EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Odessa Club & Restaurant Limited UD778/2013
-employer PW302/2013
TE102/2013
MN891/2012
against the recommendation of the Rights Commissioner in the case of:
Adam Szikora
-employee
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
PAYMENT OF WAGES ACT, 1991
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington S.C.
Members: Ms. A. Gaule
Mr. M. O'Reilly
heard this appeal at Dublin on 12th June 2014 and 2nd October 2014
Representation:
Appellant: A director of the company.
Respondent: Mr. Femi Daniyan instructed by Mr Shehzad Bajwa,
Bajwa, Solicitors, 38 South Richmond Street, Dublin 2
Background:
These appeals came before the Tribunal by way of an employer appealing against a Rights Commissioner Recommendations under the Unfair Dismissals Acts, 1977 to 2007, ref: r-128181-ud-12/RG, and the Terms of Employment (Information) Act, 1994 and 2001, ref: r-128180-te-12/RG, and the Rights Commissioner Decision under the Payment of Wages Act, 1991, ref: r-128178-pw-12/RG.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, was brought as a direct claim to the Tribunal by the employee.
Summary of evidence:
The employee in this case was employed as a bar man for the company since November 2010. Dismissal as a fact was not in dispute between the parties. The company dismissed the employee from his position on grounds of gross misconduct.
A director of the company gave evidence that it was his understanding that the employee in question signed a contract of employment and was provided with a copy of same. It was the employee’s evidence that he did not receive a contract of employment. He did recall signing a document when he commenced employment but he believed this related to his hours of work.
The employee worked as a barman in the main bar of the company’s premises for 18 months. A fortnightly stock-taking process is conducted by an outsourced company and it was noticed that a deficit was creeping in. Over a period of two months and four reports the deficit was not rectified and as a result a surveillance company was engaged to observe staff.
DF an agent on behalf of the surveillance company attended at the premises over a period of time on 20 April 2012. A number of discrepancies were observed in the bar where the employee in this case and a colleague worked. DF observed no issues in the other bars at the company’s premises. DF compiled part of a detailed report which was provided to the director of the company. It contained such issues as drinks not being rung through the cash register and money being taken by the employee in this case from his colleague but not placed in the till. It was suspected that the employee and his colleague were both complicit in what DF observed.
DF gave evidence that he compiled part of the report based on what he observed. He observed all of the bars in the premises and there were no issues except for the one at which the employee was based. During this time he observed the employee consuming Sambuca at one point. In addition DF observed a large amount of money being placed in a glass behind the till (comprising of a mixture of €50 and €20 notes.)
DF engaged in conversation with the employee and complained that he was tired. He was provided with a coffee containing Kahlua free of charge. DF observed that the employee had the same drink under the counter. DF’s colleague who accompanied him was also provided with a beverage free of charge.
It was the employee’s evidence that on the night in question he observed DF looking upset and DF told him that he was tired. It was not good for business for a person to look upset at the bar so he prepared DF a complimentary drink of coffee and Kahlua. He probably did taste the drink to make sure it was mixed correctly but he never consumed a full drink while on duty and in any event he drove to work. The supervisor always enquired about wastage for each bar at the end of each night and on that night he informed the supervisor that he had some wastage but he did not have an opportunity to tell her of thecomplimentary drinks. In reply to questions from the Tribunal, the employee stated that he had exercised such initiative before without issue.
In relation to the glass of money behind the bar he stated that this was the “tip jar.” The bar within which he worked was the only one in the premises that provided table service. The bar had a good regular clientele and had 15 tables of up to 70 covers. At midnight the tabs for dinner groups are closed and often there are tips are given. Sometimes the till would be short of change and he swapped the money in the glass for larger notes.
Upon receipt of the report from the surveillance company a meeting was held on 24 April 2012 between the employee, the director and the General Manager. The employee was informed of this meeting in advance but was not informed as to what it pertained. At the meeting the director put the details of the report to him and explained that a person was engaged to observe the staff at the premises. The director of the company had the report with him at the meeting but he did not recall the employee requesting a copy of the report. He accepted that he did not give the employee his own copy of the report but he did put the matters contained in the report to him. It was the director’s evidence that the employee did not respond throughout the meeting and neither denied nor confirmed any of the matters in the report. The director reached a decision to dismiss the employee on foot of this meeting as he considered the employee’s actions to constitute gross misconduct. The employee was informed at the end of the meeting that he was dismissed from his employment. The director noted that there was no further deficit from the time the employee departed the employment. The colleague who worked in the same bar as the respondent employee attended a similar but separate meeting in relation to this issue.
It was the employee’s evidence that there were no previous disciplinary issues prior to his dismissal. When he attended the meeting he was aware that his colleague had also been asked to attend a meeting as they had spoken on the telephone about it.
At the meeting he was informed by the director that there was an on-going problem but the employee stated in evidence that all of the employees were aware that there was a problem with stock. The director had a report at this meeting and put some matters to the employee. The employee was shocked at the matters being put and for this reason he was quiet throughout the meeting. He did say that he had never stolen money. The first time that he had an opportunity to read the report was at the Tribunal hearing.
In reply to questions from the Tribunal in relation to an appeal mechanism, the director stated that he believed that the meeting held with the employee was an opportunity for him to outline his position. It was accepted by the director that the employee was not paid minimum notice. In relation to the claim under the Payment of Wages Act, 1991 the director stated that the employee was paid up to date. The employee in evidence that he thought maybe he was due a week’s wages but he was unsure about this.
The employee gave evidence of loss and efforts to mitigate that loss which included obtaining new employment some months later.
Determination:
The Tribunal determines that the employee was unfairly dismissed. The employer decided on the basis of a short period of observation that the employee was responsible for a large amount of irregularities other than some drinks being given free. The employer did not carry out a reasonable investigation into the matter.
Accordingly, the Tribunal varies the Recommendation made by the Rights Commissioner ref: r-128181-ud-12/RG, and awards the employee the sum of €2,500.00, under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal affirms the Rights Commissioner Recommendation under the Terms of Employment Information Act, 1994, ref: r-128180-te-12/RG, and awards the employee the sum of €800.00.
The Tribunal upsets the Rights Commissioner Decision under the Payment of Wages Act, 1991, ref: r-128178-pw-12/RG, in finding that this claim fails.
The Tribunal finds that the employee is entitled to €440 (being the equivalent of one week’s gross pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)