ADJ-00011368

Complainant

Respondent

Anonymised Parties

A General Manager of a Hotel

A Hotel

Representatives

Colm Kitson B.L. instructed by Helen Coughlan Patrick J Farrell and Company Solicitors

Dorothy Conovan B.L. instructed by Rory O'Neill Mallon 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-00015189-001

20/10/2017

The Complainant worked as a general manager for the Respondent in a hotel in County Monaghan. He had worked for the Respondent since 1988 as an employee but also part owner of the hotel until the business went into receivership. In September 2014 the hotel business was taken over by the Respondent and the Complainant was retained as an employee of the new management. His role did not change, in that he was still the general manager, but was no longer a part-owner. His weekly salary was €1161.00. He was dismissed from his position on 27 July 2017 following an acrimonious breakdown in his relationship with his employer. Four months earlier, in March 2017 the Respondent had engaged an investigator to investigate complaints made against the Complainant in terms of his work performance and allegations that he was drinking alcohol during work hours. The investigation report was completed by the investigator on 3 May 2017. At this point the Complainant’s solicitors instituted injunctive proceedings in the High Court to prevent any reliance on the report due to unfair procedures during the investigation process. On foot of undertakings given by the Respondent to the High Court the Respondent was thereafter prevented from relying on the contents of the report. The Complainant had been on administrative (‘garden’) leave from 23 February 2017 and was still in receipt of full pay. He was dismissed by letter dated 14 July 2017 and the reason given was that the Respondent was exercising its contractual entitlement to terminate the Complainant’s employment.

The Respondent accepts that a dismissal occurred as a matter of fact and seeks to justify the dismissal on “other substantial grounds”

1.       The Complainant commenced employment in April 1988 as a hotel general manager

2.       The company that had owned the hotel was part owned by the Complainant. Following the economic recession, the company went into receivership.

3.       In September 2014 the present Respondent took over ownership of the hotel and the Complainant continued in his position as general manager however he was no longer a part-owner.

4.       Thereafter the Respondent noticed problems in relation to the Complainant’s work performance which related to him drinking alcohol during work hours and other matters of mismanagement.

5.       The Respondent had a series of informal discussions with the Complainant about these problems and advised him to sort himself out.

6.       In order to assist in this the Respondent paid for the Complainant to go on a 5-star holiday in Dubai. The feeling of the Respondent at this time was that the Complainant had come through a stressful time when the hotel had gone into receivership, he was no longer the part-owner but was still an employee and that perhaps his excessive drinking was due to stress. It was hoped that he would return from the holiday more relaxed and that the drinking at work would stop. At this stage relations between the Complainant and the Respondent were reasonably good.

7.       However following the holiday, the Complainant continued to drink while at work and other problems arose. It was considered at this time necessary to have a conversation with the Complainant to say that his drinking while at work had to stop. From the Respondent’s perspective, the Complainant looked unwell, he often smelled of alcohol and some of his responsibilities as general manager were not being done by him. This meant that other employees had to complete tasks that were his to do.

8.       In late July 2016 one of the directors of the Respondent had a meeting in the office during which he raised the problem of the Complainant’s drinking while at work. The Respondent told the Complainant that he was not permitted to drink alcohol while at work. He believed that the Complainant accepted this and that they agreed to proceed on this basis. Despite this, within the following two weeks, the Complainant was seen to drink while on duty on two further occasions.

9.       On 2 August 2016 the Managing Director of the Respondent (MD) wrote to the Complainant setting out two incidents where the Complainant had drunk to excess while on duty. The Respondent asked the Complainant to accept the facts as alleged or he would set up an investigation to look into the matter. He was also requested to vacate the hotel accommodation premises, where he was residing.

10.   The Complainant denied the incidents and then a series of correspondence between the Complainant’s solicitor and the Respondent was entered into. Essentially this dealt with the accommodation issue and a denial of any wrong doing on the part of the Complainant by his solicitor.

