In the case of Catherine Crabbe v Grosvenor Cleaning Services Limited t/a Grosvenor Services (ADJ-00049787)...

In the case of Catherine Crabbe v Grosvenor Cleaning Services Limited t/a Grosvenor Services (ADJ-00049787) the Adjudication Officer, Michael McEntee, found that the Complainant’s dismissal was disproportionate, but the award was reduced because of the Complainant’s “problematic” clocking issues and her decision not to avail of the appeals process offered to her.

Facts: The Complainant worked as a supervisor for the Respondent company where she had been employed for just over six years, on a part time basis. She was also a carer for her blind husband. In October 2023, she was informed that a serious complaint had been made by the Respondent’s main client, in relation to clock in and attendance issues. An investigation was carried out, following which a disciplinary meeting was held. During that investigation, which included accessing CCTV and electronic clocking records, it was established that the Complainant had left early on a number of occasions amounting to seven hours that were not accounted for, hours which she was paid for.

The Complainant confirmed to the Respondent that she had left on a number of occasions a few minutes early in order to care for her husband, but she did not accept that she had left as early as the Respondent claimed she had. The disciplinary decision maker decided that her actions constituted gross misconduct and was akin to theft from the Respondent. Despite the Complainant’s exemplary disciplinary record up to that time, she was dismissed and informed that she could appeal the decision. The Complainant did not lodge an appeal.

The Complainant claimed that her dismissal was disproportionate, particularly in light of her exemplary disciplinary record and further, that she was never provided with the procedures for use of CCTV or GDPR, and had not agreed to the use of CCTV footage as part of a disciplinary process. She further claimed that she did not appeal the decision as the person who was proposed to hear an appeal was not independent of the Respondent, being the Head of HR.

Decision: The Adjudicator was satisfied that the Respondent had correctly followed procedures by having carried out an investigation, disciplinary, and by having offered the Complainant an appeal. He criticised the Complainant’s decision not to appeal her dismissal, although he did accept that it would have been preferable to have had a completely independent appeals chairperson rather than the Head of HR. He noted that:

“Legal and Labour Court precedent is strong here. Complainants are expected to fully utilise Employer procedures, including Appeals, before seeking redress from the WRC via the Unfair Dismissal Act, 1977 or other Acts.”

He referred to the decision of Mr Justice Flood in Frizelle v New Ross Credit Union Limited [1997] IEHCwhere he stated that a decision should “be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.”

The Adjudicator was satisfied that the use of CCTV was not central to the case and had not been heavily relied upon by the Respondent, with greater reliance having been placed on time sheets and clocking in records. The Respondent did, however, place considerable weight on the importance of the end-user contract, and little weight on the Complainant’s honesty about leaving early or her record for six years prior to this incident.

The Adjudicator noted that it was not for him to substitute his view for the decision of the Respondent.  His role was to consider whether the Respondent’s decision to dismiss the Complainant was a reasonable response to the Complainant’s actions.

The Adjudicator referred to the test set out in Looney & Co Limited v. Looney  UD843/1984 as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the [Claimant], nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

However, the Adjudicator found that there were a number of issues of concern, including the Complainant’s “unblemished” record. He found that summary dismissal was disproportionate and that it appeared that the Respondent had not considered any other sanction, nor had it taken into account matters such as the Complainant’s exemplary record, length of service, and her honesty during the process:

“Summary Dismissal without a progression of Warnings, Oral, Written Final Written etc. are generally reserved for the most serious issues. This progression did not happen in this case.”

The Adjudicator found that the Complainant was unfairly dismissed. In considering the appropriate redress, the Adjudicator noted that the Complainant obtained alternative employment, at a better rate of pay, within five weeks. He also referred to her “problematic” clocking issues and her decision not to appeal her dismissal and for those reasons he awarded the Complainant two weeks’ pay.

Takeaway for Employers: Employers can go a long way to protecting themselves against an unfair dismissal claim by doing the basic steps fairly and well, offering a fair investigation, disciplinary, and appeals process and ensuring that their employees are aware of the relevant policies. It is crucial that fair procedures are adhered to in any disciplinary process, and particularly in the context of a dismissal. It will not necessarily be fatal to an employee’s unfair dismissal claim if he or she decided not to appeal his/her dismissal, but it may be taken into consideration by an adjudicator in considering the appropriate redress.

While it is not for an adjudicator to substitute his or her decision for that of an employer, an adjudicator will determine whether or not an employer’s decision was within the band of reasonable responses. Employers will be expected to have acted proportionately, and to have considered whether or not a lesser sanction would have been more appropriate. It is important for employers to ensure that they take into account all relevant factors, and any mitigating circumstances, in reaching a decision on the appropriate disciplinary sanction.

Link  - https://www.workplacerelations.ie/en/cases/2024/june/adj-00049787.html

Authors – Nicola MacCarthy and Jenny Wakely