Complainant

Respondent

Anonymised Parties

Receptionist

A Hotel

Representatives

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-00032610-001

02/12/2019

The Complainant commenced employment with the Respondent, a hotel, on 1 November 2016, in the role of Front Office Receptionist.

Following a disciplinary meeting which took place on 23 November 2019, the Complainant was informed, by letter dated 25 November 2019, that his employment was been terminated on the grounds of gross misconduct.

On 2 December 2019, the Complainant made a complaint of unfair dismissal to the Workplace Relations Commission, under Section 8 of the Unfair Dismissal of Act, 1977.

That complaint is the subject of this investigation and adjudication.

The Complainant made the following submission in support of his complaint:

Application of Disciplinary Procedures:

The Complainant submitted that he was accused of theft, relating to a monetary tip which had been given directly to him by a guest of the hotel, on 17 November 2019.

According to the Complainant, during a meeting with the Hotel General Manager (Mr A), on 20 November 2019, he was accused and questioned about the tip. The Complainant further submitted that he did not realise at the time that this meeting was part of the Disciplinary Procedure and only became aware of this fact two days later, when he received the minutes of the meeting of 20 November 2019, which were then being described as an “Investigative Meeting”.

The Complainant submitted that he was not aware that the meeting of 20 November 2019 was part of a disciplinary procedure. According to the Complainant the meeting, which was just attended by himself and Mr A, was held without prior notification and he received no letter of invitation. 

In addition, the Complainant submitted that he was not offered the right to be accompanied by a work colleague or representative nor was there a witness or notetaker present. The Complainant stated that the minutes of the meeting were taken by Mr A.

According to the Complainant’s submission, he felt intimidated, bullied, cornered, confused and unprepared to respond properly at the investigative meeting.

In conclusion, in relation to this aspect of his complaint, the Complainant submitted that, the Respondent’s Disciplinary Policy and Procedure clearly sets out that:

a)        The employee has the right to be accompanied by a work colleague.

b)       Documentation should be provided in advance of each investigation interview.

c)        The employee is to be given time to consider the documentation and have an opportunity to respond.

According to the Complainant, none of the above were applied to him with regard to the investigative meeting of 20 November 2019.

Failure to suspend while conducting investigation:

The Complainant submitted that, despite the seriousness of the allegation made against him, he was not suspended from work and worked his full shift rota for the week in question.

The Complainant stated that the Investigative Meeting took place on 20 November 2019 and two days later, 22 November 2019, he received the minutes and an invitation to a Disciplinary Meeting, which took place on the following day, 23 November 2019.

According to the Complainant’s submission, he was rostered off duty on the following two days (23/24 November 2019). The Complainant further stated that he worked a normal shift on 25 November 2019 and, at the end of his shift the following day, 26 November 2019, he was provided with the letter of termination, which was dated 25 November 2019.

The Complainant questions why, if the allegation of misconduct was actually serious and gross, he was not suspended from work during the course of the disciplinary procedure. In this regard, the Complainant submitted that his position was that of Senior Front Office Receptionist and, in this role, he would handle monetary transactions from guests and would have access to significant amounts of cash in the reception till, as well as access to the back offices.

In conclusion on this point, the Complainant submitted that if the allegation of misconduct was actually gross and the trust had been broken, he should have been suspended as a precautionary measure pending the outcome of any investigation. In support of his contentions in this regard, the Complainant referred to the case of Duffy v Hugh McAvoy t/a Talk To Me [UD 1048]

Request for Appeal not responded to:

The Respondent submitted that the letter of termination provided the option to appeal the decision to the Respondent’s Operations Manager, Mr C, within seven days.

According to the Complainant submission, he lodged an appeal to Mr C on 2 December 2019. The Complainant further stated that the letter of appeal was sent to Mr C by registered post. However, despite this the Complainant submitted that he received no reply.

Reason for termination – Gross Misconduct/theft

The Complainant has submitted that the incident of theft lying at the centre of the allegation of gross misconduct, which subsequently led to the termination of his employment, related to a monetary tip given directly to him by a guest.

