Complainant

Respondent

Parties

Philibert  Aloui

J D Wetherspoon Plc

Representatives

Timothy Foley , Day 2 of Hearing. Terence O’ Sullivan, Day 1 of hearing

Kevin Bell B.L instructed by  William Fry Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00049321-001

24/03/2022

On 24 March 2022, the Complainants Solicitor lodged a complaint of unfair dismissal on behalf of the complainant, a Team Leader in the Hospitality Industry. The dismissal occurred on 29 October 2021.

The Complainant was first represented by Terence O’ Sullivan Solicitors up to and including the first day of hearing in April 2023. Thereafter, on July 28, 2023, Mr. O Sullivan came off record.

The Respondent operates a large grouping of bars and restaurants and has denied the claim.

The Respondent came on record on 11 May 2022 and was represented throughout the case by Kevin Bell BL instructed by William Fry Solicitors.

The Respondent filed an extensive written submission in November 2022, which was shared with the Complainant side.

This prompted some correspondence from the parties to the WRC on the preferred medium in which to hold the hearing. At that point, the complainant indicated that they anticipated a large grouping of witnesses and expressed a preference for an in-person hearing. The Respondent indicated that as they had a cohort of witnesses based in the UK, their preference was for hybrid hearing.

As events turned out, we were unable to accommodate a hybrid hearing in Cork at that point. I am pleased to say that we have since become operational in hybrid hearings.

The hearing proceeded in person on 21 April 2023 in Cork, where both parties were legally represented.

The Complainant did not furnish an outline submission on the first day of hearing. The Complainant subsequently notified that he wished to have one of his named witnesses as his representative for the second day of hearing on September 11, 2023.

This was facilitated. The Complainant submitted a document on a summary of his evidence and incorporated detail on mitigation of his loss before securing new work in May 2022, from which no differential loss flowed.

During the hearing, I sought a copy of the policy which governed the appeal process and the stated grounds of appeal. I also requested that the Respondent demonstrate application of the staff discount. This was completed on the second day of hearing and was helpful.

I afforded the Complainant and his representative an opportunity to respond to the Respondents legal submissions by means of a post hearing written submission.

The Respondent made a final comment in the case on 17 October 2023.

The Respondent operates pubs, restaurants and hotels in the Britain and Ireland.

It was common case that the complainant had worked at the business across two roles since 4 September 2017, commencing as Team Leader on 26 June 2018 on 24 hrs per week. Both statements of terms of employment were exhibited.

The Respondent has rejected the claim for unfair dismissal.

The Discount Policy is non contractual and applied to all pub employees and all at head office. It is cross matched in the staff handbook.

“a 20% discount on all food, drinks and hotel accommodation when not working (off duty)

The 20% discount can be extended to include up to three other people, if they are eating or drinking with you “

The Respondents submission headlined that September 2021 marked a period of specific reminders, sent to all staff regarding the rules of the scheme. An email from the Personnel and Legal Director followed to each member of staff. The Respondent also posted notices “Staff Discount – Do not abuse benefit “

Here abuse of the benefit was considered theft and would be treated as gross misconduct.

“Staff discount is only available for employees. The discount can be extended to up to three other people, but only if they are eating and drinking with you, while you are off duty “

On 27 September 2021, the Respondent received a complaint from Mr Sheahan, a colleague at the pub on the complainant’s incorrect use of the discount policy.

Mr Eustace suspended the complainant pending the conclusion of an investigation the next day. He was invited to a meeting scheduled for 4 October 2021.

The parties both signed this notification of suspension.

On 4 and 18 October 2021, the Respondent investigated the issue. The Complainant was offered representation but declined. The Respondent learned that the complainant had seen the staff discount policy but had a delayed understanding of it to the previous Monday. He disclosed that he had a broader interpretation of the staff discount policy.

Nine incidents were put before the complainant. The complainant confirmed that he had not read the email of September 3 from the company. He elaborated on the universal utilisation of the policy at the bar.

The complainant made a late declaration at the second meeting that he now understood the parameters of the policy.

A Disciplinary meeting followed on 28 -29 October 2021 with Mr Damian Mc Conomy, Pub Manager and Michael Lordan.

The Complainant attended alone.

Notice of summary dismissal followed on 29 October 2021. The complainant was informed that he had been found to have applied the staff discount to customers on shift and this was classed as theft.

The Complainant expressed his dissatisfaction at the outcome. The decision was confirmed in written form on November 1, 2021.

The complainant appealed the decision to dismiss and attended an appeal meeting on 29 November 2021 with Mr Darren Niven. On this occasion, he was accompanied by Mr Michael Lordan, Shift Manager at the Pub.

The Appeal reached out to many staff and reviewed the period from July 2021 which demonstrated that the complainant used the staff discount much more often than other staff. The complainant denied this and reflected that he was a Team Leader in the midst of short staffing, causing other staff to request him to apply the discount on his behalf.

The outcome of the comprehensive appeal process was shared with the complainant on 7 January 2022 and the decision to dismiss stood.

The Respondent submitted a detailed response to the complaint form in their legal submissions.

They contended that the test for natural justice in workplace investigations was addressed in the Supreme Court case of Connolly v Mc Connell [1983] IR 172

“… he must be given the reasons for his proposed dismissal and an adequate opportunity of making his defence to the allegations made against him -Audi alteram partem. The members of the Tribunal must be impartial and not be judges in their own cause -nemo iudex in causa sua. They must ensure that the proceedings are conducted fairly “

Flanagan v UCD [1988] IR 724

Mooney v And Post [1998] 4IR 288

Mr Bell went on to draw from Justice Laffoy in Giblin v Irish Life and Permanent PLC [2010] IEHC 36

In conducting a process on exploration of “serious sanction “the provisions of the contract and fair procedures play leading roles.

