ADJ-00004811

 Parties

Complainant

Respondent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00006824-001

06/09/2016

The complainant is employed as a bar manager by the respondent and has been employed since October 1997. The dispute concerns the imposition of a final written warning in respect of issues which occurred on the 7^th and 8^th of May 2016. The parties made written and oral submission to the hearing.

The complainant submits that the sanction of final written warning imposed upon him following the events of 7^th and 8^th of May 2016 was disproportionate, procedurally flawed and excessive and that he seeks a recommendation to have the same expunged from the record. His work schedule on the days in question was from 10am-3pm, 5-9pm on the 7^th inst. and from midnight to 3.30am on the morning of the 8^th inst. He was given free cases of beer for himself and colleagues by way of appreciation from a person whom he assumed to be from the customer (not the supplier to the respondent) but whom it later transpired was from the supplier. Subsequent to an investigation and disciplinary process he was issued with a final written warning arising from allegations of drinking alcohol while on duty, allowing staff to drink on duty, consuming chocolate and drinks without payment and accepting gifts from suppliers contrary to the disciplinary and grievance procedure. His position was that he had consumed a small amount of cider before realising that he was still on duty and that it was common practice for staff to have a drink when they had finished work and when customers had left, that he had instructed staff to clock out prior to having a drink which was also common practice, that he did not remember whether or not he had paid for the chocolate and drinks but that it was his common practice to do so and finally that he was unaware that the individual who proffered the gift of beer in gratitude was a representative of the supplier rather than the customer. It is asserted that the respondent failed to provide proper notice of the first investigation meeting and flies in the face of the respondents own procedure which provides that provides for choice of accompaniment and entitlement to full details of the allegations. The respondent’s assertion that no allegations were made at the meeting ring hollow in that the investigator had conducted a pre-investigation in respect of the CCTV footage and was in a position at the meeting to question the complainant with regard to the specific details and that he was in possession of specific terms of reference which were never shared. The position of the investigator who was fully prepared for the meeting was in stark contrast to that of the complainant as a result of the failure by the respondent to supply details of the allegations in advance and he was therefore placed at a disadvantage procedurally. No investigation report issued on foot of the two investigation meetings. The respondent contends that the minutes of the meetings were in effect the report. The complainant contends that he was disadvantages as a result of this omission having embarked on a two tier process. The omission is particularly significant where the complainant has not totally denied the allegations but has provided explanation by way of context and custom and practice.

The respondent submits that arising from a number of minor complaints a review of CCTV footage was undertaken pursuant to an event which took place on 7^th and 8^th of May 2016. The footage showed a number of employees consuming alcohol during the event and the fact that boxes of alcohol were removed from the premises. The complainant was invited to an investigation meeting on the 1^st of July at which he admitted giving cases of beer to staff and giving staff drinks for free. At a second meeting two days later he confirmed that he had been drinking from the free stock provided by the sponsor for the event and that he gave staff permission to remove some of the stock after the event. He admitted that he told staff to clock out and have a drink as it was a long event and confirmed that staff had consumed snacks without paying. He was unable to confirm whether or not he had paid for stock which he had consumed himself. He did not see anything wrong with his actions in the circumstances. He was invited to a disciplinary hearing thereafter and confirmed all of the above. Additionally he stated that it was common practice for staff to consume alcohol on the premises after work. He admitted that it was explicitly forbidden in the Employee Handbook to accept gifts of product from a supplier. Having carefully considered the matter and in particular his long and unblemished record it was decided to issue a final written warning for gross misconduct. The matter was subject of an appeal in line with the policy but it was unsuccessful.