Complainant

Respondent

Anonymised Parties

Bar Shift Manager

A Hospitality & Bar Chain

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-00031991-001

04/11/2019

The issues in contention concern the alleged Unfair Dismissal of a Pub Shift Manager by a Pub / Hospitality Chain. A key element of the case is the question of staff being allowed to illegally drink alcohol on the Premises “After Hours” i.e. after the legal closing time of the Pub.

Detailed Written and supporting Oral evidence was presented.

The Complainant began employment with the Respondent in April 2015. On the 17th May 2019 ,as he was finishing his shift at 01.30 hrs , he was asked by a colleague if he and two other colleagues could remain in the premises until the late Bus arrived at 02.30 hrs. The Complainant consulted with the Night Shift Leader, Mr XJ, who said it was Ok as it was a common practice.

On the 10th August 2019 the Complainant was asked to attend an investigation into events on the night of the 17th May 2019. He was asked about Staff drinking in the Pub that night after the Legal closing time. A Disciplinary Process followed the Investigation which resulted in the Complainant’s Dismissal. An Appeal was offered and accepted. However, the Appeal was unsuccessful, and the Dismissal was confirmed.

The Complainant’s representative argued that the Complainant had only given his permission to staff to remain on the premises while waiting for their bus. He had gone home at 01.30 hrs. How the staff waiting for the bus conducted themselves during this waiting period was the responsibility of the Night Shift Leader, Mr XJ. It was his responsibility to ensure that any Company rules etc were observed during the Bus waiting period. The Respondent alleged that the Complainant should have instructed the Night Shift Manager about the “No Drinking” rule. The Complainant argued that the Night Shift Manger should have been well aware of this Rule and not in need of reminding by the Complainant.

The Company “Out of Hours” drinking policy is ambiguous and could not form the basis of a Dismissal decision. None the less it cannot apply to the Complainant as the alleged Out of Hours drinking had taken place after the Complainant had gone home. In any event it is common practice in the Trade and had happened in the Respondent Premises and other Pubs in the Chain in question before.

In regard to an After-Hours policy the Complainant genuinely, initially believed, that the Policy was regarding the Prohibition of Alcohol Purchasing after Closing Time not the Consumption of Alcohol already purchased before Closing Time. He had only become aware of the No Drinking rule after the 9th August 2019. If he had gotten this wrong before this date, he was sorry and had not intended any harm to the Respondent Business. He enjoyed working there and had no desire to leave.

The Complainant’s Union Representative strongly maintained that to characterise the actions of the Complainant on the night of the 17th May as Gross Misconduct and warranting a Dismissal penalty was completely disproportionate and should be set aside. The Complainant is seeking a finding of Reinstatement.

Detailed and comprehensive Written and Oral evidence was presented by the Respondent who operate a Chain of Pubs in the Republic of Ireland. It was repeatedly emphasised by the Respondent that an absolute compliance, across the board, with the Liquor Licensing Law is a fundamental basis of their business. It is a key part of all Staff training.

On the night in question, the 17th May 2019, an unrelated serious incident had taken place on or near the Company Pub Premises. In the course of an investigation of this Incident it had come to light that some staff at the Pub in question had been drinking alcohol on the premises after official closing and drinking up time . The Complainant was the Duty Manger on the night in question. He was invited to participate in an Investigation of the After Hours drinking which lead to a Disciplinary Hearing on the 23rd August 2019. All proper procedures were followed in relation to evidence and Representation.

The Disciplinary hearing was conducted by Mr. XA, a Pub Manager, Independent of the parties involved. Detailed minutes of all proceedings were presented in evidence. Mr XA issued his finding of a Dismissal on the 28th August. 2019. His reasoning was that the Complainant had given permission to staff to consume alcohol on the premises after hours, from his own admittance the Complainant was aware that After Hours drinking was against Company Policy, he had failed to properly secure the Premises and had incorrectly handed responsibility to a Night Shift Leader who had no responsibility for this area of the Premises and finally that, in his evidence, he had contradicted himself regarding his knowledge of After Hours policies giving rise to a serious issue of confidence by the Respondent in his trust worthiness. The Bond of Trust had been broken.

In considering his finding of Dismissal Mr XA had taken into account the fact that the Complainant had a Letter of Concern on his file concerning other matters in the Pub and a “live” Final written Warning on his file concerning another incident in January 2019.

The Complainant appealed the Dismissal and a full Appeal Hearing took place, chaired by Mr. XD, on the 16th September 2019. Full minutes were provided in evidence and all Employment procedures were properly followed. Prior to the Appeal Hearing and as part of a submission the Complainant admitted that his actions on the night of the 17th May were inappropriate and constituted “Wrong doing”. However, he felt that the Dismissal was Disproportionate and not an appropriate or reasonable level of sanction.