“a one stage inquisitorial process may be appropriate in many cases “

It was the respondent case that the adherence to the company disciplinary policy as “three stage process conducted by three separate managers accorded the complainant numerous opportunities to prepare and present his defence “

He also argued that the disciplinary process engaged by the respondent, three different managers, independent of each other exceeded what LAffoy J set down for adherence to the principles of national justice in Giblin.

Reliant on Joyce v Colaiste Oignaid [2015] IEHC 809, the respondent argued that the complainant had been afforded “the opportunity to respond “.

 The Respondent disputed that the sanction could be viewed as disproportionate. The company had set the rules surrounding the discount policy very clearly and had flagged the consequences for staff on non-adherence e.g. theft and gross misconduct.

The Complainant could have been in no doubt about the weighting placed by the respondent on this policy.

Fagan v Aer Lingus UDD 1962 at the Labour Court carried remarkable similarities to the instant case. The Complainant had been found to have engaged in mis conduct on self-administering a sale of tobacco in excess of customs regulations, set against a historical tolerance. Customs contacted the respondent, when the complainant refrained. A decision to dismiss followed and was unaltered on appeal.

The Labour Court focussed on whether the dismissal was within the range of reasonable responses. It held that trust had been lost in the complainant.

The Respondent sought application of Fagan to the facts of this case and much turned for the respondent on the role the complainant held of Team Leader and his proximity to notifications of the overarching staff discount policy. The respondent did not accept that the complainant was a stranger to these notifications and briefings and could not rely on that distance claimed.

The complainant was dismissed just as two other staff had been prior to and post his dismissal. In this the respondent contended that they acted consistently and distinguished those facts from the inconsistency and unfair dismissal found with Burczy v Tesco Ireland UD 618 /2012.

Mr Bell concluded his submissions by a statement that the complainant had accepted the occurrences of which he had been accused. He knew the enormity of his actions and how they contravened the pillars of the staff discount policy.

He was aware that dismissal was a potential outcome.

He was afforded fair procedures and natural justice.

The Complainant was a Team Leader and his lack of leadership and contravention of the staff discount policy “irrevocably undermined the trust and confidence the Respondent must have in its staff.”

He concluded that dismissal was one of the reasonable sanctions open to the respondent as a response to the admitted actions.

On the first day of hearing, Mr Bell outlined that the purpose of the discretionary staff discount was a gesture to be applied for family and friends in an off-duty capacity.

He said the facts of the case were not in dispute.

He outlined that the complainant had been found to have misused the policy, which warranted activation of the disciplinary policy and a finding of gross misconduct.

Historically, a traditional and enduring laxness had existed at the business as a previous manger had tolerated a laxness in the operation of the staff discount.

In September 2021, the Respondent activated an email to all staff notifying of changes across the entire company. He called it “a companywide initiative “where the historical laxness was stamped out.

Subsequently the complainant was found to have been involved in 9 incidents where the revised policy had not been applied. Dismissal was a proportionate response.

Mr Bell contended that he could not accept that the complainant was unaware of the changes as he filled the role of Team leader and he “ought to have known “

Mr A led staff briefings and oversaw noticeboard alerts.

Mr Bell submitted that the respondent had behaved reasonably.

Evidence of Mr Eustace, Affirmation

Mr Eustace came to the case on foot of 12 years in the Pub Business, the latter two in Cork from Christmas 2020. He ran the pub during the covid 19 pandemic.

He acknowledged that the previous manager had not been “front of house “and he changed that. He submitted that he maintained a presence amongst the staff on the floor.

He stated that he was not aware of any laxness surrounding the application of the staff discount in December 2020. He knew that the Company had heralded the discount as a company objective. He stated that a notice was placed in the main staff area, and it was mentioned on rosters.

He confirmed that staff had not come to him about the policy.

He recalled that Dylan Sheehan, shift manager had raised an issue with him regarding a transaction, where a staff discount had been applied without a requisite staff cohort present at the table. The tool key linked the transaction to the complainant.

Dylan asked Mr Eustace to address the complainant and he sat down with the complainant during the next shift. The complainant has denied this in his evidence.

Mr Eustace confirmed that Dylan was doing his job in bringing the matter to his attention.

The complainant confirmed that he completed this transaction and admitted to other occurrences.

Over a 4-week period, 9 breaches were identified via an audited discount report.

Mr Eustace confirmed that the complainant was suspended, on pay, but denied it was a sanction. He submitted that a thorough investigation followed, which confirmed that the complainant had abused the staff discount policy. He added that the complainant was not “fully aware “of the policy when they spoke. The complainant thought his operation of the policy was okay.

The Respondent had dismissed two other workers.

He had used the discount on shift which was at variance with the “off duty “element of the policy. Mr Eustace was unable to attribute any of the transactions to the complainant being “off duty “He demonstrated a lack of familiarisation with the stock policy.

Mr Eustace described that the discount was actioned through an App rather than a discount card.

Mr Eustace re called that he had undertaken pre shift briefings lasting 1-2 minutes, on request to emphasis the correct usage of the staff discount policy. These took place alongside the daily sales targets. He also used staff Facebook.

Mr Sheahan participated and was interviewed at the appeal.

Mr Eustace confirmed that there was no acceptance of a staff member applying the policy outside its provisions.

During cross examination, Mr Eustace confirmed that his arrival to the pub was to address shortfall in management from a previous era and he was charged with “holding the pub “

The Manager had resigned in December 2020.

