Complainant

Respondent

Parties

Samuel  Long

Flutter Entertainment Plc

Complainant

Respondent

Anonymised Parties

Representatives

  Eamon O’Brien

James Cleary, 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-00044304-001

24/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044339-001

25/05/2021

The Complainant worked for the Respondent from 02/05/2006 until his dismissal on 25/11/2020.  At the time of his dismissal, he worked as a Shop Manager.  His hourly rate was €17.16, and he worked 40 hours per week.  He was dismissed by reason of gross misconduct, and he submitted his complaint of unfair dismissal to the Workplace Relations Commission on 24/05/2021.  The Complainant also submitted a complaint in relation to his hours of work.  The fact of dismissal was not in dispute and in that context the burden of proof lay with the Respondent to prove that the dismissal was not unfair.

The Respondent operates a significant number of betting shops in Ireland and the UK.  They also operate a leading online operation. The Respondent became aware that the Complainant was writing numerous bets and scanning them through the till when there were no customers present in the shop.  On 11/11/2020 he was invited to an investigation meeting scheduled for 12/11/2020.  He was provided with a copy of the Respondent’s disciplinary policy and the Employee Assistance Programme (EAP) brochure.  At the meeting, which was held via Zoom, the Complainant confirmed that he was happy to proceed without representation.  During the investigation meeting he admitted placing bets on behalf of a customer and that the customer did not always pay at the time the bet was placed.  Following this meeting the Complainant was placed on paid suspension.  A disciplinary meeting was arranged, and the Complainant was informed of the allegations against him and his right to be represented at the meeting along with the potential sanctions that could be applied. At the disciplinary meeting the Complainant took full responsibility for his actions.  The outcome of this disciplinary hearing was that the Complainant was dismissed on the basis that his conduct constituted gross misconduct.  The Complainant appealed the dismissal, and an appeal hearing took place without the Complainant as he would only attend if he could have legal representation.  He was advised of the Respondent’s policy which allows for a work colleague or a registered trade union representative.  The Complainant was advised on 18/12/2020 of the appeal hearing findings which was that the appeal was not upheld.

Mr Peter Higgins gave evidence on affirmation on behalf of the Respondent.  Mr Higgins was the Investigation Officer. He has worked for the Respondent for 10 years as a District Manager.  Mr Higgins outlined that this matter arose as a result of another investigation into a matter in the same shop.  Mr Higgins confirmed that the allegation was outlined in the invitation letter.  He outlined that their policy states that an employee should be given 24 hours’ notice of any such meeting and in this case the Complainant was given 26 hours.  Mr Higgins also gave evidence that the Complainant was advised that he could be represented by a work colleague or trade union official.  The potential outcome was also advised to the Complainant in terms of action “up to and including dismissal”.  Mr Higgins gave evidence that at the investigation meeting the Complainant confirmed that there were occasions where Credit Betting was taking place in his shop.  Mr Higgins explained that Credit Betting occurs where a bet it taken without any payment.  A customer is allowed to place a bet without payment.  Mr Higgins gave evidence that the company policy is explicit in this regard.  Employees are not permitted to take a bet in such circumstances.  The Respondent must be mindful of its social responsibility and to ensure that the customer does not build up a loss.  Mr Higgins gave evidence that the Complainant was involved in this practice on multiple occasions.  This practice also had significant implications for the Respondent’s cash flow.  Mr Higgins gave evidence that there are regular training modules for staff.  The company policy is clear “No money, no bet”.  Mr Higgins stated that his investigation concluded that this practice was carried out by the Complainant on many occasions, and he recommended that disciplinary action should be considered.  He confirmed that the Complainant was placed on paid suspension and that his report was issued to the Complainant and the Respondent’s Employee Relations Team.

Mr Higgins was cross-examined on behalf of the Complainant by Mr Eamon O’Brien. It was put to Mr Higgins that 26 hours’ notice of a meeting was not sufficient and particularly when the travel restrictions that were in place at that time were taken into consideration.  Mr Higgins stated that the letter which was issued was in keeping with the Respondent’s policy.  It was put to Mr Higgins that as the Respondent does not recognize trade unions it would be impossible for the Complainant to have trade union representation.  Mr Higgins stated that the Complainant was advised of his right to representation, and it was a matter for him to decide if he wanted to avail of it.  Mr Higgins was asked about the policy in relation to their social responsibility in relation to the taking of bets and Mr Higgins confirmed that this is monitored by the Respondent’s Retail Compliance Team.  It was put to Mr Higgins that of the 571 bets that were deemed to be Credit Bets there was no loss to the Respondent and never likely to be any loss.  Mr Higgins stated that the customer in this case had “a negative margin” which he explained worked out at about a 10% loss.    Mr Higgins also confirmed that the Complainant put his hands up and said that the practice was not disputed by the Complainant.  Mr Higgins was asked if he was aware that what the Complainant was doing was in fact the practice for years and in that context the Complainant had nothing to hide.  Mr Higgins stated that he was not aware of what the Complainant’s motivation was.  Mr Higgins also stated that he asked the Complainant if the District Manager was aware of the practice, and he confirmed that the District Manager was not aware.  Mr Higgins also gave evidence in relation to the Anti-Money Laundering (AML) legislation and how this was implemented by the Respondent.  Mr Higgins confirmed that he did not make any recommendation in relation to the outcome of the disciplinary process.

In his redirection Mr Higgins confirmed that the Complainant did not ask for representation, and he confirmed that he was happy to proceed with the investigation meeting.  Mr Higgins also confirmed that the Complainant did not raise any concerns in relation to the notice period of the meeting.  Mr Higgins also confirmed that Credit Betting was not a regular practice and when he found out about it the matter had to be investigated.

