Complainant

Respondent

Anonymised Parties

A Waiter

A Café

Representatives

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-00025340-001

27/01/2019

The Complainant said that he was unfairly dismissed by the Respondent on 8 January 2019 for eating a croissant behind the counter of the café.

The Respondent said that it had a number of issues with the Complainant’s performance, that he was on a warning. However, he was not improving. It decided that the issue on 8 January was unacceptable and he was dismissed.

The Respondent said that the Complainant was found eating a croissant behind the counter of the café in full view of the customers. It said that he did not get permission from the floor manager, Mr. A, to do so. The Respondent said that this was a breach of its staff food policy.

The Respondent said that the head manager, Mr. B, never verbally abused the Complainant in front of the customers or staff as was suggested by the Complainant. The Respondent said when Mr. A questioned the Complainant and asked, “what was he doing”. He casually replied that he was “just having something to eat” and he never mentioned anything about a table to Mr. B. It said that the Complainant had asked for some time off that afternoon to attend a driving lesson and therefore it was agreed with him that he would work his morning break to allow him off in the afternoon for his driving lesson.

The Respondent questioned the Complainant’s recall of this event and another event raised by him in relation to December 2018. It claims that the Complainant was only in work at 10am and he clocked out at 10:39am on the day in question which is at odds with the Complainant’s account of events. The Respondent also raised that there was an incident in December 2018 where the Complainant took money out of the Cash Register, himself, and it was not ‘handed to him by a work colleague’ as stated by the Complainant in his evidence.

In relation to the December 2018 event, the Respondent said that it has no evidence that the money was ever paid back. The Respondent said that the Complainant was contacted by phone about the incident that evening, and a follow up meeting was held on 19 December 2018 where the Complainant was issued with a seven day “improvement notice”.

The Respondent said that due to continued issues with his performance over the previous few months leading up to the events in January 2019, it deemed that his performance was not acceptable, and the only course of action was for the Complainant to be dismissed.

The Respondent was of the opinion that it went out of its way to help the Complainant during the course of his employment and it even provided references for him to get accommodation. It said that it provided him with additional help and training but there were countless problems reoccurring.

The Complainant is a Kosovo National and said that he commenced employment with the Respondent on 25 September 2017. He said that he was dismissed on 8 January 2019.

The Complainant said that he was suffering from back pain, he was prescribed to take strong tablets by his doctor since 28 December 2018 and these were to be taken after food. The Complainant said that both the floor manager and the head manager knew about this back issue and that he was taking tablets for this condition. The Complainant said that he would normally take these tablets at around 10:30am and 4:30pm daily. The Complainant said that on the specific day in question, he started his shift at 10:00am and reminded the Mr. A about the tablet. He said that he sought permission from him to get something to eat. He said that Mr. A said, that was fine as long as he paid for the food.

The Complainant claims that nearly an hour after the start of his shift he was eating a croissant behind the counter of the Café, when the head manager Mr. B, came down and said, "What the F**k are you doing behind the counter". He said that he stepped inside the counter, pushed the plate towards the Complainant and said, "get the f**k to the back". The Complainant said that he went to the back of the Café, where he took the tablet and went back to work. The Complainant said that Mr. B then approached him and said, "Do you think this is a joke". The Complainant said that he tried to explain that he had to take his tablet, to which Mr. B replied, "you know what, you are finished, you can just go home".

The Complainant said that he had paid for the croissant and had started eating it behind the counter in the presence of Mr. A, without issue, until Mr. B appeared.

In relation to the incident in December 2018, the Complainant said that he asked a colleague to give him €10 from the cash register in order to pay the Taxi that had carried him from work to home. The Complainant said that it was no big issue and that a note was left in the cash register to explain that he had taken the money and would pay it back. The Complainant said that when he reached home, he got a call from Mr. B giving out to him for taking the money. The Complainant said that on the next day Mr. B gave him a letter explaining he is not allowed to take money from the cash register. He said that a week later he was given a written warning in relation to this and for making “mistakes while taking the orders”. The Complainant said that he paid the €10 back and in evidence presented a print out from his own account and highlighted that the money was paid into the Respondent’s account. The Complainant said that he was given seven days to improve and claims that the seven days finished in December 2018. The Complainant said that this was the only written warning he ever got.

The Complainant said he was really embarrassed on 8 January 2019, in how he was addressed by Mr. B and dismissed in front of his work colleagues and customers who all know him very well. He claims that the dismissal was unfair.

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(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 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.”

