Worker

Employer

Anonymised Parties

Assistant Manager

 Coffee shop.

Representatives

    Self-represented        

 Group HR Manager and Regional Group Financial Controller

Act

Dispute Reference No.

Date of Receipt

Unfair Dismissal Act

CA-00021755-001

11th September 2018

The worker commenced employment in the employer’s coffee shop on 25 May 2017.  He maintains that he was dismissed on 13 September 2017 in contravention of fair procedures.

He earns €361.25 per week.

He submitted his complaint to the WRC on 11 September 2018.

The worker was employed as an assistant manager in the employer’s coffee shop cafe for a period of almost 4 months when on the 13 September 2017, the assistant manager told him that the employer was short €1000 in the takings from the previous evening, 12 September, when he had been in charge and that as he was responsible, he was to be dismissed there and then. He was asked to leave the premises immediately. He asked her a half an hour later if she believed that he had stolen the money to which she replied, yes.  He denied that he had taken the €1000. He lodged the days takings of €4500 in the safe, but the next morning only €3500 was found in the safe.

He stated that he wrote on 12/10/17 seeking to appeal the decision. He was never advised of the appeals process. Some weeks later the general manager met him and told him that he would think about it. About 4 weeks later, the general manager told him that that there were still no findings as to where the missing €1000 had gone. He stated that it would be impractical to reinstate him.

Initially the worker stated that he was denied an appeal, but later, upon receipt of the employer’s written records he accepted that he had been offered an appeal against the decision to dismiss him He believed the appeal was not genuine and the employer wanted to dismiss him because he had made complaints of bullying against a different, named staff member. Furthermore, the assistant manager told him that she has received complaints about him from staff that he was not pulling his weight.

He accepted later in the hearing that he did exercise his right to an appeal and did get a letter confirming that his appeal was not upheld.

The worker did gain alternative employment one year later at a higher salary.

The employer stated that the worker was one week shy of four months into his employment and was on a probationary contract. The employer understands that this allows them to dismiss a worker.

Contrary to what the worker submits, there were four previous instances of discrepancies in the money recorded on the tills and what was found in the safe the following morning.

There were issues with the complainant’s competence in the sense that he was responsible for ensuring the safe transmission of funds from the till to the safe. Funds were not properly accounted for, and it is this which prompted them to dismiss the worker. There was no allegation of gross misconduct put to him.

The employer submitted documents at the hearing revealing that an appeal hearing had taken place on 1 /11/2017 and that the outcome of the appeal, upholding the decision to dismiss, had been furnished to the worker. While the personnel involved in the dismissal were no longer with the company, the representatives had interviewed staff concerning this matter.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

It is beyond doubt that the worker was tasked with totting up the takings at the end of each day and transmitting them to a safe. On the 17 September he recorded the takings as €4,500 for that day.  This sum was corroborated by a colleague. He dropped these monies in to a safe. The next morning the amount recovered in the safe was only €3500.

He was summarily dismissed without notice as to the purpose of the meeting on the 18 September and without the right of representation.

 The fact that he was asked to leave the premises immediately and was told by the then assistant manager that she believed that he was responsible for the missing €1000 undermines the employer’s stance that it was not a matter of gross misconduct, a fact which could compromise a worker’s right to fair procedures if dismissed during the probationary period.

Contrary to the obligations set out in S.1. 146 of 2000, the worker was not advised in advance of the meeting of the 13 September of the charges or possible sanctions facing him. There was no advance notice, and no opportunity to be accompanied at the meeting which resulted in his summary dismissal. The Court of Appeal in Donal O’Donovan v Over-C Technology, [2021] IECA 37 affirmed that an employee dismissed for misconduct during the probationary period is entitled to fair procedures. No matter how unconvincing the worker’s evidence was or how untrustworthy the conduct appeared to the employer, the employer does not have a pass to short circuit the fair procedures and natural justice owed to the worker facing the termination of his employment during probation. This was denied to this worker.

 I recommend that the employer pay the worker €1000 as a settlement for their failure to offer him fair procedures in terminating his employment.

Dismissal during probationary period; absence of fair procedures.