectively indicating that as she had a solicitor representing her, that she didn’t want to appeal. The respondent had also stated that the stage 4 warning given to the claimant was “completely separate to the issue of dismissal and had no relevance to the issue of dismissal“.The tribunal noted that the disciplinary policy provided by the respondent was unclear in relation to dismissal arising from misconduct.ConclusionThe tribunal concluded that it was clear that the claimant had made a mistake when asked for assistance from a colleague but had not benefitted from the mistake. The claimant had apologised and offered to refund the €95. The sole reason for termination was that the claimant had made a genuine mistake. it noted that it was not clear from the respondents disciplinary policy that the claimant could be dismissed for a first breach of company policy except possibly in cases where there is a breach deemed so serious that the claimant could be dismissed immediately i.e. without any investigation.The tribunal determined that the respondent had failed to follow the procedure set out under section 14 of the Act and had subsequently failed under section 6(7)(b) of the Act. In any event the respondent had not shown that there were substantial grounds justifying the dismissal as set out under section 6 of the Act. The tribunal commented:”the mistake that the employee made was not such that, absent other factors, justified a dismissal“.The claimant was awarded €17,500 in compensation for unfair dismissal under the Unfair Dismissal Acts 1977(as amended).