At this point I am also mindful of the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] which sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures and they include that:

1.       the details of the allegations or complaints be put to the employee concerned;

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

In considering this matter, I note some variation as to what exactly happened on the morning of the 8 January 2019. I am satisfied that the Respondent is clear that on the day it had enough of the Complainant, that there was a number of incidents leading up to that day and it decided that enough was enough, it was time to dismiss him. It cited the other incidents leading up to this and the one written notice served on the Complainant from earlier in December 2018. It also notes that a verbal notice of ‘seven days to improve’ was served on him and that the Complainant was in breach of its well-known policy about eating behind the counter. I note the seven days had passed. I also note the Complainant evidence when he said it was not forbidden for staff to eat behind the counter.

The Complainant remains consistent with his evidence where he said that he was told home go by Mr. B on the day in question, even though he tried to explain to Mr. B as to why he was standing behind the counter eating the croissant. Mr. B said that he was not aware that the Complainant had to eat before he took the tablet.

There was much dispute too about the incident in December 2018 and the taking of cash from the Cash Register. However, it was accepted it happened and it was dealt with and a warning issued.

It is clear that the Respondent has an Employee hand book which sets out in clear terms the disciplinary rules and procedures. It includes 27 different examples of incidents that it considers to be gross misconduct and that, “the list is not exhaustive”. I note that the rules include that incidents of gross misconduct offences will result in dismissal without notice. I have not noted that eating behind the counter or breaches of such a policy/rule comes under a fairly detailed list of examples classed as gross misconduct.

As I have already noted above the Respondent had furnished me with its Grievance and Disciplinary Procedures and I have noted what I would expect to find is a procedure that should be followed, including reference to an investigation meeting; a reference to the procedure used when one is invited to a disciplinary meeting; a reference to ensure that the employee is allowed to make their case and be heard and the possibility to appeal a decision when a sanction is served on an employee following a hearing.

When that document is compared to the reality of what happened on 8 January 2019, it is quite clear that the Respondent did not follow its own procedures as set out in the Disciplinary Procedure. Actually, I am satisfied that the Respondent failed to consider any procedures at all on the day in question when the Complainant presented himself behind the counter of the café with food. There was no investigation meeting; no disciplinary meeting; there was no hearing at all; the Complainant was dismissed and there was no offer to him to appeal the decision.

The Respondent in defence of its position said that Mr. B was not in possession of the facts that the Complainant needed to eat something before he took his medication. The Complainant said that he told him that he had to eat before he took his medication. Therefore, it is clear that there are different versions of the story. The Complainant has a reason for his action, but he was not listened to.

One fact is not disputed the Complainant lost his job that morning because of this situation. The highest sanction imposed on him. I would suggest that had the Respondent carried out an investigation, as per its policy and procedures, the full facts would have transpired and it would have heard as to why the Complainant took the actions he did on the day and with, what he thought, was with full permission of the floor manager. Had the Respondent followed it own procedure or indeed the procedure set out in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000], there could have been a different outcome.

I note the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978 where it states that, “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the Respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

Also, I note in O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. [my emphasis added]

Having examined the Respondent’s Grievance and Disciplinary Procedures it is clear that the Respondent has simply not followed its own procedure at all. It has a ‘possible’ disciplinary matter to deal with. I note that the Respondent could have taken stock of the situation before it, consulted its own disciplinary rules and procedures and sought advice on the matter before deciding on what to do. It did not do any of this, it simply dismissed the Complainant. The Respondent said that it believed that it acted fairly. However, the decision made, was a decision to end one of its employee’s source of income and livelihood, without being in full sight of all the facts. The obvious missing piece in the investigation was the Complainant’s side of the story, which is entirely contrary to the principle of fairness and natural justice.

On balance, therefore, I find that the manner in which the Respondent failed to conduct any investigation in line with its own disciplinary procedure fails to comply with fair procedures and natural justice. In the circumstances, I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act is well founded.

In respect of mitigation of loss, the Complainant submits limited evidence of seeking other various roles for employment. However, he has now found alternative employment. I note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) where it 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”.

It is clear that there is a legal duty to mitigate financial loss by taking diligent steps to secure comparable alternative employment. I also note the decision in Burke v. Superior Express limited UD 1227/2014 where the EAT held that the standard required is a high one.

Taking all into consideration, I am not convinced that the complainant’s efforts are on the level required to fully mitigate his loss. Therefore, I must find that the Complainant has not fully endeavoured to mitigate his loss.

On the basis of my findings above I declare the complaint is well founded.

I direct the Respondent to pay the Complainant compensation of €3,200 [three thousand two hundred euro], which I determine to be just and equitable having regard to all the circumstances.

This award of compensation takes into account all the facts of the case and the Complainant’s failure to fully mitigate his loss.

Unfair Dismissals Acts – eating at work – no investigation - well founded – compensation.