In the case of Employee v Employer UD661/2010 and MN617/2010 the employee was awared over €33,000, as the Tribunal felt the Company had "acted too hastily" by dismissing the employee. This case was recently highlighted in the Irish Times and serves as an important note to employers that they need to be careful when calling in the Gardai to deal with an issue.
Background Daryl Mason lost his job as a store supervisor following an in-house investigation by Supermac’s into missing cash lodgements. Gardaí were called and arrested Mr Mason and a search warrant was issued for his house. When Mr Mason returned to work on July 24th he was told to go home and to attend a meeting with management the following day. Mr Mason was dismissed for gross misconduct. Summary The area manager has responsibility for 12 stores including the Portlaoise store where the Employee was employed. On 8 July 2009 he received a phone call from the financial controller informing him that two cash lodgements were missing from the Portlaoise store. The financial controller asked him to conduct an investigation into the missing lodgements. The missing lodgements were from Wednesday, 1 July 2009 and were part of a number of lodgements made by the local general manager on 6 July 2009 at the Post Office. The area manager travelled from his Limerick base to the Portlaoise store on 8 July 2009 to commence his investigation. The cash from the store is held in a drop safe in the upstairs office on the premises and only three employees had access to the safe combination numbers. He then checked the rosters from 1 July 2009 to ascertain the names of the employees on duty that day. The upstairs office has 24 hour video surveillance and the video tapes are held in the office. All staff are aware of the CCTV system. When he searched for the videotape for 1 July 2009 he could not find it and the tape for 30 June 2009 was also missing. He viewed videotape from other days circa 1 July 2009 but these tapes did not reveal anything untoward. He returned to the Portlaoise store on the following day and spoke again to the employees who access to the safe combination. All of these employees denied that they had any knowledge of the missing lodgements. As the missing lodgements were from part of a lodgement made on 6 July 2009 he commenced viewing more videotape footage from dates prior to 6 July 2009. On viewing footage from 2 July 2009 he noticed an object left on top of the safe. At circa 5.30pm on the videotape the Employee, who was employed as a supervisor enters the upstairs office to make a lodgement in the safe. He makes the lodgement and as he leaves the office the object which had been on top of the safe is now in the Employee's hand. The local general manager was involved in the investigation at this point as he had been cleared of any wrongdoing by the company. Gardaí were called and on July 22nd they arrested Mr Mason and held him in a Garda station and a search warrant was issued for his house. His father was asked to leave his workplace and accompany a garda to the house in order that he could conduct a search. When Mr Mason returned to work on July 24th he was told to go home and to attend a meeting with management the following day. At that meeting, which was conducted by both the area manager and the local general manager, Mr Mason was asked about the footage. He replied that the objects he removed were boxes of cutlery and not the missing cash lodgements. However, this explanation was not deemed plausible by either manager as they both felt it was extremely unlikely for cutlery boxes to be left in the office. Mr Mason was dismissed for gross misconduct. His appeal to the company’s human resources manager failed. The Gardai acquitted him of these charges following their own investigations. The Tribunal found that the area manager was too hasty in arriving at his conclusion that the Employee was responsible for the loss of the money. A thorough investigation would have included all 5 people who had access to the upstairs office. The procedure used to dismiss the Employee was flawed in that the local general manager was a party to the decision even though he could reasonably be under suspicion himself. The local general manager potentially influenced the outcome by assisting the shift supervisor in preparing a statement that was given to the HR manager. Impact This case provides good insight for employers who wish to involve the Gardai in Company matters. If you notify the Gardaí of some potential criminal issue in the workplace then you may have to suspend or post-pone your own disciplinary investigation as how can the Company justify the decision to dismiss an employee when the Gardaí subsequently acquit them of the crime. The cases of Kelly -v- CIE (UD 28/1978) & Brock -v- An Post (UD 57/1987) are illustrative of this fact. Employers need to be aware that any issues that involve Gardai do bring with it the caveat that this will be a separate and fundamentally overriding investigative process. Employers would do well to argue dismissal where Gardai have acquitted the employee of a criminal charge, and employers would also require their own investigations to be put on hold until such a time as the Gardai conclude their investigations.
