ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006446

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/11/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977–2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a barman from 1 July 1989 until 26 October 2016 when he maintained he was unfairly dismissed by the Respondent. At the time of his dismissal the Complainant was employed as a Bar Manager in receipt of €408.72 gross per week. He was seeking compensation for the alleged unfair dismissal.

Summary of Respondent’s Case:

The Respondent maintained that very late on the night of 16th October 2016 he was advised by some customers that the Complainant had his 11-year old on the premises, and that they had considered calling the Gardaí about the matter. The Respondent submitted that he reviewed coverage from a camera system on the premises and saw the child carrying full pint glasses of alcohol, taking money from customers, and bringing the money back to the Complainant who was the child’s father. The Respondent also maintained that he has since learned this was not the first time that the child was on the premises by the Complainant when he was working late night shifts, and that the Respondent had not been aware of this at the time.

The Respondent advised that he offered to show the Complainant a copy of the film from the camera but he declined to do so. The Respondent advised that he also asked the Complainant if he wished to be accompanied at the meeting but the Complainant declined this offer. The Respondent said when he questioned the Complainant about what happened the Complainant had admitted a child was present on the premises after midnight.

The Respondent believed this to be a serious breach of trust that would put his licence and risk. He advised that he would have known the Complainant very well and could not understand why the Complainant had not contacted him so he could bring his child home. The Respondent maintained that he would have attended the public house had the Complainant advised him of any childminding issues, but no contact had been made with the Respondent. It took a complaint from customers to uncover what had happened. The Respondent maintained that as a consequence of the actions of the Complainant, the Respondent was at serious risk of losing his licence.

The Respondent further submitted that there had been an issue with the Complainant’s behaviour at work for some time which included the Complainant leaving the premises with the door wide open and money left in the safe, and where the Complainant was suspended for eight weeks after this event. The Respondent acknowledged this had happened some seven years earlier. The Respondent also submitted that the Complainant had previous issues with drink at work and where a number of disciplinary actions had previously been taken. It was contended that the alleged behaviour of the Complainant included him having intercourse on the premises. The Respondent also advised that earlier in 2016 he introduced the Complainant to Alcoholics Anonymous for assistance in lieu of suspending him, but that any ongoing assistance had been declined by the Respondent. The Respondent further maintained that he would have had several conversations with the Complainant in relation to the matter but to no avail.

The Respondent advised that he had taken over the licence of the pub in May 2016 and that he had no record of the previous suspension or disciplinary action against the Complainant. The Respondent advised that what happened on 16th October 2016 was the final straw.

The Respondent submitted that the contract of employment with the Complainant commenced on 1st May 2016 after the Respondent took over the pub, and where the Complainant signed the contract which included reference to grievance and disciplinary procedures which were attached to the contract. The Complainant advised drunkenness on duty, and partaking of alcohol on duty could constitute misconduct. He also submitted that serious misconduct that may result in a summary dismissal after a full investigation included a serious breach of the rules, policies or procedures, especially those designed to ensure safe operation. The Respondent therefore contended that he had substantive grounds to dismiss the employee, and that the sanction of dismissal was proportionate under the circumstances as the Complainant presented a serious safety risk both to himself and to others in the pub.

The Respondent maintained that he was not seeking to make the Complainant redundant but that he had no option other than to terminate the Complainant’s employment due to the serious circumstances brought about by the Complainant’s behaviour. The Respondent advised that the pub was not making money and he would not have been in a position to offer the Complainant redundancy. The Respondent confirmed that that the Complainant was dismissed on 26th October 2016 after a meeting to discuss his concerns with the Complainant.

Referring to a WRC Adjudication decision of a Complainant -V- A Meat Processing Plant, ADJ-00003564, the Respondent was relying on this decision where a complaint of unfair dismissal was not well founded as the Complainant in that case had been aware of the company’s drug and alcohol policy, and had put the safety of himself and his colleagues at risk.