Ms Kim O’Callaghan gave evidence on affirmation on behalf of the Respondent.  Ms O’Callaghan outlined that she is the Senior Employee Relations Manager for Ireland and UK with the Respondent and has held this role since 2018.  She confirmed that she was part of the Disciplinary Panel in this case.  Ms O’Callaghan confirmed that the Complainant was advised of his right to representation, but he confirmed that he was happy to proceed without representation.  Ms O’Callaghan confirmed that she and the Disciplinary Panel were provided with a copy of the Investigation Report and reviewed this prior to the meeting. Ms O’Callaghan also confirmed that the seriousness of the matter was set out for the Complainant in writing in the letter inviting him to the disciplinary meeting.  Ms O’Callaghan was asked if the Complainant put forward any mitigating factors at the meeting.  She explained that the Complainant did not deny that he was involved in the practice and acknowledged that the behaviour was not right.  Ms O’Callaghan was asked to outline the rationale which led to the decision to dismiss the Complainant.  She stated that the Disciplinary Panel considered the seriousness of the situation, the breach of trust, the manner in which the Security Policy was breached and the fact that the Complainant was a manager in the shop.  Ms O’Callaghan was asked if they considered the Complainant’s work record of 15 years and she confirmed that they did but that the panel felt that the matter was of such seriousness that dismissal was the proper sanction.

Ms O’Callaghan was cross examined by Mr O’Brien on behalf of the Complainant.  It was put to Ms O’Callaghan that she was an expert in interviewing staff, and she confirmed that she was.  It was put to Ms O’Callaghan that she would be aware that when employees are meeting their superiors, they would often admit to something.  Ms O’Callaghan said that it was her experience that employees would always defend their corner.  She was asked if this was the first incident involving the Complainant and she replied that as far as she was aware it was.  Ms O’Callaghan was asked if the Disciplinary Panel considered any other option and particularly in the context of S.I. 146/2000 given that the Complainant had no prior disciplinary record and he thought that he had done nothing wrong.  Ms O’Callaghan stated that the Disciplinary Panel considered the matter serious enough to warrant a dismissal.   Ms O’Callaghan was asked if the Disciplinary Panel asked the Complainant if he wished to revise his evidence.  She confirmed that they did not, but she was happy that the Complainant was offered the EAP service, breaks during the meeting and they adopted an empathetic approach in their dealings with the Complainant.  The Disciplinary Panel wanted to give the Complainant every opportunity to respond to the allegations.  It was put to Ms O’Callaghan that in terms of the Respondent’s staff policy they dismissed the Complainant who was a married man with four children and just before Christmas and who had commitments that this did not constitute looking after their staff.  Ms O’Callaghan responded that there was never a good time to dismiss any employee.  In this case the decision was made at the end of November, and she understands the impact that a dismissal can have on people.  However, she emphasised that they treat people with dignity and respect and in terms of support the Complainant was offered the confidential EAP service.  Ms O’Callaghan was asked why the Complainant was kept on their books until the end of December and she explained that they always go the extra mile in terms of looking after their employees.  Ms O’Callaghan was asked if she agreed that the Complainant’s actions were not hidden from anyone.  His District Manager was aware of the practice and the Complainant was open and transparent with the company.  Ms O’Callaghan stated that the company always investigates matters when issues of concern are brought to their attention.  Ms O’Callaghan was asked if she was aware of the UK guidelines in relation to notifying staff about the gambling patterns of customers and record keeping in that regard.  Was there any evidence that the Complainant was notified and if he was this would constitute a mitigating factor.  Ms O’Callaghan responded that it was her understanding that the UK Gambling Commission had no jurisdiction in Ireland.

Mr Pat Hand gave evidence on affirmation on behalf of the Respondent.  Mr Hand outlined that he is the Director of Operations with the Respondent, and he has worked for them for 16 years.  He confirmed that he was the appointed Appeal Officer in this case.  Mr Hand confirmed that the Complainant was given an opportunity to participate in the Appeal Hearing via Zoom, but he did not do so.  He was not aware of the Complainant’s reasons for not doing so.  The Complainant was notified of his right to representation by a work colleague or trade union official.  Mr Hand gave evidence that he examined all the Complainant’s grounds of appeal which were submitted in writing.  He went through each of the points, but he did not find any grounds “which singularly or collectively would merit the overturn of the decision to dismiss” the Complainant.  Mr Hand noted that the incident was not merely a once off action, there were multiple instances involved.  Mr Hand was asked why this matter did not merit a lesser sanction and he outlined that the breach of policy occurred over a prolonged period and the Complainant also encouraged other employees to do the same.  Mr Hand was asked if he considered the Complainant’s 15 years of unblemished record into account, and he said that he did.  The Complainant was not charged with any other issue.  The breach of the Respondent’s safe gambling policy had significant implications for the Respondent.

Mr Hand was cross examined by Mr O’Brien on behalf of the Complainant.  Mr Hand confirmed that he did not know the Complainant and that he had never met him prior to this matter.  It was put to Mr Hand that he met the Complainant at a training session in Limerick.  Mr Hand gave evidence that if he had spoken to the Complainant, he had absolutely no recollection of this.    Mr Hand was asked why he did not consider any mitigating factors.  He outlined that what occurred was very serious and constituted a fundamental breach of the Respondent’s policy.  It was put to Mr Hand that of the 517 bets involved in this matter there was no loss to the Respondent.  Mr Hand responded that one breach would be serious, but 517 breaches were a large-scale breach of the policy.  Mr Hand was asked if there was any distinction made for high value clients.  He responded to clarify that the customer involved in this matter was not considered a high value client.  He would be seen as a moderate gambler.  The Respondent would never encourage anyone to breach this policy and he emphasised that this was a very clear policy.  It was put to Mr Hand that when he stated that the Complainant told other employees to do the same in relation to this kind of betting that the Complainant did so as he was never told that this was not a proper procedure.  Mr Hand said that the company was not aware that this practice was happening until this matter came to light.  Mr Hand said that he could not accept that the Complainant did not know that this practice was not in keeping with the company policy.

