Complainant

Respondent

Anonymised Parties

A Head Chef

A Bar and Restaurant

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-00021986-001

20/09/2018

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

CA-00021986-002

20/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021986-003

20/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021986-004

20/09/2018

The complainant commenced employment as a head chef on September 1^st 2010 with a predecessor of the respondent.  The bar and restaurant are on a university campus and the complainant said that his responsibilities included helping out in the bar when it was busy and emptying money from the pool tables. 

When the business was wound up in 2012, it was taken over by the respondent.  From then, one of the former owners and the complainant continued in employment, with the respondent as their new employer.

For convenience in this document, I will refer to the bar and restaurant manager as “Mr M” and to the owner / respondent as “Mr O.”  I will refer to the former owner as “Mr P.” 

Following the take-over by Mr O in 2012, Mr P continued to be the owner of some kitchen equipment and two pool tables.  In February 2018, when Mr P was dismissed, this equipment was the subject of a settlement agreement between the two parties.  However, in February 2018, before the settlement deal was concluded, at Mr P’s request, the complainant continued to empty the money from the table and to give it to him.

On Thursday, March 29^th 2018, the complainant emptied the pool tables because Mr P had phoned him to say he had sold them to Mr O and he wanted to take out any remaining money before he handed over the keys.  The complainant emptied the pool tables and his evidence was that they contained €104 which he gave to Mr P.

Arising from this, a meeting took place with the complainant and Mr O on April 4^th 2018 and the complainant was dismissed for serious misconduct.

The complainant complains that his dismissal was unfair and that the procedures followed by the respondent leading to his dismissal were also unfair.  He claims that he was entitled to notice, which he did not receive.  He also claims that he was not paid his wages in the weeks leading to his dismissal and that he never received a statement of his terms and conditions of employment.

The Reason for the Dismissal of the Complainant

It is the respondent’s case that the complainant took money from the pool tables and that he did so without the knowledge and consent of his employer who owned of the pool tables.  Representing the respondent, Ms Nally said that the complainant’s action was a breach of his contract of employment and a breach of the duty he owned his employer and was therefore serious misconduct.  She submitted that the dismissal of the complainant was justified on this basis.

The respondent’s submission states that the complainant was aware that his employment could be terminated and that he knew that his actions were causing damage in the workplace.

A letter setting out the reasons for his dismissal was issued to the complainant on April 4^th, the same day that he attended the disciplinary meeting.  The letter states as follows:

During the meeting we discussed how you removed monies from pool tables from the business premises with no authorisation to do so.  This meeting was attended by you and another employee, namely (Mr M) and we spoke about how, without permission from me and without my knowledge, on the afternoon of Thursday 26^th April 2018 (sic) (this is an error and should have read Thursday 29^th March 2018) you proceeded to unlock and remove monies from 2 pool tables and remove the monies from the business premises unauthorised.

As discussed during the meeting, your conduct during that incident:

was wilful or deliberate behaviour by you that is inconsistent with the continuation of your contract of employment.

and

was conduct in the course of your employment engaging in theft, and in the circumstances your continued employment during a notice period would be unreasonable.

We consider that your actions constitute serious misconduct warranting summary dismissal.

Evidence of the Owner, “Mr O”

In his evidence, Mr O said that around €2,000 per month is usually taken from the pool tables.  On July 29^th 2018, he said that he was contacted by the security officer in the bar to let him know that the complainant had taken money from the pool tables.  On Monday, April 2^nd, Mr O sent a text message to the complainant to tell him not to come to work and to come to a meeting with him on April 4^th.  At the meeting, Mr O said that the complainant said that he took the money to give to Mr P, because they were his pool tables.  Mr O said that he told the complainant that while Mr P owned the pool tables, there was an agreement that the takings were owned 50/50 between him and Mr P.

Mr O explained that when Mr P was let go, he agreed to buy the pool tables from him and that he bought them on March 28^th, by which time, they were his tables.  The following day, Thursday, March 29^th, the manager, Mr M told the complainant that Mr O had bought the pool tables and he asked him for the keys.  Mr O said that the complainant told Mr M that he hadn’t got the keys.  Later that evening, the security officer in the bar saw the complainant emptying the money from the pool tables.