Mr Eustace confirmed that he approached the complainant on the reported breach in the staff discount policy on October 28, 2021.

He confirmed that the complainant had been using the policy as a discretionary support tool for “good customers and friends “or as a compensatory gesture of customers having to wait.

When questioned on “John’s email “Mr Eustace disputed that the staff discount policy was not flagged amongst the staff straight away. He said that there was mention in the staff room, weekly audits and regular updates.

He confirmed that the complainant had joined the share scheme which was co existent on the Johns email.

He submitted that the staff discount had always been in the company handbook but had not been signed off.

He confirmed his understanding that the Complainant had been an honest person.

When asked to address the options to having to formalise an action under the disciplinary procedure? Mr Eustace confirmed that he had recourse to

1.      no further action

or

2.       invitation to a disciplinary hearing

He confirmed that in the aftermath of “John’s email “two employees, 1 bar and 1 kitchen associate had been dismissed. Both were shift workers. He confirmed that he had completed the investigations of several variances on the staff discount policy.

Evidence of Mr Mc Conaghy, Disciplinary Hearing (by oath)

Mr Mc Conaghy had been 12 years with the business. He became involved in the case at disciplinary level following the investigation. He was not involved in the other cases which led to dismissal.

He had before him a copy of the investigation and CC TV 

He focussed on the occurrence of the incidents. Mr Mc Conaghy confirmed that the complainant told him that he normally read “Johns emails “but he had not read this one. He identified the organisation hierarchy in descending order.

Team Leader

Shift Leader

Shift Manager

Mr Mc Conaghy stated that in his opinion, the complainant was not aware of the staff discount policy and had failed to read it.

He acknowledged the organisation “crackdown” following “John’s letter “.

Mr Mc Conaghy acknowledged that during the disciplinary process, he found the complainant to be understandably upset. He believed that he was being picked on to make an example of when others were adopting the same practice.

Mr Mc Conaghy was not convinced by the submission that the complainant’s previous manager had permitted the lax approach.

During cross examination, he confirmed that the complainant had recall difficulties on whether he was on or off duty. He denied targeting Team Leaders. He had not checked out the participation of other staff in the reported variance.

He acknowledged that the loss of euros attributed to the variance in how the policy was follow was not quantified. He had not completed a look back.

He denied that dismissal was disproportionate and contended that an abuse of policy had occurred.

He confirmed that at his pub in Carlow, he had raised awareness of the crackdown via Facebook, staff notice boards and glass washer area. He also addressed Managers meetings biweekly basis.

During redirect, Mr Mc Conaghy distinguished the need for further inquiry by the complainant’s acceptance of the occurrences. There had been a stated loss to the business of €3,000 over 3 months by end of Summer, 2021(June to September) completed by Mr Niven.

During clarification, Mr Mc Congahy confirmed that the complainant was aware that his dismissal was being considered through letter.

When asked to identify the date of the staff discount policy, Mr Mc Conaghy referenced the staff handbook.

When asked if he had considered lesser sanctions short of dismissal, Mr Mc Conaghy contended that dismissal was the appropriate and consistent response due to the “severity “of the breaches.

He acknowledged that he had not considered the impact of dismissal on the complainant and emphasised that he was an appointed Team Leader from 2018.

Evidence of Mr Niven, Appeal Manager (affirmation)

Mr Niven is an Area Manager with 18 years’ experience.

He confirmed that his role was to run the appeal as a full hearing with an opportunity for the complainant to present any new evidence.

He placed a framework around the existence of the staff discount policy for the 42,000 employees.

He submitted that the staff discount policy was a long-standing policy subject to annual audit, but concern had risen within the company during 2021 and a corporate decision was recorded to re-emphasise its operation.

He faced some logistical challenges to conducting the appeal due to domicile and conducted two zoom hearing.

Mr Niven recalled that the complainant presented a viewpoint that he was being picked on by Dylan Sheahan. This prompted him to probe further.

He was satisfied that the complainant was aware of the policy. He was one of the staff discounts largest users.

Mr Niven was satisfied that in his Team Leader role that he received weekly notifications of issues which was greater than his juniors.

When asked by the respondent Counsel, Mr Bell, what he had considered in the complainant’s favour?

Mr Niven focussed on what had been going on in the pub against the complainant being picked up on his practice in May 2021.

He submitted that the action to re -emphasise the staff discount policy was a company objective where action had been taken across all pubs in Ireland and the larger group. Dismissals had followed.

He considered the legacy of the previous pub manager.

He confirmed that the complainant requested a lesser sanction on appeal.

He was directed to consider a reported animus from Mr Sheehan towards the complainant. In addition, that the investigation was not accurate, but no specific transactions were flagged.

During cross examination, Mr Niven addressed Mr O    Sullivans questions on what level of sign off was required by the company in relation to the staff discount?

1 had there been a requirement to record sign off on having read the policy?

Mr Niven confirmed that this was a very live issue for the company at Macro level and globally. The abuse of staff discount had been discussed via conference calls.

He added that it had been consistently discussed over a period of time from 2 September 2021, onwards.

Read page 157 of the respondent booklet on behaviour within the disciplinary procedure context.

Mr Niven rejected the suggestion that the sanction lacked leniency.

He emphasised that hi length of service had been considered. He had responded to the complainant’s reliance on animus between Mr Sheehan and he and investigated this further.

He rejected the question that the complainant had not benefitted financially from the manner in which he applied the policy. Mr Niven replied that it was a companywide loss as “we are all shareholders “

Mr O Sullivan disputed his reliance on the email (John’s letter) and pre shift briefings as not “good enough “

Mr Niven confirmed that the complainant had not made a complaint of discriminatory treatment during the appeal.

