ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005941

Complaint(s):

Date of Adjudication Hearing: 17/01/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Location of Hearing: Galway Maldron Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant was employed by the respondent in the period 27^th of April 2009 until the 26^th of June 2015 as a bar tender. He earned €540 and worked 42 hours per week. The parties made oral and written submission to the hearing.

Complaint reference number 00000981-002 made under the Payment of Wages Act, 1991 was settled prior to hearing. The parties agreed to amend the name of the employer as above.

Summary of Complainant’s Case:

The complainant submits that he was unfairly dismissed from his employment pursuant to s. 1 (b) of the Act. He was requested to attend a meeting with the respondent on the 26^th of June 2015 at which it was explained to him that the respondent had engaged the services of a private investigator over the previous two weeks to deal with the fact that the stock take had been down each month on an on-going basis. He responded that it was an on-going issue which predated his employment. He was invited to view CCTV footage where he sold two drinks (€9) and failed to ring it in. He explained that there had been an over ring (€8.90) earlier in the day and in line with common and accepted practice he was rectifying the error. The explanation was not accepted and he was presented with two alternatives that either the matter would be fully investigated or that he could resign immediately. He felt that the matter had already been decided and his reply was that the respondent could “have your investigation but you will see I am innocent, so I’d rather leave now”. The respondent hastily drew up a letter of resignation which the complainant signed. He made no admission of wrongdoing nor was he afforded an opportunity to consider the matter or take appropriate advice. He was not at any stage furnished with a copy of any reports or otherwise on which the respondent relied. He was effectively ambushed with no regard for his rights. The meeting lasted 10 minutes in total.

Summary of Respondent’s Case:

The respondent submits that the complainant resigned his position on the 26^th of June 2015 with immediate effect and that he was advised of his rights prior to resigning. The services of an investigative consultancy were engaged to enquire into a long term stock discrepancy and a report issued on the 25^th of July 2016. The report identified “a number of incidences in the previous weeks whereby the Complainant (and another member of staff) had repeatedly and systematically served drinks to patrons of the bar without registering accurately (or at all) the drinks so served on the cash register.” On the 26^th inst. the investigator attended at the premises and ordered and paid for two drinks at 12.30pm neither of which was registered. CCTV and till scan receipts were viewed by the respondent at the same time and they confirmed that the sale was not registered. The complainant was asked to attend a meeting on the same afternoon. The on-going stock discrepancy problem was outlined to him together with the recent efforts to deal with the matter. He was shown the CCTV footage (still) together with the invoice journal of the sale to the investigator at 12.30pm and was unable to explain it other than to state that it must have been a mistake on his part. He was then shown the report of 25^th inst. and shown the till scan printouts and CCTV footage identifying incidences on the 11^th, 15^th, 16^th and 20^th of June where drinks served were not registered by him on the till. He was unable to explain these incidences. He was advised that in the event that he denied the allegations arising from the report that a formal investigation would ensue and that he would be suspended on full pay pending the outcome. The parameters of such investigation were outlined to him including his right to full disclosure, representation, appeal in the event of adverse finding against him and his right to be accompanied at all stages. The complainant stated that he would take the option to resign, if available and the respondent agreed. The letter of resignation was drawn up by the respondent and duly signed. No ultimatum was given and he resigned of his own free will.

Findings and Conclusions:

The material facts are more or less agreed in this case. The parties diverge concerning the impetus for the resignation and much emphasis was placed on this aspect by them. The complainant insists that the respondent introduced the subject having unlawfully put him under severe pressure and the respondent insists that the suggestion was made by the complainant in response to its informal approach to the complainant in the matter in first instance. I am not convinced that this matter turns or is severely weighted on this point. It is a matter of fact that the parties approached and accepted the proposition wherever it emanated from on the day. It was open to the complainant to recant the resignation thereafter within a reasonable period and I note that he wrote to the respondent on the 7^th of July and that he did not do so. He outlined therein the fact that he was getting sick with the stress and thought of coming to work in the last month or so of his employment as a result of various matters. I am of the opinion that this may have impacted his decision to resign on the day.

Whereas the informal approach adopted by the respondent is commendable I am disturbed that it did not provide a cooling off period wherein the complainant should have been given some additional time to consider the matter even if he did request the resignation option.        

That said the question is as to whether that failure one way or another amounts to behaviour so unreasonable as to make it impossible for the complainant to remain in his employment.

The failure to do so in this case does not in my opinion amount to behaviour so unreasonable as to make it impossible for the complainant to remain in his employment in all the circumstances.

On the other hand the complainant’s assertion in submission that he in reply to the alleged ultimatum either resign or be investigated replied “you can have your investigation but you will see I am innocent, so I’d rather leave now” is not a reasonable position to take as it relates to his obligation to so act by virtue of the mirror image concept which demands reasonable response by employees in constructive dismissal cases.

Accordingly I find that the respondent in this case did not breach the provisions s. 1 (b) of the Act as alleged and that no dismissal has taken place.

Decision: 14/06/2017

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint is not well founded.

Dated:   14/06/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes