Complainant

Respondent

Parties

Joseph  Callaghan

Omniplex (Cork) Limited

Representatives

John Anderson, McGovern Walsh Solicitors

Ciaran Loughran , IBEC

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-00039468-001

31/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039468-002

31/08/2020

The complainant, Mr. Joseph Callaghan, started working in the respondent’s cinema - Omniplex- in 1992 and worked continuously for the respondent until his dismissal in 2020.  On 11th July 2019 the complainant played the incorrect film.  He claims that the film he mapped was the only one of the trilogy on the server.  He also alleges failure on the part of the respondent to use proper procedures in investigating the issue.  The respondent alleges that the complaint is out of time.  Secondly, the respondent states that collect film was also on the server and that the complainant subsequently deleted that film from the server.

Preliminary Issue

The respondent has argued that the complaint is out of time. The final date of dismissal which the Complainant received was the 6th April 2020 and the complaint was lodged with the WRC on 31st August 2020 which is within the six-month period specified in the Unfair Dismissals Act. It is submitted that the effective date as set out by the EAT and higher authorities is the date in which all avenues of appeal have been exhausted.

Substantive Claims

CA-00039468-001  Unfair Dismissal

The complainant, Mr. Joseph Callaghan, started working in the respondent’s cinema in 1992 and worked continuously for the respondent until his dismissal in 2020.

On Thursday 11th July 2019 Mr. Callaghan went to see if a movie -The Matrix- could be played on 12th July 2019. Mr. Callaghan, on trying to open the movie, could not as the keys did not work. Mr. Callaghan brought this to the attention of the Duty Manager, Mr. Mark Foley, who in turn sent a follow up e-mail to the company who supplied the movie and the correct keys were sent.

Mr. Foley instructed the complainant that the new keys were ordered and that Mr. Callaghan could upload them. Mr. Callaghan uploaded the keys received from Mr. Foley to the server. On the night in question a customer made a complaint that it was the incorrect film that was playing and not the film that had been advertised. Mr. Callaghan went down to the foyer and asked a staff member if she had contacted the manager and she advised the complainant that she had and that Mr. Foley had advised to give refunds to the patrons.

The complainant then went to the screen in which the movie was being played and there were some irate customers asking to speak to the manager asserting that the incorrect movie was being played. At this point Mr. Callaghan went to the machine and paused the movie and turned on the lights. Mr. Callaghan then advised Mr. Foley by phone of what had happened.  Mr Foley instructed the complainant not to give back any money to the patrons, to sign the back of their tickets as to allow them to have vouchers. The Complainant then went into the screen to explain the situation to the patrons who by this time were extremely irate and angry and wanted to speak to the manager directly. Unfortunately, at this time Mr. Callaghan had to advise that the manager was not in the building and he explained that he would now give them passes as they would try to get the correct movie shown at a later time as the movie company sent the wrong movie.

The complainat checked the server again to see if somehow the correct movie was missed on the server and the only movie which was available on the server was The Matrix Reloaded. The copy of the film mistakenly shown was subsequently deleted from the server.  The respondent alleges that it was the complainant who deleted this film.

The complainant advises that it was acknowledged to him verbally that the cameras show that nobody was present in the server room when the alternative Matrix movie was deleted and as such it is contended by the complainant that he did not have access to delete the movie as alleged by the Respondent.

It was not of any advantage in any description for the Complainant to delete the movie in question as alleged by the Respondent. No evidence has been produced to prove that the Complainant did in fact delete this movie and other members of staff on the night in question had access to the projector room and there is no proof that the movie in question was ever so deleted.

It has not been shown or proven that Mr. Callaghan deleted the movie and there were numerous alternative explanations as to the non-existence of the movie and/or it not being available.

Mr. Callaghan had an exemplary record for the entire period of employment with this company.  However, Mr. Callaghan suffered a personal injury on the premises and that this led to a breakdown in the relationship and he asserts he was made a scapegoat for the mistake of the movie company which sent the incorrect movie. Mr. Callaghan engaged fully with the entire investigation. Fair procedures were not complied with as no other staff member on the night in question was questioned in relation to the events that happened except for Mr. Mark Foley who was not in the building on the night in question.

Mr. Foley telephoned the Complainant on the night after the incident and advised him that the owner Mr. Mark Anderson advised that Mr. Callaghan's head would roll for the wrongdoing on the night in question. This shows that there was a pre-determined decision made prior to any investigation and the employer had made its decision well in advance of any hearing under the disciplinary procedure.