Mr Rob Linehan gave evidence on affirmation on behalf of the Respondent.  Mr Linehan outlined that he is the District Manager for the region, and he has worked for the Respondent for 21 years, and he is 7 years in his current role.  Mr Linehan confirmed that he was the Complainant’s line manager at the time of this incident.  Mr Linehan outlined that he would have responsibility for 24-28 shops.  Mr Linehan was aware that in the Complainant’s shop there was a customer who left in money and would subsequently call in his bets.  He stated that this was not a practice that he wanted.  Mr Linehan was asked if he was aware of Credit Betting taking place in the Complainant’s shop. He confirmed that he was not and gave evidence that the Complainant never told him that it was taking place.  Mr Linehan also gave evidence that he never told the Complainant that it was acceptable to accept a credit bet.  

Mr Linehan was cross examined by Mr O’Brien on behalf of the Complainant. Mr Linehan was asked if he ever told the Complainant that accepting a Credit Bet was gross misconduct.  Mr Linehan said that it never arose before this incident came to light.  Mr O’Brien asked Mr Linehan to describe his relationship with the Complainant in terms of any support given and goal setting.  Mr Linehan said that he was the Complainant’s point of contact, and he knew that he could contact him for any support. It was put to Mr Linehan that he sent a text to the Complainant on 17/07/2027 which stated: “That’s the danger of not getting the cash up front, there always comes a day where they don’t it or think because they’ve lost a few quid they don’t have to pay.  He will go missing now for a while and to somewhere else, do you know if he punts in other PP shops?  I want to make sure he doesn’t get a bet anywhere”. This was an acknowledgement that a customer could place bet without paying up front.  Mr Linehan stated that this was a customer of a particular shop, and his account was deemed a “Slow Account” and he did not pay for a bet and went missing afterwards.  Mr Linehan stated that this was not a Credit Bet.  Mr Linehan was asked what the procedure was in relation to the Anti Money Laundering list.  He explained that this must be checked every morning to ensure that none of their customers are on that list.  It was put to Mr Linehan that there was a person on that list, and he told the Complainant on 26th February 2020 to “trade away” and this shows that Mr Linehan allowed someone on the Anti Money Laundering list to place bets.  This action was more serious than credit betting and it was put to Mr Linehan that the customer involved in the Complainant’s incident was in fact “fully validated”.  Mr Linehan outlined that the Anti Money Laundering legislation came into effect on 01/01/2020 and that customers were required to provide certain documents to validate their funds and bone fides to be allowed place bets.  It could be the case that the customer was validated elsewhere.

It was put to Mr Linehan that the Complainant was under enormous pressure from him to ensure that the shop was viable as he had told the Complainant that some shops could be closed.  Mr Linehan confirmed that the company was under pressure and that all shops were advised that things would have to be tightened up.  Mr Linehan outlined that footfall had dropped 40-50% so they had to react to the changing needs and be careful of costs.  Mr Linehan also gave evidence that the COVID-19 pandemic had redirected customers to on-line betting.  However, he also confirmed that despite the pressure on shops he never told the Complainant to breach company policy.

Mr Linehan was asked to clarify the Respondent’s position regarding “single manning” of their shops.  This is a process where one person works alone in the shop. Mr Linehan outlined that this process is part of their business.  It usually occurs when the volume of business in a particular shop is such that it can be managed single handed.  The Complainant did not raise any objections to having to work the shop alone.  Mr Linehan was also asked if the Complainant reduced his hours following a request from Mr Linehan.  Mr Linehan confirmed that most staff reduced their hours at that time.

Mr Linehan was asked if he knew the customer who was involved in the 517 dockets and the confirmed that he did not know the person.  Mr Linehan confirmed that the Complainant’s shop was given an award in relation to the Tidy Towns process.  Mr Linehan was asked if he had any issues in relation to the Complainant’s honesty and trustworthiness and he confirmed that there were no issues in that regard.  Mr Linehan also confirmed that the Complainant followed any instructions he was given in relation to the running of the shop.    Mr Linehan was then asked if the Complainant was told not to take these bets anymore would he have followed that instruction.  Mr Linehan confirmed that he believed he would have, and that the Complainant would have done anything to keep the shop going well.

It was put to Mr Linehan that the S.I. No 146/200 Code of Practice on Grievance and Disciplinary Procedures provides in point no 8 that an attempt to resolve disciplinary issues should be made between the immediate manager and the employee on an informal basis and that this did not happen with the Complainant.  Mr Linehan confirmed that he had no discussion with the Complainant in relation to this matter.

On redirection Mr Linehan was asked to clarify the example given in relation to bets being accepted without cash.  Mr Linehan explained that this was a different example to what had happened with the Complainant.  In that case the customer was slow to pay, and a colleague had not taken the money.  He confirmed that this was not an example of Credit Betting.  Mr Linehan also clarified that the shop was badly affected by the Money Laundering legislation.  This legislation came about following an EU directive and the Respondent has no choice but to adhere to this legislation.  Mr Linehan also confirmed that it was possible that a customer could have been verified in multiple locations.  Mr Linehan was asked if the pressure on the Complainant in relation to his shop was disproportionate to other shops.  He confirmed that it was not but as this was a new shop it was essential to keep the costs low as there was a lot of competition from other betting shops in the town.  Mr Linehan was asked if the Complainant had raised an issue with him in relation to single manning of the shop.  Mr Linehan confirmed that the Complainant had acknowledged the slippage in terms of the level of bets and that it would not take two people to run the shop.  There were no protests from the Complainant in that regard.