11.   During this inter-partes correspondence the Complainant went on sick leave for the first three weeks in October 2016 however the reason expressed for this leave (a urinary tract infection) differed at the time to what was later described as due to stress.

12.   In November 2016 the Complainant’s solicitor requested that an independent investigator be appointed to deal with allegations that the Complainant had that he was being bullied, harassed and side lined by management.

13.   The Respondent agreed to this and appointed a HR consultant. It was requested that the Complainant attend a grievance meeting on 28 November 2016. This meeting did not proceed but the Respondent confirmed that an alternative meeting would be arranged. In the meantime, the Respondent requested that the Complainant not return to work until he was certified as no longer suffering from stress that that he was fit to work. The Respondent set up a medical appointment to have the Complainant examined by a clinical psychologist. This was in January 2017.

14.   Following the examination, the Complainant was deemed fit to return to work in February 2017. The Respondent then wrote to the Complainant’s solicitor stating that it was their intention to return to the investigation process in relation to the allegations against him that had been referred to in August 2016. The Respondent said that pending the duration of this investigation the Complainant would be suspended on full pay.

15.   The independent investigator was appointed in March 2017 and the investigation process took place over March and April and the Investigators report was furnished on the Complainant on 8 May 2017.

16.   By letter dated 18 May 2017 the Complainant warned that injunctive proceedings would be brought as the investigation process was flawed insofar as the investigator did not confine him to the two incidents that the warning letter of August 2016 had identified.

17.   The injunction was sought and the Respondent provided undertakings to the High Court that the contents and findings of the Independent Investigator would not be relied upon by the Respondent in furtherance of a disciplinary process.

18.   From that point the Respondent submits that its hands were tied. It could not act expressly upon the investigator’s findings because to do so would be in breach of the undertaking to the High Court. Similarly it could not permit the Complainant to return to work as the findings of the investigator were now known to the Respondent and in light of these findings, it would have been untenable for the Respondent to permit the Complainant to take up his post again. Lastly it could not keep paying the Complainant a full salary when he was not working.

19.   Therefore, in this constrained set of circumstances the Respondent decided to terminate the Complainant’s contract giving no reason other than exercising a right under to contract to so do. It accepted at the Adjudication hearing however that no term of a contract may usurp the employment rights to a fair dismissal under the Unfair Dismissals Acts 1977 as amended.

20.   In evidence the managing director (MD) of the Respondent the reason that he and his then co-owner, now deceased, dismissed the Complainant was that once they had knowledge of the contents of the investigation report, even though they were prevented from doing so under the undertaking given to the High Court, they did in fact rely on the findings to dismiss the Complainant.

21.   Evidence was given by the former operations manager of the Respondent who was employed from October 2015- July 2016. This witness is no longer working with the Respondent. His evidence was that the Complainant drank alcohol at work. He drank wine in the restaurant with his dinner and he drank pints of beer in the bar afterwards. He said that in his view no employee should be drinking alcohol while at work, particularly not in the hotel/bar trade. He said that at the end of the evenings the Complainant had to negotiate fees with the performance artists and that there were times that he had been drinking while doing this. There was a problem once where a wedding booking was double booked with a golfing tour and this was because the Complainant was drinking with the father of the bride at the time the wedding booking was made. On other occasions the bar staff had to do the cashing up at the end of the night because the Complainant was unable to due to alcohol consumption. Often the Complainant smelled of alcohol and this was apparent to anyone including guests. His appearance was affected by his behaviour. The witness accepted that he liked the Complainant and that he was very personable and liked by guests and most staff. This was not the problem. The problem rather was his drinking and the effects that this had on the management of the hotel. He reported this to the Independent Investigator

22.   Another witness (a night porter – who was employed by an independent security firm) gave evidence that at the end of most evenings the Complainant would be very drunk. He would lose things, be staggering about and on several occasions the witness had to accompany the Complainant up to his hotel bedroom to help him carry his belongings and to also bring up a point of beer with a cup of tea. On one occasion the witness saw the Complainant urinating into a kitchen sink behind the bar area. He reported this to the Independent Investigator.

