Complainant

Respondent

Anonymised Parties

A Bartender

A Hotel

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-00028582-001

21/05/2019

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

CA-00028582-002

21/05/2019

The complainant was employed by the respondent as a Bartender from April 15th, 2017 until November 27th, 2018.

The respondent became aware of discrepancies and shortages in receipts in its bars and introduced ‘Beverage Service and Drinks Training’ for employees but this failed to address the problem.

It then engaged an external contractor to carry out a ‘cash integrity audit’ on the basis of anonymous observation by the auditor of its practices.

A report of the audit was received on November 13th, several days after it had been carried out.

The audit identified a number of problems involving the complainant in breaches of the respondent’s policies.

There were two in particular; one concerning the allocation of tips and the other a breach of the respondent’s drugs and alcohol policy, specifically as it related to the consumption of alcohol.

These were categorised as falling within the category of ‘gross misconduct’.

On that same day, November 13th the complainant was called to a meeting with the HR Manager and told he was being placed on paid suspension, and given a letter outlining the allegations against him.

These were; (a) dishonesty, (b) theft, unauthorised possession, or use of Hotel, guest or other employee’s property, including failure to report/turn-in lost and found items, and (c) Violation of the hotel’s Drug and alcohol policy.

He was given another letter also dated November 13th inviting him to attend an investigation meeting and a copy of the audit report was enclosed with this letter. He was advised of his right to representation.

At the investigation meeting the complainant confirmed that he had made cash mistakes, he admitted to drinking some gin and tonic and despite knowing the tips procedure breached it by retaining tips for himself. He confirmed that he took €20.00 from the cash drawer and that he had not charged customers on several occasions for room service.

Following this he was invited to a disciplinary meeting by the hotel’s Executive Chef who was to conduct it and it took place on November 23rd. The letter outlined the possible range of sanctions to which the complainant might be exposed.

At the hearing the complainant accepted that he had made several cash mistakes, consumed alcohol and breached the procedure in relation to tips.

As a result, the respondent dismissed the complainant by letter of November 27th.

He appealed, and his appeal was heard on December 12th.

The complainant again accepted that the allegations made against him were true.

The complainant did not challenge the facts on which the decision had been made and the appeal failed, and the dismissal was upheld.

The respondent says that the matters alleged against the complainant fall well within the conduct proscribed in its handbook and justifying termination of employment. The complainant’s conduct represented gross misconduct.

The procedures followed throughout by the respondent fully respected the complainant’s rights to a fair process.  

The complainant says that the process followed by the respondent was procedurally flawed.

The suspension of the complainant was unlawful and tantamount to a dismissal.

The letter of suspension made no reference to the suspension being temporary or for the purposes of continuing investigation and was in any case unnecessary for the process to continue.

The letter did not state why it was necessary to suspend the complainant in order to proceed with the investigation.

The complainant drew attention to the confused and repetitive text of the various letters sent to him, and the lack of precision in the letter communicating the decision to terminate his employment.

There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.

The onus under the Act falls on an employer to justify the dismissal.

In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct. In respect of this complaint that was clearly the case.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee or other parties affected and to ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of most facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

Finally, there is that matter of sanction which must fall within what is described as a range of reasonable responses by the employer.

The report of the Disciplinary meeting was before the hearing.

In the course of that hearing on November 23rd the complainant was asked whether he had read the ‘report and notes’ presumably the audit report and the notes of the investigation meeting (which are undated, but it took place on November 16th) and finally asked if he had anything to add.

He said ‘no’, and accepted he made mistakes, offering in mitigation the fact that he had been tired.

He defended his breach of the tips policy on the basis that others breached it and helped themselves to tips.

He did contest the allegation regarding the drinking of the gin and tonic (and also did so in the course of the hearing) on the basis that the ‘mystery’ auditor could not possible have seen him because of where they both were at the time.

If the minutes capture the content of the meeting any way accurately it was a relatively short affair.

It does contain the following unusual exchange; (A is the decision maker, B the complainant).

A; ‘For me there is no point to go over each point is that ok?’

B; ‘Yes’.

A; ‘Several breaches, drinking on the job, not ringing in drinks’.

B; ‘Especially the Gin and Tonic, only [name] knows this. How can this guy see through walls?

A; ’You can see from the bar stool. Report was conducted by a professional. The report is legitimate. You admitted drinking at the investigation so now you are disputing it.

B; I am just waiting on the result. I don’t know why there is a disciplinary.

Following this there is agreement to meet the following Tuesday for what appears to be the outcome meeting.

It is not easy to distinguish whether it is the notes of the meeting which are inadequate or the conduct of the meeting. Taken at face value the decision maker hardly displayed the degree of objectivity or rigour one might expect; he seemed impatient to bring the process to a conclusion.