Mr O’Brien clarified that a lot of the business in the shop came from employees in a local meat processing factory which had closed, and this resulted in a fall-off in business.  Mr O’Brien also stated the Complainant would give evidence that he had raised the issue of single manning with Mr Linehan.

Mr Cleary, in a closing submission on behalf of the Respondent, stated that the decision to dismiss the Complainant was fair.  Section 6(4) of the Unfair Dismissals Acts 1977 states:

“(4) Without prejudice to the generality of subsection (1) of this section, 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 one of the following:

b.  the conduct of the employee”.

The Respondent acted in accordance with Section 6(4) of the Act and the termination of the Complainant’s employment was as a result of gross misconduct.  This conduct was due to breaches of the Respondent’s security policy and procedures by facilitating credit betting in the shop he managed over a period time.  There were multiple bets taken in this way and cash balances were adjusted to facilitate cash shortages.  The Complainant’s view that putting a note on a docket “WFC” which means “written for customer” is not used in the way which the Complainant described.  It is used in limited circumstances when a customer can’t write their own docket.  Taking bets in this manner is not only irresponsible but it is a considerable risk to the Respondent’s business.   In dealing with this matter the Respondent conducted a fair process throughout the investigation, disciplinary and appeal hearing.  The Complainant was advised of his right to have a trade union representative but at all stages he confirmed that it was in order for him to proceed without any representation. 

Mr Cleary submitted that the case of ADJ-00033280 is “a near identical case” in which it was found that the then Complainant was deemed to have been fairly dismissed due to the gravity of their conduct.   The case of Bank of Ireland v O’Reilly [2005] IEHC24 the High Court, quoted in UDD2221, held that “the question to be determined is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.  The Labour Court also noted that “under the Act the Court is required to consider if the decision to dismiss the Complainant was reasonable.  It is not the function of the Court to establish the guilt or innocence of the employee”.

It was submitted that the process undertaken by the Respondent was fair and neutral.  There were no challenges to the process at any stage. The Respondent noted that during the investigation and disciplinary process the Complainant admitted that he had breached the company policies.  

The Respondent in their written submission also notes that the minutes of the investigation and disciplinary meetings the following responses from the Complainant are recorded:

·       “I put my hands up that its’s my fault”.

·       “I know I shouldn’t have been taking his bets, but we are trying to get money in the till”.

·       “I know I do understand I know it’s not the way it’s done”.

·       “I hold my hands up it is my fault.  But I didn’t force anyone to take bets from him.  I am the manager, and I would take this on me”.

·       “I’m not throwing anyone under the bus, it’s not an excuse”.

·       “I can’t justify 517 bets.  I can’t excuse it; I can put my hands up and say sorry but that’s it”.

A number of other legal submissions were submitted on behalf of the Respondent. 

In the case of An Post v Edward Hurley (UDD 2216) the Labour Court outlined the three key questions which were set out in Noritake (Irl) v Kenna(UD 88/1983) were:

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?”

It was submitted on behalf of the Respondent that the Complainant failed to adequately demonstrate his attempts to mitigate his loss.  There were no copies of P60 available and there were a limited number of job applications. In the case of Philip Smith v Mark Leddy (UDD1974) the Labour Court noted that “The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.

The Respondent submitted that if it was found that there were any deficiencies in their process they were, as stated in UDD2221: “not fatal to the fair consideration of the charges against the Complainant”.

It was also submitted on behalf of the Respondent that the result of the Complainant’s actions it could no longer sustain any trust in him.  The Complainant was a shop manager, and it was his responsibility to ensure that the shop was compliant with security policy and procedures.  The Respondent’s business is a cash-based business and any breach of trust by an employee can result in the irrevocable breaking of that trust. The EAT Held in Moore v Knox Hotel and Resort Ltd, (UD27/2004)“[The Complainant’s actions] destroyed the Respondent’s trust and confidence in the Complainant and rendered the continuation of the employment relationship, thereby justifying her […] dismissal”.  In another case, O’Callaghan v Dunnes Stores, (UD54/2012) the EAT found that “Trust and confidence were essential elements in the employment relationship.  Breaching sales and refund procedures amounted in and of itself to gross misconduct”.  In that case the Tribunal held that the dismissal was fair.

If it was found that the dismissal was unfair the Complainant made a 100% contribution to the dismissal and so no compensation is warranted. 

The Complainant has worked for the Respondent for 15 years.  During that time, he had an unblemished record and never had been the subject of any disciplinary hearing or had any complaint from a customer. He was dismissed from the position of Manager on 26/11/2020 and he believes that this dismissal was unfair.  The Complainant provided the hearing with a comprehensive chronology and submission along with supporting documents.

The Complainant became aware of an issue when he was contacted by Mr Peter Higgins, Loss Prevention Manager on 11/11/2020.  Mr Higgins informed him that he wished to arrange an investigation meeting with him and that this would be confirmed in writing.  The purpose of the meeting was outlined as a discussion about Credit Betting and in particular betting relating to a particular High Value Customer (HVC).  The Complainant was taken aback by this as this customer was known to the District Manager and this was a practice that was allowed in several of  the Respondent’s shops.  The Complainant participated in the investigation meeting the following day by Zoom.  The Complainant had expected his District Manager to attend but he was not present.  He spoke to the District Manager after the meeting to let him know what had happened as he was concerned that he could also be in trouble over this matter.  The District Manager told him that he hoped that no one else would get into trouble.

