Complainant

Respondent

Parties

Andrei  Avram

Home Fair Services Unlimited Company t/a  Noah & Co Cafe

Representatives

Tom Mallon, B.L. instructed by Gerard Black, Black & Company Solicitors

Robert Jacob, Jacob and Twomey Solicitors

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-00056231-001

21/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056231-002

21/04/2023

The Complainant commenced employment with the Respondent on 08/03/2017 as a Catering Assistant.  He was promoted to Team Leader on 11/09/2018 and later promoted to the role of Supervisor.  He was paid €468.00 gross per week.  The Complainant was dismissed by reason of gross misconduct on 07/11/2022.  The Respondent denies that the Complainant was unfairly dismissed.  The Complainant submitted his complaint to the WRC on 21/04/2023.

The Respondent provides catering and restaurant services to private companies, public services, hospitals and colleges. The Respondent also operates a number of cafes and restaurants throughout Ireland.

On 17/10/2022 the Respondent became concerned about compliance with cash handling procedures and the Complainant was informed that he would be the subject of an investigation into these concerns.  He was suspended with pay until the investigation concluded.

An investigation meeting took place on 19/10/2022 and the Complainant was advised that there were ten transactions which were voided between 02/10/2022 and 17/10/2022.  The Respondent had harvested CCTV footage from the time of these transactions and the Complainant was present at the till during all these transactions.  The Complainant was afforded an opportunity to respond to each transaction.  The investigation concluded that there was a breach of the Respondent’s cash handling procedures.

A disciplinary hearing took place on 01/11/2022 and the Complainant was given another opportunity to call witnesses and to advance any points which he considered relevant to the allegations.  The disciplinary hearing resulted in the dismissal of the Complainant due to gross misconduct with immediate effect.  The Complainant was given an opportunity to appeal the decision, but he did not avail of this.

Mr James Tracey, General Manager, gave evidence on oath.  He outlined that he is the general manager and has worked for the Respondent for ten years.  He knows the Complainant for about four years.

Mr Tracey confirmed that he was asked to undertake the investigation into the voided transactions.  This matter came to light when he reviewed the Gross Sales Margin Report which showed a minus figure of €80.00.  This was a strange occurrence and when he looked back through the till, he could see a significant number of voids.  A copy of the report was provided in evidence and Mr Tracey highlighted the minus figure of €80.00.  Mr Tracey then outlined that he printed off the transactions and viewed the CCTV which corresponded to the time of these transactions.  At the time of each transactions the Complainant was present at the till.  Mr Tracey then contacted Ms Jennifer Carrick, HR Business Partner as he felt that there may be an issue.  On the following Monday Mr Tracey went through the various documents with Ms Carrick.  Mr Tracey confirmed that the dates of these transactions were from the beginning of October up to 17th October.  Mr Tracey gave evidence that these transactions were always for hot chocolate and mocha and the receipts showed the time and who the cashier was at the till.  The value of these transactions ranged from €42.00 to €130.00.  The total value of the voided transactions was €782.62.

Mr Tracey outlined to the hearing that he met with the Complainant on 17/10/2022.  This meeting took place in a closed off section of the restaurant.  The Complainant joined the meeting after closing off the till.  At that time the till was up €130.50.

Mr Tracey outlined that it was decided to suspend the Complainant with pay and commence an investigation.  They met with the Complainant on 19/10/2022 and the minutes of that meeting were reviewed at the hearing.  The Complainant was advised of his right to representation and to provide any witnesses and  Mr Tracey confirmed that the Complainant did not avail of this.  The Complainant was advised about the ten voids and also shown the CCTV.  At this meeting they went through each of the ten occurrences and the Complainant was given an opportunity to respond.  Mr Tracey confirmed that he extracted the CCTV for the period 13-17 October.  Mr Tracy explained that there is a time difference of one minute between the CCTV and the time stamp on the till receipts.  This is because they are separate and independent systems.

