EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Hakan Oney UD543/14
- claimant
Against
Persian Properties T/A O'Callaghan Hotels
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr G. Mc Auliffe
Mr J. Flannery
heard this claim at Dublin on 15th July 2015 and 21st September 2015.
Representation:
Claimant: In Person
Respondent: Ms Catriona Forsyth, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
Respondent’s Case
The claimant was employed as a duty manager by the respondent hotel and had responsibility for both the bar float and safe float. He commenced employment in July 2011. On 1 and 2 February 2014 a cash integrity audit was carried out by RM, who owns a security company, on behalf of the respondent. The claimant was on duty on both 1 and 2 February. This report highlighted a number of alleged incidents which constituted an alleged breach of the cash handling policy, void procedure and an allegation of theft.
The Tribunal heard evidence from P, a HR and payroll executive, that he was appointed to carry out an investigation into the alleged incidents highlighted in RM’s report. As part of the investigation he interviewed the claimant on 6 February 2014. The claimant had a witness present with him at the meeting and he was suspended on full pay pending the outcome of the investigation.
P gave evidence that he investigated a total of seven allegations made against the claimant relating to entering no-sale transactions, cancelling transactions, non-compliance with company cash handling procedures, non-compliance with void procedures and theft of money. Following the conclusion of his investigation P upheld six of the allegations made against the claimant. He dismissed one allegation, namely ‘not charging for a beverage’ as the claimant had stated during the course of the investigation that the beverage was hot water and not tea. He told the Tribunal that the claimant provided no evidence during the investigation to contradict the other allegations outlined in RM’s report and therefore he upheld six of the allegations. He recommended that a disciplinary hearing was warranted and he had no further involvement in the matter.
RM gave evidence. He carries out cash integrity audits in Ireland, the UK and Europe. He owns a security company. He was asked by the respondent to carry out a routine cash integrity audit which involves observations of staff, room service and cash handling.
On the evening of 1 February 2014 he sat and ordered beverages at the bar in the hotel and made observations. The claimant was working in the bar at this time. The claimant served RM during the course of the evening. During the course of several till transactions he observed the claimant entering a ‘no sale’ transaction that opened the cash drawer but no receipt was printed or offered. He also observed the claimant placing a customer’s payment in the cash drawer and then cancelling the transaction. When he enquired from the claimant about the price for breakfast the next morning the claimant told him that it was €12.50 for a full Irish breakfast but that if RM went to reception in the morning it would be €10.00. When he handed the claimant €10.00 for breakfast the next day he was not offered a receipt.
DM is Group General Manager. By letter dated 21st February 2014 DM invited the claimant to a disciplinary hearing on 24th February 2014. DM went through the investigation report and discussed RM’s report with him in advance of the hearing. The claimant was advised that the outcome of the disciplinary hearing could result in disciplinary action, up to and including dismissal being taken against him in accordance with the company’s disciplinary procedures. The claimant attended that meeting with a witness. DM went through each allegation with the claimant. He asked the claimant for explanations. The claimant said there were issues with the micros system on the evening in question and the till kept freezing but DM said there was no evidence that the till had frozen that night. The claimant also said that RM had been lying in his report. At the conclusion of the hearing the claimant offered to resign.
DM considered all the evidence and was satisfied that the allegations made against the claimant were well founded and that his actions amounted to gross misconduct.
By letter dated 25th February 2014 the claimant’s employment was terminated. There had been a complete breakdown in trust and confidence in the claimant. The claimant was offered a right of appeal.
The claimant appealed the decision to dismiss him. BOC conducted the claimant’s appeal hearing. A witness accompanied the claimant to the hearing. There had been no CCTV coverage in the bar but there was coverage in the reception area on the evening in question and this was made available to the claimant in advance of the hearing. The claimant said that he had emailed the General Manager and the Operations Manager several times about the issue of some staff not being in receipt of micros cards but had not received any response to these. The claimant also said that other staff were using his micros card.
BOC considered all the points raised by the claimant. He did not believe anything had been overlooked. He believed fair procedures had been afforded to the claimant and that the claimant had been trained in cash handling. However, he was satisfied that the claimant’s actions amounted to gross misconduct and upheld the decision to dismiss him.
Claimant’s Case:
The claimant gave evidence. He was employed as a Duty Manager and commenced employment on 22nd July 2011. Two staff reported to him. Part of his role entailed keeping an account of the float whilst on duty and counting the float at the beginning and the end of his shift. He was working behind the bar on the evening of 1st February 2014. He had a vague recollection of RM’s presence in the bar that night. However, when the various allegations as cited in RM’s report were put to the claimant he denied any wrongdoing and went as far as to suggest that RM may have lied or could not properly see how the claimant was handling money at the till. He recalled RM making reference to the poor internet signal in the hotel and admitted giving him a complimentary box of pringles but denied he gave two. In some of the alleged incidents in question in RM’s report he could not recall if he had issued receipts in some cases or entering a ‘no sale’ transaction at other times. He only remembered cancelling two transactions. He was aware that both change and a receipt had to be furnished after a purchase was made in the bar.
At times he had to give his own micros card to staff working in the hotel and had emailed management about this several times. He argued that it was the respondent’s own poor procedures that caused inaccuracies in the float. Regarding the allegation by the respondent that the claimant offered RM his breakfast the next morning at a discounted rate of (€10.00), the claimant maintained that he provided an explanation that accounted for the whereabouts of the €10.00.
The claimant felt he had been unfairly dismissed. He got on well with everybody and was a respected member of staff.
Since the termination of his employment the claimant has been in receipt of job seeker’s allowance. He applied for numerous jobs but has been unsuccessful in obtaining alternative employment.
Determination:
Having regard to all the evidence throughout the course of this two day hearing, in particular the expert evidence of RM, the Tribunal is satisfied that the claimant was systematically in breach of the respondent’s cash handling procedures on the night of 1st February 2014. It is noted, however, by the Tribunal that there were weaknesses in elements of the respondent’s
application of their own cash handling procedures but on balance the Tribunal is satisfied that the dismissal was fair and in those circumstances the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)