The Complainant attended a disciplinary meeting via Zoom on 25/11/2020.  The Complainant states that he was overwhelmed at this meeting and confirmed that he attended without representation and signed the notes of the meeting as he did not want the panel to have a negative view of him.  The outcome of the disciplinary process was communicated to him, and he was dismissed from his position.

The Complainant sent a written appeal and outlined the mitigating factors and that he was trying to maintain and increase turnover in the shop and that he was doing so against a background of unrealistic budgets and targets.

The Complainant submits that he advised the Respondent’s representative that he would not attend any Zoom meeting in which he was not allowed to record the meeting or have “fair representation”.  The Complainant then requested that his appeal be dealt with in writing.  The outcome of the appeal was communicated to him on 18/12/2020 and his appeal was not upheld.

The Complainant made a submission in relation to the grounds which he felt rendered his dismissal unfair.  These are summarised below.

The Complainant submitted that the practice for which he was dismissed, i.e., taking a bet placed by text and paid by later by a cash from a well-established and vetted High Value Customer, of the shop was a common practice in several the Respondent’s shops. There was nothing covert about these transactions.  If a customer did not come into the shop and pay for the bet on the day the related docket would be placed with the end nights takings in the till, and this was clearly visible in order to balance the days account.  The Complainant refutes the Respondent’s notion that this was falsifying the balance.  The Complainant believes that the designation of the customer as a VIP or HVC is important.  Taking a bet by text and getting paid later is something that is only done for an exceptional VIP or HVC customer.  This is because such customers are regular and trusted.  The customer involved was also cleared through the Respondent’s Anti Money Laundering team. There was absolutely no loss to the Respondent and there was no question of the Complainant extending a loan to a customer to enable a customer to pay a bet.

The Complainant outlined that the invitation to the investigation meeting on 12/11/2020 stated that the purpose was to investigate “An allegation of a breach of security policy and procedures”.  This was the only allegation to be investigated.   The exact details of the allegation were not outlined in the invitation letter.  The only clue the Complainant had was a reference to a HVC that was known to him.   The Complainant believes that the failure to provide specific details is a breach of the S.I. No 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 200 which is more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.

The Complainant also outlined his difficulty with the Respondent’s approach to his right to representation.  He was advised that he could be accompanied by a fellow colleague or a recognised trade union representative.  The Complainant submitted that the Respondent does not recognise any trade union and so it would be impossible for him to organise a trade union representative having been given 26 hours’ notice of the meeting.    As the Complainant was a manager it was also impossible for him to organise a fellow colleague.  It is the Complainant’s position that the Respondent in in breach of the S.I. 146/2000 which states; “For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise”.   The Complainant also believes that the Respondent also breached their own policy in this regard.  However, the Complainant attended the meeting as he was not aware that he had breached any policy.  The context of this investigation is also important as it was held during the COVID-19 pandemic, and it was difficult to meet or seek advice.  If the Complainant did have representation the Respondent places a lot of restrictions on what a representative is permitted to do. 

The Complainant submitted that the Respondent’s disciplinary policy provided for summary dismissal in the event of a serious breach of policy.  He was not summarily dismissed, and it logically follows that he must not have committed any breach of policy.  The Complainant notes that the Respondent acknowledges that there was no financial loss because of any of his actions.

The Complainant submitted that the deputy manager was also dismissed for the same reason as him and he believes that this may be linked to the Respondent’s desire to move most of their business online and reduce the number of betting shops.  The effects of the COVID-19 pandemic may also have contributed to this.  The Complainant was warned by his District Manager that shops could close.  The Complainant submitted that if his shop was closed, he would have been entitled to a redundancy payment.   His dismissal would ensure that such a payment would not be forthcoming.

The Complainant submits that the practice of taking a texted bet from a customer was a common and open practice.  On occasions when he was off duty, he would have requested his deputy manager to place the bet and he submits that he would not have done this if he believed that it was an unacceptable practice.  In addition to this the Complainant believes that he had discussed the issue of accepting such bets with his District Manager and who he believes was fully aware of this practice. He was never directed by the District Manager to stop taking such bets and if he was, he would have.  The Complainant also submits that the S.I. 146/2000 Code also outlines that as a general rule grievance and disciplinary issues should resolved between an employee and their manager.  This never occurred in this case. 

The Complainant also believed that as the manager of the shop he was expected by the Respondent to use his initiative to increase revenue and he did this within the rules of the company.  At no stage was there any reference in any document that taking a bet without payment constitute gross misconduct.

In his direct evidence, which was taken on affirmation, the Complainant outlined that he worked for the Respondent since 2006.  He did not receive any direct training.  Some training was given in hotels and attendance depended on the staffing situation in the shops where he worked. The Complainant gave evidence that he started as a junior and progressed to role of deputy manager and later manager.  The Complainant stated that when he started working it was normal practice to accept telephone bets. In these situations, they would write “WFC” on the docket.  This means that the docket was “Written for the Customer”. The Respondent’s head office could see all bets.  The Complainant gave evidence that he “was not the mastermind of this practice”.   The Complainant also confirmed that there was no loss to the company at any stage in relation to this matter.  The Complainant gave evidence that at the time of his dismissal it was during the COVID-19 pandemic.  There was a lot of pressure on the shop, and he had to build up the client base from scratch.  The Complainant also gave evidence that he had discussed the issue of taking credit bets in another shop which was the District Managers base. 

