EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD639/2015
APPEAL(S) OF:
Aisling O'Brien
against the recommendation of the Rights Commissioner in the case of:
Gresham Hotel Group Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. O. Madden BL
Members: Mr. D. Peakin
Mr. M. O'Reilly
heard this appeal in Dublin on 12 May 2016 and 7-8 December 2016
Representation:
_______________
Appellant(s):
Mr. Hugh Hegarty for Mr Paul Henry S.I.P.T.U., Liberty Hall, Eden Quay, Dublin 1
Respondent(s):
Mr. Michael McGrath, I.B.E.C., Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The appellant was a hotel employee and had been working for the respondent as a Food and Beverage assistant from 2003 to 2014, when she was ultimately dismissed for gross misconduct. The incident in question occurred on the 5th July 2014 when the appellant allowed a party of 6, which included an old colleague and friend of the appellants, to leave the hotel without paying for their drinks. The respondent did not, as a policy, give credit to guests. The appellant initially thought that the issue was not asking her manager for permission to allow the party to leave without payment, assuming they would return the next day to pay, however the respondent argued that it did not allow credit to guests under any circumstances and that this was very clear from their training and cash handling procedures.
According to the evidence of JH, the proper procedure when processing a drinks order was to write it down, input it into the MICROS system, serve the drinks and a take payment. A customer could either pay for it by cash or card or put it on their room bill for which the hotel already had credit card details at check in. Ultimately, payment had to be taken once a customer was ready to close out their bill. JH was working in the bar that evening. He observed the appellant talking to a table of people for about 20 minutes in an area that she had not been assigned to. He also observed her making the cocktails for the table, but he said she did not take payment before the guests left. He checked the MICROS system and there was no record of the bill having been paid. The appellant did not discuss this with him at any stage before the end of her shift. JH said he told GF, the Food and Beverage manager, about this incident the next day.
GF gave evidence that the procedure for payment in the hotel bar was that payment was always taken at the end once the customers had finished and were ready to leave. Once the customer asked for the bill, it is generated from the MICROS system. He stated that proper cash handling procedures were raised at monthly staff meetings and as the bar in question can be prone to walks out by customers, it was an issue staff were very aware of. GF conducted the investigation upon hearing that the appellant allowed customers to leave without payment. He noted that the appellant had gone home sick the next day after the incident and he ultimately invited her to a investigative meeting by letter dated the 21st July 2014 wherein he also placed the appellant on suspension with full pay. GF met with the appellant on the 22nd July 2014. GF explained at the outset of the meeting that the meeting was concerning the non-payment of drinks served by the appellant on the 5th July 2014. He provided a copy of the respondent’s disciplinary procedures to the appellant. The appellant explained that she knew one of the guests and that as there was a problem with this person’s credit card, she told her she could return the next day to pay the bill. She also admitted to GF that she had not asked another member of the party if they could pay the bill. She explained that she called the hotel the next day, the 6th July 2014 and spoke to a colleague who processed the payment for her. A further meeting was held on the 24th July 2014 and GF primary concern was to address the appellants previous statement that non-payment of food and/or drink had occurred before, albeit not very often. The appellant could only remember one such incident of this and she said the manager at the time had approved it. The appellant did not ask for her managers permission on this occasion as she was in rush to leave at the end of her shift and the next day, her bad back meant she went home early. At the end of the investigation GF decided that the matter should be passed on to HR to be dealt with by way of a disciplinary meeting.
SC gave evidence that she wrote to the appellant on the 25th July 2014 inviting her to a disciplinary meeting on the 28th July 2014. SC was quite certain there were procedures in place for dealing with customers who could not pay. She was satisfied that the appellant had been fully aware of this. SC met with each department on a regular basis and in particular she remembers that at a meeting in December 2013, cash handling procedures were discussed. There was no discretion when allowing a customer to leave without paying, staff were told regularly that they would have to consult with their manager when such scenarios arose. Furthermore, it was very rare that a customer was not in a position to pay a bill.
The appellant told SC that there had been a problem with the customer’s credit card PIN number. She did not want to embarrass her friend if the card did not work and if payment was declined. She told the friend/customer not to put the pin in for a third time as it might block the card. From the respondents point of view, it looked like the appellant was refusing payment. It was also noted by SC that the appellant, on this particular evening, had moved from the area where she was serving to the area of the bar where her friend and her party were sitting to serve her. In response to this, the appellant said this was because her friend alerted her to the fact that no one had come to serve them. It was a huge concern that the potential embarrassment of the appellants friend was put before the commercial interest of the respondent hotel. The appellant did not seek payment from the other five guests nor did she speak to her manager about how best to proceed with the transaction.
