EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Sylwia Sadowska UD1658/2013
MN707/2013
against
Players Leisure Limited T/A Players Leisure Limited
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. N. Ormond
Mr. N. Dowling
heard this claim at Dublin on 7th January 2015 and 12th March 2015
Representation:
Claimant:
Mr. Augustus Cullen, Augustus Cullen Law Solicitors,
Solicitors, 7 Wentworth Place, Wicklow Town, Co Wicklow
Respondent:
Mr Pat Brady, Workplace Solutions, 56 St Columbanus Avenue, Milltown, Dublin 14
Respondent’s case:
The respondent operates an amusement arcade/casino and the claimant was employed there as a senior cashier from 5th October 2005 until she was dismissed for gross misconduct on 8th August 2013.
The first witness for the respondent was an operations manager for the respondent and is herein after referred to as DM. It was DM who carried out the initial investigation into the incidents that led to the claimant’s dismissal and having decided that what had occurred constituted gross misconduct and he referred the matter onwards for possible disciplinary action.
DM told the Tribunal that on Monday 22nd July 2013 the claimant told him that she had taken €10 from the till on 20th and another €10 on 21st July 2013 in order to pay for her taxi home in the early hours of the morning. The claimant left a written notation and a computer notation of this transaction at the time but instead of asking for prior approval for this from the manager on duty at that time she chose to take it and inform DM on Monday. DM informed the claimant that this was a very serious matter and that he was going to investigate further. Having carried out an investigation and consulted with the staff handbook and the owner of the respondent DM referred the matter to the owner for his consideration. DM also referred to a practice that used to prevail but ceased before he began employment whereby staff who finished late at night were paid in respect of a taxi home. DM was concerned that this payment of taxi fare was being viewed as a right by the claimant.
The Owner/Director gave evidence. He is based in Monaghan. The day to day running of the business is carried out by the operations manager. DM was appointed to the role in 2013.
The witness and another employee check the accounts weekly. Cash sheets are posted into a safe at the end of each shift. They are not referred to unless a discrepancy arises in the computer records. The duty manager would have no cause to refer to them.
The claimant was not dismissed for theft but for taking money from the float without permission. In his opinion if the claimant needed money she should have contacted the duty manager in his onsite apartment. He could have accessed petty cash if necessary. He would have taken a dim view if the duty manager had not lent the claimant money for a taxi.
In 2012 the claimant was awarded €1,000 by a Rights Commissioner regarding public holiday pay. The respondent contended that the contract of employment was for a seven day week and with premium pay built into the basic salary.
He had issued the claimant with final written warning for photographing rosters and cash sheets in the cash office in the early hours of the morning. He had come very close to dismissing her on that occasion. A bullying complaint had been made against the claimant by a colleague was investigated, but the colleague resigned. The management team were reporting a bad atmosphere in the workplace on account of the claimant.
In September 2012 he met with the claimant to clear the air. A written agreement was signed by the parties which resolved the claimant’s Rights Commissioner award and any other pay claims she might have. He promoted her to senior cashier involved a pay rise but no extra duties. The company removed any warnings against the claimant. Both agreed to work harmoniously in the future. He knew she had difficulties with the duty manager and he told her to contact him directly if she had any issues. He received no complaints from the claimant about the duty manager from that date on. The duty manager reported that they were getting on well. They still had to communicate over work issues.
DM had reported to him that the claimant wanted to leave and wondered what package she would get. The witness told her what redundancy sum she might receive. DM said she was discontented and wanted to leave.
For a time during 2008-09 the company paid for taxis when the shift ended at 6am but this began to be abused and so was discontinued. The practice had been to submit receipts for reimbursement.
The witness heard the appeal and upheld the dismissal. In his opinion there was zero tolerance for taking money from the float. The claimant lived 500 yards away, but even if she did require a taxi she should have phoned the duty manager. He felt there was more to what she was doing.
He disputed that she was victimised for joining a trade union. He used the facilities of a HR advisor to deal with correspondence.
In cross-examination he refuted that he had instructed DM to dismiss the claimant. He referred him to the HR advisor.
The duty manager gave evidence that there was no ill will between him and the claimant. She routinely called him to cover for her breaks or for pay outs. He would have been happy to help her if she had asked.
Summary of Claimant’s Case:
The employment was uneventful for the first three or four years. In April 2011 the duty manager started picking on her before she went on holiday. She went to GC who spoke to the duty manager on her behalf but he said it was like talking to a wall. So she decided to join a trade union to find out her rights. Things changed after that such as timed breaks and not being allowed to take cigarette breaks.
On Saturday 20th July 2013 a festival was on in Bray. Before her shift started she went to a shop to buy cigarettes but found that her card had expired. The streets were still busy at the end of her shift so she decided to take a taxi home. The duty manager was in his apartment. She did not ask him for money as she did not talk to him. She took €10 from the float and noted it on the cash sheet and computer. The following day she came directly from home to work and found herself in the same situation. She decided to take a further €10, noting it again, and to inform DM the following day.
She told DM on Monday and offered to pay it back, but he refused and said he needed to contact the owner. She worked for a further two weeks before the disciplinary procedure began. Her trade union representative accompanied her. Her motivation for taking the money was that she was afraid to walk home.
Determination
The Tribunal carefully consider the evidence adduced and the submissions made in this case. The claimant was dismissed because she removed cash from the float without prior authorisation to pay for a taxi home on two successive nights. She took the money without permission but she left a written note and an electronic note.
The respondent considered taking money from the float without permission warranted dismissal.
In considering the proportionality of the sanction the Tribunal noted that when she was dismissed the claimant had worked for the respondent for more than 7 years and that no alternative sanction was considered. The Tribunal is not satisfied that the actions of the claimant amount to gross misconduct and accordingly find her dismissal to have been unfair. However, the claimant contributed to her difficulty by not talking to manager on the Sunday. Taking all the circumstances into account the claimant is awarded the sum of €5,000.00. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.
The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 also succeeds and the claimant is awarded the sum of €1,760.00 being 4 weeks pay.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)