Complainant

Respondent

Anonymised Parties

A Bar Manager

A Bar & Restaurant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00021191-001

16/08/2018

The Complainant initially worked in the Respondent’s Bar & Restaurant as Bar Manager from 2006 until 2014. He returned in June 2016. His employment was terminated on 13th June 2018. The Complainant claims that he was unfairly dismissed.

The Respondent submits that this is a case of a bar manager at a restaurant/pub being dismissed because he took home without payment or permission bottles of wine and minerals belonging to his employer. In doing so, he completely and permanently broke the trust of his employer. The Respondent submits that the taking of goods without payment was recorded on camera and CCTV footage was shown to the Complainant during the investigation into his conduct.

The Respondent claims that the Employment Handbook, with which the Complainant is familiar, provides, under the rules covering gross misconduct, that an employee will be liable to summary dismissal if an employee is found to have acted in any of a number of ways. Upon viewing the CCTV file, management was concerned and sought out an HR adviser, Mr D, to help evaluate the situation, including the significance of the CCTV footage, and to advise how to proceed. The Respondent claims that initially, the HR adviser was out of the country, and management was not able to brief him over the phone until late March. The HR adviser did not view the CCTV footage for the first time until the 10th April 2018. At which point it was decided that he would hold an investigatory meeting.

The Respondent submits that between the 10th April and the 1st May 2018, the date on which the Complainant was notified of his suspension on full pay, there were several unavoidable obstacles to meeting with the Complainant, including the Complainant being on vacation for most of the week beginning on the 23rd April 2018 and a key member of management being out of town for most of the week beginning on the 16th April 2018.

The Respondent submits that the 1st May 2018 was the earliest date that management reasonably was able to arrange to meet with the Complainant. At that time, management suspended the Complainant on full pay pending an investigatory meeting.

The Respondent says that, following the Complainant’s suspension with full pay on the 1st May 2018 management scheduled an investigatory meeting for the Complainant to meet with the HR adviser on 4th May 2018. The meeting had to be rescheduled several times, first from the 4th to 11th of May, then to the 31st May before it was finally held on the 7th June 2018. While the first schedule change was caused by the unavailability of the HR adviser (his car broke down), the next two changes in schedule were caused by the unavailability of the Complainant. The Complainant informed the management, within minutes of the scheduled meeting on the 11th May, that he could not attend the meeting because he was extremely distressed. At that point, management placed the Complainant on sick leave until he could come back to work and attend an investigatory meeting. The Complainant was given the opportunity to view the CCTV footage prior to the investigatory meeting which he did.

The Respondent submits that the investigatory meeting was scheduled then for the 31st May 2018 but, once again, the Complainant indicated, the day before the scheduled meeting, that he was unable to attend. Finally, the meeting was held on the 7th June 2018. The Respondent says that the Complainant was informed that he could bring someone with him to the meeting, but he declined to do so. Also present was the Respondent’s HR supervisor, Ms L, for the recording minutes of the meeting.

The Respondent submits that, following the investigatory meeting, a disciplinary meeting was scheduled for the 13th June 2018 between the Complainant and the General Manager of the Respondent (GM). The Respondent says that again the Complainant was informed that he could bring someone with him to the meeting, but he declined to do so. Also present was Ms L for recording minutes of the meeting.

The Respondent submits that, following the disciplinary meeting, the Complainant was dismissed from his employment on the 14th June 2018.

The Respondent submits that at the investigatory and disciplinary meetings it was established through CCTV footage that the Complainant removed bottles of wine and minerals from the Respondent without payment or permission. The Complainant initially contended that he had paid for the items but, when it was established that there were no till receipts for payment of the goods the Complainant changed his story to say that he could not remember whether he had paid for them. The Complainant also contended that he was given permission to remove the wine from Mr F, a director of the Respondent company. The Respondent argues that Mr F gave a statement indicating that he never gave permission for the Complainant to remove any goods and completely denies this.