According to the Complainant’s submission, the money in question was not hotel property, was not profit from sales or service, and was not the property of guests or the personal property of hotel staff.

In support of his submission in this regard, the Complainant made reference to two previous occasions where other members of staff were dismissed by reason of theft. However, the Complainant pointed out that in those cases, the conduct included: pocketing change due to a guest, taking money from the back of the safe and pocketing cash sales vouchers.

In support of his submissions in this regard, the Complainant referred to Section 10 F and Section 35 A of the National Minimum Wage (Protection of Employee Tips) Bill, 2017. According to the Complainant, the 2017 Bill states that an employer shall not withhold tips or other gratuities from an employee.

Lack of clear guidelines regarding tips/gratuities:

According to the Complainant submission, the Respondent’s Employee Handbook states that “gratuities for weddings and large groups (over 15 guests) will be put into a staff fund which is used to fund staff events”. The Complainant stated that the tip, at the centre of his dismissal, related to a group of eight guests in total. The Complainant further stated that based on the definition in the Handbook, the tip in question was not in respect of a wedding or a large group.

The Complainant also cited a second reference from the Handbook which states that “other gratuities from individuals or small tables are split between staff working in the bar or restaurant”. According to the Complainant’s submission, this reference only applies to staff working in the Food and Beverage departments, such as bartenders and waiting staff. The Complainant further stated that there is no reference in the Handbook to other departments and, in particular, Front Office staff, with regard to the handling of tips and gratuities received directly from a guest.

Conclusion:

In concluding his submission, the Complainant stated that, in his view, the disciplinary procedure followed by the Respondent were questionable and that the rules of natural justice had not been followed. The Complainant further stated that the decision to dismiss him was biased.

The Respondent submitted that, by his own admission, during the disciplinary process, the Complainant received a €50 cash tip from a customer, which he failed to declare and, instead, took for his own personal use. The Respondent also referred to the Complainant’s further admission, again during the disciplinary process, that there had been other times when he took small amounts of cash.

The Respondent submitted that the Complainant’s actions in this regard constituted gross misconduct and damaged the trust relationship between employee/employer to the extent that they considered dismissal the only appropriate option.

The Respondent referenced the Complainant’s explanation, which he provided during the Disciplinary process, for taking the €50 tip on 17 November 2019, wherein he stated that he had taken the money because he was under personal financial pressure, but intended to replace it at the next payday

According to the Respondent’s submission, they had previously facilitated the Complainant during a period of personal pressure in his life. In addition, the Respondent submitted that they operate an informal “advance on wages” process, whereby staff who find themselves under financial pressure personally can get a payment in advance of the next payday.

The Respondent further stated that they did not accept the Complainant’s contention that the Employee Handbook was vague with regard to the issue of tips/gratuities.

In response to the Complainant’s submissions with regard to the alleged lack of procedure, particularly in relation to the right to be accompanied at the Investigate of Meeting, the Respondent stated that, while acknowledging that there may have been some procedural flaws with regard to the first meeting, these did apply to the subsequent disciplinary meeting. In particular, the Respondent pointed to the fact that the Complainant declined the offer to be accompanied at the Disciplinary hearing, which was conducted by the Respondent’s Rooms Division Manager (Ms B) on 23 November 2019.

The Respondent also submitted that the decision to give the termination letter, which was dated 25 November 2019, to the Complainant at the conclusion rather than at the start of his shift, on 26 November 2019, was to limit any embarrassment attendant on the Complainant having to leave the premises in full view of colleagues. The Respondent also pointed out that 26 November 2019 was the first shift worked by the Complainant following the Disciplinary Meeting on 23 November 2019, as he would had been rostered off for 24 and 25 November.

In response to the Complainant’s contention that he received no response to his request for appeal, the Respondent pointed to the fact that the Complainant submitted a complaint to the WRC, on the same date as he submitted his appeal letter. According to the Respondent, they understood that once the Complainant had submitted a complaint to an external body the internal process was, therefore being abandoned.

