Complainant

Respondent

Anonymised Parties

A Cashier

A Casino

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-00014238-001

25/09/2017

The Complainant alleged he was unfairly dismissed and the sanction was both incorrect and grossly unfair in the circumstances of the events leading up to his dismissal.

The Complainant is of impeccable character and is trustworthy with a good record with the Respondent.

The Complainant was involved in an incident at work where a bonus was paid out deliberately to a Customer who had not won the bonus instead of the Customer that won the bonus.

The Complainant was acting under the direct instructions of the Shift Supervisor to pay out the different customer to the correct customer that won the bonus on the machines.

The Complainant did not profit or seek to profit from the transaction.

The Complainant on receipt of the “tip” from the incorrect payee returned the tip to the safe as an asset of a company.

The Complainant did not try to conceal or falsify any documents in the transaction.

The Complainant did openly admit what happened to the owner’s son, at his own instigation, when he met the owner’s son soon after the incident.

While accepting that the disciplinary invite letter did state up to and including dismissal as an outcome the Complainant did nothing wrong and did not feel the need for representation or to be concerned when invited to meetings with the “external” auditor.

The Complainant was not given any right of appeal.

The reasons for the disciplinary meeting or dismissal were not set out in the letters concerning both.

The sanction of dismissal was wholly unjustified in the circumstances and the Complainant was acting under the instruction of his Supervisor and did not profit from the transaction.

The Complainant did no wrong and acted under instructions and has been unfairly dismissed as a result.

Procedurally the Complainant was disadvantaged by not having representation, not being really told about how the Respondent was considering dismissal and was give no right of appeal. The Investigation notes were written up afterwards and the Complaint was not asked to sign and agree them.

The Complainant was involved with another employee in taking a bonus win from a   machine from one customer and gave it to another customer.

The Company investigated the issue using CCTV and interviews and found that the Complainant had been jointly involved in the transaction thus denying one correct customer the bonus and giving it to another customer.

The Complainant was advised of his right to representation. He declined this.

The Complainant was given adequate notice of all meetings concerning the investigation and disciplinary process.

The Complainant admitted his involvement in the unauthorised transaction.

The actions of the Complainant meant the Respondent had to pay out the customer affected and this was a cost to the company.

The Respondent considered that the only appropriate action having considered all the circumstances was dismissal on the basis it had substantial grounds to do so.

The Respondent denies that the dismissal was unfair.

Having considered all the evidence and submissions in this case I deem the dismissal unfair on the following grounds;

The Respondent did not   have substantial reasons to dismiss the Complainant and a lesser sanction, if any, was more appropriate given that the Complainant operated under the instruction/supervision of his Shift Supervisor, did not try and conceal or deny the transaction, did not gain or seek to gain from the transaction, returned the “tip” immediately to the Respondents safe, notified the owners son immediately he met him of the transaction, was not properly notified of the seriousness of how the Respondent was viewing the issue, was not given an internal right of appeal and was “dismissed” by a third party agent of the Respondent, who conducted both the investigation and disciplinary process. No consideration for his prior exemplary record seems to have been considered by the Respondent, the investigation and disciplinary process seemed to be as one, no contemporaneous records of the notes or disciplinary meetings were kept and the Complainant was not given the subsequent notes to review and agree or disagree with.

The external auditor admitted in evidence that he and the Complainant were in regular chats about different things outside of work issues and had a very good relationship and they got on well and therefore it is clear that from this relationship cited and the fact that Complainant did nothing wrong, in his view, that the Complainant took the view the investigation and disciplinary process was not serious in terms of potential impact on him. Further to that point the Respondent admitted that the Complainant did not steal or attempt to steal any funds and that he had a very honest track record with the Respondent. The Respondent also admitted that the Complainants story, in both the investigation, disciplinary and the WRC Hearing were totally consistent and the Complainant did not at any stage seek to defraud the Respondent.

Overall, I find that this is an unfair dismissal, both the substantive issues involved and procedural faults in the process.

I find the Complainants attempts to clear his name admirable and as this was his primary concern, with not apparent concern on behalf of the Respondent for the Complainants good name or income after the dismissal, justifies his lack of progress in mitigating his loss. The Complainants main interest was in seeking to clear his name of any wrongdoing. The Complainant is entitled to pursue a career in football coaching and this is also relevant to loss mitigation. It is also relevant that the Complainant was entitled to be concerned about what kind of reference, verbal or otherwise, the Respondent would have given to a potential employer, given they had dismissed the Complainant for alleged gross misconduct, and thus casting doubt on the Complainants character if a negative reference was provided to the potential employer.

With regard to the Respondents position that the Complainant and the Shift Supervisor were of equal status and the Complainant should and could have said no to the swop of payee, this does not stack up as the Shift Supervisor, both by title and responsibility, outranked the Complainant.

I find the Complainant was unfairly dismissed, on both the substantive grounds as outlined above and procedural grounds, and he merits the higher end of the award available to me to decide. I award the Complainant 13,000 Euros compensation for his unfair dismissal.

Unfair dismissal