In closing, Mr Bell argued that the case turned on the contours of proportionality. The facts are admitted.

He reflected that the complainant had confirmed that he should have been aware of the correct workings of the staff discount policy. Mr Bell advocated strongly that the complainants team leader status placed a higher level of responsibility on his shoulders and the complainant’s argued remoteness from obligations arising from the staff discount policy must be viewed as groundless when his position of authority obligated a higher level of awareness of the policy.

He contended that the complainant had waived a clear opportunity to train in the policy. He had not drawn from the staff handbook. He had not demonstrated an excessive workload.

The Complainant had not raised a complaint of discrimination.

He contended that the three-stage process governing the events of the case was robust. Staff were interviewed and responses considered.

He dismissed the complainants stated attempt to mitigate his loss post dismissal and submitted that there was no financial loss as a result.

He submitted that Fagan and Aer Lingus had a clear application. The complainant agreed that the long-standing practice had been tolerated.

Bank Of Ireland and James Reilly applied as the decision to dismiss fell within the range of reasonable options open to the employer.

Mr Bell referred to a UK EAT case at first instance, involving the same respondent and a M Lynch as persuasive. He agreed to forward this case for consideration but was unable to secure its release from the UK Tribunal, due to administrative restrictions on the request system. He confirmed that the UK EAT had found that the dismissal arising from very similar circumstances was found to be fair.

The Complainant was employed across two roles of Bar Attendant and ultimately Team Leader from 4 September 2017 to the date of his dismissal on 29 October 2021. He was a part time worker at the conclusion of his employment and worked 24 hrs a week for which he received a gross pay of €450.00 per week. He secured new work on 20 May 2022, without a differential loss.

On the first day of hearing, April 21, 2023, the Complainant attended with two witnesses, one of whom was Mr Foley.

The Complainant has been his sole witness in the case.

The Complainant has claimed that he was unfairly dismissed when the respondent terminated his employment due to the manner in which he applied the staff discount in the course of his employment.

The complaint form reflected that all members of staff in possession of “key till authorisation “and were applying the discount consistently with the complainant. Prior authority to apply the staff discount had carried over from a previous manager.

The complainant took issue with the manner in which the dismissal was undertaken and submitted that the dismissal was malicious and discriminatory. The complainant submitted that the dismissal arose from disagreements with the new pub manager.

On the first day of hearing, Mr O Sullivan outlined the background to the dismissal. He submitted that the “letter of change “referred to as “John’s letter, 3 September 2021” on how the staff discount was to be applied was not anchored by individualised notification or sign off in the staff handbook. He was sceptical that the respondent relied on staff briefings or notices or posters. He called for evidence on when these events occurred.

He reflected that this was a high-income generation business of 878 million in 2022.

He contended that the respondent did not provide training in the change of policy. It was not raised at pre shift briefings.

Two Individuals were dismissed.

The Respondent acted with haste in moving towards a disciplinary process so soon after the revised instructions on the staff discount.

Previously this discount had applied to certain preferential customers and amounted to a 20% reduction applied while the bar staff was working.

He compared the dismissal which occurred in the case to that of a “choreographed execution “

The Complainant side did not submit an outline submission in the case. Prior to the second day of hearing, the complainant submitted a written statement titled Direct Evidence of Philibert Aloui.

This reflected that the staff discount policy had not been “strictly adhered to or enforced “at the pub and had been activated “on duty “. the Complainant had not perceived it a priority for the company and was aggrieved at not being heard when he had submitted that others had done what he had done. He contended that he had been “set up to be fired “.

He maintained that the scope of cc tv footage of 33 days was self-limiting and disadvantaged him.

The Complainant has marked this document as “my sworn evidence “I cannot accept it in that vein but acknowledge that it is a statement submitted by the complainant prior to the submission of his sworn evidence which follows below.

Evidence of the Complainant, by oath

The Complainant is a French National with 25 years of hospitality experience. He had never been dismissed from his employment.

He got the job in the respondent pub through friends in September 2017. He confirmed he was a part time worker but pointed to pay slips which recorded 48.5 hrs of work which demonstrated that this was a high activity workplace.

He was a Team leader who held a discretionary power to discount family and random customers, unhappy with service.

He submitted that he had not been shown how to apply the policy across on and off duty scenarios.

He described a period where this issue was never raised nor was, he ever corrected.

He submitted that he was the only member of staff investigated and the sole member of staff who was terminated.

He acknowledged that he may have paid more attention if someone told him to desist in the practice, he adopted to the application of staff discount. He was busy getting on with the work.

On 27 September 2021, the complainant, Mr Aloui met with Mr Eustace and learned that he was to be suspended from his job. There were 9 transactions at issue where witnesses would have been present, but no one else was questioned.

He received a letter of suspension, alongside a copy of the discount policy and a commitment that the parties would reconvene.

He waited 3 weeks. He had informed Mr Eustace that he could justify his position but did not advance names at that stage.

Mr Eustace did not check with his colleagues.

Mr Aloui confirmed that of course he actioned the discount more frequently, as he was there longer. There had been recent changes in Personnel through attrition and training.

The Complainant looked back to a grievance raised by him in 2020 regarding an obstacle to his progressing to promotion. He submitted that “he won that “as discriminatory and then linked this grievance to the circumstances of the instant case.

The Complainant was critical of the investigation which occurred here. He said that he was the only one interrogated and not enough was done to hear his case on appeal.

He had not received video footage.

He had not visited the tearoom due to covid 19; this limited his access to company notifications.