At the meeting of the 6th August 2014 the appellant did acknowledge attending (team) meetings and getting cash procedure documentation. She did not think she was in breach of any cash handling procedures as she had on rare occasions in the past allowed customers to leave without paying, so long as she consulted with her manager.
By letter dated the 6th August 2014 SC decided to dismiss the appellant. She felt that trust and confidence in the employment relationship had been breached as a result of the appellants actions on the 5th July 2014. Asked about alternatives to dismissal, SC replied that the respondent was a cash business and that in the circumstances, they could not trust the appellant going forward. The Appellant did not make any effort to get payment from the customer or a member of her party and there was no record of the drinks on the MICROS system which was deeply concerning to the respondent. Under cross examination SC confirmed that the cash handling procedures were not discussed with the Union and that they were drafted solely by the respondent. SC also confirmed that the cash handling procedures operative at the time of this incident were the same as the once provided to the appellant in 2013. SC disagreed with the allegation that a page containing instructions about not allowing credit to customers was added in to the cash handling procedures after 2013.
SC accepted that she had not advised the appellant she faced the risk of dismissal if there was a finding of gross misconduct. But as she was on paid suspension, SC was of the view that she had to have some notion that she was at risk. SC also noted that she read through the specific section of the handbook with the appellant regarding gross misconduct
SC is satisfied that the appellant had copies of all handbooks and cash procedures. SC did give a second copy. She did not ask GF if all notes were signed and agreed.
An issue arose regarding the CCTV footage, SC said that she had viewed it and that she thought the appellant had also seen it, however at this stage in the process, it appears the appellant had not viewed it. SC did say however that she did not rely on anything she saw in the CCTV when ultimately making her decision.
In re-examination, SC said as far as she was aware all the documentation had been presented to the appellant throughout the process
Giving sworn testimony, RR, who heard the appeal said that he was the general manager of a sister Hotel of the respondent in Cork. Credit was not extended to anyone without permission in his hotel either.
The appeal took place on the 29th August 2014. RR explained the process to the appellant. In his experience, staff always received a copy of the cash handling procedures from the respondent and he was satisfied from the documentation he had been furnished with, that the appellant had signed her copy of the cash handling procedures and therefore should have been aware that credit was not permitted by the respondent. He noted that the letter inviting the appellant to the investigation stated that the purpose was to investigate “service of beverages with no record of a payment” He also asked her if she knew what the previous meetings with GF and SC had been about and the appellant said she did. Regarding CCTV, RR had asked if the appellant’s Union Representative had seen it. They indicated that they had not, as far as the respondent was concerned, the only issue that arose with the CCTV was the length of time she spent speaking with the customer and her party. From what RR could tell, the process had been fair and reasonable.
RR noted that the appellant had said she had called in the following day regarding payment and that she had forgotten to deal with it earlier that day during her shift as she left early due to a sore back. He was of the view that trust may not have been an issue for the respondent had the appellant raised the issue much sooner by either telling her manager or processing the payment before she finished her shift on the evening in question.
No other employees were interviewed during the appeal process, in particular there was a request from the Union representative that the staff member who took the payment from the appellant the next day should have been interviewed. RR found no evidence that there had been an alteration to the cash handling procedures. It had been suggested during the appeal hearing that the appellant was singled out due to the fact that she was on a higher rate of pay than other staff doing the same job. RR did not find any evidence of this. The outcome off the appeal was issued by letter dated the 7th November 2014 upholding the original decision to dismiss the appellant. The outcome of the appeal sets out each point raised by the Union on behalf of the appellant and is dealt with accordingly by RR.
APPELLANTS CASE
Giving sworn testimony, LH said that he had worked for the respondent from December 1989 to July 2013. He had been a manager overseeing day-to-day running of the bar. He gave evidence to the effect that he had drafted cash handling procedures in 2011 which did not include specifically state credit could not be offered to customers.
LH told the Tribunal that on rare occasion’s credit had been given to customers but accepted that it was not common. He disagreed that employees had to get prior managerial approval.
Under cross-examination, LH accepted that orders had to go on the till and that the appellant had been in breach of procedure after it had transpired that a customer had not had the money to pay. LH said that staff would always try to get payment. In re-examination, LH said that it was regular not to put orders through MICROS immediately after taking the order and that this could be processed after the drinks were served.
Giving sworn testimony, DC (a trade union official) said that the case had been assigned to her after the appellant was suspended. She was only advised of the appellants case the day before the investigation meeting and therefore asked for a postponement which was granted.
