21 Mar Theft at Work & Gross Misconduct
A recent case of A Caretaker versus a Supermarket (ADJ-00033611) dealt with some interesting legal points vis a vis whether reasonable cause was presented for failing to submit the unfair dismissal claim within 6 months, as well as the related issue of proportionality in determining whether the matters under review ultimately did amount to gross misconduct that reasonably justified a summary dismissal and the non-payment of notice.
Firstly, it was held that the Complainant failed to demonstrate sufficient reasonable cause for not submitting his unfair dismissal complaint within six months from the date of his dismissal on 13th November 2019, with the complaint being received on 17th May 2021, five days outside the statutory time frame. The Complainants initial argument that he was unaware that he could submit a complaint and that he did so, as soon as he was aware, was rejected by reference to case precedent which clearly stated that lack of knowledge in this regard does not prevent the statutory limitation period from starting to run. The additional reason cited by the Complainant that he was the main carer for his wife during the Covid period was also not accepted, given that the Complainant had sought and successfully achieved alternative employment within a number of weeks of his dismissal. It was therefore difficult to conclude that his caring duties would have prevented him from lodging the complaint.
However, it was outlined that should the dismissal not to be deemed one of gross misconduct, that the statutory notice period of four weeks service due, on the basis of the Complainant having 7 years’ service, would in effect deem the complaint to be within the requisite 6 months’ time frame, as the effective dismissal date for the purposes of the Unfair Dismissal Acts would then be 11th December 2019.
In this regard, the substantive issue under review was that the Complainant had removed two boxes of face masks and a bottle of hand sanitiser from his work premises, which was against the Company’s zero tolerance policy on theft, which stated that dismissal would take place regardless of value of stolen property.
The Complainant accepted that he had done wrong and that the items were for his personal use but said he had not done so in any underhand manner, as he had openly placed the items at the till prior to removing them to his car, and he had initially understood they were for staff use and not for resale and could be brought home. The Complainant outlined that his wife whom he cared for had a chronic condition and he was extremely vigilant in respect of trying to prevent Covid 19 infection.
The Complainant further asserted that the sanction of dismissal was disproportionate, in light of his long service and previously unblemished record, and he would have been willing to pay for the items, which were of minimal value.
The Adjudicator agreed that the dismissal of a long serving employee in the circumstances presented, could justifiably be seen as harsh, when perhaps the employer could have been more open to considering the mitigation put forward. However, he concluded that as the Respondent had clearly set out its position about theft, in such an unambiguous manner, the Respondent was simply enforcing a rule that had been communicated to all employees from the outset of employment and it was therefore within the band of reasonableness in terms of potential responses to the circumstances that arose. The Adjudicator determined that the dismissal of the Complainant was not unfair.
This case illustrates the necessity for clear communication of standards in the workplace and particularly around theft, where the value of stolen property or personal circumstances, could have had the potential for an unfair dismissal decision to be deemed to be disproportionate, in the particular context of the case.