The Respondent further submits that the Complainant also claimed that the reason he had gone to the shed to get the wine was because there was no wine available in the shop. This claim was discounted in a statement by the GM, Mr F (the Director) and Ms L (HR supervisor). The Respondent submits that there was a wine delivery on the 27th February 2018 which was only unloaded on the 3rd March 2018.

The Respondent submits that, after reviewing all the evidence management came to the following conclusions: the Complainant had taken goods without any evidence of payment or permission, there was no note left in the till which was the accepted policy of taking any good without payment. As well as the above, there had been a meeting with the Respondent’s Stocktake about stock going missing and what steps needed to be taken which was followed up with a letter to all staff.

The Respondent argues that the Complainant’s statement that Mr F knew that he was taking the wine was false. Also, his statement that the reason he went to the store was because there was no wine in the shop was false. The Complainant’s reason for non-payment for the wine (no money on him) was not accepted as there was no note. Also, on the day in question the Complainant spent a considerable amount of time drinking. His statement that he paid for the minerals was false as again there was no indication that this had happened.

Therefore, the Respondent believes that there was a total breach of trust between the employee and the owners of the business, which is at the root of the employment relationship and that the Complainant could no longer be trusted to serve as the bar manager. The Respondent submits that the Complainant was summarily dismissed, and in this regard, management also relied on the Employee Handbook, which provides that an employee may be summarily dismissed for gross misconduct. The Handbook clearly states that “theft or unauthorised possession of money or property, irrespective of values, whether belonging to us, another employee, or a third party” is gross misconduct.

The Respondent submits that the Complainant filed an appeal of the decision to terminate his employment on the 17th June 2018. The appeal was adjudicated by one of the principal owner of the Respondent company, Mr B who was not a member of management and was not involved in the proceedings that led to the dismissal. Mr B met with the Complainant on the 30th June 2018. The Complainant was informed that he could bring someone with him to the appeal meeting and he was accompanied by Mr J. Ms L, the HR Supervisor was also present to record minutes of the meeting. Mr B reviewed the entire records of the matter, including CCTV footage and minutes of the investigatory and disciplinary meetings. He also listened to a statement from the Complainant and asked questions. On 5th July 2018, Mr B issued a decision upholding management’s decision to dismiss the Complainant. The Respondent submits that at the appeal meeting, the Complainant contended that the sanctions imposed by management were excessive. However, Mr B rejected this contention citing the Handbook, which provides for summary dismissal in the event of gross misconduct and citing the fact that the Complainant’s conduct fell within the definition of gross misconduct. In addition, Mr B founds the following: “As the Bar Manager of [the Respondent], your duties included cashing out at the end if the night, ordering stock, accounting for all stock, and ensuring that the Bar is run in an orderly fashion. Your position was one which required a person to be very trustworthy and reliable in the handling of both stock and cash. Given your role and responsibilities, it is not surprising that management would suspend you…while it investigated the CCTV footage…Moreover, given the actions we are discussing it would make no sense that management would want you to continue to work at [the Respondent].”

Evidence of Mr F, Director of the Respondent

Mr F stated that he was having a drink in the bar when, at around 5pm, due to snow and the severe weather forecast, he asked the Complainant to close. He stated that he then left. Mr F said that he saw the Complainant carrying bottles and putting them in the car. Mr F stated that it “bothered him” and he decided to review the CCTV. Mr F stated that he waited a few weeks for payment to be made in respect of the wine and to see what the Complainant would do. He said that he was shocked, upset and aggrieved when he subsequently heard that the Complainant said that Mr F had given him permission to take the wine.

In cross-examination Mr F said that he was surprised to see the Complainant. He said that he saw the Complainant through the glass door, the Complainant was coming from the restaurant. Mr F claimed that there was no conversation between them and he walked away. He confirmed that the CCTV was installed by an external company and the footage was requested from the company. He said that he wanted to see where the wine came from as nobody has a right to remove wine from the restaurant, he added that it “bothered” him. Mr F further noted that he felt shocked and aggrieved that the Complainant said that he had given him permission. He said that he was asked by the GM and Mr B if he had given the Complainant permission and his reply was “absolutely not”.

