EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1723/2011
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Herlihy
Members: Mr. G. Andrews
Ms. H. Henry
heard this claim at Limerick on 30th May 2013
Representation:
Claimant:
Mr. Gerard Tobin, Limerick Citizens Information Centre, 54 Catherine Street, Limerick
Respondent:
Mr. Colman O'Donovan, Thornton, Solicitors, 88 O'Connell Street, Limerick
Respondent’s case
The respondent operates a Public House and employed the claimant as a full-time Bar Man from January 2009 to 12th December 2010. The claimant was dismissed on 5th December 2010 and was paid to 12th December 2010.
The claimant was one of only two full-time Bar Men and there were also a number of part-time bar staff. The claimant was in a position of trust. The Bar Manager told the Tribunal that he was concerned for some time about shortages in stock and cash and had issued clear instructions to all staff about recording all complimentary staff drinks and stock loaned to other bars. At one point the Bar Manager stopped the policy of complimentary staff drinks and informed all staff that they had to pay for any drinks they consumed. He also made it clear to staff that there was not to be extensive after hours drinking on the premises by staff. It was OK to have one or two drinks after work but this should not be for more than an hour and a half after all the customers have left.
The Bar Manager issued a number of verbal warnings to the claimant in relation to not turning up for work on time or at all and for arriving to work smelling of alcohol. He also warned the claimant about staying in the pub drinking too long after the customers had left.
However despite these warnings the claimant and the other full-time Bar Man were observed on CCTV footage drinking in the bar well after closing time. This CCTV footage was produced in evidence and the Bar Manager alleged that this showed the claimant pouring drinks for himself and his colleague without paying for them. The Bar Manager met with the claimant on 5th December 2010 and put it to him that he had been captured on CCTV breaching the policy in relation to after-hours drinking and non-payment for drinks. When the claimant would not admit to not paying for drinks the Bar Manager saw this as a breach of trust and felt he had no alternative but to dismiss the claimant. The claimant’s colleague was suspended for a week as the Bar Manager felt that there was no evidence that he had not paid for the drinks he poured.
Claimant’s case
The claimant denied having received verbal warnings prior to his dismissal. He did recall being spoken to on occasion but did not regard these discussions as warnings. It was the claimant’s evidence that any drink consumed by him in the pub was either pre-paid for by customers or he paid for them himself. In relation to the CCTV footage he told the Tribunal that he and his colleague had put €30.00 in the till before they began drinking and that, as far as he was concerned, when the €30.00 ran out his colleague paid for any further drinks they consumed.
Determination
Having carefully considered the evidence adduced at the hearing the Tribunal finds that unfair procedures were adopted by the respondent in reaching the decision to dismiss the claimant. There was no proper record kept of purported warnings issued to the claimant. There was also an inconsistency between the sanction imposed on the claimant and that imposed on his colleague for what seems to have been the same infringement.
Therefore the Tribunal finds that the claimant was unfairly dismissed. However the claimant significantly contributed to his dismissal and there was a lack of evidence by the claimant in relation to his efforts to mitigate his loss. In all the circumstances the Tribunal awards the claimant €1,300.00 under the Unfair Dismissals Acts, 1977 to 2007.
As a member of the division of the Tribunal that heard this claim, I confirm that the Determination herein is as was agreed by all the members of the division.
This: ________________________
Signed: _____________________
(EMPLOYER MEMBER)
As a member of the division of the Tribunal that heard this/these claim, I confirm that the Determination herein is as was agreed by all the members of the division.
This: ________________________
Signed: _____________________
(EMPLOYEE MEMBER)
The two continuing member/s of the division of the Tribunal that heard this/these claim have confirmed that the Determination herein is as was agreed by all the members of the division.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN OF THE TRIBUNAL)