Complainant

Respondent

Anonymised Parties

A Bar Person

A hospitality provider

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-00019695-001

11/06/2018

The complainant commenced employment with the respondent, a hospitality provider, in May 2003. Her employment was terminated on 12th December 2017. Her gross weekly pay was €540.00. A claim for unfair dismissal was lodged in the WRC on 11th June 2018.

It was agreed by both parties at the hearing that a wrong Respondent’s name had been entered on the Complaint Form.

The Respondent submits that on 4 December 2017, the Complainant's supervisor formed a suspicion the Complainant consumed a drink from company stock without payment or permission during her shift, contrary to strict company policies on theft and consumption of alcohol on duty.

On 5 December 2017, there was an informal meeting to discuss the issue. At this meeting the Complainant denied consuming the drink without payment. The CCTV footage was then shown to the Complainant, and, according to the Respondent, she changed her position and stated that the drink was for a customer. It was decided the matter warranted a formal investigation, the Complainant was placed on paid suspension pending an investigation.

On the 6th December 2017, two witnesses were interviewed by the investigator, both provided written statements, they supported the allegation that the Complainant had taken an alcoholic beverage and consumed same while on duty.

On the 7th December 2017, the Complainant attended formal investigation hearing where the Operations Director was the investigation officer, also in attendance was the HR Manager taking minutes. The Complainant, (a then shop steward,) was offered the right of representation but declined. The Complainant admitted to consuming the alcoholic beverage from company stock without payment, (a baileys coffee,) and drinking it during her shift and subsequently lying about this on 4 and 5 December 2017.

On the 8th December 2017, an investigation report was compiled, which recommended that the matter be forwarded for formal disciplinary hearing. An invite to formal disciplinary hearing was issued, this again urged the Complainant to bring representation, warning that an outcome of this may be a disciplinary sanction, up to and including dismissal.

On the  11th December 2017, the formal disciplinary hearing was held by an Executive Director of the Respondent. Despite the normal policy on representation being a colleague or trade union representative, the Complainant asked for a family member to be present and the Respondent allowed this owing to the seriousness of the allegation. The Complainant requested matters be expedited where possible as she was eager for an outcome, the Respondent agreed to this provided it was given fair and thorough attention regardless.

The Respondent submits that on 12 December 2017, the outcome of the disciplinary hearing was issued in person. The disciplinary officer informed the Complainant his decision was that of dismissal from her post, adding that the company had policies that underpinned their strict no tolerance for theft and the consumption of alcohol during working times and highlighted the honesty and trust issue that had emerged, namely the taking of the drink without payment, consumption of same, and the denial of having done so when first put to her. The Complainant was informed she had the right to appeal, which she did not take.

It is the Respondent's position that following a detailed, fair and transparent investigation and disciplinary process the Complainant was adjudged to have taken and consumed without permission an alcoholic drink, as well as having been dishonest as to this allegation until CCTV footage and witness statements furnished to her indicated the contrary.

According to the Respondent, the complainant's actions caused a fundamental breakdown in the trust relationship between the employer and employee. The Respondent had insufficient confidence in the Complainant being able to abide by Company policy and procedure. The misconduct went to the root of the contract of employment because it served to undermine the trust and confidence that is essential to the maintenance of the relationship between the employer and the employee.

The Respondent submits that theft in any hospitality and retail business, more than other sectors, is treated to be a zero-tolerance misconduct. If this was not the case, the sector would struggle more than it currently does against employee theft.

In relation to the procedures used to implement this dismissal, the Respondent submits that the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The complainant was informed in advance as to the nature of the complaints against her, she was afforded the right to representation, which she exercised. All the evidence in its entirety was considered, including the complainant’s representation before any decision was made or action taken.   In light of all of the above, the company believes it to be clear that the dismissal of the complainant’s to be procedurally fair in all respects.

The Respondent contends that it is important to note that per the Code of Practice and the Company’s own procedures, the right to Appeal was not utilised. This should have been done had the Complainant believed there had been procedural errors or that the sanction of dismissal was disproportionate.

The Complainant submits that the dismissal of the Complainant from her employment was unfair for a number of reasons;

It was disproportionate to the offence given the Complainant's long years of service and clean record up to that point.

The timeline of seven days from the start of the preliminary investigation to verdict of dismissal was very quick and it would seem no alternative verdict was considered.

The Complainant submits that the process was flawed and contaminated due to the presence of manager A at the preliminary hearing on the 5th, the interview of witnesses on the 6th, the investigation hearing of the 7th and the disciplinary hearing on the 11th. The Complainant contends that it is not best practice and contrary to the principles of natural justice to have the same manager present during any preliminary investigation and subsequent disciplinary investigation.

The Complainant was not given copies of the witness statements until the disciplinary hearing, they should have been given to her in advance of the hearing.

The Complainant believes the reason given for reviewing the CCTV footage was tenuous at best and that the use of such footage contravenes Data Protection laws.

The Complainant was at the end of her shift when she consumed a small shot of Bailys. The Complainant contends that fatigue was a factor in her poor decision making.

Although the Respondent has stated that the Complainant breached the alcohol policy she had, in the past, been asked to participate in wine tasting at work and then return to her station. This practice, according to the Complainant, contributed to her confusion regarding the consuming the small shot of Bailys on the night in question.

In deciding whether a dismissal is unfair or fair I must look at both the substantive and the procedural matters.

Substantive Matters

I find that it is the Respondent’s position that the Complainant's action constituted gross misconduct irrespective of the monetary value of the drink consumed. The Respondent formed the view that the bond of trust has been irrevocably broken thus warranting dismissal.

I find that the Respondent was not unreasonable in concluding that the offence committed by the Complainant amounted to gross misconduct and that the bond of trust was irreparably broken. In reaching this finding I am influenced by the impact the Complainant's initial denial of any wrongdoing played in the decision to dismiss. I am also influenced by the seriousness of drinking alcohol in a sensitive area where such behaviour was strictly prohibited.

In the circumstances, I find that the dismissal was substantively fair.

Procedural Matters

Reliance is placed on the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978 “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Also in O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In this case I am satisfied that the Respondent carried out the disciplinary procedures in a fair manner. The Complainant was afforded all her rights throughout the process. It is of note that she was given the right of appeal, of which she did not avail.

I note the Respondent’s position that once they had concluded that she committed an act of gross misconduct they had no choice but to dismiss and so no alternative was possible.

Despite some the attendance of a particular manager at a number of stages of the disciplinary process, which is not ideal, in a small enterprise this is likely to happen, I do not believe this enough to taint the process, or render it unfair. I find that the dismissal was substantively fair. The use of CCTV was not unfair in the circumstances and although the Complainant was not given witness statements in advance of the disciplinary hearing I do not believe this was fatal to the process.

Whereas the investigation and disciplinary processes were expedited, at the request of theComplainant, this does not mean that the process must have been flawed.

From the evidence adduced I find the processes utilised by the Respondent were, in the round, fair and such being the case I find that the dismissal was procedurally fair.

In relation to the sanction imposed by the respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows:

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

I find the Respondent was not unreasonable in reaching a decision to dismiss the Complainant.

The complaint is unfounded.

Breach of trust, alcohol, honesty