ADJ-00011243

Complainant

Respondent

Anonymised Parties

A bar worker

A night club

Representatives

self

Michael Hegarty Reddy Charlton Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014948-001

11/10/2017

The Complainant commenced employment with the Respondent on 04/07/2015 as a member of the bar staff. The Respondent operates a night club in Dublin City. The Complainant worked on average 20 hours per week for which he was an average gross weekly wage of €207.00.

The Complainant’s employment ended on 07/09/2017 following a disciplinary investigation.

The Complainant lodged his complaint with the Workplace Relations Commission on 11th October 2017.

At hearing it was accepted that the Complainant, at present, is working in two different part-time positions, both in hotels. He is earning €10.20 per hour in Hotel 1 and works an average of 20 hours per week. I Hotel 2 he works an average of 14 – 15 hours per week for €9.75 per hour.

CURRENT EMPLOYMENT

The Complainant commenced employment with the Respondent on 4th July 2015. His employment ceased on 7th September 2017 following a disciplinary investigation into allegations of misconduct.   The Complainant submitted a complaint to the Workplace Relations Commission on 11th October 2017.

The Complainants average gross weekly wage at the time of his dismissal was €207, his net after tax weekly wage was €194. He worked on a part time basis for the Respondent company.

The Complainant has confirmed that he is currently employed in two separate establishments.   In Hotel 1, he works as a part time Food & Beverage assistant. He has confirmed that he works around 20 hours during college term and in between 30 – 35 hours during the summer and winter months. He is paid €10.20 per hour for this employment, in addition to any tips received.

The Complainant is also currently employed in Hotel 2 as a part time Night Porter. He works around 14 – 15 hours during college term and in between 20 – 22 hours during summer and winter. He is paid €9.75 per hour.

CHRONOLOGY OF EVENTS

The Complainant was employed as a bar man in the Respondent’s nightclub. This is a very busy nightclub in Dublin. The Complainant’s duties include serving drinks, cash handling and using the cash register to record sales of drinks.   Accordingly, it is imperative for the Respondent that an employee who holds that position is trustworthy.

In light of the Complainant’s position and duties it was fundamental that the Respondent had trust and confidence in the Complainant.

The Cash Handling policy in the Respondent organisation is set out at Tab 3 and includes but is not limited to the following:

·         Receipts must always be issued to customers.

·         All sales must go through the till without fail.

Employees are informed of this procedure during their initial induction training. This procedure is accepted practice in the Respondent organisation and is adhered to by all its employees. It applies in particular to the Complainant as his primary duties were to serve drinks and to handle cash. The Complainant signed a copy of this policy on 18th February 2017 indicating his understanding of the policy. He also signed a copy of the Beverage Pouring policy on the same date.

The Respondent carries out routine checks regularly to ensure compliance with the Cash Handling policy. The Respondent aims to keep any cash discrepancies to an absolute minimum and all staff are well aware of this.

During a routine check, it was found that discrepancies in relation to the Complainant’s adherence to the Cash Handling policy had occurred on various dates between July and August 2017. The Respondent began an investigation and invited the Complainant to a meeting to investigate the matter further. The letter of invitation is included. Samples of alleged transactions were outlined in the letter. The letter explained that he could bring a companion to the meeting and stated that he would have an opportunity to respond, including the opportunity to make a written statement, if he so wished.

The Complainant attended the investigation meeting on Tuesday 29th August 2017.   He was invited to bring along a companion to accompany him but he declined to do so. The Complainant confirmed at the outset of the meeting that he was happy to go ahead with the meeting in the absence of a companion.

The investigation meeting was chaired by a Manager in the Respondent company. The Manager offered the Complainant an opportunity to submit a written statement. The Complainant declined to do so.

During the course of the meeting, the Complainant confirmed the following:

·         He was aware of the Cash Handling policy and admitted that he had breached the policy by adjusting the over rings in contravention of the correct procedure.

·         He admitted that no one had authorised him to adjust the over rings in this manner.

·         He confirmed he was aware of the policy to issue receipts to all customers and confirmed that he did not issue receipts on several occasions as he was trying to correct the over rings.

·         He accepted he took payment for drinks but did not ring them into the till.

·         CCTV footage was shown to the Complainant and he did not deny that the footage showed him clearly breaching the Cash Handling policy.

The following was evident in the CCTV footage:

·         The Complainant did not issue receipts to customers as per the procedure.

·         The Complainant took payment for drinks but did not ring the drinks into the till.

·         The Complainant serves a number of drinks but does not ring in these drinks into the till.

·         The Complainant took money from the till and put it into a tip jar, or a glass beside the till. This was not a tip from a customer and the Complainant was unable to offer an explanation for this.

