Complainant

Respondent

Anonymised Parties

A Service Technician

A Casino

Representatives

Terry Gorry Terry Gorry & Co. Solicitors

Lisa Conroy Peninsula Group Limited

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-00016738-001

11/01/2018

The Complainant commenced employment with the Respondent in 2003/4 as a service technician/service engineer and remained in employment up until his dismissal on 23rd October 2017.

The Respondent is a partnership operating a casino business. The Complainant submitted a claim of unfair dismissal under the Unfair Dismissals Act 1977 stating that he was unfairly dismissed by the Respondent.   The Respondent denied this allegation.

The Complainant submitted that he commenced employment with the Respondent on 1st September 2003 as a Service Technician. He submitted that on 6th October 2017 he received a letter from the Respondent advising him that he was being suspended on full pay to allow an investigation to be carried out. The purpose of this investigation was to investigate “his involvement in the alleged theft of monies”

He submitted that on 9th October 2017 he received a letter from the Respondent inviting him to a disciplinary hearing to be held on 11th October 2017.   The purpose of the hearing was to deal with the allegation of involvement in the theft of money and issues of lateness and absenteeism. He submitted that the disciplinary hearing actually took place on 18th October 2017 and that subsequent to that meeting, by letter dated 23rd October 2017 the Respondent dismissed him on the following ground: “As your actions amount to gross misconduct you are summarily dismissed and will not return from suspension. As you have been summarily dismissed you are not entitled to notice or pay in lieu of notice.”

The Complainant submitted that he appealed this decision on 6 grounds, mainly the lack of any evidential basis for the allegations put to the Complainant, the lack of fair procedures and natural justice, bias and an absence of a rational basis for arriving at a decision to terminate the employment summarily. The appeal hearing was confirmed for 8th November 2017 and the outcome was that the original decision was upheld.   The Complainant submitted that the Respondent confirmed the basis for upholding the decision as “there is cctv of the event which we can use and it clearly shows you tampering with the machine.”

In his submission the Complainant drew attention to Section 6(1) and Section 6 (7) (a) and (b) of the Unfair Dismissals Act, 1977 and submitted that arising from those provisions all employees enjoy at least two fundamental presumptions in any claim of unfair dismissal:

a.       A dismissal is unfair unless there are substantial grounds to justify the dismissal

b.       A presumption of innocence unless/until proven guilty.

In relation to the termination of employment the Complainant submitted that-

·       The letter of termination stated that “having listened to your explanations I consider it to be unsatisfactory because it is clear from cctv that you placed a second ball sticker into the roulette machine and stuck the ball sticker to number 12 in order to manipulate the game. At no point should there ever be a second ball or ball sticker in the roulette machine.”

·       At no time during the course of the investigation or disciplinary process was he shown cctv which supported the allegation of theft or unauthorised possession of money.

·       The cctv shown to him as part of the investigation/disciplinary process merely showed him doing his job as a service technician working on a machine.

·       A request for the relevant cctv footage made under data protection in March 2018 did not illicit any response. In these circumstances the Complainant submitted that it is therefore reasonable to assume that if there was cctv evidence which supported an allegation of theft a copy of this footage should have been furnished to the Complainant or his legal representative and this did not occur.

·       It was clear from the termination letter that the only evidential basis for arriving at the conclusion that the Complainant was guilty of the alleged misconduct was the claimed existence of the cctv footage which supported that conclusion.

Based on the above, the absence/non- existence of real evidence sufficient to ground a finding of wrongdoing against him and having regard to his 15 years of loyal service the Complainant submitted that it was perverse and irrational to find him guilty of gross misconduct and to terminate his employment summarily.

The Complainant submitted that he had suffered significant damage to his good name and reputation and that this had compounded the difficulty he had experienced in endeavouring to mitigate his loss and find alternative employment. As a result, the Complainant requested that the WRC find that he was unfairly dismissed and that the circumstances of his dismissal, and the stated reason for same, and the taking of his good name and reputation should be reflected in any award in his favour. The Complainant further submitted that regard should also be had to the significant personal and financial hardship experienced by him as a direct consequence of his unfair dismissal.

The Respondent submitted that the Complainant was employed by them as a Service Technician from 1st March 2004 and that for most of that time his employment was uneventful and that a large amount of trust was given to him due to the length of his tenure. However, the Respondent advised that the Manager was concerned about a number of issues relating to his attendance and performance in 2017 and so the Complainant was invited to attend an investigation meeting into those matters in October 2017.

The Respondent submitted that, in the meantime, it came to attention that there was a suspicion about the Complainant’s involvement in alleged theft of monies from the Respondent.   As a result of these concerns the Complainant was placed on paid suspension pending investigation of the matter and the Respondent expressly advised the Complainant that this suspension was not regarded as a disciplinary action.