23.   Another witness (social media and marketing manager) gave evidence that as soon as he started working at the hotel in March 2016 he became aware of the Complainant’s drinking. After a week of working there he decided that he didn’t wish to work under such conditions however it was not just due to the drinking but also because of an inappropriate suggestion by the Complainant. The suggestion was that rather than the hotel pay the performers directly that instead they be paid through his, the witness’ management company. In this way the Complainant suggested they each could take a cut out of the profits. This suggestion to him by the hotel general manager left the witness feeling uncomfortable and he handed in his notice. Some months later the witness returned to work in the hotel (when the Complainant was on leave) the witness discovered that some bands had not paid by the Complainant, which then had to be rectified by the Respondent.

24.   The last Respondent witness was the duty manager in the hotel, whose evidence was taken out of turn. This was a reluctant witness on behalf of the Respondent in that he liked the Complainant very much and thought that he had been a very good manager for all the time that he was employed by the Respondent. He said that he was always reasonable and if he had needed time off the Complainant was always facilitating of that. He said that drinking with the clientele was part of his job. He did not witness him staggering about or acting drunk. He accepted that he would have served him drinks while on duty and when off duty. He estimated the number of drinks that he might serve to the Complainant as being between two and ten per night.

Contribution to Loss by Complainant’s Conduct (section 6 (b) of Unfair Dismissal Act 1993)

In the event that the Adjudicator decided that the dismissal was unfair, the Adjudicator must then consider whether the Complainant by his conduct contributed to his dismissal undersection 6 (b) of Unfair Dismissal Act 1993. In applying section 6(b) the Adjudicator is not limited to a 50% contribution but can follow the case law of the Labour Court, the Employment Appeals Tribunal and the Circuit Court that the contribution can amount in some circumstances to 70% or even 100%. See Owley v. Anthony F. O’Gorman and Co. (UD 2464/2009 – Circuit Court June 2012) and Structured Finance (Ireland) Management Ltd. V. Vadym Kalinin (UDD 181 – Labour Court 5th January 2018).

In the present case the Complainant’s conduct significantly contributed to his dismissal and the Respondent submits that the Adjudicator should reduce the award to the Complainant accordingly.

1.       The Complainant was dismissed on 27 July 2017 without any reason. The Respondent cannot seek to now at an Adjudication hearing, introduce evidence that might be argued could justify the decision if that reasoning was not given expressly at the time.

2.       The Adjudicator is not permitted to consider the contents of the investigation report and the evidence of the report and its findings were excluded from the hearing.

3.       Under his contract the Complainant had a right to appeal the decision to dismiss him. This was provided for both in his contract of employment and was also in the dismissal letter dated 14 July 2017. Yet despite this, the right to appeal was never provided to him, despite requests being made by his solicitors.

4.       The contention by the Respondent that the circumstances of the case raised a defence of “other substantial grounds” is not available to the Respondents to contend. Such a defence may be raised where the reasons for the dismissal are other than competence, capability or conduct but it does not absolve the Respondent of the obligation of follow fair procedures when it is attempting to justify a dismissal. An “other substantial grounds defence” must still be accompanied by fair procedures.

5.       The Respondent’s evidence to the hearing was clear. In providing the undertaking to the High Court they accepted they would not rely on the findings of the investigator’s report to dismiss the Complainant. And yet they did when they dismissed him but did not admit it at the time.

6.       Therefore, the dismissal is unreasoned both on its face and in substance. The MD of the Respondent accepted in his evidence that on reaching the decision to dismiss he and his co-director relied on the investigator’s findings. As a result of this, the dismissal cannot be justified because they were not allowed do that because of the injunction. The case should become an assessment only hearing in relation to the Complainant’s loss of earnings.