In cross-examining by Mr Naidoo, for the complainant, Mr O was shown a copy of an e-mail sent to Mr P by Mr M on February 28^th 2018.  The e-mail refers to “equipment that you own” and Mr M asked Mr P to expedite the collection of the equipment from the bar.  Further e-mail evidence shows that, on March 7^th, a price was agreed between Mr P and Mr O for the purchase of the equipment.  Payment was to be made in instalments directly to Mr P’s bank account and the final line of the e-mail in which the agreement is confirmed states:

“The equipment will remain in my name until payment is made in full at which stage I will e mail you receipt of purchase of equipment.”

As the final payment was not transferred to the account of Mr P until March 29^th, Mr Naidoo argued that the money in the pool tables was the property of Mr P until that date.

For the respondent, Ms Lally said that on March 29^th, the complainant was told by Mr M not to take out any money and he was asked to hand over the keys.  He replied that he hadn’t got the keys.  It subsequently turned out that the complainant had the keys of the pool table all along.

Evidence of the Manager, “Mr M”

In his direct evidence, Mr M said that before lunchtime on March 29^th, he asked the complainant for the keys of the pool tables because they belonged to Mr O from March 28^th.  He said that the complainant replied that he hadn’t got the keys.

In cross-examining by Mr Naidoo, Mr M was asked how he knew that the ownership of the pool tables had passed to Mr O on March 28^th.  Mr M said that he was sitting beside Mr O on March 28^th when he transferred the money from his bank to Mr P’s bank account.  He said that this occurred between 10.00am and lunchtime on Wednesday, March 28^th.  He said that he was sending an e-mail to Mr P and Mr O showed him the bank transfer of funds from his account to Mr P’s account.

The Process Followed in Dismissing the Complainant

In his evidence, the owner, Mr O said that he sent the complainant a text message on Monday, April 2^nd and he invited him to a disciplinary meeting.  The text message has no reference to the right to be represented.  When he arrived for the meeting, Mr O said that he asked the complainant if he wanted to have someone with him.  In their submission, the respondent said that, on April 4^th, the complainant was given an opportunity to respond to the allegation of gross misconduct and he complainant was informed of the reason he was being dismissed.  The submission states that the respondent had previously warned the complainant about his conduct, but that no improvement had been forthcoming.  Mr O said that when the complainant told him that he took the money from the pool tables, he dismissed him. 

A copy of an e-mail sent by the complainant to Mr O was submitted in evidence.  The e-mail shows that the complainant requested an opportunity to appeal the decision to dismiss him.  He got no reply to this e-mail.  In his evidence at the hearing, in respect of this appeal request, Mr O said that he had “no room to manoeuvre.”

The Reason the Dismissal of the Complainant was Unfair

There was no dispute about the events leading to the complainant’s dismissal, which centred on him removing cash from two pool tables in the respondent’s premises on the afternoon of March 29^th 2018.

On April 4^th, when he attended a meeting with Mr O, the complainant said that Mr M was also in attendance, but that he asked for him not to remain at the meeting.  The complainant’s submission states that the meeting was short and that the complainant explained that, in taking the money from the pool tables, he “did what he always did.”  Mr O accused the complainant of taking €2,000 from the pool tables and he said that he could no longer trust him and that he was “firing” him.

In his submission, the complainant said that, when he emptied the pool tables on March 29^th, he was not aware that negotiations were going on between Mr P and Mr O about the purchase of equipment.  He argued that when he emptied the pool tables, he thought that they were owned by Mr P. 

The complainant said that, before this incident, he had no disciplinary record with the respondent, and that the decision to dismiss him was unreasonable and disproportionate to the circumstances.  In dismissing him, the complainant’s submission states that this action by the respondent was unfair and unreasonable on six separate grounds:

1.  There was no justifiable cause for the dismissal;

2.  The complainant was not properly notified of the disciplinary meeting on April 4^th 2018;

3.  He was not informed that the outcome of the disciplinary meeting was that he could lose his job;

4.  The complainant was not given a proper opportunity to answer the allegation of theft;

5.  The complainant was not offered representation before the meeting;

6.  He was not given an opportunity to appeal against his dismissal.

Evidence of the Complainant

In his direct evidence, the complainant said that, when he was employed, at the end of every month, he emptied the pool tables and gave the money to Mr P.  He said that he brought the money to the kitchen and counted it there, or sometimes he counted it in Mr P’s office.  He said that it was his understanding that the money belonged to Mr P.  When he emptied the tables on March 29^th 2018, the complainant said that he collected €104.

The complainant’s evidence in response to questions from Ms Lally was slightly different from his submission, as he said in evidence that he knew “there was a deal going on” between Mr P and Mr O, but he didn’t know the details.  He said that normally, when the money from the tables was bagged up, it was divided between Mr P and Mr O.