Summary of Complainant’s Case:

The Complainant advised that on 16th October 2016 he received a call from his 11-year-old son who returned from children’s birthday party but that nobody was at home so the boy came around to the Complainant who was working in the pub at that time. The Complainant acknowledged that he told the boy to come down to the pub for a couple of hours where he stayed with the Complainant and he was brought home approximately two hours later.

The Complainant maintained that on 26th October 2016, some 10 days after the event, he received a call from the Respondent who invited him into meeting that night. The Complainant maintained that he went to the meeting and was told to resign as he would have a better chance of getting a job. The Complainant maintained that he refused to resign and he was then dismissed with immediate effect and without any proper procedure. He maintained that he explained his personal situation to the Respondent but the Respondent did not accept his explanation. He advised that he had 27-years’ service with the business and much of it as a bar manager. The Complainant maintained he therefore deserved better treatment and a lesser sanction, and where he should have experienced a proper disciplinary procedure with natural justice. He also maintained he was unfairly dismissed and the real reason of his dismissal was to avoid paying him redundancy which would have reflected his 27-years’ service.

The Complainant submitted that he was not provided any fair procedures or afforded an opportunity to appeal the decision to dismiss him. He also maintained that he was not aware of his rights at the time and that he was told that in view of what happened he was being sacked.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) (b) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the basis of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In the case within, the Respondent has argued that due to a history of events particularly in relation to the Complainant’s drinking, that there were genuine concerns with regard the Complainant’s conduct. The critical issue for the Respondent was the fact that the Complainant had brought his 11-year son onto the premises late at night, and where his son had been serving alcohol. The Respondent also advised that the Complainant had been spoken to before about having children on the premises. Therefore, I find if the event happened, which was not contested by the Complainant, it would likely amount to gross misconduct under the Respondent’s policy and procedures, and could lead to a summary dismissal.

In relation to procedural fairness, I am guided not only by the Respondent’ disciplinary policy, but also by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). Such rights provide for a right of appeal.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

Based on the evidence provided I am satisfied that the Complainant did have his 11-year old child on the premises late at night and where the child had been recorded as serving drink. It is also noted that the Respondent had received complaints from customers about this matter, and had a serious concern with how this breach could impact on his own livelihood and the licence to operate a public house. I am therefore satisfied that the undisputed fact of the Complainant having his child on the premises late at night was a serious enough conduct to consider disciplinary action up to and including dismissal.

The Complainant has argued that the response of the Respondent to dismiss him was unfair under the circumstances, that a lesser sanction ought to have been applied, and that he was not in any event afforded fair procedures.

I am satisfied that the evidence also supports that in coming to the decision to dismiss the Complainant, the Complainant was not offered any fair procedures and was summarily dismissed contrary to organisational procedures provided at the hearing, and the minimum standards as set down in SI 146/2000.

Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find that the Complainant whilst conducting himself in a manner that might ordinarily be viewed as serious misconduct, was not afforded a fair procedure, or any investigation of the allegations. In effect he was dismissed following a meeting for which he was not informed the purpose of in advance of the meeting, and where a decision of gross misconduct, and therefore a decision to dismiss, had been made prior to the meeting. The Respondent has maintained it was the right decision to dismiss the Complainant. However as the Respondent failed to apply its own procedures I therefore find the employer’s act by omitting to afford the Complainant a fair procedure was unreasonable and has contributed to the dismissal. I therefore find that the dismissal was unfair.

Decision:

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.

For the aforesaid reasons, I where find that whilst the Complainant’s conducted has significantly contributed to the decision to dismiss, the complaint of unfair dismissal is due to the omission of the Respondent to follow fair procedures is well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977. I therefore conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In circumstances where it is undisputed that the Complainant had committed an act of misconduct meriting an investigation of matters, I am satisfied that he contributed significantly to the circumstances giving rise to his dismissal and consequent losses.

In relation to the Complainant’s mitigation of losses, I also found in light of the absence of any supporting documentation, that he has not demonstrated a reasonable effort in seeking to mitigate any such loss.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €3,270. The Respondent is therefore ordered to pay the Complainant a total of €3,270 in compensation (subject to any lawful deductions).

Dated:   26th July 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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