EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
PW554/2011
Employee - appellant
PW555/2011
Employee - appellant
against the recommendation of the Rights Commissioner in the case of:
Employee (2)
-v
Employer
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this appeal at Clonmel on 1st March 2013
and 1st May 2013
Representation:
Appellant: Cian O'Carroll, Solicitors, Friar Street,
Cashel, Co. Tipperary
Respondent: Mr Kevin O'Reilly, John P. Carrigan & Co,
Solicitors, Slievenamon Road, Thurles, Co. Tipperary
Background:
These cases are before the Tribunal by way of two employees appealing two Decisions of a Rights Commissioner ref: r-107624-pw-11/GC, PW554/2011 and r-107106-pw-11/GC, PW555/2011 in the above cases, under the Payments of Wages Act, 1991.
The claimant and his brother worked for the respondent company which is a restaurant. There was a burglary in the restaurant and the Gardaí were called. One of the brothers was arrested but was not charged. They met management of the restaurant and they subsequently had monies deducted from their weekly pay. Both have claims under the Unfair Dismissals Acts, 1977 To 2007 and Payment of Wages Act 1991.
Employer’s case:
The Tribunal heard evidence from PS who is a shareholder in the company. He visits the restaurant every “other” week. He explained that EK was fully in charge in the absence of the manager. EK was an assistant manager and was responsible for locking up. Also his brother AK was a trainee manager. EK was responsible for locking the safe and bringing the key home with him; “total responsibility was with (EK) in (the manageress CK) absence”. The witness explained that the other (worker A) named by the claimant and who the claimant contended was a supervisor or responsible for matters was not a supervisor he was a standard employee who never had anything to do with the computer or cash.
There were three keys that were for opening up and those keys were kept with managers and one other that CK had as her own.
There was only one key for the safe and this was held by either the manageress or an assistant manager. That safe key should have been held by EK and he should have brought it home. The witness explained they “do not keep the safe key on the premises, ever”.
It was made crystal clear to EK that he was in charge. EK should have responded to the alarm callout regardless if he had a few drinks or not. He should respond to let the guards in and to see if the wind had set off the alarm and to re-set the alarm. In response to assertions about worker A, the witness explained that Worker A never had anything to do with the safe and he never ever handled the safe key. It was EK’s role to deal with the money and after EK it was his brothers (AK’s) duty.
The meeting of 15th July 2010 was understood to be held to discuss the repayment of monies. He asked AK and EK if they would be able to pay €150.00 (per week) and they agreed that it would be manageable.
There was no complaint made to him about the deductions. The first he heard about it was the letter from EK and AK (November letter). BG informed EK and AK that they would be available to meet EK and AK on 16th November. He thought that they would re-structure the payments and that is what they would have done, i.e. to change the payments to €75.00 or €125.00 per week and “that would be the context of what we would do.
The witness was surprised at the letter of resignation. When asked if they were happy with EK and AK as employees he replied “Very much so, yes”. Regarding the actions of the employees regarding the night in question he explained that it could have been considered gross misconduct and that other employers would consider it a sackable offence, but “in our situation I was prepared to give them a second chance”. Following their agreement to repay monies he did not treat them any differently than what he had done before.
In cross-examination the witness was asked if he suspected if the burglary “was an inside job and that the boys were involved” he replied, “not at all”. “We never suspected the EK or AK were involved”. The Gardaí said the case was closed and no charges were being made.
The Tribunal heard evidence from a witness in relation to mitigation of losses told the Tribunal that he had met the claimant while he was working in a restaurant after he had departed from the respondent.
The Tribunal heard evidence from BG the marketing manager. AK phoned him on the night of the burglary. AK told him that the restaurant had been robbed and that the thieves had broken in through the window. He asked how they accessed monies and told him that he had left the key in the safe. He asked who was in charge and he said EK was and EK had gone home early. He was told that they would repay the monies.
At a meeting in Cashel EK and AK agreed to repay the monies. He never told them that they would lose their jobs. He did see a letter from EK and AK stating their dissatisfaction regarding repaying monies. He had arranged to meet them on 16th November. The letter of termination from EK and AK was received from them before the meeting of 16th. He was surprised at the letter. They had not voiced any grievance. He had not seen any change in the working atmosphere between the claimant’s and that he was not distant with them and they were definitely not distant with, him.
