ADJ-00017843

Complainant

Respondent

Anonymised Parties

A Fast Food Manager

A Fast Food Restaurant

Representatives

None 

John Curran BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act

CA-00023037-001

05/11/2018

There is dispute regarding the circumstances and when the complainant’s employment ended. The complainant asserts that he was unfair dismissed in or around the 3^rd November 2018. The respondent asserts that the complainant abandoned his employment or resigned. The respondent asserts that there is a sum of €3,500 missing from the tills.

The complainant outlined that he was the store manager and commenced employment in August 2017. On the 2^nd November 2018, he returned to work from annual leave. He met the respondent director on the 3^rd November, and they discussed voids. The director accused the complainant of taking €3,000 and said he owed this money. The director threatened to send people to the complainant’s house. The director said the complainant had to return his keys. The director also said “f*** legal proceedings” in relation to this case. The complainant outlined that he phoned the director on the 4^th November, who said that there was no more work for the complainant.

The complainant said that he opened a case with the WRC and on the 8^th November, the director asked to meet him. He ignored his communication. The director later emailed on the 12^th December to say that the complainant had resigned.

The complainant said that his weekly pay had been €519. He has not found work since his dismissal. He is registered with websites and emails prospective employers in respect of jobs. He did not have a reference from the respondent and people mention his age when he applies for roles.

The complainant outlined that he was paid “normal pay” for three weeks after the conversation of the 3^rd November. He thought that this was the outstanding notice pay and annual leave owed to him. The complainant said that the conversation on the 3^rd November was clear. The director later denied making the threats and never mentioned that the complainant was suspended. The complainant had recorded the conversation.

In respect of voids, the complainant said that he was always logged in on the computer. This meant that when the system recorded that he had voided a transaction, this could have been done by someone else using his log in. They did a daily till run for cash and other payments received during the day. He prepared a daily till return, with a print out from the POS with petty cash expenditure. He was off on Sundays and Mondays, so would deal with open orders which had been voided when he was last in.

The respondent outlined that the complainant held a position of high trust while working for the respondent. The issue involved orders being deleted from the point of sale system. This included deletions made on the 3^rd November 2018, when the complainant was managing the store. The director showed the complainant the void orders and the POS information. The complainant sought to explain that he opened orders in order to balance the till. The complainant left and the respondent had a reasonable basis to question his involvement when there was €3,500 missing.

The respondent emailed the complainant on the 8^th November to attend a meeting. The complainant was paid for the following weeks, with the last payment being made on the 22^nd November. There was no dismissal as the complainant had abandoned his employment. The respondent had carried out a reasonable investigation into the transactions.

The director described that payment is made when the order is received. The POS recorded every action on the order, including when the order is made and when cash is paid. What was happening was that two days later, the order was recalled and refunded there and then. The transaction is then voided. These related to physical orders made by customers in the shop and not cash deliveries.

The director said that he noticed that there were a batch of voids. He outlined that the POS evidence disproved the complainant’s explanation. When the complainant was on annual leave, the director verified that there were no voids. When he checked the system on the 3^rd November, he noticed that orders from the day before had been voided. The director raised this with the complainant and showed him the documentation going back several months. The complainant said that there were open orders and he had to balance the books. The director showed that these orders were paid for and there was no reason for them to be voided.

The respondent submitted that the complainant had abandoned his employment on the 3^rd November but was paid after that. The respondent did not generate daily returns and received twice-weekly reports. The director said that he did not consent to the recording of the conversation with the complainant. The respondent submitted that there was still the matter of the outstanding €3,500.

The complainant worked in the respondent take-away restaurant, handling food orders and sales. The respondent identified issues with the recording of financial transactions, concluding that the complainant was liable for this financial loss. The complainant denies this and said that he was reconciling voided transactions.

As set out above, I have addressed this case as a complaint pursuant to the Unfair Dismissals Act. The complaint clearly relates to the ending of the complainant’s employment and he has service to advance such a complaint.

The first question is whether the complainant was dismissed, or did he abandon his employment or resign. In discussing ‘resignation’, the Labour Court held in Shinkwin v Millett EED044: “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Assessing the evidence, I find that the complainant did not resign, i.e. did not unilaterally act to end the employment relationship as there was no unambiguous and unconditional termination of the employment relationship. He did not abandon his employment and I accept his evidence as to what happened on the 3^rd November 2018.

There was an employment relationship and it came to an end. Because of the finding that there was no resignation, it falls on the respondent to discharge the statutory presumption that the dismissal was unfair.

In a case involving a €50 note going missing, the Labour Court in Ikoro v Woodies DIY Ltd (UDD1739) held “It is not for the Court to carry out an investigation of the events of 26^th October 2015 or indeed to draw any conclusions or make inferences as to what happened to the €50 note. Rather the role of the Court is to determine whether the decision to dismiss in the circumstances was within the range of responses of a reasonable employer to the events of 26^th October 2015. That decision and the disciplinary process leading to that decision took into account the outcome of the investigation which had been carried out by the Respondent. The Court has found that the investigation was not comprehensive. Consequently the Court must conclude that it was not reasonable of the Respondent to reach a decision to dismiss the Appellant in the absence of a comprehensive investigation of relevant facts and events.”

From reviewing the evidence, it is clear that there were significant discrepancies in the recording of financial transactions and a high number of voids. These discrepancies required investigation and answers. There was no formal investigation into the allegation, partly because the complainant did not engage after his dismissal. I note that there were daily financial reports generated in the restaurant that the respondent had not viewed or considered. I note that there was CCTV at the point of sale, which the respondent had also not viewed or considered.

I have found that the respondent dismissed the complainant on the 3^rd November 2018. I find that while the respondent raised serious issues that required investigation, this does not discharge the statutory presumption that the dismissal was unfair. I accept the complainant’s evidence that he was told on the 3^rd and 4^th November that he would no longer be allocated hours of work with the respondent, and that he did not work for the respondent after that. It follows that the complainant was unfairly dismissed and the complaint is well-founded.

I note the evidence that the complainant has sought employment since his dismissal. He did not present evidence of actual applications. Given the complainant’s experience in the busy take-away / food delivery sector, one would expect someone to readily obtain alternative employment. Given the circumstances of the case and the absence of evidence showing mitigation, I award redress that is just and equitable of €2,000. This is an award per section 7(1)(c)(ii) of the Unfair Dismissals Act.

CA-00023037-001

For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €2,000.

Unfair Dismissals Act

Statutory presumption that the dismissal is unfair

Evidence of mitigation