7.       The Complainant gave evidence that he does not have nor did he ever have a drink problem.

8.       The Complainant denied the version of events as described by the night porter. He said that as he had cause to often reprimand this individual, he did not think that his evidence was credible as the witness had an axe to grind.

9.       The Complainant denied the version of events as described by the former operations manager. He denied that he was ever drunk on the job. He accepted that he drank alcohol but not during work hours.

10.   The Complainant denied the version of events as described by the social media/ marketing manager. He denied that he had suggested that they take a cut from the takings. Instead he explained that this was a conversation about VAT.

11.   The Complainant submitted that at no stage was he ever allowed confront the allegations contained in the letter of 2 August 2016; the specific charges were not put to him in a way that he was given a chance to defend himself. The process that began by the MD sending him a letter on 2 August 2016 contained within it a predetermined decision that the MD wanted him removed him from his post. The MD was never open to the possibility that the Complainant was in fact not guilty as alleged. The tone of the letter (including the threat to remove his right of residence in the hotel) indicated that. Furthermore, following a short period of sick-leave in October 2016 the Complainant was thereafter prevented from returning to work during which he was not paid. In the period October 2016-February 2017 during which he felt perfectly well to return to work, the Respondent demanded that he be psychologically assessed before they would consider allowing him back. The penalisation of non-payment during this period, when he wanted to be at work, was again evidence that the Respondent was intent on dismissing him. And then after February 2017 (when he had been certified as fit to return to work by the Respondent’s doctor) the Respondent suspended him (this time with pay) up until his ultimate dismissal the following July. It was quite clear that without ever having investigated the matter fully the MD had already made his mind up and this dated back to August 2016, that he wanted him gone from the hotel. The investigation process was an artificial process made to look as if fair procedures were being used. The investigation went completely beyond its original terms of reference, which again points to an enthusiasm on the part of the Respondent to carry out a fait accompli exercise to dismiss the Complainant.

12.   This dismissal lacked procedural fairness and substantive fairness and it cannot be justified.

13.   Evidence was heard by three witnesses who had worked in the Respondent hotel. One was a box office manager who said that he had never seen the Complainant under the influence of alcohol and said the Complainant was a reasonable and competent manager, the next witness was a chef who worked in the hotel kitchen from 1987- 2016 and said she had never seen the Complainant intoxicated and spoke to his strengths as a manager and lastly a former manager who described the Complainant as professional and loyal to staff and customers and that the problems started when the new management took over the hotel. She said the Complainant had devoted his life to the hotel and she had never once seen him intoxicated. She left in July 2015 and so could not comment on events after this time.

Loss:

The claim for loss of two year’s salary is €120,744.00.

His loss to date is as follows:

His salary loss started on 8 September 2017. He had a full loss until he got a replacement job on 7 May 2018 (34 weeks) This equates to €40,000.00

On 7 May 2018 he got a replacement job and his salary is now €673.00 per week. The loss to his salary from May 2018 to date is €487.00 per week. (20 weeks). This equates to €9740.00

To the date of the hearing therefore the Complainant’s loss is €49,740.

The Complainant also claims for loss into the future as his salary is unlikely to improve and claims losses up until the likely age of his retirement at 67 at the maximum level under the Unfair Dismissals legislation, that being 2 years remuneration (€120,744.00.)

The decision to dismiss the Complainant in July 2017 was on its face an unreasoned decision. It followed an undertaking given to the High Court in May 2017 which was complied with by the Respondent, that the findings of the investigation report dated May 2017 would not be relied upon to discipline or dismiss the Complainant. However the Respondent admits in fact that the findings were relied on to dismiss him.

The Respondent’s contention that they can rely on other substantial grounds to justify the decision to dismiss does not permit a Respondent to act without fair procedures. This was a dismissal based on conduct although it did not call itself that.

