UD717/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD717/2015

CLAIM(S) OF:                                                                                              

Justin Doyle    -claimant

against

Viking Hotel (Waterford) Limited T/A Viking Hotel            -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. D. Donovan B.L.

Members:     Mr. J. Hennessy

                     Mr. F. Dorgan

heard this claim at Waterford on 2nd June 2016 and 18th October 2016

Representation:

Claimant:         Ms. Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    MM Halley & Son, Solicitors, "Presentation House", Slievekeale Road, Waterford

Summary of evidence:

The general manager (GM) gave evidence of taking up the role in the respondent hotel in June 2014. He wanted to have a good relationship with the claimant, who was the assistant manager, so he took quite a relaxed approach at the start.

In July 2014 GM requested a change in a few security procedures with regards to the locking away of cash and the secure removal of safe keys but he never followed up on the request as he was taking a ’softly, softly’ approach to his new role. In September there was an incident where €500 disappeared. The resultant investigation proved fruitless. GM made sure the new procedures were implemented.

On 6th and 7^th December a large sum of money was left out of the bar safe overnight. The incident worried GM as things were ‘very loose’ .He asked the claimant as to why he had not reported the incident to him. The claimant believed it was not important as the situation had been resolved and all the money had been accounted for. After performing an investigation GM arranged a meeting with the claimant and finally agreed on 31^st December as the date. The claimant accepted full responsibility. He had been working extra hours and was exhausted. GM informed him that this incident could lead to his dismissal and at the very least a final warning.

At the meeting GM also brought up an issue with the rostering system. There had been discrepancies between the hours staff were rostered to work and the actual hours they were clocked in on system to work. The system was directly linked to wages and if ‘manipulated’ could pay staff more than they were rostered for. The system showed that the claimant had been working more hours than he was rostered for.GM, the company accountant and the claimant were the three people who had ‘override authorisation’ of the clocking system. The claimant had also been telling staff not to clock out. GM pointed out that this was ‘fraudulent’. He wanted to do it ‘by the book’ and make the system correspond with the agreed rosters. It was as much as a duty of care to the claimant as well as the hotel. There was a third issue with the claimant not adhering to the hotel’s agreed purchasing procedures.

On 7^th January GM issued the claimant with a final warning letter. It was not solely for the cash incident but more for the claimant’s performance in general.

The issue with the rostering system persisted. At the end of February GM was going on holiday for four days so had a chat with the claimant and also emailed him about adhering to company procedures and sticking to the agreed roster. When GM returned there had been a few issues with regards to the procedures and practices of the hotel. On 4^th March GM called the claimant into his office. The claimant was due to go on holiday. GM asked the claimant if he wanted a representative but he declined. GM said ‘I’m letting you go’ and told the claimant he could appeal the decision to a respondent company Director. That was the last physical communication GM had with the claimant.

In cross examination GM denied that he forced the claimant to attend the meeting on 31^st December or that the latter was unaware of the allegations that were to be put to him. While he accepted that the claimant was tired on the 6^th and 7^th December, GM believed there was a ‘no requirement’ for the claimant to have worked a total of 27 hours over those two days. This was the very reason GM wanted the claimant to work the agreed hours.

With regard to the claimant deviating from the agreed roster in February, GM was unaware that the reason was due to three members of staff calling in sick. He accepted that the claimant received no written notice before the dismissal meeting on the 4^th March but insisted he advised the claimant to bring a representative. He also accepted he had no letter of dismissal to furnish to the claimant at the meeting.

On the second day of hearing the Tribunal heard evidence from a director of the company. He outlined that the Board of Directors met regularly to discuss the usual matters associated with operating a hotel. The General Manager was in situ on a day to day basis but he was in contact with the directors in addition to meeting them regularly about all matters that arose including disciplinary matters.

The director stated that from the time the claimant commenced his employment in September 2013 issues continually arose about the rosters and his use of the clocking system. The importance of the clocking system was emphasised to the claimant and indeed to all staff up to and including the General Manager. It was also contained within the contract of employment. All the staff with the exception of the General Manager were required to use the clocking system. The General Manager reported his hours by email on a weekly basis to the Board of Directors.