At the hearing the CCTV was viewed on a number of occasions for each of the ten transactions and Mr Tracey confirmed the time on each piece of CCTV, the time of each transaction, the value of the void on each receipt.  He confirmed that he was satisfied that he observed the Complainant at the till on each occasion.  Mr Tracey also observed that the number of taps completed on the touchscreen by the Complainant was excessive and not what he would expect if someone was closing a transaction for a customer.  Mr Tracey also gave evidence that the name on each till receipt was not that of the Complainant but was that of  a number of different colleagues.  These colleagues were interviewed as part of the investigation, and they denied any involvement in the voiding process.  Mr Tracey stated that as a supervisor the Complainant would have knowledge of his team members log-on details.

Mr Tracey stated that the Complainant did not provide any reasonable explanation for the high number of voided transactions.

Mr Tracey gave evidence that the transaction labelled No 10 did not have the correct CCTV as he put the wrong time when harvesting the CCTV.  Mr Tracey confirmed that this was now withdrawn, and he also confirmed that this clip was shown to the Complainant as part of the investigation process.

Mr Tracey was cross examined on behalf of the Complainant.  He outlined details of the management structure and staffing arrangements along with their respective working shift patterns.  Mr Tracey confirmed that there would be at least one manager present at all times with the possibility of an assistant manager and supervisor.  The keys are held by a manager or supervisor and the premises is opened by the chef on duty.  Mr Tracey confirmed that there was a manager present on every day when the Complainant was alleged to have entered the voids on the till.  Mr Tracey also explained the procedure for “cashing up” the till at the end of the day.  The decision on who is assigned this duty is made by an assistant manager or supervisor.  Mr Tracey also confirmed that the Complainant could not decide to cash up.  The procedure is done at the till and in the cash office.  Mr Tracey outlined the layout of the cash office including the location of the secure safes.  Mr Tracey also gave evidence in relation to the CCTV in the office and a potential “blind spot”.   Mr Tracey outlined details of what “cashing up” involves.  Mr Tracey was asked about the till reports, and he explained that this provides sales reports, number of transactions, number of tables, number of voids and details of any discounts given during the day’s trading.  Mr Tracey confirmed that the report does not give details of which employee entered each transaction, but it provides a total number of transactions for each employee.  This report does not provide any further breakdown.

Mr Tracey was asked if he retained a copy of the “X or Z Reports” from the till as part of the investigation and he confirmed that he did not but that these are held in the Respondent’s head office.  Mr Tracey provided the hearing with details of how the cash and credit card receipts are organised and prepared for security collection.  This procedure also involves the preparation of a till float for the next day and this is then held in one of the safes.  Mr Tracey was asked if he looked at the CCTV from the cash office for the dates in question and he confirmed that he looked at one or two.  Mr Tracey was asked why he confined his viewing to one or two and he stated that he was examining voids and not the taking of cash.  It was put to Mr Tracey that he had accused the Complainant of taking cash.  Mr Tracey stated that the Complainant was using voids to take cash.  Mr Tracey was asked if he believed that the Complainant stole money and he confirmed that he believed he did.

Mr Tracey was asked who authored the investigation report and he confirmed that Ms Carrick did.  Mr Tracey confirmed that he checked it and that he stood over the report.  It was put to Mr Tracey that the core of the Respondent’s case was that the complainant stole money.  Mr Tracy stated that it was about the use of voids.  Mr Tracey was asked if he ever dismissed an employee for having too many voids and he confirmed that he did not and to his knowledge the company did not dismiss any employee for having too many voids.

It was put to Mr Tracey that there was CCTV on the till at all times and he agreed.  Mr Tracey was asked when he thought the Complainant could have taken money.  Mr Tracey stated that  money could be taken “at the table when a customer pays in cash”. Mr Tracey was asked if he had any evidence that the Complainant put any money in his pocket, and he confirmed that he did not.

Mr Tracey was asked if the case he was advancing was that the voids created a suspicion that the Complainant was taking cash and he confirmed that was correct.  Mr Tracey was asked what evidence he had, and he stated that the till was up.  Mr Tracey was asked what led him to be suspicions of the  voids and he outlined that he reviewed the Gross Sales Margin Report, and this showed the number of unusual voids.  Mr Tracey explained that he runs this report on a weekly basis.  Mr Tracey stated that when he ran the report for the dates involved this showed “a steady increase in the number of voids for hot chocolate”. 