On 1st September 2017 another Manager in the Respondent company, invited the Complainant to attend a disciplinary meeting on 5th September 2017 to discuss the findings of the investigation. He was advised of the parties that would be in attendance at the meeting, that he would be given an opportunity to discuss the allegations made against him, give a full response to same, that he could bring a representative to the meeting with him and that disciplinary action up to and including dismissal may result from the meeting.

The disciplinary meeting was held on 5th September 2017 at 9pm. In attendance at the meeting was the Disciplinary Manager, one of the Duty Managers and the Complainant. The Complainant confirmed that he was happy to attend the meeting in the absence of a companion.

During the disciplinary meeting the Complainant confirmed that he had reviewed the minutes of the meeting and investigation report and was satisfied they were correct. He also confirmed that he was aware that he had an opportunity to submit any mitigating factors he felt to be relevant.   During the course of the meeting, the Complainant said he was trying to correct the over rings as mitigation for his actions.

During the disciplinary meeting, the Disciplinary Manager asked the Complainant if he believed the process had been carried out fairly. The Complainant confirmed that he did. He put forward no other statement and signed the minute of the meeting.

The Disciplinary Manager considered all the evidence available to him and determined that the sanction in this matter was dismissal. This sanction is in line with the zero tolerance approach the company takes to breaches of their cash handling policy.

The Respondent then wrote to the Complainant on 8th September 2017 and advised him of his termination of employment. The Complainant signed his acceptance of this letter.

The Complainant was afforded a means to appeal his dismissal within one week of the date of the letter. However, he did not appeal the decision.

SUBMISSIONS

The Complainant alleges that he was unfairly dismissed.

Section 6 (1) of the Unfair Dismissals Act 1977 – 1993 (“the Act”) provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

It is submitted that in accordance with Section (6) (1) of the Act there were substantial grounds justifying the Complainant’s dismissal on the basis of his misconduct. The Complainant was in a position of trust within the Respondent organisation and he breached the Respondent’s trust and confidence, a repudiatory breach of contract.

S.I. 146 of 2000 provides that a disciplinary procedure must comply with the general principles of natural justice and fair procedures namely:

·         The details of any allegations or complaints are put to the employee concerned.

·         The employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·         The employee concerned is given the opportunity to avail of the rights to be represented during the procedure.

·         The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

S.I. 146 of 2000 also provides that an internal appeal mechanism ought to be available. The Respondent’s Disciplinary Procedure reflects these principles of natural justice and fair procedures.

The Respondent complied with the principles of natural justice and fair procedures and in disciplinary procedure, in that it:

·         Put the details of the allegations to the Complainant in the letter dated 1st September 2017 inviting him to the disciplinary meeting. The Complainant was also shown the CCTV footage prior to the disciplinary meeting.

·         The Complainant was also given the opportunity to respond fully to the allegations.

·         The Complainant was advised that he could be accompanied by a representative to the disciplinary meeting which could be a work colleague, trade union representative, family member or friend. He declined to bring a companion with him.

·         The Complainant was given a fair and impartial determination of the issues concerned by the Disciplinary Manager who was independent of the investigation process.   He took into account the explanations and statement given by the employee and the CCTV footage.

·         Furthermore, the Complainant was afforded the right to appeal his dismissal to another manager who had no prior involvement with the matter. However, he chose not to do so.

The Respondent provided the disciplinary procedure to the Complainant. During his induction training, the Complainant was also advised of the cash handling procedure. Furthermore, the Complainant signed the confirmation in relation to the policies and procedures training.

There is a duty of trust and confidence implied into every contract of employment. This implied duty was referred to by Laffoy J. in Berber -v- Dunnes Stores Ltd [2006] IEHC 327, where she noted in relation to the employer breaching that duty, it is submitted that the same applies to an employee breaching that duty:

“A breach by an employer of its implied contractual obligation to maintain the trust and confidence of an employee is a breach which goes to the root of the contract”.

The case was appealed to the Supreme Court [2009] IESC 10, where Finnegan J noted that

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage their relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise”.

The implied duty of trust and confidence was not excluded in relation to the Complainant’s contract of employment. Unlike Berber v Dunnes Stores Ltd, in this case it is submitted that the Complainant, the employee, breached the duty of trust and confidence. However, Finnegan J. notes that it is a mutual obligation. The Respondent imposed the disciplinary sanction of dismissal, as it considered that the Complainant breached his duty of trust and confidence to the Respondent which went to the root of the employment relationship.   It considered that his actions constituted gross misconduct in particular given that the requirement to trust the Complainant was paramount for the Respondent in light of his position and duties. It is submitted that the conduct of the employee, objectively considered, caused serious damage to the relationship between the Complainant and the Respondent.   Accordingly, it is submitted that the disciplinary sanction of dismissal was a proportionate response in light of the Complainant’s conduct.