The report of the investigation is a good deal more illuminating (running to some four pages as opposed to just over one for the disciplinary) and as it was written by the same person who minuted the disciplinary hearing, it seems safe to assume that the disciplinary meeting was the short affair it appears from the report of the meeting.

It is true that the complainant did not offer any rebuttal of the allegations although he did offer some points in mitigation.

It concluded with the investigator saying;

‘We will check on all of you [sic] requests and we will call you again. It may take a few days.

There was no evidence that he did.

Of potentially greater significance is the fact that the investigator did not produce any report of his findings nor did he make any recommendations as to what should follow the investigation. Evidence was given on behalf of the respondent that the investigator recommended orally that disciplinary action should be triggered.

The complainant also expressed concern about duplication of text in the correspondence he was sent, and that a phrase from an earlier letter would appear in a later one despite not being relevant by that stage of the process.

The letter of November 13th inviting the complainant to the investigation meeting stated; ‘At this meeting you will be informed of the complaint’.

The undated invitation to the disciplinary meeting contained the same phrase, even though the complainant was well aware by that stage of the complaint.

The letter terminating the complainant’s employment should have been clearer although there was not much doubt about its conclusion. For example to refer, at the end of a process to an allegation that has clearly been upheld as an ‘allegation that is being made’ (emphasis added) is inadequate.

Similarly, it later goes on to state that ‘We have reason to terminate your contract with the hotel due to the severity of this issue’ without stating any conclusion as to whether this is what would happen. In other words, the letter does not communicate in plain English that the employment is being terminated.

Some of this may seem harsh on the respondent if nothing turned on the imprecision in its drafting of these letters. Not every letter from a HR department is required to be written with legal precision.

However, while some degree of imprecision in drafting may be tolerable there are a number of reasons why, looking at the wider context it gives grounds for concern in this case.

In the first place, sloppiness in the drafting of this correspondence is not just a matter of perfect grammar and syntax but suggests indifference to the rigour in procedure that is required in respecting the complainant’s right to a fair process.

Critically, it provides grounds to believe that the issues were not being given proper consideration, and that the independence of mind and lack of prejudgement required were absent, when poorly edited templates could be recycled and sent to the complainant as being good enough.

And if it had been the only factor it might have escaped criticism, but there are other, more significant considerations which feed into the context referred to.

The impatience of the Disciplinary decision maker, who could not be bothered going over each point and sought the complainant’s agreement not to agree to this adds to this impression. If he was too busy to conduct the hearing, or unfamiliar with the procedural requirements for doing so he should have declined to undertake it.

The failure of the investigator to produce a written report with reasoned findings is also grounds for concern. While the complainant did admit to much of the conduct alleged against him there is no record of the investigator’s findings. Whatever his conclusions were should have been recorded in writing along with the reasons for those conclusions.

It is simply not enough for an investigator appointed as part of a process leading to disciplinary action, in this case a termination of employment, to have a word in the ear of someone in the HR department telling them to proceed, and while there was no evidence as to what was actually said, the complainant had no opportunity to address it, as was his right. This is a critical flaw.

It is hard to know why the respondent bothered with an investigation at all if the investigator was not going to produce a report of his findings.

The respondent seemed to believe that having such convincing material from the ‘mystery’ audit meant its work was done.

In fact, it was only beginning. It was only at the start of the process.

The requirements of fair procedure demand transparent evidence that an employer has approached all stages of the process with an open mind and this should be visible from the record or the evidence.

This is the case even, (indeed especially) where there may be a so-called ‘smoking gun’, as could be said to be present in this case. Even where a complaint against an employee may look to be fairly damning there can be no presumption of guilt or any dilution of the fair procedure requirements, or fast tracking to an ‘inevitable’ outcome.

I find in this case the respondent did not meet the required standard taking all of the above deficits into consideration.

There are too many aspects of its conduct of the process which indicate pre-judgement or at best, indifference to the need for a robust approach to fair procedure at all stages and in respect of all aspects of the process as they affected the complainant’s rights. The sloppiness in the letters was a mere symptom of its general approach.

The dismissal was unfair, and the complaint is upheld.

The complainant contributed very substantially to his situation so that while I find that the dismissal was procedurally unfair this contribution is reflected in my award.

I also uphold the complaint under the Minimum Notice and Terms of Employment Act, 1973. The complainant had less than two years’ service.

I uphold Complaint CA-00028582-001 and award the complainant €7,500.00

I uphold Complaint CA-00028582-002 and award the complainant one week’s wages in lieu of notice in the amount of €550.00.

Unfair dismissal, fair procedure, Notice