Mr Tracey confirmed that he decided to investigate this there and then.  Mr Tracey stated after he looked at the voided transactions, he then looked at the CCTV relevant to the times on the void dockets.

In relation to receipt no. 1 Mr Tracey stated that he looked at the CCTV and noted that Ms A was also at the till and her name was on the void.  Mr Tracey confirmed that he spoke with Ms A, and she denied doing the void.  Mr Tracey could not recall what he actually asked her and did not keep a written note of this meeting.  Mr Tracey confirmed that he typed the note signed by Ms A which stated that she did not do the void on that receipt. Mr Tracey could not explain why this note was typed in the first-person narrative style.  It was put to Mr Tracey that he could not link the Complainant to this void.  The CCTV time was not synchronised with the till time and Ms A and the Complainant were at the till and the receipt was in Ms A’s name.  Mr Tracey stated that he believed that the Complainant completed the void transaction and that he could be seen doing 10-30 taps on the till at that time. 

Mr Tracey was asked if, as part of his investigation, he requested to see who had authorised the void transaction and he confirmed that he did not.  Mr Tracey also confirmed that he did not check any docket either side of the void docket in view of the fact that the till time was not aligned to the CCTV time.  He confirmed that he did not do so.

The second receipt was also reviewed.  Mr Tracey provided the hearing with an overview of the various functions on the till including manager and employee functions.  Mr Tracey confirmed that he did not check who authorised the void on this occasion.  It was put to Mr Tracy that the investigation was flawed and defective.  He did not agree. 

Mr Tracey was asked who instructed him to carry out the investigation and he stated that he could not remember but most probably it was HR.  Mr Tracey confirmed that there were five employees who had the code which would authorise a void.  It was put to Mr Tracey that the Complainant will give evidence that he did not have such a code.  Mr Tracey said that he believed that he had.  Mr Tracey stated that the codes are provided by the till company.  Mr Tracey confirmed that he believed the Complainant had a code, but he was unable to confirm when this was given to him.  Mr Tracey also confirmed that he did not check the till system to enable him to be certain that the Complainant had a code which would allow him to void.  Mr Tracey was asked if he believed that the Complainant was wrong in his belief that he did not have a code which would authorise him to create a void.  Mr Tracey stated that he “was absolutely certain that he had a code” and that this code allowed him to do voids on the till.  It was put to Mr Tracey that the Complainant will give evidence that he could only do voids by using a manager’s code.  Mr Tracey stated that he would not agree.

The CCTV for the third incident on 5/10/22 was reviewed.  Mr Tracey was asked if he reviewed the CCTV either side of the time of the alleged incident.  Mr Tracey stated that he could not recall doing so.  It was put to Mr Tracey that the CCTV shows the Complainant printing off two bills and he agreed it did.  Mr Tracey was asked if he was saying that the Complainant created a void before printing off the two bills and he confirmed that he was.  It was put to Mr Tracey that the CCTV does not show the Complainant touching the void key which is located in the top right-hand side of the screen.  Mr Tracey stated that he could see the Complainant touching the top right-hand side of the screen.  It was put to Mr Tracey that the employee’s name on the void receipt was Ms C, and he was asked if he checked with Ms C if she created the void.  Mr Tracey stated that he did not check.  It was put to Mr Tracey that the first time the hearing heard that Ms C was not there was today, and he confirmed that was correct.

It was put to Mr Tracey that on the first day of the WRC hearing he gave evidence that in order to complete a void on the till you would need about 15 screen taps to complete this.  He agreed that he said that but stated that he was not correct as he had subsequently checked and tested this on the till after the first day’s hearing.

It was put to Mr Tracey that he stated in evidence that you could not multiply a number of voids and the evidence showed that his knowledge of the system was defective, and he conducted an investigation without properly investigating these matters.    Mr Tracey did not offer any clarification.  Mr Tracey was asked if he discussed the case with others after day one hearing and he confirmed that he spoke with Ms W who is a HR Manger in the Respondent’s head office.  He initiated this conversation  was  general in nature.