Following a lengthy Appeal Hearing which included Mr. XD carrying out some further Investigations the Dismissal Decision was upheld. Mr. XD considered the question of the Appropriateness and or Reasonableness of the initial Dismissal. This was discussed with the Adjudicator and the Complainant Representative during the Hearing.

However, the Respondent policy of absolute and inviolable compliance with the Liquor Licensing Laws made a Dismissal decision the only option available.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

         “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

3:3       Consideration of the Evidence presented.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:3:1         Natural Justice and Procedures – Code of Practice SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures.

In this case there was comprehensive written evidence of meetings, letters of invite, witness statements, discussions regarding Representation rights and extensive post meeting letters – the Dismissal letter of the 28th August and the Appeal Decision letter of the 1st October 2019. It was clear that the Letters of Invite clearly stated the case to be considered at all stages and evidence was copied in advance to the Complainant. The key Decision-making Managers involved, although Respondent employees, were sufficiently professionally Independent.

The Respondent After Hours Policy at Page 47 of the Employee Handbook was considered at length during the Hearing. The Respondent felt that any ambiguity was “manufactured” and had been the subject of numerous Training Courses <evidence supplied, involving the Complainant.

The Complainant had clearly suffered no misunderstandings as was demonstrated by his correspondence regarding another After Hours incident on the 21st June 2019. He had stated that he had “informed all staff of the policy since December 2018”.

To be fair to the Complainant, it appeared that a former overall Pub Manager , now no longer with the Respondent since early 2018 , may have been somewhat relaxed in this regard but since the arrival of the New Overall Manger, Ms. XS, in late 2018 the Policy was absolutely clear. The Respondent felt that the Complainant was not being fully up front on his knowledge of the After-Hours policy and that his differentiation of Purchasing as Opposed to Drinking After hours was convenient for his case, to say the least. This issue was comprehensively discussed during the Hearing. I had to come to the view that the Respondent view was more probably correct.

The Respondent Employer has very detailed and comprehensive Employment Procedures that cover all areas of the Business. Evidence was given of full staff (including the Complainant) initial and refresher Training. Records were provided.

The Respondent addressed issue of a procedural nature in the Complainant E mail of the 21st of August - the venue was changed, and the Manager suggested was replaced by another. It was felt that these requests were not strictly valid but were complied with to satisfy the Complainant. At the Hearing the question of Representation was discussed and the voluntary decision of the Complainant to go without Representation, until late after the Appeal Hearing, was questioned by the Adjudicator

As stated above it is not the role of the Adjudicator to “re-run” a Disciplinary case but to be satisfied that Natural Justice was observed. On balance and taking points 1 and 2 of the above quoted Hennessy v Read and Write Shop Ltd. UD192/1978 judgement I had to come to the view that on a Procedural Basis I could see no fault in the Respondent actions. Natural Justice was observed.

3:3:2         Reasonableness /Proportionality

In the quote from Justice Flood above (Section 3:1) he states that

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

In addition, the extensive case law cautioning an Adjudicator or Tribunal from effectively substituting themselves for an Employer is to be reflected upon.

The Respondent is a Pub Chain and operates under the Liquor Licensing Laws of the Irish State.

A full and proper investigation had taken place. The Liquor Licensing Laws had been breached by staff under the Manger’s control. After Hours drinking had taken place.

The legal and business consequences for the Respondent were very serious if for example and as discussed at the Hearing the Gardai had been alerted and had called to the Premises at the time concerned.

The entire matter would probably never have come to light save for the very serious incident outside the Pub on the night in question. This had resulted in the Gardai conducting an investigation, as part of which the question of possible Late drinking in the Pub had arisen. The Respondent, once alerted, had to investigate such a serious allegation.

The Complainant’s Representative felt that the Dismissal of the Complainant had been Disproportionate as a Penalty. He had gone home after 01.30 hrs and what happened after he had left, could not, in any sense of justice, cost him his job.

A previous case involving the Complainant (A live Final Written Warning was already on file) was, quite properly, not linked to the Investigation of this case. However, it was not irrelevant when considering a Penalty.

3:4       Final Conclusion

On balance and having considered all the Evidence, both Written and Oral I came to the final conclusion that the Dismissal was not outside the Band of Reasonableness for an Employer in the Liquor/Pub Business governed by the Liquor Licensing Laws.

I did not find that an Unfair Dismissal had taken place.