When asked why, as a good friend he did not speak with the Complainant, Mr F stated that he did not want to accuse him of anything. He denied that he tried to entrap the Complainant.

In relation to an undated statement exhibited by the Respondent outlining the details of the events in question and Mr F said that he typed it before the hearing, he was not able to give a date, he said that he was asked to write what happened either by Mr D or Ms L.

Evidence of Ms L, HR Supervisor

Ms L outlined that she had an administrative role in the process (notes, minutes etc.)

She stated that at a meeting on 20th September 2017 at the management it was agreed that new procedures would be put in place. She said that it was agreed that details of wastage, unpaid tabs, complimentary drinks, staff drinks etc. would now be recorded. Ms L also noted that an email was sent all staff on 22nd March 2018 outlining that “No staff are to make purchase in the shop or from the bar unless they are being served by another member of staff”.

The Complainant submits that he initially started working as bar manager for the Respondent in 2006 for a number of years. He left of his own accord in or around 2014 returning, as bar manager, in June 2016, a position he held until June 2018, when he was summarily dismissed.

The Respondent took over the bar and restaurant in or around summer 2017 from the previous owners and when the business changed hands the Complainant’s employment transferred to the Respondent under the TUPE Regulations.

The Complainant submits that over the course of the year between summer 2017 and summer 2018 the Respondent tried to make certain changes, some of which the Complainant, based on his vast experience of the industry generally and the business specifically, advised against. Despite this, the Complainant’s employment from the time of the transfer to May 2018 was quite unremarkable.

The Complainant submits that, on 1st May 2018 when attending work for the purpose of a stock take, the Complainant was handed an envelope by Mr M (the GM). The Complainant believed that the envelope contained his tips and therefore put it into his packet without opening it. When the GM saw him doing this he told the Complainant to open the envelope immediately. The Complainant did as he was directed and inside the envelope he found an undated letter. The letter stated that the Complainant was required to attend an investigation meeting on 4th May 2018 “to discuss concerns relating to cctv footage from the first, the 18th and the 26th of March 2018”. The letter further stated that the meeting would be “attended by [Mr D]. our hr ADVISOR.”

The Complainant submits that, having read the letter, he asked the GM what this was all about to which the GM replied, “come to the meeting on Friday and you will find out”. There was no further discussion about the letter or the purported issues that day.

The Complainant submits that, as was normal, he was emailed the rota for the upcoming week later that day, the rota showed him working every day between Thursday, 3rd May and Monday, 7th May 2018.

The Complainant submit that the following day (2nd May) he was on a scheduled day off when he received a telephone call from someone in the office saying that there was a letter prepared for him and enquiring whether he could call by the office to pick it up. That did not suit the Complainant as he was not in the vicinity and he requested that the letter be delivered to his home. The Complainant says that the letter was delivered to his home and on his return that evening the Complainant read same and was astounded to see the letter was suspending him on full pay. The letter refers to “our meeting on Tuesday 1st May” and was signed by the GM. The Complainant argues that no such meeting, save for the interaction as set out above, had occurred on 1st May. The letter concluded “It is imperative that you attend on the date and time stated.”

The Complainant submits that, in line with what the letter stated, he did attend on the date and time stated. The Complainant was the only on in attendance. When he enquired as to the whereabouts of the GM and Mr D, the Complainant was informed by a member of staff that the GM had been present earlier in the day with “with the man from [named town]” but had left together some time previously. The Complainant believes reference to the man to be Mr D. The Complainant submits that the GM returned to the premises, where the Complainant had remained, sometime later and informed the Complainant that he had sent him a text advising of this. The purported reason for the cancelation of the meeting was that Mr D had apparently been delayed, his car having broken down.

The Complainant says that, following this cancelled meeting some text messages were exchanged between him and the GM. These text, inter alia, include requests from the Complainant for a copy of the Respondent’s disciplinary procedures which he had not had sight of, and also a request for CCTV footage which Mr M had stated existed but again which the Complainant had never been provided with. There was also an exchange of email on 8th and 9th May 2018 regarding the Disciplinary Policy being followed and the CCTV footage.