As an Assistant General Manager the claimant assisted the General Manager with the day-to-day running of the hotel. The hotel was mainly frequented by business guests and did not hold many functions. The directors stated that the turnover in the bar was similar to that of a rural public house.

It was the director’s evidence that the General Manager was responsible for rostering staff and he was the only person with the authority to make amendments to the rosters. The wages clerk printed reports based on the employees' clockings and the wages were calculated accordingly. Therefore there was a responsibility on the employees to indicate their start and finish times as much as there was an obligation on the respondent to record their working hours. If the clocking procedure was repeatedly ignored by an employee it became a significant issue. Wages were the largest cost to the business and continuous breaches of the clocking system had to be addressed. In addition the Board of Directors was concerned that they would not have an accurate account of who was on the premises in the event of a fire.

A spreadsheet document was opened to the Tribunal which outlined the clockings missed by the claimant. From the time the claimant was set up on the fingerprint system he missed a number of clockings and the importance of maintaining the clockings was brought to his attention at that time. Following from this he did not miss any clockings for a 14 week period. However, by the end of 2014 he had missed around ten clockings.

In reply to questions from the Tribunal, the director confirmed that the matter was not addressed in writing to the claimant. However, the director was aware that the General Manager had raised the matter with the claimant on a number of occasions and the director himself had raised the matter with the claimant. The claimant was the only employee who consistently missed clockings on the system. Following the disciplinary investigation meeting on the 31^st December 2014 concerning the incident that occurred on the 6^th December 2014 the claimant was issued with the final written warning.

It was put to the director during cross-examination that the mistake made by the claimant on the 6^th December 2014 arose due to pure fatigue. The director replied that the claimant was given split shifts with breaks in between but he overwrote them on the roster and continued to work through. He refuted that it was often too busy for the claimant to take the break between split shifts. The claimant continued to stay on duty when there was no need as evidenced from the turnover reports. It was put to the director that the claimant was responding to the needs of the business by staying on duty but the director replied that while the claimant may have disagreed with the rostered hours the General Manager remained in charge of them and the claimant did not seek approval from the General Manager for the extra hours he worked.

The final written warning dated the 7^th January 2015 addressed a number of issues with the claimant’s performance including his fraudulent use of the time point system and recording of rosters. In reply to questions from the Tribunal the director explained that this related to when the claimant instructed staff not to clock and that he would enter the time instead. The director accepted that the claimant had reasons for this course of action.

The Board of Directors were aware that the final written warning was issuing to the claimant and that the claimant had accepted it without appealing it. It was the director’s evidence that the Board was aware of the disciplinary meeting and that a serious view was taken of the final written warning in the context of any further breaches. The matter was discussed at the Board meeting on the 11^th February 2015 and the General Manager was instructed as to where the Board stood on the matter and that he was to “deal” with the matter if the issue arose again. At the time of that Board meeting the claimant was adhering to the clocking system and had done so for the three weeks following receipt of the final written warning. From this it could be concluded that the claimant understood the significance of clocking.

However, the claimant then lapsed into not clocking once again. Prior to commencing annual leave in the latter part of February 2015 the General Manager gave a specific instruction to the claimant to adhere to the rosters.

The General Manager was the only person with the authority to alter the roster but the roster was changed by the claimant on a continuous basis without the consent of the General Manager. The claimant may have made this change for convenience in the director’s opinion as often the roster was changed to avoid a split shift. The claimant also regularly worked a late shift followed by an early shift and would stay overnight at the hotel rather than travel the distance to his home. The changes to the rosters were affecting the budget. In addition the claimant also altered his start time which had been determined by the General Manager in line with staffing requirements.

Following the claimant’s dismissal on the 4^th March 2015 for breach of hotel policy and procedure, wilful disregard of reasonable instruction and repeated requests from a senior manager and the violation of roster attendance and time point records, the director received a letter from the claimant dated 6^th March 2015 which raised a number of issues including an allegation of bullying. It was put to the director that he had not investigated this allegation.

The director was unclear from the claimant’s letter whether or not he wished to appeal the decision to dismiss him and he queried this with the claimant by letter dated 24^th March 2015 outlining that he was available to hear an appeal if the claimant wished. The director stated that he did not receive the email opened to the Tribunal (dated 2^nd April 2015) in which the claimant confirmed he wished to appeal the decision to dismiss. During cross-examination it was put to the director that he was not an impartial person to conduct the appeal as he was aware of matters leading up to the dismissal. The director replied that the respondent was a small company and he would have heard the appeal.