The complainant disagreed about being asked for the keys of the tables on March 29^th, and he said that “this conversation never happened.”  He said that he hadn’t had any conversation with Mr M because he made a complaint about him and how he was treated by him.

When he was asked why, when Mr O was his employer, he carried out a request from Mr P to empty the pool tables.  He said that he had done this “for years and years” and that he was not instructed my Mr O not to take the money out.  He said that he always emptied the pool tables and gave the money to Mr P.  He said that he did not accept that what he did could be considered as serious misconduct.

Evidence of Mr P

Mr P gave evidence for the complainant’s case.  He said that he was dismissed by the respondent in February 2018.  Before 2012, he had rented the premises and he owned all the equipment, including the pool tables, when the respondent took over that year.  Mr P said that he, his sister or the complainant emptied the pool tables.  The complainant had done this job several times, and sometimes the money was counted in the kitchen, other times in the office.  If the complainant counted the money, he gave it to him.

Mr P said that he received payment for the equipment he sold to the respondent on the evening of March 28^th 2018.  He said that he was prepared to hand over the pool tables empty of any money.  He said that, from when he left in February 2018, he asked the complainant to empty the pool tables every week.  This is the reason there was just €104 in the tables on March 29^th.  He said that he needed the money because he had no job.

In cross-examination by Ms Lally, Mr P was asked why he didn’t empty the pool tables himself.  He said that he was told that the security company didn’t want him on the premises and, for this reason, he asked the complainant to empty them.  He said that on the morning of March 29^th, the complainant hadn’t got the keys and that he gave them to him that afternoon and asked him to collect the last of the money.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that;

“…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 …the conduct of the employee.”

It is the respondent’s case that the complainant was dismissed for removing cash from the pool tables at his premises.  The owner concluded that this amounted to gross misconduct and a breach of contract, and that summary dismissal without notice was the appropriate sanction.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the EAT in many instances, and specifically in the case of Looney & Co Limited v Looney UD 843/1984, it is not for me to establish the guilt or innocence of the complainant.  My job is to determine if it was reasonable for the respondent to conclude that the complainant was, as described in his letter of dismissal, “engaging in theft” and, in reaching this conclusion, was the decision to dismiss him proportionate to the seriousness of his conduct?

At the hearing of this complaint, it was apparent that there was a breakdown in relations between the owner of the business up to 2012, Mr P, and the current owner, Mr O.  Following the departure of Mr P in February 2018, it seems that the complainant was considered to be in Mr P’s “camp;” or at least, this the way he thought he was seen.  Relations between the complainant and Mr P were obviously still ongoing, as the complainant agreed to empty the pool tables every week and to give the money to him.  When, at the meeting on April 4^th, he was asked why he removed the money from the pool tables on March 29^th, his response was that he was doing what he always did.

Mr P finished up with the respondent in February 2018.  There is a conflict in the evidence between Mr M and the complainant about Mr M asking the complainant to hand over the keys on March 29^th.  Mr M said that he asked the complainant for the keys and the complainant said that “this conversation didn’t happen.”  I find the evidence of Mr M more credible in this regard because he had an interest in the keys at that point and it would be reasonable for him to ask for them.  Also, later that day, the complainant opened the pool tables and took out the money, so it would seem reasonable to believe that he had the keys in his possession that day.

No evidence was submitted from the respondent’s side to the effect that the complainant was instructed not remove money from the pool tables.  As an outsider looking in and, placing myself in the position of a reasonable employer, I find it difficult to arrive at a conclusion of serious misconduct in response to an action that the complainant had been doing for a long time and that he was not told not to do.

The complainant said that he gave the money from the pool tables to Mr M and that, at his request, he did this every week for five or six weeks from the time that Mr M left the business.  Mr M corroborated this evidence.  It is my view it the conclusion that the complainant was “engaging in theft,” was unsound.  He did not deny that he took the money and he said that he gave it to the person who, in his view, was the owner of the money.  This seems to me to be incompatible with a finding of theft.  I accept that the respondent is entitled to consider that the complainant’s conduct was disloyal or that it undermined the confidence that the respondent should have in him.  However, it is my view that a finding of serious misconduct that merited dismissal was a step too far and the decision to dismiss the complainant was too severe and that a sanction short of dismissal would have been more appropriate.

Was the Process Fair?