DC was unclear as to what specific procedures the appellant had breached. In particular when the issue of cash handling procedures arose, the Union believed that they had been altered. It was contended that the appellant had not been given a chance to dispute this. DC alleged that information had not been made available early enough.
Under cross-examination, DC argued that the respondent did not advise the appellant of the seriousness of the matter and that LH’s evidence had indicated that there had been a change in the cash handling procedure. Only by the end of the appeal did the appellant know the allegation against her.
Giving sworn testimony, the appellant said that she had over eleven years’ service with the respondent
Regarding the incident on the 5th July 2014, the appellant said that she tried to get a window table for the group, the appellant know one of the group from a previous job when they had been friends. The appellant met with the friend and her party and then returned to her work area after they were seated. After a short time, her friend approached her and asked if she could arrange for someone to take their order as they had been waiting a while. The appellant proceeded to take the order herself and went to the bar to help the bar man to make the drinks. She admits that she had not, at this stage, put the order through the MICROS system. When she served the drinks to the table, she stayed to chat to her friend. She said her friend expressed concerns about using her credit card as earlier that day the PIN number she was using appeared to be incorrect. The appellant said if she used it again, it could get blocked and perhaps she should not use it. The appellant told her friend she could pay the next day as the appellant would be working. She accepts that no attempt was made to ask another member of the party for payment. She gave evidence that she knew the lady well and that she could be trusted to return with payment. At approximately 8pm the appellant finished her shift, sorted her tips and left the hotel. She gave evidence that she forgot to say it to her manager before finishing her shift. The next day, when she arrived in work for her shift, she was suffering very badly from back pain and asked her manager if she could leave early. He asked her to wait until another colleague came in to help, which she did. Having left her shift early to go to the Doctor, the appellant received a call from the friend from the night before telling her she was coming into pay. The appellant gave evidence that she had forgotten about this and therefore had not mentioned it to her manager that morning before leaving to go to the Doctor. She told the friend that she would call the Hotel and make the payment. The appellant called the hotel immediately after this conversation and made the payment herself for the drinks. The appellant gave evidence that the only procedure she thought she had breached was not asking her manager for permission to give credit to her friend on the night of the 5th July 2014. She has previously experienced situations where regular customers were extended credit, although she admitted this was not very common. She gave evidence that the cash handling procedures she signed did not match the procedures being relied upon by the respondent. She also stated that she did not realise until before the meeting on the 30th July that she risked losing her job, that is when she decided to go to the Union for advice.
Under cross-examination, the appellant admitted having received a handbook and that proper cash handling procedures had been a major part of her role. The appellant also admitted that it had been her job to place all orders on the MICROS system and that she had received regular training in cash procedures. The appellant also stated that she had not entered her friend’s drinks order into the MICROS system as she knew that payment could not be made that night and it would therefore have to be voided.
It was put to the appellant that a colleague had been invited to a disciplinary meeting concerning a similar incident and that this was the reason she called in to pay for the drinks the next day. The appellant replied that she knew nothing about this.
Determination:
The Tribunal are of the view that the appellant was wrong in allowing a customer to leave the premises of the hotel without payment. Notwithstanding what the cash handling procedures say, the respondent is a cash business and therefore must operate on a level of trust with its staff in that regard. The Tribunal were also not satisfied with many of the explanations given by the appellant as to why payment was not received and why the order was not placed on the MICROS system. The Tribunal does also have to consider whether or not the respondent adopted fair procedures in ultimately making the decision to dismiss.
While the Tribunal acknowledges that the appellant committed a breach of the respondent’s procedures, it is also accepts that she did not understand the severity or true nature of the breach. There appears to have been a lack of clarity on the part of the respondent about what procedure the appellant had in fact breached. While it is accepted that the respondent has cash handling procedures in place, the appellant too gave evidence, as corroborated by a former manager that credit had been allowed, albeit not often, in the past. The issue of obtaining permission from a manger when the issue of credit arose appears to have been an issue for the respondent also and the Tribunal can understand how the appellant may have thought not obtaining permission on this occasion was in fact her mistake. On balance, the Tribunal was not satisfied that the appellant was sufficiently warned of all the risks to her job throughout process and the conduct of the appeal process was not to the Tribunal’s satisfaction. In particular, the Tribunal were of the opinion that a decision had been arrived by the appeals officer prior to hearing all the appeal.
Allowing the appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-151815-ud-14/EH the Tribunal deems it just and equitable in all the circumstances to award the appellant compensation in the sum of €7,000.00 (seven thousand euro) in addition to the six weeks’ gross pay awarded in a separate minimum notice claim (MN824.2014).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)