He had a clear understanding that he held and applied a discretionary authority devolved from an earlier manager that he was allowed to apply a 20 % deduction “for good customers “one year before.

He had been working excessively which caused him to miss the 3 September email from John. As far as he was aware, this communique was not universally read at the business.

He did not accept the appeal outcome on the pre shift briefing, saying it was untrue.

He contended that he had not been heard on appeal and argued that the sanction of dismissal was disproportionate and could have been a warning.

He was the sole Team Leader outside of one other part timer. There were vacancies and absences through sick leave at this level.

He distinguished the phone application   of the discount from that of the till. The phone was the preserve of the Team Leader, while the till was the preserve of junior staff.

He confirmed that the other two staff who were dismissed in September and October 20921 were his juniors.

The Complainant confirmed that there were IT problems at the business and no facility for training at home or no time to complete it. He had asked that Mr Eustace hire more staff in June, and these commenced in August 2021.

Mr Aloiu was requested to tell the hearing the circumstances where he believed that he was targeted by the company.

He submitted that on 26 September 2021, Mr Sheehan had been found to be vaping …….

The Complainant gave evidence of mitigation when he looked for work during February and March 2022. He found new work on 20 May 2022 which is more favourable in earnings.

He confirmed that Mr Eustace commenced his new role in June 2021, but had worked at the business previously.

During cross examination,

Mr Aloui accepted that the staff discount was incorporated in the staff handbook. He admitted the 9 transactions as “accurate “, but qualified that no one had done the training.

He confirmed that he had been a Team Leader for two years.

He confirmed that he received the 6-page email of September 3 but had not read it. He confirmed that he did not know the details of the staff discount policy. He reflected that the staff discount had been mentioned after 6 pages of this communication.

Mr Bell directed whether he had an obligation to know the Policy? To which he replied, “I should have known the Policy “and communication   should have been better.

The Complainant disputed the weighting placed by the company on re-emphasising the staff discount policy when he remarked that earlier intervention should have occurred.

He detailed that his confidence took a blow following his dismissal before finding new work in May 2022.

He disputed that he had not been actively seeking work so as to mitigate his loss.

During clarifications, Mr Aloui confirmed that he had no recall on when online training had been available.

He confirmed that some of the 11 names put forward on appeal had seen the September 3 email but not all of them.

The complainant relied on the pre -authorised practice on staff discounts practiced by an earlier manager.

When asked about the 2020 grievance, he acknowledged this had found in his favour.

He confirmed that he had not received job seekers benefit or illness benefit after his dismissal.

He pinpointed his search for new work to 7 January 2022.

In conclusion, Mr Foley confirmed that the complainant was unaware of problems for the company until September 27, 2021.

He was critical that the mention of the staff policy was dormant in a 6-page circular and not highlighted.

Mr Foley disputed that this company agenda was floated at staff level through noticeboards or staff briefings. The Respondent had not advanced witnesses to corroborate this. This was disputed by Mr Bell in referring to Mr Eustace evidence.

There was an abundance of weekly emails, and it was impossible for the complainant to read them.

A lot of Promotional advertising was interwoven through these.

Mr Foley contended that the legacy behaviour of a widespread and variant application of the staff discount had normalised over time and was accepted by the company.

Dismissal was unreasonable and should have been substituted by either a verbal or writing warning. The complainant had a clean disciplinary record.

The Complainants hoped for witnesses were not available for hearing.

The complainant was left with a dilemma as to why his seniors, Mr Sheahan or Mr Eustace had not addressed him face to face in the first instance to enforce a change in the way he was operating the policy.?

The Complainant forwarded his response to the case law relied on by the respondent. He contended that the circumstances of the case were at one with Reilly v Bank Of Ireland in terms of a partisan approach adopted to suspension and the finding of disproportionate response .He argued that the complaint had not reached the threshold necessary for misconduct and the lack of consideration of a lesser sanction placed the decision to dismiss outside the range of reasonable responses .

He distinguished the facts from Fagan and differentiatedthe complainant’s response in the instant case as lacking in intention of wrong amidst a widespread culture of variance from the staff policy which he argued had not been seen by the complainant before his suspension.

He concluded that the complainant had not broken the policy intentionally and his dismissal was disproportionate.

I have been requested to make a decision on whether the complainant was unfairly dismissed as claimed on 29 of October 2021.?

In reaching my decision, I have had regard for the parties’ submitted documents, the oral arguments and evidence adduced. I have managed the change in representation from Mr O Sullivan to Mr Foley.

I have considered both parties post hearing submissions.

My jurisdiction in this case is drawn from Section 6 of the Unfair Dismissals Act 1977,

Unfair dismissal.

6.— (1) Subject to the provisions of this section, 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.

The Respondent has relied for their defence on Section 6 (4) (b) of the Act and the complainant’s conduct.

(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:

(b) the conduct of the employee,

As an Adjudicator, I may also have regard for the provisions of section 6(7) of the Act.

7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, 

In Hennessy v Read and Write Shop ltd, UD 192/1978, the Employment Appeals Tribunal described the test of reasonableness as

 The nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant.

And

The employer’s conclusion following such enquiry that the claimant should be dismissed.

In clarifying my role from the very beginning, I am not to be viewed as the arbitrator of who did wrong and who did right? The decision to dismiss has been taken and I am now charged with the following framework governing a conduct-based dismissal:

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal?

JVC Europe ltd v Panisi [2011] IEHC 279.

I am particularly seeking to explore the employer’s belief in what they found in the case.

I am looking for a genuine belief based on reasonable grounds, arising from a fair investigation that the complainant was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.