The Complainant submits that, in one of the texts, dated 11th May 2018 at 11:06, the Complainant informed Mr M that he was “extremely distressed with recent events”. The Complainant claims that the Respondent’s response to this was set out via text that day 1t 12:42 and subsequently in a letter of 13th May 2018. In its letter the Respondent states that it understands from the Complainant’s text message stating that he is “distressed” that he is therefore “now out on sick leave without pay”. The Complainant responded to this unfounded assertion by way of text on 17th May and received a further letter that same day from the Respondent.

The Complainant submits further that on 19th May 2018 a memo was sent to staff which made reference to “recent changes” and set out who were the “Senior Supervisors in the relevant departments”. This is before any purported investigation meeting had taken place. The Complainant claims that after this memo was sent, a number of third parties contacted him and informed him that the word was that he had been “let go”.

The Complainant says that on 22nd May 2018 he was emailed the rota for the forthcoming week which listed him as “UNAVAILABLE” for the entire week.

The Complainant received the CCTV footage on 23rd May 2018. On 25th May 2018, the GM wrote to the Complainant inviting him to a meeting on 31st May. In the letter the GM states “I remind you that you are entitled to bring representation”. The Complainant claims that this was the first time he was informed of this right. On 30th May the Complainant’s solicitor wrote to the GM; a response was received on 6th June and a further letter was sent on the same day. The Complainant argues that, after his solicitor pointed out that the suspension of the Complainant was unnecessary and unlawful, the Complainant was belatedly returned to the rota pending the investigation. He was scheduled to return to the workplace on 8th June 2018. A prerequisite to his being put on the rota and returning to work was that he attends a meeting with the investigator and Mr M on 7th June 2018. The Complainant argues that he never had any issue attending an investigation meeting so long as same was lawfully held and his rights to fair procedures and natural justice were upheld.

Investigation Meeting

The Complainant submits that he met with Mr D for the purported “investigation” meeting on 7th June 2018. It is noteworthy that Mr D in this meeting refers to CCTV footage which is unavailable due to “technical issues” but that if the matter proceeded to a disciplinary process that CCTV footage referred to would be relied upon then. The Complainant also notes that at the conclusion of the meeting Mr D states that he needed to speak to management and would “revert in 3 or 4 hours as to whether disciplinary procedure would now commence”. The Complainant further notes that the minutes prepared were copied to Mr B (who heard the appeal). The Complainant argues that he was told that he could resign or continue to the disciplinary hearing. On stating that he would continue and return to work that day, as per the roster, the GM called the Complainant to inform him that he was being suspended with pay and he should not attend for work as scheduled that day. This position was confirmed in writing by the GM via email at 15:56.

Disciplinary meeting and dismissal

The Complainant submits that on 9th June the GM emailed him to inform that he was “invited to a disciplinary meeting for Wednesday 13th June”. The Complainant notes that, despite the fact that the GM was the one who had led the investigation process by briefing Mr D and had been involved in all of the decisions to that point the GM confirmed that he would chair the meeting.

The Complainant submits that he attended the meeting on 13th June at noon. He claims that after the meeting the GM informed him that he “had one more chance to resign”. When the Complainant refused, the GM stated that he would be in touch. At 14:07, less than two hours after the meeting had concluded, the GM emailed the Complainant stating “Following the above meeting today I have to inform you thet your employment at [the Respondent] is terminated forthwith.” The GM sent a more extensive letter of dismissal informing, for the first time, the Complainant of his right to appeal, on 14th June. Included were minutes of the meeting.

Appeal

The Complainant says that he appealed the decision via email on 27th June and the decision was predictably upheld by Mr B and confirmed in writing on 5th July 2018.

The Law

The Complainant notes that the case law in relation to the unfair dismissal will be well known to the Adjudication Officer and will not be recited here.