The Complainant confirmed that he was totally transparent in the investigation meeting.  He had nothing to hide, and this was the first occasion he attended a disciplinary meeting.  He never had any customer complaint lodged against him.  The Complainant confirmed that he was under pressure to increase the turnover in the shop which had suffered a downturn in business.  He was also short staffed and frequently had to work the shop alone.  He reduced the hours of part time staff to assist.   The Complainant also confirmed that his performance was recognised previously when he won the company’s “Shop of the Month” on two occasions and scored well in other awards.  The Complainant was asked what the Respondent’s procedure was for monitoring dockets and he confirmed that the Head Office can see all bets in real time.  The Complainant also gave evidence that his shop was the subject of a review in 2020 and following this it was confirmed to him that everything was in order. 

The Complainant confirmed the sequence of events in relation to the investigation meeting from the initial notice to his attendance.  He outlined that he attended alone, and he did not realise the seriousness of the matter at that time.  It was impossible for him to organise a trade union at 26 hours’ notice.  The Complainant outlined that he was familiar with fair procedures.  He was not happy with the notes of the investigation as there were some omissions in relation to a discussion about a particular customer.  The Complainant confirmed that at the investigation meeting he was totally honest, and he was not trying to benefit personally.  All he was trying to do was to increase the turnover in the shop.  The Complainant confirmed that he was told he could use the EAP service, but he did not do so as he was under the impression that he needed a policy with the provider to avail of this service.  Apart from this he received no HR support from the Respondent.

The Complainant also gave evidence in relation to the Anti Money Laundering (AML) procedure which was introduced in 2020.  All customers had to verify the source of their income along with their identity.  They began the process of informing customers in 2019.  The Complainant gave evidence that the Respondent did make exceptions.  One example was of a customer who was not validated, and he was given an extension of time to complete this process which was longer than that provided for in the legislation.  The Complainant gave evidence that the District Manager confirmed to him that it was in order to continue to take bets from this customer even though he had not completed the validation process. The Complainant also confirmed that he would have instructed the deputy manager to take bets from this customer and to place Credit Bets.  The Complainant confirmed that if he was made aware that accepting bets in this manner was viewed as gross misconduct, he would never have taken them.  The Complainant also confirmed that the Respondent’s disciplinary policy did not state that taking telephone bets constituted gross misconduct.

The Complainant outlined the meaning of a credit bet.  It simply means that you give a customer the credit to trade.  This is done for a select number of people.  It was the Complainant’s evidence that a telephone bet was not a credit bet, but it was a cash bet. The Complainant confirmed that the AML process resulted in the loss of customers as some felt that this was too invasive.  This was the first time that verification was introduced so some customers were not happy to participate in this.

The Complainant gave evidence in relation to the disciplinary hearing.  He did not think that he would have to go over all the explanations again.  He didn’t know what to expect as he never attended a disciplinary hearing before.  He also stated that the notes of the disciplinary meeting had “massive inaccuracies”.    On this occasion he was also faced with the same challenges in relation to representation.  It was difficult to get trade union representation and a colleague or trade union representative was not allowed to speak.  Furthermore, he was not allowed to have a solicitor attend.  The Complainant stated that he did not think the disciplinary hearing went well.  He had no HR interaction prior to this.  He also had difficulty in obtaining witnesses as the WRC hearings are now in public and he did not want to put people in an awkward position.

The Complainant also gave evidence in relation to the effects of the dismissal on him.  There was no money coming in and as the Respondent kept him on their books, he could not claim social welfare. He was in shock for some time and the dismissal broke him after 15 years’ service.   The Complainant stated that the dismissal was disproportionate, and he was aware of another case, Mark Devlin v Ladbrokes where he was given 1.5 years of chances.

The Complainant was cross examined by Mr James Cleary on behalf of the Respondent.  It was put to the Complainant that the letter of invitation to the investigation meeting outlined that he could have a trade union representative and he confirmed that it did.  The Complainant also confirmed that he told the investigation meeting that he was happy to proceed without representation.

It was put to the Complainant that in his role as Manager he was placed in a position of trust by the Respondent.  He confirmed that he was, and he was responsible for running the shop.  It was also put to the Complainant that he was the highest-ranking officer in the shop, and he confirmed that he was.  The Complainant also confirmed that he was dealing with a lot of cash, and he was responsible for the safe.  The Complainant agreed that he had in fact overall responsibility for the operation of the shop and that the Respondent places a lot of trust and responsibility on him as manager.

The Complainant was asked why he allowed bets to be placed on credit.  The Complainant outlined that he was dealing with a regular customer and that all that was needed was for the customer to pay for their bet. The Complainant was asked how he ended up with over 500 bets placed in this way.  The Complainant confirmed that all those bets were paid for by the customer.  The Complainant was asked if he ever got permission to take Credit Bets.  He stated that he did get permission from his manager who told him to ensure that he got paid.  He was totally transparent about what was happening.  The Complainant agreed that the Manager gave evidence that he does not recall such a conversation.  It was put to the Complainant that this matter was investigated under gross misconduct.  The Complainant stated that he was never told this practice was gross misconduct.  All he was told by his manager was to make sure he got paid.  It was put to the Complainant that his evidence was that he was transparent in these dealings.  The Complainant stated that he was and that “we all done it”.  The Complainant stated that if he was told that it was not ok, he would not have done it.

The Complainant was asked why he thought the Respondent took such a serious view of this practice.  The Complainant stated that he did not know why.  He knew the customer well and he also knew that he was a properly validated customer.  The Complainant stated that he did not think this matter was a breach of company policy.  The Complainant agreed that he did not check if the practice was against company policy.