Having carefully considered all of the evidence adduced, I find that the facts pertaining to the Complainant’s dismissal in this case are not in dispute. In a document submitted to the Respondent, dated 23 November 2019, the Complainant admitted, inter alia, to having received a €50 cash tip from a customer, to having failed to declare it and to haven taken it, for personal use, with the intention of returning and declaring it on the following payday.

In addition, the Complainant stated in that document that he was aware of the policy regarding gratuities and that tips are put in a staff fund. The Complainant further stated that he regretted “losing the trust relationship” with his employer. Whilst stating that this incident was out of character and appealing for a second chance, the Complainant apologised for his actions and indicated that he would accept whatever disciplinary action was forthcoming from the process.

On the basis of the above, the assessment of the Complainant's complaint of unfair dismissal must, therefore, focus on the reasonableness or otherwise of the Respondent’s decision to impose a sanction of dismissal, as set out in their letter to the Complainant dated 25 November 2019.

Section 6 (1) of the Unfair Dismissal Act 1977 states 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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in all the circumstances. It is well established in case law, that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In assessing the duty on an employer before dismissing an employee for misconduct, the Employment Appeals Tribunal laid down a three-part test in Bigaignon v  Powerteam Electrical Services Limited [2012 ELR 195].  The Tribunal set out the test as follows:

1)      “Did the company believe that the employee mis-conducted himself as alleged? If so:

2)      Did the company have reasonable grounds to sustain that belief? If so:

3)      Was the penalty of dismissal proportionate to the alleged misconduct?”

According to the Tribunal, any employer who satisfies the above test can lawfully dismiss an employee for misconduct. Having carefully considered the evidence adduced in the within case, as set out above, I am satisfied that the Respondent satisfies all three elements of the above test.

The Complainant’s admission to the misappropriation of the gratuity provides, in my view, more than sufficient grounds on which the Respondent could claim to have satisfied three elements of the test. In addition, the Complainant’s further admission, at the Disciplinary Hearing, that this was not the first occasion on which he had misappropriated funds, provides an even stronger basis for the reasonableness of the Respondent’s decision to dismiss.

It is clear from the evidence adduced that the Complainant concluded that, as the €50 tip, in this case, was not hotel property or the profit of sales/services by the hotel or was not the personal property of guests/colleagues, his appropriation of it, for his personal use, did not constitute theft. I find the Complainant’s contention in this regard to be devoid of any validity or credibility. In addition, I find that the Complainant’s views, as to what might or might not constitute theft, add significant weight to the Respondent’s conclusion that the bond of trust, which forms a core element of any contract of employment, had been irrevocably broken in this case.

While I note the Complainant’s submission in relation to lack of fair procedure, which is acknowledged by the Respondent, particularly in relation to the investigative meeting, I do not accept that this renders the decision to dismiss as unfair.

Firstly, given the Complainant’s admissions, there is no doubt as to the Complainant’s guilt and this, in turn, provides a legitimate and lawful basis for the dismissal decision arrived at by the Respondent.

Secondly, the potentially most significant issue in relation to the application of fair process in this case relates to the fact that the Complainant was not provided with the option of having somebody attend the Investigative Meeting with Mr A on 20 November 2019. However, I note that when provided with the option of having someone accompany him to the Disciplinary Hearing, conducted by Ms B on 23 November 2019, the Complainant declined the offer and attended on his own.

Thirdly, given the short timeframes involved between the Investigative Meeting on 20 November and the issuing of the termination letter on 26 November 2019, a period during which the Complainant was not at work for two days, I find that the decision by the Respondent not to suspend the Complainant during this process does not undermine the legitimacy of the dismissal decision, which subsequently emerged. The decision by the Respondent to allow the Complainant to work a full day on 26 November 2019 was clearly motivated out of concern for the Complainant with a view to eliminating the embarrassment that may be attendant on a very visible and arbitrary removal from the premises during his shift.

Consequently, having carefully considered all the evidence adduced in this case and, in the particular, in the light of the Complainant’s clear and unambiguous admission to the alleged conduct, I am satisfied that the Respondent’s decision to terminate the Complainant’s employment was reasonable and was one which a reasonable employer, in a similar situation, might well take.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of unfair dismissal is not well founded and is, therefore, rejected.