The CCTV of the fourth incident on 6/10/2022 was reviewed.  Mr Tracey confirmed that the employee named on the void receipt, Ms C was not in work that day.  Mr Tracey was asked when the void transaction took place and he stated that it happened before the customer came to the till.  Mr Tracey confirmed that he believed that he checked the receipts either side of the transaction and this was done on the till itself.  Mr Tracey also confirmed that he looked at longer CCTV footage on the parts that matched the till.  Mr Tracey was asked if these matched the time on the till and confirmed that it did not.

It was put to Mr Tracey that these void receipts do not tell us anything. It was also put to Mr Tracey that there were no fair procedures in place for the Complainant.  Mr Tracey said that he believed that the Complainant did have fair procedures.

The CCTV of the fifth incident on 7/10/2022 was reviewed.  Mr Tracey was asked where he saw the Complainant complete the void and he said that it was done at the end of the transaction.  Mr Tracey was asked to outline the procedure for printing off a bill and he explained that an employee needs to log in, go to the table plan screen, select the table and then ask the till to print the bill.

The CCTV of the sixth incident on 12/10/2022 was reviewed.  Mr Tracey was asked where the Complainant done the void and he said that he could be done any time before he printed the customer receipt.  Mr Tracey confirmed that he did not check any transaction before or after the void transaction.

The CCTV of the seventh incident on 13/10/2022 was reviewed.  Mr Tracey was asked when the void transaction was done, and he said it was done at the end when the Complainant is at the till.  Mr Tracey confirmed that he did not check any transaction done before or after the void transaction.  Mr Tracey also confirmed that he did not check to see what docket the Complainant had printed off at that time.

The CCTV of the eight incident on 4/10/2022 was reviewed.  Mr Tracey said the Complainant done the void at the end.  He did not check anything else in relation to this transaction.

The CCTV of the ninth incident on 3/10/2022 was reviewed.  Mr Tracey stated that the Complainant done the void when Ms H logged out.   Mr Tracey stated that Ms H should be named on the receipt, but it is Ms A’s name on the receipt.  Mr Tracey did not make any other checks in relation to this transaction.  It was put to Mr Tracey that Ms H spends 14 seconds doing her transaction while the Complainant does his transaction in 12 seconds.  Mr Tracey said that the CCTV shows that the Complainant “is frantic at the till”.

The CCTV for the tenth incident on 2/10/2022 was reviewed.  It was put to Mr Tracey that this clip shows nothing.  Mr Tracey confirmed that was correct and stated that he clipped this CCTV wrongly.  Mr Tracey was asked if he passed on all the CCTV clips to Mr Singh and the confirmed that as they were part of the investigation he did.  Mr Tracey was asked if he noticed that he had used a wrong clip and he confirmed that he did not.  Mr Tracey was asked if anyone was told that this was a wrong clip and he confirmed that he did not.  It was put to Mr Tracey that this was an example of a sloppy investigation, and he agreed that that part was.

Mr Tracey was asked where Ms Carrick was based, and he confirmed that she was based in their Head Office.  Mr Tracey confirmed that Ms Carrick got copies of the CCTV on a USB which he delivered to the head office.  Mr Tracey was asked where he clipped the CCTV and he confirmed that he done this in an upstairs office. He confirmed that he done this prior to the investigation and most probably on Tuesday 18th October 2022.  Mr Tracey confirmed that he was the sole controller of the CCTV video, and he did not seek any advice in relation to the timing of those clips.  Mr Tracey was asked why he did not harvest longer clips from the CCTV around the time of these incidents and he said that he now believes that this would have been better.

Mr Tracey was asked if the Complainant was entitled to the best opportunity to defend himself in relation to these matters and he agreed.  Mr Tracey was asked if he would now accept that he did not do the best job in relation to the investigation.  Mr Tracey stated that there were parts that he could have done better.

On redirection Mr Tracey was asked to consider the CCTV from 4/10/2022 (Incident no 8) and in particular what staff would normally use for placing a customer’s order.  Mr Tracey stated that the tablet would normally be used.