I find that I have no option but to find that the procedures that gave rise to the decision taken in July 2017 to dismiss the Complainant were flawed. At no stage was the Complainant given an opportunity, other than under the investigation process (which was conceded to be flawed) to address specific allegations of misconduct – namely drinking alcohol while on duty. He denied doing this and says that he only ever drank alcohol on the hotel premises when he was off duty. Following the undertakings given by the Respondent on foot of the injunction the Respondent should have proceeded with a fresh disciplinary process. To ensure the fairness of that he would have been entitled to have specific allegations (and the evidence that supported those allegations) to be put to him, he would have been entitled to time to prepare a response to those allegations and he would have been entitled to have a fair and unbiased hearing at which he was represented. After which and only after which, a decision to discipline him or dismiss him could have been considered. Such a disciplinary process need not have been overly formal however it did need to include all the necessary and well-established principles of fair procedures. In this case, because this did not occur I have no option other than to find that the dismissal was unfair. In doing so I also find that the failure to follow up on the Complainant’s request for an appeal to be procedurally flawed.

Contribution to the dismissal

Having found that an unfair dismissal occurred I am now obliged to consider whether the Complainant contributed to the dismissal by his conduct under section 6 (b) of the Unfair Dimissals Act 1993.

In considering this issue I am discounting the evidence given on behalf of the Respondent from any witness who the Complainant contends had a prior disagreement with him who may have been biased in their views. I do so in the interests of fairness and in order to eliminate any suggestion that malice might have influenced the evidence given against the Complainant.

The issue to be considered is was it likely on the balance of probabilities that the Complainant while he was working a general manager of the hotel, drank alcohol whilst on duty. I find it likely that he did. I base this on the evidence of the former Operations Manager and the Bar Manager neither of which had any axe to grind and both of which had a good relationship with the Complainant. It was clear that they liked him, that they thought he was personable however both gave evidence that he drank alcohol while at work. This was inappropriate conduct and one that no hotel management could have tolerated. A general manager of a hotel is, in part, a front of house business. It requires efficiency and personality, neither of which is in dispute in relation to the Complainant, but it also requires a strict observance that no alcohol is consumed. There is no social or commercial situation that would have arisen that could have justified a departure from this.

I am not persuaded by the Complainant’s own evidence that he did not drink alcohol while working or that he confined drinking alcohol to after work hours. I think it more probable that he did drink alcohol while he was on duty.

In this was I find that he contributed to his dismissal. In assessing the contribution, I find that a 70% contribution is appropriate percentage to make.

Another aspect of contribution is how the Complainant responded to allegation when it was first made. In the same way that the Respondent could have dealt with the dismissal in a different and better way, the Complainant also could have done so. When he received the letter of 2 August he knew that there was an issue to be dealt with and that he was being asked to stop drinking alcohol while at work. At this point he could have met with management and discussed the matter. Instead he became defensive and the matter quickly moved from there into the adversarial realm of solicitors’ inter-partes correspondence. From that point the possibility of resolution was lost. This was not only the fault of the Complainant. For example, it probably did not help that the issue of the hotel accommodation was conflated by the Respondent with the alcohol issue. This no doubt inflamed matters and the Complainant felt understandably hounded (although this was remedied relatively quickly in 31 August in which the Respondent offered alternative accommodation in an apartment). However, if a more open constructive approach had been taken by both parties in August 2016 I believe that a better outcome was still possible. But this was not to be.

What remained however was a serious allegation of “drinking on the job” which was one that both parties were under a duty to address. I am quite certain that the Complainant as general manager would not now tolerate staff in his new employment to drink while on duty. The occupational hazard of working in a bar environment is well known and necessitates the imposition of strict rules to prevent injury to oneself and injury to the hotel’s reputation. A practice whereby staff drink with a customer while on duty is bad practice, unprofessional and fraught with risk; for them personally and for the business of the hotel.

Award: I assess the Complainant’s loss to date as being approximately €50,000.00. For reasons stated above I reduce this sum by 70% and make an award of €15,000.00 in favour of the Complainant. I do not make an award in respect of future losses.

Unfair Dismissal - Hotel - Drinking alcohol - Fair procedures - Contribution