However, the Complainant submits that it is worth exploring a number of points that have bearing on the case. The Complainant argues that the dismissal is unfair on any analysis but particularly on the analysis of four points. Firstly, the Complainant submits that the first time the actual accusations were put to him in writing was in a letter from Mr B following the appeal, upholding the dismissal. Mr B states the reason for dismissal is the “non-payment of good belonging to the company”. This was never specified in any of the correspondence from the GM and indeed when the Complainant’s solicitor wrote to the GM seeking details of precisely what the Complainant was accused of, remarkably the GM responded that the Complainant “has not been accused of anything”. The Complainant argues that this is an incredible position and one which cannot be sustained by the Respondent. The Complainant says that the starting point, and most basic and fundamental principle, in any investigation such as this which could lead to a disciplinary hearing, and which in this case, lead to dismissal, is that the charges against an employee are fully any clearly set out from the beginning so that the employee is in a position to defend the accusations. The Complainant quotes Meenan, F. “Employment Law” in this regard.

Secondly, the Complainant submits that it is well established that there must be procedural fairness thorough the process and that the employee’s rights to fair procedures and natural justice must be respected. The Complainant argues that there were no fair procedures followed by the Respondent in this case and no natural justice for the Complainant. The manner in which the whole process was handled was indicative of this fact. From the time when the Complainant was handed the letter on 1st May some six weeks later after the CCTV footage was created, it was clear that the Respondent had made the decision that he would be removed from his position and would not be permitted to return to work. This is evidenced by the fact that the following day he was placed on suspension with pay, was subsequently placed on sick leave without pay for informing the Respondent that he was “distressed” by the events and when he was eventually put back on the roster and refused to resign he was again placed on suspension with pay.

The Complainant argues that the Respondent had decided from the beginning that the Complainant would be dismissed and would not be allowed back to work. This is evidenced by the memo to staff regarding “recent changes” before any investigation had taken place.

In terms of procedural defects, the Complainant submits that the GM acted as judge, jury and executioner. It was he that handed the Complainant the letter of 1st May, he that suspended the Complainant on 2nd May, he that briefed Mr D, he that took the decision to put the Complainant on sick leave without pay, he that re-suspended the Complainant after the meeting on 7th June, and he that held the disciplinary meeting and dismissed the Complainant. It is clear that the GM was not the correct person to hold the disciplinary meeting or to take the decision to dismiss the Complainant because of his extensive involvement to that point. It is clear that he was going through the motions and crudely attempting to put a process and a semblance of fairness in place when his decision had long since been made. This is evidenced by the fact that less than 2 hours after the disciplinary meeting is held he communicated his decision to the Complainant. The Complainant argues that it is clear from the email dismissing him and the subsequent follow up letter of dismissal that the GM gave no consideration to other potential sanctions or set out the reasons for dismissal. This is also in contravention of the Respondent’s own policies and the Complainant’s right to natural justice and fair procedures.

The Complainant says that, if it is the Respondent’s position that any procedural defects are cured because there is provision for an appeal, that defence is rejected and is wholly undermined by the fact that the GM copied the minutes of the disciplinary meeting to Mr M, who heard the appeal and upheld the dismissal. It is clear that Mr B’S assertion therefore in his letter on 5th July 2018 that he “was not involved in the proceedings which led to your dismissal” to be disingenuous at best.

Thirdly, the Complainant submits that statements are referred to both by the GM and Mr B, but the Complainant was never given copies of these statements and merely had portions of them read to him during the various meetings.

Fourthly, the Complainant argues that it is clear that the sanction of dismissal was unnecessary, unwarranted and excessive in all of the circumstances. In dismissing the Complainant, the GM did not consider any alternative sanctions. The Complainant had worked in two separate spells for a long period of time in the Respondent premises. The Complainant claims that he has never had any issues whatsoever in relation to performance or discipline.

The Complainant submits that it appears, only from the letter upholding the dismissal that the Complainant was dismissed in effect for theft. The purported theft was never notified to An Garda Siochána to the best of the Complainant’s knowledge.

The Complainant submits that he took the wine in particular circumstances where the country because of a severe weather warning was about to shut down. The Complainant claims that he took the wine in full view of Mr F. The Complainant did nothing to conceal from Mr F the fact that he was taking the wine. The Complainant submits that, because the premises was subsequently closed, the Complainant could not honestly recall whether he had subsequently paid of the wine. Had it been brought to his attention when it was uncovered by the Respondent his recall would obviously been better and he could have addressed the issues at that point.