No evidence was submitted at the hearing of the existence of a disciplinary procedure in the respondent’s company.  The process that resulted in the dismissal of the complainant was seriously flawed and not in line with any standard procedure and not in accordance with even the minimum requirements of the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000).  The failings in the process were many and can be summarised as follows:

No proper investigation was not conducted into the incident that led to the complainant’s dismissal.  No evidence was presented to him for consideration in advance of any investigation meeting and he was not given the opportunity to respond to an allegation of serious misconduct.

I refer to the case at the Employment Appeals Tribunal of Dunne v Harrington, UD 166/1979.  Here, the chairman declared that,

“…where an employer investigates personally, it must do so in a fair and reasonable manner, ie, as fully as is reasonably possible, confronting the ‘suspected’ employee with ‘evidence,’ checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings / confrontation.”

The complainant was requested to attend a disciplinary meeting by text message.  Given the possible serious outcome from this meeting, he should have been properly requested to attend this meeting in writing, he should have been advised to be accompanied and he should have been informed that there was a possibility that he would be dismissed.  All the evidence in the respondent’s possession should have been given to the complainant in advance of this meeting.

The decision to dismiss the complainant on the day of the disciplinary meeting indicates that little consideration was given to what the complainant said in his defence and no further exploration was carried out before the respondent reached the decision to dismiss him.

The complainant asked to be allowed to appeal against the decision to dismiss him, but he got no response to this request.

Conclusion

For the reasons set out in this section, I find the sanction of dismissal was too severe.  I also find that the process that resulted in the complainant’s dismissal was entirely flawed.  In conclusion therefore, I find that this was an unfair dismissal.

Three weeks after he was dismissed, the complainant said that he got a job in a restaurant and another job in a pub.  He finished up in the restaurant after 13 weeks, but he continues to work in the pub, but not on a full-time basis.  He expects that it will get busier and that he will be rostered for more hours.  Evidence of payslips was submitted that show that his net weekly pay is currently about €130 less per week than what he earned with the respondent.

I have taken the complainant’s loss of earnings into account, and the reasonable prospect that, as an experienced chef in the current economic environment, he will soon have a similar income to what he earned with the respondent.  I decide therefore that the respondent is to pay him €8,000 as compensation for his unfair dismissal.

The complainant’s case is that the decision not to give him notice of the termination of his employment or to pay him in lieu of notice was in breach of the Minimum Notice and Terms of Employment Act 1973.  He now claims that he is entitled to pay in lieu of notice. 

It is the respondent’s case that, because the complainant was dismissed as a result of a finding of serious misconduct, he was not entitled to notice. 

As I have concluded that the complainant was unfairly dismissed, I must therefore find that he was entitled to notice.  As he was in the employment of the respondent and his predecessor for more than five years and less than 10 years, he was entitled to four weeks’ notice. 

The complainant is entitled to four weeks’ pay in lieu of the fact that he was dismissed without notice.  On the basis of his gross pay of €663.60 per week, I decide therefore that the respondent is to pay him €2,654.40 gross, equivalent to four weeks’ pay. 

In his evidence in respect of this complaint, the complainant said that he was not paid one week, when Mr P said that Mr O would pay him.  Mr O was not the complainant’s employer and had no responsibility with regard to his wages.

The complainant said that he got no wages on March 29^th, the week before he was dismissed, but that he subsequently received his wages and holiday pay.  Finally, the complainant said that he didn’t receive a back-week when his employment was terminated.

Payslips submitted in evidence show that, on March 29^th 2018, which was the complainant’s last day at work, he was paid €663.60 for a normal week.  On April 6^th, he was paid €663.60 in respect of one week’s pay, plus €561.86 for holidays not taken.

Having examined the evidence submitted at the hearing, I am satisfied that the complainant has received all the wages he was due at the time of his dismissal and his complaint under the Payment of Wages Act is not upheld.

I have decided that this complaint is not upheld.

The complainant said that he received a copy of his contract of employment setting out the terms and conditions of his employment, only after he was dismissed.

For the respondent, Ms Lally said that the complainant was provided with a contract of employment on two occasions.  A copy of a contract dated January 1^st 2016 was submitted in the respondent’s book of papers and this is signed by the complainant and the respondent.

Having considered the evidence submitted at the hearing, and particularly, the signed copy of the contract of employment dated January 1^st 2016, it is my view that this contract must have been issued to the complainant at some stage prior to his dismissal.  No evidence was submitted that shows that the complainant ever looked for a copy of his contract before he was dismissed.  I find that he was issued with a contract and I do not uphold his complaint in this regard.

I have decided that this complaint is not upheld.

Unfair dismissal, notice, payment of wages, statement of terms and conditions of employment