The Respondent submitted that the Complainant provided some explanation for his lateness and absences at an investigation meeting into those matters and that on 6th October 2017 the Respondent received allegations in respect of the Complainant’s involvement in alleged theft of monies.

The Respondent further submitted that on 9th October 2017 the Complainant was notified in writing that he was required to attend a disciplinary hearing on 11th October 2017 and described the purpose of that hearing as “to address the matters which were the subject of the investigation meeting of 6th October 2017 and for the Complainant to provide an explanation for the Complainant’s alleged theft or unauthorised possession of money or property, irrespective of value, namely on various dates.” The Respondent advised that the complainant was provided with minutes of the investigation meeting of 6th October 2017 (in relation to absences and lateness); minutes of the investigation meeting of 6th October 2017 (in relation to alleged involvement in the alleged theft or unauthorised possession of money or property, irrespective of value); CCTV footage; a copy of the disciplinary rules and procedures.

The Respondent submitted that the Complainant did not attend the hearing scheduled for 11th October and so the meeting was rescheduled for 13th October 2017. The meeting took place as scheduled on 13th October and at that meeting the Respondent submitted that the CCTV footage was shown to the Complainant and he was asked to identify what he saw. The Respondent submitted that the Complainant denied that the footage showed anything other than his cleaning a roulette machine.

The Respondent further submitted that an independent report into how the alleged fraudulent activity was carried out was prepared by an independent contractor and a copy of that report was included in the submission.

On 23rd October 2017 the Respondent wrote to the Complainant informing him of the decision that he was summarily dismissed and advising him of his right to appeal.   The Respondent submitted that the Complainant did submit an appeal which was held by an appeals officer and a notetaker. On 14th November 2017 the outcome of the appeal was notified in writing to the Complainant and that outcome was that the original decision to dismiss was upheld.

In his submission the Respondent drew attention to Section 6(4)(b) of the Unfair Dismissals Act, 1977 where it states that “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….the conduct of the employee.” The Respondent submitted that the conduct of the Complainant was the reason for his dismissal. The Respondent drew attention, in their submission, to a number of cases relevant to the issue for consideration and specifically to the question of consideration of fair process and natural justice and it’s impact on a fair hearing or a fair result. The Respondent also drew attention to the standard of proof required and submitted that “the balance of probabilities” was the appropriate standard. The Respondent submitted that the correct standard of proof was applied and that the correct outcome was achieved given the nature of the allegations.

The Respondent also submitted, that in the alternative, should the outcome of this hearing be that the Complainant was unfairly dismissed, then the contribution of the Complainant to his own dismissal and his failure to make real efforts to mitigate his loss should be factored into the eventual decision arising from such a finding.

From the submissions provided by both parties and from the evidence adduced at hearing it is clear that there is no dispute between the parties in relation to the sequence of events, nor is the dismissal itself in dispute. In these circumstances it is for the Respondent to establish that the dismissal was fair.

In this case the alleged conduct of the Complainant is disputed, as is the question of whether or not the Respondent acted in a reasonable manner in coming to a decision to dismiss. The Complainant also asserts that fair procedures were not applied by the Respondent in reaching the decision to dismiss.

In considering the question of the alleged conduct of the Complainant I gave attention to the submissions of the parties, the evidence adduced at hearing, and particularly to the material from CCTV footage, the minutes of various investigation and disciplinary meetings, and the report of the independent contractor relating to the alleged incident. I noted that the minutes of the meetings were signed by the Complainant and the relevant Manager acting on behalf of the Respondent and so constitute an agreed record of what took place.

I noted that the report of the independent contractor described the security features on the machine as follows:

·       “The roulette wheel is covered by a glass lid which is raised by an electronic motor. This is to prevent players from interfering with the wheel and ball position during play. The machine will not play a valid game when the lid is in the open position.

·       The lid can only be opened from the master terminal.

·       Access to the wheel is achieved by using an operator button to enter a menu which allows the glass cover to be raised for cleaning and maintenance. Every event that takes place in the machine is recorded in various log files which are stored in the machine”.

In his report, the independent contractor included still photographs of specific times on a specific machine on 17th September 2017 and described the contents of those photographs as follows:

·       “Image 1 - 13.34.38 Complainant and colleague talking at machine

·       Image 2 - 13.37.30 Complainant and colleague at the roulette machine from a different camera. Colleague seen inserting a 10 euro and a 20 euro note into the machine

·       Image 3 - Copy of logfile verifying the above transaction

·       Image 4 - 13.38.06 The glass on the roulette table is raised and the Complainant is preparing          wheel for fraud.