Abdullah v Tesco Ltd PLC UD 1034/2014

I accept Mr Bells analysis at the beginning and end of the case, that the prism here is one of proportionality.

It is for the Respondent to prove that the Dismissal was substantively and procedurally fair.

To begin, the antecedent circumstances of the case are of central importance in my considerations. The Pub from where the parties emerge is a single unit across a global business network set across Ireland and the United Kingdom.

This is a single unit business that underwent a change in onsite Management from December 2020. Mr Eustace led the Pub during 2021 and I accept his evidence that he led in a personable style, proximate to staff.

The Complainant comes to this case from a mid-tiered supervisory role, with four years’ experience at the business and a clear disciplinary record. He also comes with a very strident recollection that he operated an authorised “laissez fair “staff discount in his role. It goes to the core of his case that he contended that he was a mere one member of a staff cohort who adopted a “ laissez fair approach “ to the staff discount and while one of three staff on shift who were dismissed , he was the most senior and he left behind him a larger cohort who did what he did with the staff discount policy ,who were not removed . He has called the dismissal malicious and discriminatory based on his French nationality.

The Respondent has completely disputed all of this and has directed their focus in the case that this was a time of great change at the business, following Mr Eustace appointment as Manager and in the Larger Corporate Goal of a “crackdown on abuse of the staff discount policy “across all outlets of the business and across both Jurisdictions from early September 2021.

For me and having listened carefully to all witnesses, I can accept there was a changing of the guard at the single unit business from December 2020. I can also accept that the Staff Discount Policy and its operation became a pressing company agenda item from late Summer 2021. I did ask if the correct use of the Policy was audited internally annually and my understanding that audit was activated around that time as reflected in Mr Nivens evidence on the 3 monthly stated loss.

I am drawn to Machiavelli’s observation of change in The Prince when he said:

It ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order in things. Because the innovator has for enemies all those who have done well under the old conditions and lukewarm defenders in those who may do well under the new.

This coolness arises partly from the fear of opponents, who have the law on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.

I would ask the Parties to take a moment to consider this 16th Century historical analysis. I appreciate that there may been a time lag, but there are threads of similarity in the circumstances of this case.

Both Parties were faced with considerable change from January 2021 onwards.  It is relevant that the chronological back drop for the circumstances of the case in the covid 19 era.

The Complainant describes a period of excessive workload and a delay in hiring new staff. He did add that the covid restrictions kept him distant from communal noticeboards. The Respondent viewed it more as a bedding in period for Mr Eustace.

It is clear that the Complainant signed a contract, his second of two in August 2018 which bound him to compliance with the respondent policies inclusive of equal opportunity policy, monitoring of staff, and a Disciplinary procedure.

It is of note that the Respondent presses the point here that they reserved the right to monitor the Till Tranaction Report.

The Employment was supported by the JDW app.

The Staff Discount (extract from Policy, V-2-08-21)

The staff discount.

Off-duty discount (all employees) · A 20% discount on all food, drinks and hotel accommodation when not working (off duty). · The 20% discount can be extended to include up to three other people – if they are eating or drinking with you or staying with you at a hotel.

The off-duty discount cannot be used by friends and family of an employee who is still on duty.

I found a certain lack of clarity in this Policy as the respondent witnesses were unclear of the date of the Policy and referred me to the handbook.

I have drawn August 2021 as the date of origin of this Policy, which refers in part to” hotel staff and Pub Staff.”

Crucially, it does not contain an implication for noncompliance outside of an employee under 18 may face gross misconduct if they were found to order alcohol.

I have identified the record of announced implication for non-adherence to the staff discount policy in the September 3 Johns Letter where abuse of the policy was to be treated as” theft and gross misconduct.”

Yet this was not embedded in the staff discount policy, where training was to be completed by online/ at induction. There was no review date on this policy.

I note the Labour Court recently considered the operational policy of a real rewards card in a dismissal.

"It was clear from the submissions to the Court including the Complainant’s submission that the Respondent had a policy in respect of the usage of the Real Reward Card. This policy was given to all staff and at least once a year staff were reminded of the contents of that policy. [T]he policy also provided that misuse of the Card could constitute gross misconduct. There was no argument before the Court that the process followed in coming to the decision to dismiss was unfair. The Court finds that in all the circumstances of this case there were substantial grounds justifying dismissal."

Musgrave Operating Partners ltd T/ A SuperValu v O ‘Noah, UDD 227D

From this, I have identified a stringency in policy enforcement.

I found the September 3 email generated an application from the complainant to join the share scheme which confirmed for me that he had read the very first page at least.

It has been the Respondent contention that the Complainant as a Team Leader “ought to have known “the correct application of the staff discount.

In this, I can understand that the Respondent argument is reflective of a Canadian Labour Board case in Kevin Newell and Marriott Hotels of Canada ltd LB -0403, 2014 NSLB 47, a case regarding the application of a violation of the discount policy with use of a discount card, which carried inherent terms of conditions for usage and a zero tolerance. The Board found “seriousness of the misconduct is established “and a violation by misrepresentation where the complainant was found to have “ought to have known “the Policy, which was open to him to check. The Board found against the complainant on the claim of discrimination.

In an EAT case of Harris v PV Doyle Hotels UD 150/1978, where a complainant was dismissed for drinking on the premises. The EAT held.

“a rule which is not expected to be enforced may be so diluted that its breach per se might not justify dismissal. There was a duty on management to make clear beyond doubt to employees any “house rules “such as the drinking rule in this hotel, the breach of which would result in automatic dismissal “

I can accept Mr Bells point that the correct operation of the staff discount became a corporate wide objective for the company from September onwards 2021.

