EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Marcus Cullen UD1298/2013
- Claimant
against
Michael McGrath T/A The Bridgend Bar
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly BL
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this case in Letterkenny on 10 December 2014, 19 February 2015 and 15 April 2015
Representation:
Claimant: Ms. Patricia McCallum BL instructed by
Reid & Sweeney, Solicitors, Co. Donegal
Respondent: Ms. Charlotte Simpson BL instructed by
V.P.McMullin, Solicitors, Tirconnell Street, Ballyshannon, Co. Donegal
Respondent’s Case
Giving sworn testimony, MMG (principal of the respondent public house) said that he had returned from working as a bar manager in England and set up his own business for which he recruited the claimant as a barman whom MMG initially found very satisfactory. However, MMG began to notice stock losses and began to monitor this. Ultimately, he found a lot of bottles in a bin such that he put this finding with the stock loss recording that he had already undertaken. MMG formed the view that the claimant had either been giving free drinks to customers or charging for drinks only to withhold the payment from MMG.
The claimant worked 25-30 hours per week, Monday to Friday the claimant and MMG mainly worked; MMG’s son only helped out on occasion. MMG employed a stock taker in 2012, he visited the premises every 2 months until the stock loss escalated going into 2013. Subsequently a stock take was completed weekly.
The stock take for the evening of the 15th of April 2013 was what ultimately led to the claimant’s dismissal. When MMG found out the cumulative losses of stock he informed the claimant that there was €300-€400 loss each week since January 2013 and asked him “what do you think is happening?” MMG warned the claimant that the Gardaí could become involved. The claimant said very little at this meeting and did not request to see any evidence. MMG asked the claimant if he needed to tell him anything; the claimant denied doing anything wrong. MMG gave detailed evidence of the bottles of alcohol not accounted for on the till that night but discovered in the bin the following morning and the stock take procedure. The claimant was responsible for the till that night. The claimant was suspended at the end of this meeting.
At the final meeting on the 6th of May MMG again asked the claimant “if he had anything to confess?” the claimant maintained that he had done nothing wrong. MMG believed that the claimant was responsible for the missing alcohol on the night of the 15th of April as he was the only person working and responsible for the till. The till reports and the photos of the empty bottles in the bin led MMG to this conclusion. MMG terminated the claimant’s employment at this meeting.
The stock taker (CG) gave detailed evidence of the procedure used to investigate the stock loss and the documentation compiled for the investigation.
On the third day of the hearing MMG’s son (M) gave evidence. He stated that he rarely worked in his father’s public house and was only present one evening a week, a Tuesday, as he was involved in the local pool team.
When asked he said that he was not present on the evening in question, the 15th April 2013. When put to him he said he was not in possession of a set of keys nor had he mislaid a set of keys for MMS’s public House.
Claimant’s Case
The claimant gave evidence. He commenced employment with MMG firstly on a part time basis but was later retained as a full time member of staff. He and MMG shared the duties and MMG’s son and worked a the odd shift.
On the 22nd April 2013 he received a telephone call from MMG to call into the bar for a chat. When the claimant asked what it was about MMG told him he just wanted a chat. The claimant told the Tribunal that he was not informed what the meeting was about or advised to bring someone with him. On his arrival MMG was on the phone and the Accountant, who he was later introduced to, was present. MMG informed the claimant that stock had gone missing over a period of time to the value of €3,000 to €4,000. The claimant was asked to explain it. The claimant told MMG that he had neither taken the stock nor the money. MMG said that if he, the claimant, had not taken it then it must have been himself. The claimant was told the Gardai would have to be informed and asked did he have anything to confess. The claimant was shown a copy of the ‘Z’ reading of the night of the 15th April 2013 and a copy of a stocktake that had been taken. MMG also queried the number of customers in the public house that evening and who was drinking certain beverages. MMG again asked had he again to confess before telling him to go home and think about it. The claimant was informed he was suspended and was not to enter the premises. A letter of suspension was sent to him two days later.
On the 6th May 2013 the claimant attended a second meeting with MMG having being requested to do so by telephone. The claimant met MMG outside the premises and they entered together. MMG again asked had he anything to say and told him he was disappointed he, the claimant, had not confessed. MMG read from a letter dated the same day informing him he was dismissed.
The claimant said he was shocked. He gave evidence of loss.
On cross-examination he stated that he had not been the only person with keys to the premises, MMG had a set and his son – M. M had lost his keys in the past and had borrowed his set. When asked, he said that he had opened and closed up on the night in question and had been the only person working in the bar that night but said M had been present on the premises for a time that evening. When asked by the Tribunal he said that he had not been informed prior to the first meeting what its content was how serious it was or that it could have serious disciplinary consequences.
Determination
The test in theft cases is; was the investigation into the alleged theft fair and did it lead to a reasonable belief by the employer that the employee was responsible for the theft. On both parts of the test the Tribunal find in favour of the respondent.
The respondent demonstrated that stock was missing on the night of the 15th of April 2013. That the claimant had sole responsibility for the bar that night and yet he was unable to provide any explanation as to why the stock was missing either at the meetings or at the Tribunal hearing.
The Tribunal have carefully considered the sworn evidence and submissions adduced by both parties in this matter. The Tribunal accept the respondent’s procedures were deficit but taking all matters into account these procedures were not sufficiently unfair to undermine the fairness of the decision to dismiss.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)