Labour Court Database __________________________________________________________________________________ File Number: CD95500 Case Number: AD9592 Section / Act: S13(9) Parties: THE POINT THEATRE (Represented by THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. DC42/95.
Recommendation:
The Court has taken account of the views of the parties as
expressed in their oral and written submissions and finds no
grounds for altering the findings of the Rights Commissioner.
Accordingly the Court upholds the recommendation of the Rights
Commissioner and rejects the appeal of the Company.
The Court so decides.
Division: Mr McGrath Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95500 APPEAL DECISION NO. AD9295
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
THE POINT THEATRE
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. DC42/95.
BACKGROUND:
2. The appeal concerns a worker who has been employed by the
Company since 1989. For the past five years she was employed
as a supervisor in the "front of house". The worker was
dismissed on the 3rd March, 1995 following an incident
involving the allocation of two tickets for a concert held at
the theatre on the 25th February, 1995. Two customers had
arrived for the performance of Riverdance on Thursday 23rd
February but their tickets were designated for the following
Saturday 25th February. In accordance with custom and
practice the claimant had organised seats for them on the
occasion and they had given her tickets for the Saturday
performance. The claimant felt that the tickets had been
paid for and the Point Theatre was not at a financial loss.
She gave the two tickets to her own babysitter. The tickets
were part of a block issued to an Agency which in turn had
been reissued duplicate tickets for the seats in question.
The worker was suspended pending an investigation. Following
a disciplinary hearing she was dismissed. The Union claimed
her dismissal was unfair. The dispute was referred to a
Rights Commissioner for investigation. On the 27th July,
1995 the Rights Commissioner issued his findings and
recommendation as follows:-
"I am satisfied that the claimant's actions in retaining
the two tickets for Riverdance constituted misconduct,
which was also compounded by the manner in which she had
concocted the admission stubs and the fact that she had
denied the allegation when confronted about it. On the
otherhand, management had been advised by fax on 24th
February, 1995 by the Regency Hotel, of their error in
the issue of the tickets and sought replacement.
Therefore in that the tickets for Saturday had not been
handed in, in accordance with the Company's normal
procedure, it seems rather strange that given the known
overwhelming demands for the show at that time, why
management did not pursue enquiries with their
Supervisory Staff as to the whereabouts of the original
tickets.
In any event, that aside, whilst I can understand
management's stance that they believe the bond of trust
with the claimant to be irretrievably broken and have
indeed substantial grounds in that regard in the final
analysis it is fairly apparent that the claimant did not
gain any personal financial benefit from her
misdemeanour and taking that into consideration
management might very well have dealt with her behaviour
by way of a period of suspension without pay and an
offer of re-engagement in a demoted position, of lesser
responsibility.
As it is evident that such a course is not at all now
feasible, having regard to all of the foregoing and
taking into account her years of service with the
Company, I recommend that the Point Theatre pay the
claimant and ex-gratia lump sum of £1,500 in respect of
the termination of her employment, which she should
accept in full and final settlement of her claim."
On the 18th August, 1995 the Company appealed the
recommendation to the Labour Court. The Court heard the
appeal on the 8th November, 1995.
COMPANY'S ARGUMENTS:
3. 1. The worker concerned attached out of date stubs to the
ticket portions she retained on 23rd February in order
to facilitate the ticket holders entrance to the
Theatre. The normal procedure where patrons, who turn
up on the wrong night is that they are facilitated with
seats. The supervisor responsible hands back the
original tickets to management. This is standard
procedure complied with on numerous occasions in the
past and during the long-running performances of
Riverdance. The worker, in not adopting the procedure
was guilty of gross misconduct.
2. The Company investigated the matter thoroughly and
fairly. The claimant's only response was that the
couple concerned told her she could keep the tickets.
This excuse was totally unacceptable to management. The
claimant was well aware of the regulations and had
previously been given a verbal warning in relation to a
similar incident.
3. The Company had no option but to dismiss the claimant.
The bond of trust was broken. It would have been
wholly inappropriate to suspend or demote the worker as
it would have implied that this type of action is in
some way acceptable. The Company contends that in the
circumstances the Rights Commissioner's Recommendation
of an ex-gratia payment of £1,500 is inappropriate and
unacceptable.
UNION'S ARGUMENTS:
4. 1. The worker held onto the two tickets in the belief that
the seats had been paid for, would not be used on
25th February and that management would be at no loss
financially. She eventually decided to keep them and
gave them as a present to her babysitter. She was not
aware the tickets were part of a block book for both the
nights of 23rd/25th. When duplicate tickets were issued
to the Agent no approach was made to the claimant as to
the whereabouts of the originals. This was unusual
behaviour by management.
2. At the disciplinary meeting the claimant gave a full and
frank account of her actions. She acknowledged and
accepted full culpability and apologised for her wrong
doing. She accepted that the wrong doing was compounded
by attaching old tickets stubs to the tickets to ensure
admission to the Theatre. However, she had a good
record in the employment for 6 years. She did not seek
personal financial gain and her position as a mother
with a young family represent genuine mitigating factors
which in many circumstances would have resulted in a
lesser punishment. The Rights Commissioner was of a
similar view. The Union accepts his rationale to deal
with the dispute by way of a lump sum payment. The
Union accepted his recommendation.
DECISION:
The Court has taken account of the views of the parties as
expressed in their oral and written submissions and finds no
grounds for altering the findings of the Rights Commissioner.
Accordingly the Court upholds the recommendation of the Rights
Commissioner and rejects the appeal of the Company.
The Court so decides.
~
Signed on behalf of the Labour Court
21st December, 1995 Tom McGrath
T.O'D./D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.