What I remain undecided on was the extent of the public relations dedicated to conveying that message to staff. I accept there were emails which heralded the change, but what about the communication with the ordinary staff member?

Mr O Sullivan on the first day of hearing called for evidence of that “road show “in the absence of individualised sign off, I will return to this.

I had the benefit of a demonstration of the staff discount at hearing. I am grateful for that opportunity. I note that each use was underpinned by a user commitment to honour the scheme.

The Respondent advocated strongly that the scheme was a benevolent scheme for staff.

The Complaint 28 September 2021

I think this is the area where I have most difficulty in this case. The origin of the complaint.

I accept Mr Eustace evidence that Dylan Sheehan. a shift leader and junior to the complainant sought him out on 27 September 2021 to inform him that a record on the till remained open. He had discovered that the complainant had applied the staff discount wrongly. He requested Mr Eustace speak to the complainant.

Mr Eustace confirmed at hearing that he did speak to the complainant on the next available day. The complainant has denied this. There are no notes of this meeting.

As the Company placed the Disciplinary Policy on record in the case, I found that it contained a cross match for corrective action. I am surprised that measures to address the shortfall in the standard required were not actioned in the first instance by Mr Eustace.

However, the next day, the complainant was suspended on the following record.

“On 27 September 2021, you applied the staff discount while you were working. This breaches the company staff discount policy “

I did not find a report by Mr Sheehan or a written response from the Complainant prior to the suspension. I was disappointed by that omission.

SI 146/2000 Code of Practice on Grievance and Disciplinary Procedures 2000 provides general guidance on a standard surrounding a workplace investigation.

That the allegations or complaints be set out in writing

That the source of the allegations or complaint be given

When the complainant was suspended, the pre cursor for suspension was one variance on 27 September. Following a look back, nine transgressions were presented at the investigation 4 to 18 October 2021. These straddled the dates 30 August to 27 September 2021.

Mr Sheahan was not a participant at the investigation. The Complainant did not put forward witnesses.

The Complainant acted to his own detriment when he tackled this process alone. He was offered but refused support. For me, he did not read the room correctly here. He did not articulate the enormity of the variance in the staff discount policy as published and the local practice. He did not particularise this outside of assertions at hearing.

In her paper “Under the Magnifying Glass, best practice for legally compliant workplace investigations, Sarah Daly BL EBA Conference 2019, states

“Of particular importance in this regard is the extent to which the investigator is directed to make findings and the discretion retained for the later stages “

The Investigation did not yield a finding outside of an invitation to a disciplinary hearing where 6 of the previously mentioned 9 transactions were incorporated.

It did not provide reasons for the shorter list of transactions.

The Respondent has relied on the Supreme Court case in Connolly v Mc Connell, 1983 on the central importance of natural justice prior to dismissal, where nobody is allowed to be judges in their own cause.

I have some unease on the decision to appoint Mr Eustace to investigate these complaints. This is not a slight on his competence to undertake an investigation as Pub Manager.

I say this as the line between the Clear Corporate Agenda for change launched in earnest from September 2021 in relation to the staff discount policy came first in time. It became a headline issue.

Mr Eustace as Pub Manager accepted a complaint from the complainant’s junior staff and did not ask for it to be placed in writing.

I was struck by the evidence of Mr Eustace that staff had not sought him out in relation to the policy during September 2021. I accept that he discussed the change with some staff but not all and crucially not with the complainant before he was suspended.

No measures were taken to seek to manage the complainant’s performance in the first instance by Mr Eustace or other managers.

The Complainant was not heard when he submitted that this was a universal practice at the pub. This is the point in which he remains most aggrieved and which he carried through all of the three stages of the disciplinary procedure.

I would have preferred if the Investigation had undertaken a validation exercise on the assertion that the staff discount policy had slipped at the pub. Put simply, I would have preferred to see a more widespread examination of the norm raised by the complainant. I appreciate that he did not place names to that norm.

In Cheeverstown House ltd v Mercy Oshin at the Labour Court UD/ 17/115, a case involving a dismissal for failing to carry out appropriate evacuation procedures following a fire.

The Labour Court held that the complainant had been dismissed without serious evaluation of who had trained the complainant.

“Given that the Respondents investigation had not managed to identify the person who the respondent believes would have briefed or trained the complainant on the procedures for safe evacuation. it is reasonable to conclude that her explanation was dismissed without serious evaluation.”

I found that the Investigation lacked any evaluation of the scale or depth of the difference between what the company rightly expected the application of the very preferential staff discount to look like and what it actually was during the period of scrutiny 30 August 2021 to 27 September 2021.

The complainant had challenged the evidence relied on by the respondent. Flanagan v UCD [1989] ILRM 469 and given that the allegations carried an allegation of theft, a potential criminal charge.

The Complainant must also carry some responsibility here as he failed to particularise his response outside of an assertion. He did not name names or tender witnesses at this crucial juncture.

There was no investigation report. Instead, the findings were incorporated into a Disciplinary Meeting invitation.

I must find that the investigation fell short of best practice as it was conducted by a manager charged with change management of the staff discount policy. It lacked impartiality and did not follow up on a systems analysis of the staff discount at the single unit business.

I found Mr Eustace to be a judge in his own cause. He told the hearing that he had participated in parallel investigations which led to dismissal.

However, I cannot agree with the complainant that Mr Eustace or Mr Sheahan had animus against him. The Complainant described an interaction the day previous around a disagreement on smoking breaks that lasted 3 minutes. This did not amount to him being targeted by the respondent.