In cross-examination the witness explained that he had not the authority to stop the deductions and PS had the sole authority to do that.
The Tribunal heard evidence from (CR) the manageress. She told the Tribunal that on the night of the burglary she was in the middle of a two week vacation.
The witness explained the procedure for dealing with alarm calls. If the alarm is activated the alarm company phones the designated person and also calls the Gardaí. She then goes to the premises and waits for the Gardaí. When they arrive she enters the premises to check and re-sets the alarm.
She explained that EK had been a manager previously and in fact had trained her to be a manager. He changed to being an assistant manager.
When she went on holidays she told EK that she had informed the alarm company that he was the designated person. AK was a trainee manager. EK and AK were the only two people in charge of the money on the day in question. Whoever does the final cash puts the money in safe and takes the safe key. Three people had use of the key, herself EK and AK. So the key would always be in the hands of a manager or assistant manager.
Employees case:
One of the respondents (EK) gave evidence to the Tribunal. He worked in a restaurant with his brother (AK). (AK) is also prosecuting a claim and an appeal under the above Acts). He worked as a barman and waiter. He worked for circa 6 months as a manager. However he stopped working as a manager one or two months before the 03rd May 2010. An event occurred on the night of 03rd May 2010, in that the restaurant was burgled.
The night before the burglary he went home early at about 7.00 or 7.30 pm and consumed alcoholic beverages. Later that night the security company phoned him about the burglary. He told the company to call the Gardaí.
He did not know why the security company phoned him because it was the manageress’ responsibility. He was not given special pay to be on call nor was there an on call rota register. It was the responsibility of the person who opened the restaurant on the day and a Mr. R had the responsibility. His brother also had keys.
The Gardaí arrested him and questioned him but he was released without charge.
He later met the director/s management of the company with his brother. DS was present, BG the marketing manager and CR the restaurant manageress. He and his brother agreed to repay the money that was lost by paying €150.00 per week. He understood that he would lose his job if he did not. The deductions were made with immediate effect.
The deductions continued for some months. Then he and his brother re-considered their positions. He himself thought why he was paying money when he had done no wrong. He wrote an e-mail to the respondent and a week later BG called to see him and his brother at the restaurant. BG said that money was still owed and he BG had calculations with him. The meeting ended and his thoughts were that he had no choice (to continue with deductions) or he would lose his job.
A week or so later, on or about 16th November 2010, he and his brother left their jobs.
EK’s brother (AK) gave evidence to the Tribunal. He worked initially as a waiter. He then worked as a supervisor. On 3rd May 2010 he was working in the restaurant. His brother left early because he was not well. Another worker (worker A) was on duty as well and he was a supervisor. It was his job and worker A’s job to lock up. At the end of the evening shift he was closing up the till. He checked the kitchen and asked worker A to lock up the restaurant while he waited outside. Worker A was to open the restaurant the next day. He went home.
The next thing that happened was that he got a call from worker A to say that there had been a break in. This was before 8.00 am the next morning. Worker A told him that the safe was open and the key was in the safe. He immediately woke his brother and they went to the restaurant. He phoned the general/marketing manager (BG). CR the manageress was on holidays.
When he spoke to BG he told BG that it might be his fault and he felt responsible. He expressed regret. He accepts that he said he would pay the monies back. The Gardaí called to the restaurant. He spoke to the Gardaí and he was questioned by the Gardaí. He was not arrested. His brother EK was arrested and questioned.
He and his brother agreed with the management to deductions from their wages to pay the monies that went missing. He felt that they had no choice otherwise they would lose their jobs.
The deductions continued for some months. Then he and his brother re-considered their positions. They wrote to the respondent. Sometime later they resigned.
Determination:
These cases are before the Tribunal by way of two employees appealing two Decisions of a Rights Commissioner ref: r-107624-pw-11/GC, PW554/2011 and r-107106-pw-11/GC, PW555/2011 in the above cases, under the Payments of Wages Act, 1991.
The Tribunal Determines that the appeals fail and in Affirming the Rights Commissioners Decisions awards the 1st named claimant ref: r-107624-pw-11/GC, PW554/201, the net sum of €1,077.44, and the 2nd named appellant ref: r-107106-pw-11/GC, PW555/2011, the net sum of €768.59, under the Payments of Wages Act, 1991.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)