Complainant

Respondent

Anonymised Parties

A Barman

A Public House

Representatives

Complainant

Respondent

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-00023186-001

13/11/2018

The complainant worked as a barman for the respondent and was dismissed with immediate effect at the commencement of a shift on the basis that he was considered to be under the influence of alcohol.

The complainant worked for the respondent as a barman from 11/10/2014 until 25/05/2018 when he was dismissed.

When the complainant arrived for work on 25th May 2018 at 6.00.pm he proceeded to change into his uniform. The bar was not due to open until 7.00.pm. On his way to the bar the Manager asked him if he could have a word and, without any warning, and giving no reason,   dismissed the complainant. By letter dated 6th June 2018 the respondent stated the reasons for the dismissal which the complainant refutes. The letter stated that the complainant had received a series of verbal warnings about drinking alcohol prior to appearing for his rostered shifts. The complainant never received such warnings.   The letter also claimed that the complainant did not arrive for a rostered shift on 20th May 2018. This too was false as it had already been agreed with the manager that he would have that weekend off. In fact the complainant was on the premises as a customer on that date and was not approached by anyone from management. The letter also stated that the complainant was ‘under the influence’ when he arrived to work on 25th May, which the complainant denies.

The complainant was verbally warned by the Relief Manager on 7th April 2018 with respect to drinking prior to returning to a split shift on Easter Sunday which was on 1st April. The accusation was put to the complainant on 3rd April and substantiated by an independent witness. Under the terms of his employment this behaviour would constitute gross misconduct.

Following this incident, the complainant failed to turn up for his shift on 20th May resulting in serious inconvenience to other staff.

On Friday 25th May, the complainant arrived 15 minutes late. The Manager had been made aware that the complainant had likely been drinking at another bar prior to his shift. The Manager approached the complainant in the company of the Head of Security, the Relief Manager and the Assistant Manager. He formed the opinion that the complainant was under the influence of alcohol and was therefore not safe to work. This was deemed to be the second act of gross misconduct and so he was dismissed with immediate effect. The complainant commenced work in another bar on the next day.

The Respondent accepts that he dismissed the complainant and claims it was due to gross misconduct and this specific conduct is referenced in the Staff Handbook. The complainant denies he was ever given sight of this handbook.

The 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.’

The respondent has given persuasive evidence that the complainant was under the influence of alcohol when he turned up for work on 25th May. While there is a conflict in the evidence as to whether the staff handbook, - which expressly referred to such conduct as being an example of gross misconduct – was ever made available to the complainant, I think it should be commonly understood by any employee that turning up to work under the influence of alcohol could never be acceptable. Therefore the allegation, if proven, would in my opinion constitute gross misconduct.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

•             That details of any allegations or complaints are put to the employee concerned

•             That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

•             That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

•             That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It is clear that the respondent failed to afford the complainant proper procedures in dismissing him.   He was not invited to a properly convened disciplinary hearing and not notified of his right to be represented at such a hearing, and therefore was not in a position to respond properly to the allegations. The complaint of unfair dismissal is therefore upheld.

Compensation is defined in Section 7(1)( c) of the Act as ;

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The complainant in this case commenced work for another organisation immediately after his contract with the respondent was terminated and therefore did not incur any financial loss attributable to the dismissal. In considering what compensation is appropriate I have taken into consideration the complainant’s behaviour as a significant contribution to the dismissal and therefore believe that two week’s pay is just and equitable.

The complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €560 in compensation.

Gross misconduct, fair procedures