Mr. Foley requested a statement from Mr. Callaghan and handed him a letter saying that Mr. Callaghan had done everything without anybody's knowledge and that the movie was deleted by him and that he done it without any direction from management. Mr. Callaghan objected to giving a statement to Mr. Foley as he was well aware of the phone calls and the involvement of Mr. Foley on the night in question and that he had advised to hand out the passes. Mr. Callaghan tried to give a statement and Mr. Foley refused to look at the cctv or have any regard to the circumstances which led to the night’s events.

At a follow up meeting with Kevin Brady, Area Manager, the union representative asked the question of Mr. Brady why the 5 members of staff, on duty on the night in question, were not asked to give statements and only one of them seemed to be talking to the company with regards to the incident.

Mr. Callaghan received a letter to attend the cinema for a meeting with Kevin Brady and, on attending the cinema, Mr. Foley informed Mr. Callaghan that Mr. Brady was not present and that there was no meeting for a few days. He subsequently got a letter saying that he did not turn up to the meeting and that there was a follow up meeting for February. Mr. Callaghan was informed by letter that he was dismissed. Mr. Callaghan subsequently appealed this decision and requested to see all evidence relating to the allegations made against him however no evidence was provided to Mr. Callaghan and the respondent again reiterated they were dismissing him on the grounds of gross misconduct and that they do not show employees cameras etc.

The presumption set out in Section 6(1) of the Unfair Dismissals Act 1977 is that the dismissal of an employee shall be an unfair dismissal unless, having regard to all the circumstances, there was substantial ground justifying the dismissal. This firmly places the burden of proof on the Respondents to demonstrate that there was substantial ground to render the dismissal fair.

The case of Fergus Lally -V- Kylemore Abbey and Gardens Limited - UDI 93/2015 is authority for the proposition that the reasonableness of an employer can be taken into account on deciding whether a dismissal was unfair or not. The adjudication therein highlighted a number of factors that compounded the unreasonableness of the employer's conduct including lack of warning, lack of procedures and no right of appeal or representation at consultation.

Furthermore in Banasov -V- Pottle Pig Farm (UDDI 735) the Labour Court concluded that failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision outside the range of reasonable responses thus rendering the dismissal unfair. It is submitted that an independent investigation did not occur and there was no independence asserted by the Respondent to the Complainants position and it was a predetermined view that Mr. Callaghan had carried out the actions as alleged by the Respondent and it is unknown the version that Mr. Mark Foley put forward to the relevant investigating parties. The decision to dismiss the Complainant was wrong and there were no grounds even for disciplinary action much less than dismissal. Even if there had been grounds to discipline the Complainant, which is denied, the sanction of dismissal was massively disproportionate

CA-00039468-002 Payment of Wages

The Complainants employment was terminated after over 15 years of service and therefore, he was entitled to eight weeks' notice of termination. He is entitled to payment in lieu of notice which equates approximately to €3,519.76.

Preliminary Issue

The date that the Claimant has recorded on his claim form as the date of dismissal is incorrect, 6th April 2020. The actual date of dismissal was 12th February 2020.

 Section 8(2) of the Unfair Dismissals Acts state the following in respect of time limits: 

  “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any…   

(a)             within the period of 6 months beginning on the date of the relevant dismissal, or…

The effective date of dismissal that has been established by the EAT and higher authorities of law is the date that the dismissal is communicated to the employee unless otherwise provided for in the contract of employment.

Substantive Claims

CA-00039468-001  Unfair Dismissal

The complainant was not unfairly dismissed but rather was dismissed wholly and mainly by reason of his conduct and thus, by virtue of Section 6 (4)(b) of the Unfair Dismissals Act 1977 (as amended), the dismissal was not unfair.  

The complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the complainant, in accordance with fair procedures and natural justice. The Respondent no longer had trust and confidence in the complainant to perform his role following a disciplinary hearing in line with the company’s disciplinary policy.

On the 12th July 2019 ‘The Matrix’ movie was scheduled to be screened at 8.30pm in Omniplex Sligo. However, the incorrect movie, ‘The Matrix Reloaded’ was screened instead.  During the initial informal investigation it was alleged the incorrect movie was screened as the correct one had not been delivered to the cinema and this was not identified beforehand as the movie titles had similar names. However, the respondent’s IT department found in the projection server logs that the correct movie had in fact been delivered well in advance on 2nd July 2019, and that it had been deleted very shortly after it had been discovered the incorrect film was shown on 12th July 2019. 

While the screening of the incorrect movie was considered serious and disappointing, as it negatively impacted so many patrons and resulted in loss of revenue and reputation for the company, the more serious matter was that the mistake had been covered up intentionally by deleting the correct movie from the server, immediately after it was discovered the wrong one had been played. 