·       Image 5 - 13.45.39 Colleague watches as Complainant prepares wheel

·       Image 6 - 13.46.44 The glass is lowered, and the colleague is seen placing bets

·       Image 7 The Complainant is seen at the Master terminal where he raises the glass. With the glass raised the Complainant sticks a second ball or indeed a sticker to a number with Blu-Tack, in this example the number chosen is 12. The colleague places a bet

·       Image 8 The glass lid is lowered. The game starts and the roulette introduces its ball unaware that there is already a ball or sticker stuck on 12.

·       Image 9 The Roulette software detects that the winning number is 12 before the second ball has landed.”

·       Image 10 The Roulette pays on number 12 though the real ball has landed on 15

·       Image 11 13.48.03 The scam has been successful, the Complainant raises the glass to remove the second ball while the colleague prints out and removes the ticket.

·       Images 12 – 14 Copy of ticket printed by the colleague from the roulette Value of €990. Verification from logfile of this ticket. Image of colleague cashing out ticket for €990

I also noted the following facts which were not disputed by either party:

·       The Complainant attended a meeting on 6th October 2017 to discuss poor timekeeping, absences and failure to adhere to policies and procedures.

·       Later that day matters relating to an alleged theft of monies came to attention.

·       The Complainant was placed on paid suspension on 6th October 2017 to allow for an investigation into allegations of “your involvement in alleged theft of monies”.

·       The Complainant was then invited to attend a disciplinary meeting to be held on 11th October 2017 (by letter of 9th October 2017) which was later rescheduled to 13th October due to the non- attendance of the Complainant at the first meeting.

·       The purpose of that meeting was to afford him an opportunity to provide an explanation for

·       In addition, the meeting was to afford the Complainant the opportunity to respond to issues relating to absenteeism, timekeeping and failure to following policies and procedures in relation to reporting absences.

·       The Complainant was issued with a copy of the cctv footage, and minutes of both meetings held with the Complainant on 6th October 2017, as well as a copy of the Respondent’s Disciplinary Procedures.

·       At the disciplinary hearing the Complainant was shown the cctv footage and asked to provide an explanation. The Complainant denied that the footage showed anything other than his cleaning a roulette machine and he stated that he was not the manager of his colleague who placed the bet and won. The minutes reflect that the Complainant provided the same response to most questions posed to him at that meeting.

·       A handwritten note of that meeting was taken and endorsed by the Complainant.

·       The Complainant was afforded the opportunity to be represented at the disciplinary hearing by a colleague or trade union representative but did not avail of that representation.   He also confirmed at the disciplinary hearing that he was happy to attend the hearing alone.

I noted that the Respondent arranged an independent report into “how the alleged fraudulent activity was carried out” and provided a copy of same in their submission.

I noted that following the meeting on 13th October the Respondent dismissed the Complainant by letter of 23rd October and the basis for that decision was that the Respondent considered the Complainant’s explanation “to be unsatisfactory because it is clear from the cctv that you placed a second ball sticker into the roulette machine and stuck the ball sticker to number 12 in order to manipulate the game”. The Respondent also advised the Complainant of his right to appeal and of the mechanism to do so.

I note that the Complainant did appeal the decision to dismiss and set out 6 grounds for that appeal as follows:

1.       That there was no evidence to support the allegation of his involvement in theft

2.       That there was no evidence of him putting a sticker into a roulette machine

3.       That there was no evidence of gross misconduct

4.       That the procedure was unfair and biased as it arrived at a decision which was contrary to the evidence presented

5.       That the absence of fair procedure was a breach of his constitutional rights which resulted in him losing his job after 15 years of service

6.       That the decision to terminate his employment on the grounds of theft was an attack on his good name and reputation and was arrived at with no evidence.

I noted that the appeal hearing was held on 8th November 2017 and that the Respondent took a hand- written minute of the meeting which was signed by the Complainant. That minute reflected that the Complainant stated in relation to No 1 above that the cctv footage showed him doing his job i.e. cleaning the machine.   The Complainant confirmed that his colleague was present but that he didn’t know what he was doing. In relation to points 2,3,5 and 6 the minute states “point stands”. In relation to No 4 above the minute records that the Complainant “does not agree with the outcome of the hearing”. The minute also records that the Complainant was “happy the procedure was followed but unhappy with the outcome”.

