ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00026144

Parties:

Complaint:

Date of Adjudication Hearing:  14/12/2020

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background

The claimant was employed as a Manager, he was paid €610 gross (€500 net) per week.

The complainant was dismissed for misappropriation of €2100.90 related to 112 bets. The complainant strenuously denies any wrongdoing and states that the respondent’s investigation was fundamentally flawed, and he was wrongfully dismissed.

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

No objections to the remote hearing

Respondent’s position

The respondent Is a retailer in the bookmaking sector with a chain of shops throughout Ireland and the UK and online book/making gaming operations based in Ireland and outside.

The complainant is employed as a manager at its branch in Cork.

The respondent’s security department works independent of every other department in the company given the nature of their work. They do not share the precise details of their preparatory work, but a high level of auditing and pre-investigatory work occurs.

The security department during the period from February to June had concerns over a number of transactions involving the complainant. A fact gathering investigation was undertaken by paper trail alone (bets captured) under -staked by the complainant on the respondent’s EPOS system.

It submitted that in accordance with industry practice, no notice is given in the event of a fact gathering security inquiry arising from concerns over transactions.

 The respondent’s security supervisor (RT) conducted the inquiry with the complainant, and she (RT) was accompanied by (RM)a note taker on the 20th June 2019.

It was submitted that this inquiry was conducted in an inquisitive tone.

The security (RT) discussed examples of these bets where the staked amounts were not reflected in the given days cash balance.

The complainant was offered the option of seeing the CCTV footage related to the transactions being queried.

 It was submitted that the outcome of the fact gathering inquiry was that concerns became the subject of a disciplinary process in relation to 114 transactions which were carried out by the Complainant.

The complainant was suspended pending a disciplinary hearing on the 24th of June 2019.

No further investigative work (interviews with other staff or review of CCTV Footage was conducted prior to the Disciplinary hearing which was held on the 24th of June 2019.

The respondent’s regional manager (JM) carried the disciplinary process and he eliminated 2 bets because the paperwork was not clear.

It was stated that the manager (JM) took the night to consider the matter and on the 25th of June 2019 he dismissed the complainant from his position.

The complainant appealed the decision which was heard by HR(SC)

The complainant vehemently denied in the strongest possible terms any misappropriate of funds by way of under-staking bets taken at the public counter.

The respondent supplied of the CCTV footage that was requested by the complainant’s legal representative.

This process took a few months, and the respondent upheld the decision to dismiss the complainant by way of letter dated the 14th of April 2020.

The respondent’s position was that the investigation and disciplinary process respected the rights of the complainant. The conclusion was that the offending act perpetrated by the complainant was reasonable on the balance of probabilities that the dismissal was a proportionate within the band of disciplinary sanctions.

The respondent submitted relevant cases to support their position.

Summary of complainant’s position

 It was submitted that the complainant received less than one hour’s notice of the investigation inquiry.

The complainant attended the meeting not knowing the purpose of the meeting and he responded in open and honest way to slips of bets that were placed in front of him without the benefit of CCTV footage.

The complainant submitted that the respondent failed to rely on its own source of documentary evidence, namely CCTV footage.  The failure to include CCTV footage in the investigation process cause grave prejudice to the complainant.

The complainant took issue with the conflicting evidence in relation to the availability of the CCTV footage.

It was submitted that the respondent gave evidence that they relied on was a “paper Trail” only and they did not rely on their own CCTV footage.

The Complainant has established that cross-referencing the CCTV footage to 42 bets slips, he has casts doubt that he was the person who staked and translated each bet.

It was also stated that if the footage had been available to the complainant at the security meeting it would have afforded parties the opportunity to carry out this exercise of cross reference prior to the complainant being dismissed.

It was submitted that the respondent did not carry out due diligence that they did not carry out interviews with other staff members employed in the shop.

The respondent was unable to adequately or at all rationale explain its decision not to carry out an investigation for a period of 4 months.

It was submitted that fair procedures were not applied since (SC) heard the appeal and she was already involved in the decision to suspend the complainant.

It was further stated that the disciplinary hearing should have been chaired by an independent regional manager whereas (JM) was the complainant’s regional manager.

The respondent’s own handbook that an appeal hearing would be conducted by an independent party not involved in the investigative or disciplinary procedures.

The complainant submitted relevant law cases to support their position.

Findings and Conclusions:

I find that both parties made extensive written and verbal submission at the hearing along with addition clarification from both sides which were received January ‘21.

The concept of unfair dismissal is derived from objective and well-established standards of fairness that can be expected of a reasonable employer.

The question before me was the process reasonable and were fair procedures applied.

I find that the betting shop is a busy workplace and I fail to understand why it took 4 months for the respondent’s security to talk to the complainant.

I find that no rational reason was offered by the investigator why it took that period of time to raise these issues with the complainant.

I find that the complainant was given less than an hour’s notice to attend an investigation meeting without knowing the reason.

I find that the complainant’s response was reasonable given the questions that were being put to him without having access to all relevant information including CCTV footage.

I find that the complainant was dismissed for misappropriation of €2100.90 related to 112 bets.

I find based on evidence that the complainant has undermined the credibility of respondent’s “paper trail” in circumstances where he identified 42 occasions where he could not have under-staked bets by cross referencing of the CCTV footage with the slips.

I find that (RT) security investigator made a telephone at the end of the meeting to Hr (SC) and she stated “I have contacted Operations you will be suspended for undertaking of bets, that are not reflected in the balance. You will be paid contracted hours; Regional Managers will make contact over a few days”.

I find that the disciplinary process was heard on the 24th of June at that stage the complainant was not provided with the CCTV footage prior to the hearing taken place.

I find that respondent’s (SC) heard the appeal, and it has already been confirmed that she (SC) made the decision to suspend the complainant.

I find that the appeal should have be heard by an independent party in accordance with the respondent’s own handbook.

I find based on the evidence the respondent had their mind made up that the complainant was at fault especially when they did not carry out a full fact-finding investigation by not interviewing other staff members.

 The labour Court in (UDD1866) determined that the failure by the respondent to provide the applicant with statement and CCTV footage prior to the hearing was “tainted with procedural unfairness” and her dismissal was consequently unfair.

I find that it was confirmed by the respondent both in written submission and at cross examinations that the complainant had an unblemished record and that he was held in high esteem.

It was confirmed at the hearing that he (complainant) was unemployed for 18 weeks and he took up employment on the 14th of November 2019.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that the complainant was unfairly dismissed, and I award him €10980 in compensation.

Dated:   1st July 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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