UD1735/2014, MN840/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NOS.

James Boyle – claimant                                                                                  UD1735/2014

                                                                                                                        MN840/2014

against

Portalon Limited t/a Wagamama – respondent

Portalon Limited T/A Wagamama

Under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr. L. Tobin

                   Mr J. Flannery

heard this claim at Dublin on 25th January 2016 and 7th April 2016

Representation:

Claimant:             Mr Dominic Wilkinson BL instructed by Kevin Tunney, Solicitors,

                             Millennium House, Main Street, Tallaght, Dublin 24

Respondent:       Mr Andrew Turner, Hamilton Turner, Solicitors, 66 Dame Street, Dublin 2

The determination of the Tribunal was as follows:-

Determination

The Tribunal has carefully considered the evidence adduced over the course of two days hearing. The claimant challenges the fairness of his dismissal which occurred on or about the 8^th of August 2014. The claimant had been engaged as a restaurant waiter in the respondent’s city centre premises and had been working there for a year and a half. The claimant was a good and popular employee and there seems to have been a culture of going out and socialising amongst the respondent workforce. Mr McD giving evidence on behalf of the respondent company described the team as ‘very close’,

To his credit, the claimant has accepted that he had sent a Snapchat to some of his friends and work colleagues on the evening of the 6^th of August 2014. The 25 second footage showed the claimant taking cocaine in a bathroom and wearing his work t-shirt with the respondent’s logo on it.

There was disagreement on whether the Snapchat was filmed in the bathroom at the workplace or elsewhere.

Mr McD gave evidence that he was told about the content of the Snapchat footage in some detail though he himself had never seen it. Mr McD formed the view that this was footage taken on the premises during a shift showing an employee snorting a ‘Class A drug’.

Mr McD called the claimant to a meeting and accepts that the claimant would not have known what the meeting was going to be about and was not told to have a colleague with him. The meeting took place on the 8^th of August some days after the circulation of the Snapchat.

There is a conflict in relation to the version of evidence tendered by each of the parties. On balance and having regard to the accepted facts and the actual outcome of the meeting, the Tribunal prefers the evidence of Mr McD.

On balance, the Tribunal accepts that Mr McD was very concerned that his employee was taking drugs at all, never mind on the workplace premises wearing the workplace t-shirt. Mr McD called the claimant to a private meeting for the very reason that the claimant had been found out to be taking illegal drugs. The Tribunal accepts fully that the meeting was not conducted in a proper and business-like manner with any regard to normal and fair practices and procedures. However, both parties knew that a significant problem had arisen and that the content of the Snapchat alluded to in the course of their meeting made it impossible for the claimant to continue working in the respondent’s workplace. The Tribunal does not accept that the claimant was in any doubt about the seriousness with which his employer had to treat the Snapchat.

In the meeting, the claimant was advised that he could go down the route of investigation and disciplinary process and lose his job, or simply resign with some dignity and some privacy and a reference. Whilst the Tribunal may not approve of such a choice of action being put to the claimant in the manner it was, the Tribunal accepts that Mr McD’s motivation was based on a premise of protecting the claimant.

The respondent has justified this summary dismissal by reason of the claimant’s gross misconduct and the Tribunal finds that the respondent is justified in relying on its own ‘modified procedures’ in this regard.

In conclusion the Tribunal finds that this was not an unfair dismissal under the Unfair Dismissals Acts 1977 to 2007.

The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 also fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)