It was put to the Complainant that the Respondent’s disciplinary policy states that gross misconduct includes but is not limited to serious breach of Company Security Policies and Procedures and serious breach or conduct not in line with Company Policies and Procedures and that his actions were a breach of the company policies.  The Complainant did not accept that his actions were such a breach.  The Complainant stated that the correct sanction would have been a verbal warning.  It was put to the Complainant that he admitted to taking bets on several occasions without taking money.  The Complainant did not agree as the money was taken in later.  The Complainant clarified that he admitted to taking bets from a customer who later paid for them.  He was not aware that this was gross misconduct.

It was put to the Complainant that Section 6(4) of the Unfair Dismissals Act specifically refers to the conduct and that what was at issue here was his conduct.  The Complainant stated that he felt that his dismissal in these circumstances was unfair.  The Complainant was asked how the Respondent was ever meant to trust him after these incidents.  The Complainant stated that if he was told that these actions were gross misconduct, he would have stopped taking them.  He was always totally transparent, and no betting dockets were ever hidden.

The Complainant was also asked to outline his attempts to mitigate his loss.  He confirmed that he was in receipt of a social welfare payment until 11/11/2021 and he took up a place on a Community Employment Scheme.  During this time, he also undertook a degree to enable him to undertake other work as he did not think he would be able to work in the same field again.  The Complainant also applied for other roles and done some training, but he did not have the facilities at home to be able to take up the role.

In a closing submission on behalf of the Complainant, Mr O’Brien stated that it was significant that the Complainant had worked for the Respondent for 15 years and never had any warning.  He was in fact promoted by the Respondent and given the onerous task of setting up a new shop.  The Respondent did not take any of these mitigating circumstances into account when arriving at the decision to dismiss the Complainant.

The reality of the Complainant’s position is that he was called into a meeting, and he was denied the specific details of what the meeting was about.  The investigator, Mr Higgins, pointed out that the Complainant was honest and was in a difficult position of trying to reach the targets.  The Complainant was dealing with a HVC who was well known and who had been cleared in the Anti Money Laundering process.  The Complainant’s district manager was aware of the practice of taking telephone bets.  The company did not sustain any loss due to this matter.  The decision to dismiss was disproportionate and in that context, there was no such recommendation from the investigation.  The investigation notes did not fully reflect the meeting.  The taking of telephone bets was the practice and the letters WFC were included on all bets taken over the telephone.  The hearing also heard evidence from the Complainant that WFC was widespread in other areas where he worked for the Respondent.  It is not proper that this matter could be deemed gross misconduct when it was known to the district manager who gave evidence that if the Complainant was asked to stop doing it, he would have done so.

The Complainant did not expect to be dismissed.  He told the truth on every occasion.  That was that he took bets from a HVC which was the practice.  The 517 bets in question were all paid for that evening.  If the 517 bets were taken and paid for there was no risk to the Respondent.  The Complainant was disadvantaged by the Respondent.  He did not know the precise allegation and he was not given time to organise proper representation.  He received no support from HR, and he had no experience of dealing with an investigation or disciplinary hearing.  The Complainant’s representative stated the question must be asked how the Complainant’s shop was given two shop of the month awards and passed an audit if there were concerns about this practice.

The Respondent could have trust in the Complainant.  He worked for them for 15 years and done anything he was tasked with doing.  He had a completely unblemished record.  He was an honest employee who had young children.  The Respondent displayed no compassion, no support and the conduct complained of was not listed in the security policy.  The Complainant did not have a fair hearing.  He was not advised of the details of the complaint and not able to have proper representation.  The Respondent’s policy in relation to credit betting merely states “you may experience disciplinary action”. 

CA-00044304-001

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)      Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

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 or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair.  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 the circumstances.  It is well established 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 either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done.  This is the standard by which 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 that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels[UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The issue of fair procedures requires examination.  It is clear that the investigation process was conducted by a person with the relevant expertise.  The disciplinary process was conducted in accordance with the provisions of S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.     The appeal’s process was likewise conducted in accordance with the principles of natural justice and fairness.  The Complainant has raised an issue in relation to the notice period for the investigation meeting and the Respondent’s perspective on representation.  The Respondent allows representation at all stages and a representative can be a work colleague or a trade union representative.  The Respondent’s attitude to representation is prescriptive and restrictive.  I do not find that this compromised the Complainant in this case.  The facts of the matter were not in dispute and the Complainant confirmed that he was happy to proceed without representation.

In the within case there are clearly issues which the Respondent was required to address.  A shop manager decided to accept bets in a manner which was not in line with established procedures and company policy.  This was uncovered when the Respondent undertook another investigation. 

At the hearing the Complainant did not provide any credible explanation for what happened.  He confirmed that he accepted the bets in the manner alleged.  His belief that this was standard practice is not credible in his role as a manager. If he was aware of the practice, he had an obligation to cease and report the matter. It is remarkable that he was able to research the Nevada Gaming Commission, the UK Gambling Commission and other research presented to the hearing, but he failed as an employee and more particularly as a manager to research or otherwise seek clarification in relation to the Respondent’s policy regarding credit betting.

The Complainant submitted that it is relevant that he did not personally benefit from the practice.  I find that this does not constitute a mitigating component of his justification of the practice.  Similarly, I find that the Complainant’s perspective that the fact that there was no loss to the Respondent is not a mitigating factor.

I do not accept the Complainant’s evidence that he was offered no support by the Respondent.  The Complainant was advised that he could assess the Respondent’s Employee Assistance Programme (EAP) and provided with its information brochure.  It is implausible that a manager did not understand how this support works.  I find that the Complainant did not contact the service to seek clarification and if he had he would have access to the confidential and professional supports and counselling services that an EAP offers.  His failure to access these supports is entirely his responsibility.

The Respondent’s rules and regulations state:

·       “Under no circumstances are bets to be taken where no money has been received from a customer.  No money; No Bet.

