- Posted by Bernadette
- On November 23, 2014
- Employment Appeals Tribunal
EAT Determination UD690/2012,
Claire Hayes v Kinsellas of Rocklands
In this Determination the Tribunal has made particularly useful and clear comments that can be used as directions for such investigations where theft is being considered as follows.
“It is important to recognise that investigative and disciplinary procedures that might be sufficient in one instance may not be in another, particularly in a case w[h]ere criminality is on the agenda. … … Where there is a possibility of a finding being made by an employer that an employee has stolen goods, particular care must be taken.”
“In hearing this claim, it is not a matter of deciding the issue of guilt or innocence. The question for the Tribunal is whether, following a fair and transparent investigation and disciplinary process, the respondent’s decision to dismiss was one that a reasonable employer might have made.”
“Having considered the totality of the evidence, the Tribunal is of the view that the investigative and disciplinary processes undertaken in this instance fall short of the appropriate standards where an employee faces potential dismissal for criminal behaviour.”
While checking CCTV on 30/09/11 in respect of alleged missing mass card monies, SK noticed that the claimant was breaching company policy by using her phone and taking items from the shop and not paying for them. She, the claimant, was called to a meeting the following day. She asserted she was told at the meeting that there were a number of questions for her and if she answered them she would be placed back on the roster. She was not told that she could have a representative at the meeting.
The Determination describes the progress of the investigation including a final meeting held on 18/02/12. The claimant was told if she had nothing further to add she was being dismissed for theft which came under the heading of gross misconduct in the respondent’s policy. There was no provision for an appeal.
As an aside, there was some brief consideration of whether the respondent was attempting to ‘find’ something to use to terminate the employment because the premises where the claimant was working at the time of her dismissal was discontinued shortly after her dismissal.
The EAT was critical of many aspects of the respondent’s processes as follows:
- The claimant did not receive details of the precise charges against her in writing and the basis for them. The Tribunal was particularly exercised by the fact that the respondent was actually accusing the claimant of theft but calling it a breach of procedures. The claimant asserted that the words “theft” and “stolen” were not used at the meetings.
- No clear distinction or separation between the investigation and disciplinary processes. In addition these were conducted by the same people. While this may cause problems in a small organisation in this case the Tribunal thought it could have been achieved.
- Tribunal was not satisfied that the decision-maker acted independently and without influence by those who conducted the investigation and disciplinary processes.
- The Claimant was not given all of the evidence against her nor was she given an appropriate opportunity to consider it or adequate time to prepare her response. The Tribunal was critical of the respondent offering the claimant access to view the footage at work while she was suspended and particularly exercised by the requirement for the claimant to call to SK’s home to view the till reads that allegedly supported the CCTV. The Tribunal makes a very clear statement that can be used as a direction to employers as follows: “Any records of documentation used by the respondent in its investigation should have been presented to the claimant at the disciplinary meetings.” … “The Tribunal would have expected not only CCTV but also corresponding ‘till receipts’ and stock figures to be put to the claimant.”
- There was no clear agenda for meetings. This means that the claimant was invited to meetings without knowing what was to be discussed. This is particular difficulty as she was therefore not made aware of the topics she would be required to address or to answer.
- Minutes of meetings were not agreed and were not made available to the claimant despite requests. This means that no proper record of the claimant’s responses was made and none was provided to the claimant for her agreement.
- There was no provision for the claimant to appeal her dismissal. The Tribunal did not accept the reasons given and stated “There was nothing to prevent the respondent appointing an independent party to hear such an appeal”.
- The claimant was not offered the right to be accompanied at the meeting on 4/10/11. The respondent asserted that this was an opportunity for the claimant to explain matters although it could not understand what the explanation might be.
In conclusion the Tribunal found that the investigative and disciplinary processes did not meet the standard expected where an employee is accused of being a thief, that she had been unfairly dismissed and awarded her €11,000.
For a fuller review of theft/misappropriation investigations see the second issue of our Investigation Series entitled “Is it Yours?”©.
Bernadette Treanor is the Managing Consultant with Beo Solutions and her bio information can be found at http://ie.linkedin.com/in/bernadettetreanor Beo Solutions offers independent and impartial investigations as well as assisted investigations, where the employee chosen to undertake the investigation requires occasional support, in addition to supporting reflective practice and professional development for investigators. Beo Solutions also provides training in investigations customised to the client organisation and up to criminal standard for, for example, fraud investigations. For the full range of training and services available, in addition to our Client Guide, please see our website at www.beosolutions.ie . Contact: email@example.com
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