It was put to the director in cross-examination that the company’s disciplinary procedures were not adhered to in that the claimant was not given the details of the allegations against him in advance of the disciplinary meeting, nor given the opportunity to be represented at the disciplinary meeting and was not provided with the reasons for his dismissal in the meeting. The director stated that he did not consider the meeting held with the claimant on the 4^th March 2015 to be an investigation or a disciplinary meeting but rather a meeting concerning a further breach of the final written warning issued on the 7^th January 2015. He also stated that the General Manager had written an email to the claimant on the 3^rd March 2015 regarding the fact that the claimant had not worked in accordance with the roster provided to him, that he had altered the record of his roster manually despite being instructed that he was not to deviate from the roster during the General Manager’s annual leave and that he had previously been advised that this was a very serious matter.

The claimant was not replaced in his position. A property receiver was later appointed and a transfer of undertakings subsequently took place and all staff transferred with the exception of two staff members.

During cross-examination the director confirmed that the General Manager’s position was vacant from March to July 2014 and that during that time the claimant compiled the rosters and reported to the director on a weekly basis. It was put to the director that there was a considerable amount of variance with the claimant’s clockings during that time but that the claimant was not issued with any disciplinary sanctions at that time. This was accepted by the director. It was put to the director that the claimant sometimes worked in excess of 60 hours per week and that during the period when there was no General Manager in place there were no issues raised with the claimant about this but this was disputed by the director who stated that he had discussions with the claimant during that time.

In reply to questions from the Tribunal the director confirmed that when there was no General Manager in situ the claimant had reported to the director on certain matters including rosters. The director confirmed that some of the missed clockings listed on the spreadsheet related to the period when there was no General Manager in place. However, the director stated that while the claimant did taken on some extra responsibility at that time, he did not step into the role of General Manager.

At the conclusion of the Respondent’s case the Tribunal determined that the Respondent, who bore the burden of proof, had not discharged its burden for the reasons set out hereunder.   Accordingly, the Tribunal heard evidence from the claimant only on mitigation of losses. The claimant was cross-examined on his losses.

Determination

Having considered the evidence adduced at the hearing the Tribunal finds as follows:-

1. The respondent was entitled to be concerned for various reasons as to whether staff were present in the building or not and therefore it was essential that staff clocked in and out on the clocking system.   However, at the time the claimant was dismissed he had improved his clocking record significantly.

2. The Tribunal is satisfied that the threat of dismissal or the imposition of a sanction lesser than dismissal would have been sufficient inducement to ensure the claimant maintained a satisfactory clocking record.

3. The Tribunal is satisfied that the extra hours worked by the claimant were done solely with the best interests of the hotel in mind. Whereas the Tribunal does accept that the Respondent was entitled to be concerned about the extra time worked and that in the normal course of events overtime required approval, the better approach in the particular circumstances of the within case would have been to investigate the need for the extra hours rather than treat it as a disciplinary matter. The Tribunal also notes that for some of the time the claimant was acting as general manager and as such had at least implied authority to approve extra work hours.

4. The Tribunal accepts that the respondent was entitled to investigate and discipline the claimant regarding the incidents adduced in evidence but accepts that these incidents occurred as a result of the pressure the claimant was under in his job rather than a disregard for procedures.

5. There was a complete lack of procedures, fair or otherwise, in effecting the dismissal.   A summary dismissal does not mean a dismissal without the need to follow fair procedures; it means a dismissal, following fair procedures, without notice.  

6. Where an employer does not have a disciplinary procedure the procedure set out in Statutory Instrument 146/2000 is the default procedure and where an employer does have a disciplinary procedure it should be of a standard as set out in SI 146.

7. A respondent cannot contract out of the need for fair procedures in effecting a dismissal and if the claimant’s contract of employment included a term providing for a dismissal without procedures that term of the contract of employment is null and void.

8. The Tribunal finds that the claimant who secured alternative employment within six months adequately mitigated his losses.

For the foregoing reasons the Tribunal finds that the claimant was unfairly dismissed and his claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant an amount of €10,666.68 as compensation for unfair dismissal.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)