·       Debit/Credit card payments must be processed and authorised before the slip is scanned.  The payment must be cleared at least 2 minutes before the scheduled “off time” of an event.

·       Knowingly accepting “Credit Bets” is not permitted under any circumstance.

·       Non-compliance with these rules and regulations will lead to disciplinary action and may result in dismissal.”

The Respondent’s “Loss Refresher” training which all employees must complete twice yearly reinforce the rules and specifically reinforce the rule” No cash = no Bet!  All bets must be paid for at the time of placement.  Under no circumstances are credit bets to be taken.”

The Respondent’s training programme includes the following reminder:

“Remember:

Make sure the whole shop team follow the RULES/PROCEDURES: no good cop bad cop scenarios.

Treat everyone the same way: same rules for everyone

Educate your customers about the rules/procedures.”

The Respondent was required to have procedures in place to ensure the integrity of their business and compliance with the relevant legislation.  A core element of the Respondent’s business is the expectations of personal conduct and business integrity which it expects from its employees.  For a shop manager these expectations are imperative expressions of the trust and confidence required in that role.

The allegations against the Complainant were very serious and would have important implications for both the Respondent and the Complainant.  Trust is an essential component of all employer/employee relationships.  This trust is of the utmost importance in any employment involving transactions which involve money and goods.   The Respondent had a duty to deal with this matter when it became aware of the practice.  A policy and procedure existed to ensure that this practice was not taking place.

An Adjudication Officer must assess whether the dismissal was a fair, proportionate, and appropriate sanction to the finding of serious misconduct. In doing so, I am required to examine the conduct of both parties, and whether the procedures followed by the employer were substantially fair.

In this case the Respondent set up an investigation and a subsequent disciplinary and appeal process.  The leading representatives of each of these stages attended the hearing and gave evidence.  I am satisfied that the Complainant was fully aware of the allegations made against him in advance of the disciplinary hearing. I am further satisfied that he was afforded ample opportunity to respond to those allegations at the disciplinary hearing notwithstanding that he did not think that he would have to provide such responses again. The Complainant availed of his right to appeal the decision to terminate his employment but did not attend unless his preconditions were satisfied. I am also satisfied that the appeals process, based on a written submission, was a fair and comprehensive process.

It was submitted by the Complainant’s representative that it was relevant that the investigation did not recommend any particular disciplinary action.  This is only relevant in that this was the correct approach by the Investigation Officer.  It was a separate matter for the Disciplinary Panel to decide what, if any, disciplinary action should be taken.  It is a matter of record that the WRC has frequently emphasised the importance of having transparent separation between an investigation and disciplinary process. 

 Having regard to all the circumstances and having considered the totality of the evidence adduced, I am satisfied that the disciplinary and appeals processes followed by the Respondent were in accordance with its own procedures and substantially fair.

The Adjudication Officer must also assess whether in all the circumstances of this case the sanction of dismissal was proportionate and appropriate. Mr O’Brien, on behalf of the Complainant, submits that the sanction of dismissal was grossly disproportionate having regard to the Complainant’s 15 years’ service without any suggestion of dishonesty, impropriety, or any complaint.  The Complainant was conscientious in trying to ensure the viability of the shop and there was no loss to the Respondent.

The evidence on behalf of the Respondent was that they had considered everything, including the Complainant’s unblemished record over 15 years’ service, and did not take the decision to dismiss the Complainant lightly. Mr Cleary, on behalf of the Respondent, submitted that the bond of trust was broken given the seriousness of the incident and the seniority of the Complainant’s role.

As outlined above, I am satisfied that the Complainant was dismissed following a substantially fair disciplinary and appeals process. I have formed the view that it was not unreasonable for the Respondent to decide that the Complainants behaviour constituted serious misconduct given the volume of occurrences and the nature of his role with the Respondent.

Having regard to the nature of the Respondent’s business, the actions of the Complainant undermined the trust and confidence that the Respondent held in him as a shop manager. In such circumstances, I find that it was reasonable for the Respondent to conclude that the bond of trust between employer and employee was broken.

In such circumstances, the I am satisfied that the Respondent had substantial grounds to justify its decision to terminate the Complainant’s employment for serious misconduct, and that the decision to dismiss was not disproportionate.

I am satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice.

Having regard to all of the circumstances of this case, I accept the Respondent’s submission that the sanction of dismissal imposed on the Complainant was within the band of reasonable responses open to a reasonable employer in the circumstances.

Having considered the evidence adduced at the hearing and the submissions received and based on the foregoing I find that the decision of the Respondent to dismiss the Complainant was a reasonable response to the circumstances presented.  I find that the complaint of unfair dismissal is not well-founded.

CA-00044339-001:  The Complainant submitted a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1977.  The Complainant believes that he did not get rest breaks when employed by the Respondent.  The Complainant submitted a log of the hours he worked for the years 2010, 2017, and 2018.  These logs were obtained from the Respondent following a Data Subject Access Request (DSAR).  At the hearing it was explained to the Complainant that any complaints under the Act an Adjudication Officer “shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.  Notwithstanding that the Act provides for an extension of 12 months if the delay was due to reasonable cause, it is manifestly clear in this case that an Adjudication Officer does not have jurisdiction to investigate this complaint.  While the Complainant submits that more records were not provided to him by the Respondent, the onus is on the Complainant to make his case and provide relevant evidence.   In view of these circumstances, I find that this complaint is not well founded.

CA-00044304-001: I have decided that the complaint of unfair dismissal is not well founded.

CA-00044339-001: I have decided that this complaint is not well founded.

Unfair dismissal.  Procedures. Investigation. Disciplinary. Appeal.