I noted that the outcome of the appeal was issued to the Complainant, by letter of 14th November.   In that correspondence the Respondent confirmed that further investigations were carried out including a review of the entire process from the start, a review of cctv footage and any witnesses to the event. Based on those reviews the Respondent confirmed that “the original decision to dismiss stands”. The Respondent further confirmed that:

1.       “There is cctv of the event which we can use and it clearly shows you tampering with the machine

2.       We treated this matter as gross misconduct as per our company handbook and followed procedures accordingly, fair process and the rules of natural justice were afforded

3.       Whilst I appreciate you have 15 years’ service the element of trust between you and the company has broken down completely

4.       The issue of theft is a serious matter and no business can tolerate same, to say it’s an attack on your good name /reputation is more a civil matter however, you’ll appreciate if an employee is found to have stolen from the very person employing them, dismissal is a sound outcome.”

Conclusions

In relation to the procedures applied I noted that the Complainant:

·       Was advised of the nature of the meeting he was invited to attend on 13th October

·       Was provided with copies of cctv footage, minutes of previous meetings and copies of relevant policies in advance of the hearing

·       Was afforded his right to representation at the hearing

·       Was afforded the opportunity to respond to the allegations at the hearing on 13th October

·       Was notified of the outcome of that hearing and advised of his right to appeal

·       Had his appeal heard by different representatives of the respondent than those who conducted the disciplinary hearing

·       Was afforded his right to representation at the appeal hearing and afforded an opportunity to outline his grounds for appeal

·       Was notified of the outcome of the appeal in writing

The Law

In considering the question of fair procedures I noted that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result.” I noted also the determination of the Employment Appeals Tribunal in the case ofMurphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair.”

In this case there was overall fair and just procedures applied, with the notable exception of the provision of the independent report. However, I noted that although the Complainant was not given a copy of the Independent report at any time throughout the disciplinary and appeals processes the issues relating to the activity of the Complainant and his colleague raised in that report and the images relating to those activities were put to the Complainant. On each occasion he responded by saying that he didn’t know what his colleague was doing, that he was not his manager and that he was simply cleaning the machine.   This explanation was repeated more than once in the minutes of both the disciplinary and appeal hearings and this explanation was also reiterated at the hearing after the Complainant had seen the report.

In view of all of the above I have concluded that the Complainant did receive fair procedure throughout the disciplinary and appeals process and that any procedural shortcomings identified were not likely to “imperil a fair hearing or a fair result.”

In considering the question of the alleged conduct of the Complainant and the question of whether or not the Respondent acted in a reasonable manner in coming to the decision to dismiss I considered the following matters to be relevant:

·       The Respondent was alerted to a potential theft on 6th October 2017

·       The Respondent copied images of the alleged theft to the Complainant in advance of a disciplinary meet which took place on 13th October 2017

·       The Complainant was asked to provide an explanation for what was alleged to be evident on the cctv footage

·       The Complainant stated that he was just cleaning the machine and that he didn’t know what his colleague was doing there and that he wasn’t his manager

·       The Respondent arranged to have an independent report on how the theft could have occurred

·       At the appeal hearing the Complainant was afforded an opportunity to provide an explanation but no new information was provided.

At the hearing I viewed the cctv footage and subsequently reviewed the images in Appendix 7 of the Respondent submission.   While it was not totally clear to me what the Complainant and his colleague were doing in each photo it was evident that they were in close proximity to each other and were conversing. In this context I did not consider it credible for the Complainant to say that he didn’t know what his colleague was doing. Following the Respondent’s investigation of the matter they concluded that the Complainant had interfered with the machine, resulting in the machine misreading the winning ball and making a substantial payout to his colleague.

The Law

In considering this matter I am conscious that the Complainant was of the view that there was insufficient evidence to ground a decision of dismissal. However, I noted that the Employment Appeals Tribunal had considered the question of the burden of proof and in the case of Georgopoulus v Beaumont Hospital, Hamilton CJ stated: “This does not, however, require that the facts upon which the allegations are based should be established beyond all reasonable doubt.   They can be dealt with on the ‘balance of probabilities’ bearing in mind that the degree of probability should be proportionate to the nature and gravity of the issue to be investigated.”

It seems to me that having investigate the matter and having afforded the opportunity to the Complainant to provide an explanation when no substantial explanation was forthcoming the Respondent concluded on the balance of probabilities that the Complainant was involved in theft. In these circumstances the Respondent viewed the conduct of the Complainant as Gross Misconduct and so dismissed him

Furthermore, it has long been accepted that it is not the role of the Adjudication Officer to re-investigate a matter that led to the dismissal of a complainant. Rather it is the role of the Adjudication Officer as set out by the EAT in Looney & Co. Ltd. V Looney UD843/1984 to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

When I examined the sequence of events outlined immediately above I concluded that any employer faced with the same circumstance, the same information and evidence and the same response from a long -term employee would have acted in the same way. I therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

The complaint is not well founded.

Unfair dismissal