The Complainant submits that, given his excellent record, the sanction of dismissal for one offence was disproportionate in the extreme.

The Complainant notes that the dismissal has had a hugely adverse impact on the Complainant. The industry he works in is small especially in the area he lives and he has been unable to find further employment in the hospitality industry.

The Complainant submits that the Adjudication Officer must make a finding of unfair dismissal and make an award of compensation in respect of the unfair dismissal.

The Unfair Dismissal Act, 1997 stipulates that:Section 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.”

Section 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: ...

(b) the conduct of the employee,…”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to “(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 (to provide written reasons when requested) 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.” In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “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.” It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.

My role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively access whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances.

There was no dispute between the Parties that the Complainant took three bottles of wine and a bottle of ginger ale. The Respondent argued that the Complainant did not pay for same. The Complainant ultimately argued that he could not remember whether or not he paid for the items. It was not disputed that the Complainant was aware of the CCTV equipment on the Respondent’s premises and he was aware that he was being recorded. The Parties also agreed that Mr F saw the Complainant removing the wine on 1st March 2018. There was conflicting evidence in respect of whether or not Mr F had a conversation with the Complainant at the time. It is, in my view of no major significance. Having viewed the CCTV footage available to me it is clear that the Complainant, without any attempt of concealing his actions, took the bottles. The footage shows a person (who most likely was Mr F) behind the glass door within a few meters from the Complainant. It is highly unlikely that either of the persons involved did not see the other. The CCTV also seemed to record some sort of conversation, but it was impossible to establish what was being said.

I note that Mr F stated that he felt “shocked”, “upset”, “aggrieved” that the Complainant informed the Respondent that Mr F gave him permission to take the wine. However, I note that the Complainant at no stage relied on a permission obtained from Mr F. Rather, he stated that Mr F “was aware that he was taking the wine”.

There was no CCTV made available at the hearing in relation to the event of 18th March and 26th March 2018.

Mr F gave evidence at the hearing. He stated that seeing the Complainant taking the wine “bothered” him and he requested that the external company who installed the Respondent’s CCTV provided him with footage of some 7-8 days in March 2018. Surprisingly, Mr F did not approach the Compliant to clarify the matter at the time of the event. Rather, he waited a few weeks to see if the payment would be made.

Subsequently, two months later on 1st May 2018, the Complainant was invited to an investigation meeting. I find the delay unacceptable. I also find the decision to wait to see whether or not payment would be made was unreasonable, as the Complainant was prejudiced by the delay in commencing the investigation.

The Complainant was not informed of the allegations against him. Therefore, the Complainant was given no opportunity to prepare a response to the accusations. In fact, even when requested by the Complainant’s solicitor on 30th May 2018 to put any allegations to the Complainant, the Respondent argued that the Complainant “has not been accused of anything”.

I would have some serious concerns in relation to the suspension. In the case of The Governor and Company of the Bank of Ireland-v-James Reilly the High Court recognized that suspending someone-even on full pay-is a very serious measure with potential reputational damage which may never be overcome, even if the employee is subsequently found to be not guilty of the allegations. It held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation” of the issues. The Court identified four circumstances where it would be justified:

1.       To prevent repetition of the conduct complained of;

2.       To prevent interference with evidence;

3.       To protect individuals at risk from such conduct; or   

4.       To protect the employer’s business and reputation.

In the case before me none of these justifications existed but rather the Complainant was suspended because it was part of the policy of the Respondent. The Respondent argued that the Complainant was suspended on 2nd May 2018 “in order that an uninterrupted investigation can take place”. I find that the decision to suspend the Complainant was made prior to any meeting being held. It is therefore clear that the decision to suspend the Complainant was taken without the Complainant being afforded opportunity to explain the events. Moreover, following the event which gave rise to the investigation the Complainant remained in his position for some two months before the Respondent decided to suspend him with pay. The Respondent then decided to cease the suspension on 11th May 2018 and put the Complainant on unpaid sick leave only to revert this decision on or around 6th June 2018, and to suspend him again on 8th June 2018 following the investigation meeting. I find that the Complainant’s presence at the workplace would not in any way interrupt investigation and the suspension was unnecessary and unwarranted. Taking the location of the Respondent and the place of residence of the Complainant the suspension could clearly cause reputational damage to the Complainant.