Consequently, a formal investigation was initiated which, after a very prolonged process repeatedly frustrated by the complainant’s failure to engage in it, ultimately found that the complainant had, on the balance of probability, deleted the film intentionally and could not be trusted thereafter and thus was dismissed from employment on 12th February 2020. He appealed this decision internally and on 6th April was advised the dismissal had been upheld. 

The Claimant was not unfairly dismissed but rather was dismissed wholly and mainly   by reason of his conduct and thus, by virtue of Section 6 (4)(b) of the Unfair   Dismissals Act 1977 (as amended), the dismissal was not unfair.   Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and  far-reaching implications of his actions.

 The Complainant’s actions amounted to gross misconduct. When considering what sanction to apply the company had regard to the seriousness of the allegations and the representations made by the Complainant within the process itself. In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out  in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

 “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

 It is the Respondent’s position that a “reasonable employer in the same position and   circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that:

“[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

 In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the allegation against him. He was afforded the right to representation. He was further provided with a number of fair and impartial hearings, at which he failed to engage or attend the final disciplinary hearing. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action  taken. In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.

Claim under the Payment of Wages Act:

All wages were paid to this employee. There was no notice requirement or payment for notice due to the complainant because of his gross misconduct dismissal.

Preliminary Issue

The date of dismissal is defined in section 1 of the Unfair Dismissals Act as follow;

 ““date of dismissal” means—

( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,…”

The use of the word “either” means that just one of the situations is sufficient.

Compliance with the provisions of the Minimum Notice and Terms of Employment Act 1973, in the sense that, if an employee is summarily dismissed for gross misconduct and he/she is disentitled of his/her right to a notice period under section 4 of that Act,  does not mean that such an employee is also disentitled to a notice period under the provisions of section 1(b) of the Unfair Dismissals Act for the purposes of determining the date of dismissal.  The complainant in this instance had 18 years’ service with the respondent and therefore would ordinarily have been entitled to 8 weeks’ notice under the Minimum Notice and Terms of Employment Act 1973.  Even accepting the Respondent’s argument that the date on which his dismissal was communicated was 12th February 2020, for the purpose of Section 8(2) of the Unfair Dismissals Acts, the date of dismissal would have been 8 weeks after that date and therefore within the time limits detailed in the Act within which a complaint must be brought.

Substantive Issue

CA-00039468-001– Unfair Dismissal

Dismissal as a fact is not in dispute in this case and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. Included in this deliberation will be whether dismissal was a proportionate response to the allegation of misconduct.

The complainant alleges that the investigation and disciplinary processes were unfair. The complainant objected to Mr Foley’s role as the initial investigator. This was because of Mr Foley’s involvement on the night in question when the wrong film was shown.  I note that the respondent then appointed a different investigator, from a different region, who made numerous attempts to contact the complainant.  The complainant has stated that the invitations to him to participate in the investigation and disciplinary process were sent to the wrong address.  However, I note that the issue of the incorrect address came to light on 15th January 2020 and subsequently, by email dated 17th January 2020, having again been invited to participate in the process, the complainant indicated that he would not do so. I therefore, see no deficiencies in the investigation and disciplinary processes.

The question of the ‘reasonableness’ of the decision of an employer to dismiss was considered in Bank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

1) Did the company believe that the employee misconducted himself as alleged?

2) if so, did the company have reasonable grounds to sustain that belief?

3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

In evidence it is clear that the respondent believed that the complainant had misconducted. In evidence the complainant stated that the correct film was not on the server when he mapped the film to be shown.  However, from evidence given, it is clear that the correct film was deleted shortly after he had mapped the incorrect film.  The only logical conclusion is that it had been on the server before it was deleted and was there at the time the complainant selected the movie to be shown. The investigation conducted by the respondent examined this issue in detail and concluded, on the balance of probabilities, that the complainant deleted the film.  I note the evidence that the time on the CCTV cameras was out of sync with real time and, when the variation was accounted for, the complainant was present in the room with the server when the deletion occurred. I therefore conclude that the company had reasonable grounds to believe that the complainant was guilty of misconduct. It is clear from the evidence of the company that it was their view that the breach of trust went to the heart of the contract of employment and that dismissal was the proportionate response.  This position falls within the range of reasonable responses by the employer and therefore I conclude that the dismissal was fair.

CA-00039468-002 Payment of Wages.

The claim here relates to non-payment of Notice as required under the Minimum Notice and Terms of Employment Act 1973.  Section 8 of that Act states;

 8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party

As the complainant was dismissed for gross misconduct no payment in lieu of notice was required.

CA-00039468-001  Unfair Dismissal.  The Complainant was not unfairly dismissed.

CA-00039468-002 Payment of Wages.  The Act was not contravened.

Unfair dismissal.  Procedures.  Reasonableness.  Dismissal without notice.