Neither did he demonstrate how his race was a consideration for his dismissal. 

I found the complainant acted to his detriment by not reading the room correctly and tackling a workplace investigation alone. He ought to have described the variances much clearer at investigation stage.

The Disciplinary Procedure

Given the shortfall in exploring and evaluating the “pub norm “in relation to the staff discount at investigation, there was an opportunity for Mr Mc Conaghy to explore it on foot of the complainant’s statement of names at the disciplinary hearing on 28 October 2021.

He did not do this and gave the reason that the detail was now out of reach of records during the appeal.

Once more the complainant acted to his detriment in not having a representative for such a serious meeting.

I found that once more, here was a Respondent nominee charged with managing the transition towards maximum compliance with the emphasised policy of staff discount.

I found that he did not give any weighting to the reduction in allegations from 9 to 6 from the Investigation to Disciplinary stage.

 He did not pursue an evaluation of the gap in practice at the Cork Pub when the complainant raised names of those who he believed had varied the practice.

He did not consider the impact of dismissal on the complainant.

I cannot accept that he did not at least consider an alternative sanction. There was a very short interval between the disciplinary hearing and the outcome one day later. For me the circumstances required a longer inquiry.

I cannot accept that “severity “was a safe finding when the defence had not been explored at this key stage.

I found that this interval was simply too short in which to adequately take on board the defence made by the complainant.

In this, I am guided by the EAT case of Gustave Bigaignon v Powerteam Electrical Services ltd [2012] 23 ELR 195

This case involved a claimant testing positive for cannabis. He worked on overhead electricity lines. The Respondent policy made it clear that “a positive test could result in dismissal “

The complainant was dismissed following a three-stage disciplinary hearing.

The EAT addressed the complainant’s acceptance of a policy breach and his acknowledgement that he had received fair procedures. In addressing the claim that the dismissal was unreasonable, the EAT dismissed the claim.

The EAT took seriously that their role was “to consider whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses? “

The test applied was.

1 Did the respondent believe that the claimant misconducted himself as alleged?

2 If so, did the respondent have reasonable grounds to sustain that belief?

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

Noritake (Irl) ltd v Kenna Employment Appeals Tribunal UD 88/1983

I will return to this.

The Appeal

Neither party submitted a material document which outlined the grounds of appeal submitted by the complainant.

However, I accept that the Respondent has tabled the grounds accurately on the outcome letter.

I understand that Mr Niven broadened his inquiry into the culture surrounding the operation of the staff discount policy.

He even went on to find some overlap in the staff discount culture described by the complainant.

However, he then turned the tables somewhat by engaging a more comprehensive look back of a systems analysis of how the staff discount was measured by the staff and within in the till receipts, where the complainant was captured as the highest user of the staff discount.

The reasons he gave to cover that usage were not accepted during the appeal.

I was concerned at this development in light of the Labour court findings in Kilsaran Concrete ltd v Vitalie Vet [2016] ELR 237, where the Court was critical of allegations not put to the accused in the prior disciplinary.

The Appeal identified that there were other staff who had deviated from the staff discount policy but the decision to dismiss was not disturbed at that point due to inaccessibility of records for these people.

During this case, the complainant was the sole staff member I met from this single unit pub.

I must now make a decision in the case. I have shared my acute reservations regarding the proximity of the Investigator to the corporate goal of the correct adherence to the staff discount policy.

I have shared my reservations that the complainant did not participate fully in the investigation.

I have identified my reservations on the original date on the staff discount policy.

I was struck by the rush to outcome in the disciplinary process and the omission to interview the names submitted by the complainant.

There was an opportunity to rectify that wrong on appeal.

While the net was broadened to include staff members who operated the policy, the respondent was influenced by a further audit, which placed the complainant as the highest user.

The Complainant has argued that the other two staff were junior to him and operated an app rather than his method at the till.

Not much turns on that for me.

I can accept that the respondent believed that the complainant misconducted himself as alleged as the complainant did not dispute his usage of the staff discount.

The nine allegations from September 28, 2021, became 6 post investigation, nothing much was made of that by either party .

I cannot accept that the respondent had reasonable grounds to sustain that belief of misconduct  as their inquiry was inadequate prior to dismissal and not rectified on appeal.

I do not consider that the penalty of dismissal was proportionate to the alleged misconduct.

In this case, I found a spontaneous relaunch of the objective to operate a staff discount policy to the letter of that policy. I found email contacts to each staff member to press that message home.

However, I must conclude that the complainant did not engage with the “new broom “and steadfastly stuck to the “old ways “

I find that to reach for dismissal to address an incomplete performance management fell outside the range of reasonable responses for this employer in this environment.

The nature of the variance was very serious and contrary to company policy, but it cannot be distilled as one person’s fault. In that I see an analogy with Reilly as submitted by Mr Foley.

Dismissal in the face of more humane options of demotion or disciplinary actions was in my opinion a disproportionate response and it is what makes this an unfair dismissal. Bigaignon distinguished.

However, I must also find that the complainant by his system of “reliance on the old order  “and reticence to notice the loud message of change heralded by the company from September 2021 contributed significantly to his own dismissal.

I mark his contribution as 50%.

I find the complainant was unfairly dismissed.

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 found that the complainant was unfairly dismissed with contribution.

Time has moved on in this case. I find that compensation is the only practical remedy available to me.

I accept Mr Bells point that Evidence on mitigation fell short in this case. There was an extensive gap before new work was sought.

I order the Respondent to pay the Complainant €5,000 as compensation for the unfair dismissal. I have considered the complainants enhanced pattern of work immediately before his dismissal.

Claim for Unfair Dismissal