Complainant

Respondent

Anonymised Parties

A Deputy Manager

A Bookmakers

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-00010330-001

21/Mar/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010330-002

21/Mar/2017

The complainant was employed by the Respondent from March 2008 until 8th February 2017. Her position within the organisation was that of Deputy Manager. She was paid €456.80 gross per week. Her employment ceased on 8th February 2017. The complainant claims that she was unfairly dismissed and is seeking compensation in that regard.

The respondent denies that the complainant was unfairly dismissed. The respondents position is that the complainant was dismissed for a number of betting irregularities that occurred and were investigated in accordance with the organisations policies and procedures. The respondent stated that its Security Team identified a number of betting irregularities that occurred in January 2017. The respondent stated that the complainant attended a meeting with the Security Team on 25th January 2017 as part of a security investigation into the alleged irregularities. The respondent stated that the meeting was cordial and that the complainant was treated well at all times and was allowed take breaks whenever necessary. The respondent specified 15 separate issues with bets that had occurred and stated that the irregularities were such that it invoked its disciplinary procedures. The respondent confirmed that the complainant was invited to attend a disciplinary meeting on 30th January 2017 and was accompanied in line with its disciplinary procedures. The respondent stated that the complainant was unable to explain her actions in relation to the irregularities that were identified to her. The respondent stated that due to the lack of a credible explanation in relation to the irregularities, the complainant was summarily dismissed for gross misconduct with effect from 8th February 2017. The complainant was afforded the opportunity to appeal the dismissal and an appeal hearing took place on 3rd March 2017. The respondent stated that it considered the grounds of appeal but based on the seriousness of the irregularities for which there was no acceptable explanation, it upheld the decision to dismiss the complainant for betting irregularities which it considered to be gross misconduct.

The complainant claims that she was unfairly dismissed. The complainant’s position is that she was directed to attend a meeting with the Security Team on 25th January 2017 and was interrogated for a number of hours in relation to the allegations that were being made against her. The complainant stated that, she was unclear as to the purpose of the meeting, she was unsure what the allegations were, she was not provided with an independent note taker and was not afforded the opportunity to bring anyone with her to the meeting.

In relation to the specific irregularities, the complainant stated that there were issues with certain betting slips that had been introduced in October 2016. The complainant stated that she had tried to get this issue resolved but there was no response to her emails on the matter. The complainant stated that the irregularities were honest mistakes that she had made and that she had tried throughout the process to explain the errors to the best of her ability. She stated that she had worked in the organisation for a number of years and was a diligent and trustworthy employee. The complainant stated that she was already in receipt of a Stage 2 written warning since 2016 but did not appeal that warning as she accepted that she had made a mistake on that occasion. The complainant acknowledged her current mistakes but stated that she did not deliberately engage in betting irregularities as claimed by the respondent.

The complainant appealed her dismissal on the basis that she had not engaged in betting irregularities, had nine years’ service without issue, had been promoted to Deputy Manager and subsequently temporary Manager, had always worked professionally and efficiently, was eager to train staff to a professional standard, had always followed proper procedures in relation to customer discretion and confidentiality and had ensured excellent customer service.

The complainant stated that she had been honest in relation to her errors and in her attempts to explain the alleged irregularities. The complainant contends that the sanction of dismissal is disproportionate to the errors that occurred.

In relation to this complaint, I find as follows:

The respondent’s Security Team identified betting irregularities and carried out a security meeting with the complainant to establish the facts of what had occurred. The complainant took issue with the immediate requirement to attend the meeting on the 25th January 2017, the fact that, she did not know the purpose of the meeting, what she was being accused of, she was not permitted to bring anyone with her and that she was not afforded an independent note taker.

The respondent stated that the Security meeting takes the place of an investigation meeting in such circumstances and was carried out to establish the facts of what had occurred and to get the input of the complainant in that process. The respondent stated that as it occurred prior to a disciplinary process the right to be accompanied and to be notified in advance are not required or appropriate.

On this point, I am of the view that the respondent could have given the complainant some prior notice in relation to the requirement to attend the meeting. The complainant had stated that this meeting had caused her significant stress, was accusatory in nature and she was at the meeting for a significant length of time without any support. Despite this shortcoming, I am of the view that the respondent’s actions did not in any way compromise the process or render it procedurally unfair as submitted by the complainant.

The respondent then invoked its disciplinary procedures and invited the complainant to attend and outlined the specifics of the irregularities to her and offered her the right to be accompanied and to offer an explanation on the irregularities. I find that the respondent carried out a detailed and robust disciplinary process in line with its policies and procedures. The respondent concluded at the end of that process that the complainant had failed to adequately explain the irregularities surrounding the 15 bets and in the absence of an acceptable explanation and on the basis of the serious nature of the irregularities decided to summarily dismiss the complainant for gross misconduct.

The complainant subsequently appealed the decision to dismiss her from the employment and submitted grounds of appeal to the respondent. The respondent conducted an appeal hearing on 3rd March 2017. The respondent, in its letter to the complainant dated 10th March 2017, stated that it could not consider an alternative sanction to dismissal as the complainant was unable to provide a satisfactory explanation in relation to the 15 allegations of betting irregularities made against her. The dismissal for gross misconduct with effect from 8th February 2017 was upheld.

The Law

Sections 6(1) and Section 6(4) of the Unfair Dismissals Act, 1977 state as follows:

6(1) 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

6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Reasonableness

Sections 6(7) of the Unfair Dismissals Act, 1977 states as follows:

6(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan 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.”

I have carefully considered the facts of this case as well as the legislation and the precedent case law. I am satisfied that the employer acted reasonably in the circumstances and that its decision to dismiss the complainant is “within the range of reasonable responses of a reasonable employer.”

Having considered the written submissions of both parties, and all of the evidence adduced at the hearing of this complaint, I find that the complainant was not unfairly dismissed and the complaint fails.

The complainant, on the basis of her service with the Respondent is claiming notice entitlements under Section 4(2)(c) of the Minimum Notice and Terms of Employment Act, 1973.

The respondent stated that as the complainant was summarily dismissed for gross misconduct, the entitlement to notice does not arise.

The Law:

Sections 4(1) and 4(2) of the Minimum Notice and Terms of Employment Act, 1973 state as follows:

4(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

Section 8 of the Minimum Notice and Terms of Employment Act, 1973 state as follows:

8.Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

Having found that the employer acted reasonably in all of the circumstances of the case in dismissing the complainant for gross misconduct and in accordance with Section 8 of the Act, I do not find that the complainant is entitled to be paid notice as claimed.

Having considered the submissions of both parties, I declare that this complaint is not well founded.

Gross misconduct, entitlement to notice, band of reasonable responses test.