I also note that the GM conducted the investigation process, he then briefed Mr D (HR Adviser) who held the investigation meeting and, in turn consulted the matter with the “management”. The GM subsequently held the disciplinary meeting and made the decision to dismiss the Complainant, which somewhat remarkably he communicated to the Complainant some two hours after the commencement of the disciplinary meeting. The GM also made all the decisions in respect of suspension of the Complainant.

The Labour Court in Joseph Brennan Bakeries v Rogers UDD1821 considered a disciplinary process in that case as follows:

“Finally, the Court considers that the multiplicity of roles undertaken by TG in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw that procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.

I note that the Complainant was given right to appeal the decision. However, the appeal was heard by Mr B who was throughout the investigation and the disciplinary process provided with copies of the minutes of the meetings held and was copied with correspondence from the Complainant’s solicitor to the Respondent. It is therefore unlikely that Mr B could remain independent as a result. I accept that this involvement tainted the process and in the view of the Complainant denied him the principles of fair procedures and natural justice.

I note that Mr B in his letter dated 5th July 2018 outlines that “The Employment Handbook provides, under the rules covering gross misconduct, that you will be liable to summary dismissal if you are found to have acted in any of a number of ways. Taking the wine bottles and the bottle of ginger ale from [the Respondent] without payment falls within one of these ways”. It is unclear which of the ways listed in the Handbook Mr B refers to.

I further note that that at the disciplinary meeting a statement from Mr F was read out to the Complainant. However, he was not provided with a copy of same.

I also note that at the relevant time there was no policy in relation to payment for goods consumed / purchased. The Respondent exhibited an email in that regard. However, it was not disputed that the email was circulated on 22nd March 2018, after the events in question took place. Having reviewed the minutes of the meeting of 7th June 2018 I note that the Complainant was asked how often would he purchase wine in the shop and he answered that “probably weekly”. It seems that it was accepted practice.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Taking account of the nature of the Respondent’s business and the trust that must exist between employer and employee in such an environment I find that in the circumstances it was reasonable for the Respondent to treat the admitted removal of goods as being very serious. I do not underestimate the level of trust and reliability required from a member of management. However, I find that the Respondent allowed the Complainant to continue working for some two months before he was suspended. It is not plausible for the Respondent to argue that the circumstances of this case come within the category of ‘very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’, described above by the Tribunal.

I also note that Mr F, Director of the Respondent witnessed the Complainant removing the bottles and did not find the behaviour of such magnitude as to ask the Complainant to at least explain it. That, combined with the lack of policy in respect of staff purchases suggests the Respondent’s lax attitude towards the matter.

I find that it would be reasonable, in my view, for the Respondent to consider factors such as the Complainant’s long service record, his exemplary record up to the incident complained of and the explanation for the impugned conduct.

Having considered the matter and taking into account the nature of the misconduct, the justification for same and the Complainant’s long and exemplary service record I find the sanction of dismissal was disproportionate.

Mitigation of Loss

In calculating the appropriate compensation due to the Complainant, I am mindful of the EAT decision Sheehan v Continental Administration Co. Ltd UD858/1999 which stated:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…..the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In the instant case, the Complainant post-hearing submitted evidence of applications for 4 jobs and registration with an on-line recruitment service. The Complainant also stated that between July and October 2018 he also handed his CV in 14 local bars. The Complainant was out of work for some 16 weeks until he secured new part-time employment in early October 2018 and is paid on average €500 a week. The Complainant submitted that he continues to seek permanent employment but given the nature of his dismissal he has been unsuccessful so far.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find the complaint unfair dismissal is well founded, and I award redress of €9,600 which amounts approximately to 16 weeks’ pay.

Unfair dismissal- flawed procedures