It is submitted that the following circumstances should be borne in mind by the Adjudication Officer:

·         The Respondent followed its disciplinary procedure and also afforded the employee the principles of natural justice and fair procedures as set out in S.I. 146 of 2000.

·         The Complainant did not avail of the appeal procedure offered to him.

·         The Complainant’s dismissal was wholly attributable to his own conduct, breaching the implied term of trust and confidence and breaching the Respondent’s accepted cash handling procedure.

For the reasons set out above, it is submitted that the Complainant’s dismissal was not unfair and that his claim under the Unfair Dismissals Act 1977 – 2013 should fail.

A series of alleged transactions (dated 6th August 2017 and 15th July were brought up to the consideration on 24th August 2017. I was suspended immediately and was invited to attend an investigation on 29th August 2017. On investigation date, I invited my Supervisor “Shane” to be present as I was entitled to invite someone from work. He didn’t show up on the day and I proceeded to the investigation.

All the video footages were shown in relation to the allegations on investigation day. I defended myself against the allegations and explained all the situations. After investigation, I was invited to attend a hearing dated 5th September 2017.

On hearing day, I explained all the situations and placed my verbal closing statement. I was asked about the fairness of investigation and my answer was “fair”. When I asked about the disciplinary action result, my answer was “I am already suspended and it can’t cost me my job”. Because I believe I am not guilty of theft or fraud.

I was then asked if I would like to proceed to further investigation because I didn’t agree with the dismissal.   My answer was positive for further investigation. I was told that if the investigation goes further and any other incident come out following the investigation the result will be more worse than just dismissal. I was told that the management might call “Gardai” for further result.   I felt like I was put on pressure not to go for further investigation. I felt like threat but yet I agreed for further investigation and offered them to go back to check all my workings. I explained all the time during investigation and hearing that all the allegations that are brought are just some of my mistakes. I didn’t commit any theft or fraud. I agreed with the breach of in house procedures and asked for another chance. I told them everyone makes mistake and they learn from their mistake. Since the allegations don’t prove that I am guilty of theft or fraud, I deserve another chance. I took the chance of more investigation with the risk of worse result than just dismissal. But yet, I was called on 8th September and asked to sign the termination letter that states the reasons of committing theft, fraud and breach of in-house procedure.

As a student, this dismissal will always be an unfair judgement for my career. It will always affect my motivation of doing positive things. I seek a fair judgement.

Firstly, I would like to thank the Respondent for providing a very comprehensive and accurate submission for the hearing and thank the Complainant for his openness and honesty throughout the hearing.

As the Adjudication Officer hearing the complaint my job is not to decide the guilt or innocence of the employee. In the case of Looney and Co Ltd v Looney UD 843/1984 the Employment Appeals Tribunal summarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

My job therefore is to look at the reasonableness of the employer and decide were these the actions of a reasonable employer. The Respondent has included a copy of the Disciplinary Procedures in their booklet of papers, in the section on Gross Misconduct on of the examples given is:

·         Serious breaches of established in-house procedures regarding the handling of cash or stocks.

The policy then provides:

“When gross misconduct is suspected, the employee can be suspended on full pay for up to fourteen days to allow for an appropriate investigation of the case. This investigation will be conducted by a nominated senior manager (where possible a manager not directly responsible for the individual) to assure impartiality. This investigation will include a meeting with the employee. Following the investigation, the employee will be asked to attend a meeting with the responsible senior manager. If the investigation has upheld the case of gross misconduct, the employee can be summarily dismissed without notice or pay in lieu or the Company may decide to impose another sanction including suspension without pay, demotion, transfer and /or a final written warning. The decision will be confirmed to the employee in writing and this letter will also confirm details of the appeal procedure”.

In this instant case there is no dispute regarding the facts. It is clear from viewing CCTV footage that the Complainant was not working in accordance with company policy in paying for drinks and issuing receipts. To explain why he was not following policy the Complainant accepts he made mistakes and what he was doing was an attempt to rectify matters.

The Respondent also pointed out that the Complainant’s actions breached the cash handling policy and he was aware of this. The Respondent considered that the Complainant’s explanations were not satisfactory in light of the following: -

·         He did not give receipts to customers in accordance with accepted procedures and a procedure which he regularly followed;

·         He did not tell a member of management or supervisor that he had made some errors in not ringing in drinks orders;

·         He could not explain why he took money out of the till and placed it in a glass beside the till.

The Complainant clearly breached the cash handling policy in his actions.

I have given this matter a great amount of thought and conclude that the Respondent has acted in a fashion that I would consider to be both fair and reasonable. They have policies and procedures in place and have followed them. The Complainant was provided with every opportunity to be heard and to be accompanied by a work colleague.

Under section 8 of the Unfair Dismissals Act, 1977 I find the complaint is not well found and therefore fails.

For the reasons outlined above I find that the complaint fails.