Mr Tracey was asked what he thought of the Complainant’s response at the investigation that he did not have a tablet on this occasion and denied having a tablet in his pocket.  Mr Tracey stated that the CCTV shows the Complainant with a tablet in his pocket.  Mr Tracey was then asked about the Complainant’s explanation at the investigation that he must have been closing a sale or putting an order through.  Mr Tracey stated that he could see no reason why the Complainant would have to do this.

Mr Tracey was asked about staff access to cash during the day.  He explained that staff can access cash in the safe during the day.  Mr Tracey was then asked if the Complainant would have any access to cash and the stated that he could access cash in the till or in the safe.  He confirmed that the Complainant had access to the safe if he needed to get change and he knew the code and key location.

Mr Tracey was asked if the Complainant was notified of his entitlement to have representation at the investigation meeting and he confirmed that he was.  Mr Tracey also confirmed that the Complainant was given the option to have representation at the meeting,  but he declined.

Mr Tracey was asked if it was commonplace to have about 30 voids for hot chocolate.  He confirmed that it was not, and it was out of the ordinary.  Mr Tracey also confirmed that there would be a low level of transactions for hot chocolate.

The Complainant’s representative asked Mr Tracey to clarify who had access to cash and he confirmed that it was only managers and supervisors.  He confirmed that the key was held in a secure box that could only be accessed using a code.  Mr Tracey confirmed that he did not check the CCTV in the cash room as part of his investigation. 

Mr Tracey asked if it was correct that the Complainant was being accused of misappropriation of funds and he stated that this was in the letter which he and Ms Carrick drafted.

Mr Tracey asked who made the decision to suspend the Complainant and he stated that he did.

Ms Jennifer Carrick gave evidence on oath on behalf of the Respondent.  She confirmed that she is a HR Business partner with the Respondent and based in their head office.  She has held this role since June 2021.

Ms Carrick confirmed that she was familiar with the Respondent’s disciplinary policy.  Ms Carrick confirmed that it was common practice for a HR representative to attend investigation meetings. 

Ms Carrick also confirmed that she drafted and sent the letter to the Complainant dated 18/10/2022 inviting him to the investigation meeting and that this letter noted that there was a potential for dismissal.

Ms Carrick confirmed that her role in the investigation was that of notetaker.  Ms Carrick confirmed that the Complainant was offered representation, but he did not avail of this.  Ms Carrick confirmed  that the investigation meeting also reviewed the CCTV footage and that this took up about 70-80% of the meeting.  Ms Carrick gave evidence that Mr Tracey asked the questions in relation to the CCTV clips.   Ms Carrick agreed that she also asked questions and her reasons for doing so were “to get a clearer understating of the clips and trying to understand the operational knowledge”. 

Ms Carrick confirmed that she had very little knowledge of how the till worked.  Ms Carrick confirmed that she drafted the investigation report, and that Mr Tracey was happy with it before it was issued.  Ms Carrick confirmed that the decision to proceed to disciplinary was made by  Mr Tracey.  Ms Carrick confirmed that she was satisfied that the notes of the meeting with the Complainant contained all his explanations.  In relation to the Complainant’s corrections to these notes Ms Carrick stated that she believed that some of these were not accurate.

Ms Carrick was cross examined on behalf of the Complainant. She gave details of her HR experience and confirmed that this was not the first time she was involved in an investigation.  Ms Carrick confirmed that she became aware of this matter when she received a phone call from Mr Tracey about it on the Friday before the Complainant was suspended.  Mr Tracey explained the discrepancies to her and asked for advice.  She advised him to analyse the various reports and detail what was going on.  Ms Carrick confirmed that she also advised Mr Tracey to look at the CCTV but did not give him any advice in relation to the clipping of videos.  Ms Carrick also confirmed that she did not advise Mr Tracey to have a person present when he was harvesting the CCTV. She agreed that there should have been someone with him.  Ms Carrick confirmed that she advised Mr Tracey to obtain proper records and also to keep these safe.  Ms Carrick was asked if she advised Mr Tracey to look at a wider level of dockets and she confirmed that she did.  It was put to Ms Carrick that Mr Tracey did not do this.

It was put to Ms Carrick that if the company had undertaken a proper investigation, it would be clear when people logged on to the till and she confirmed that it would.  Ms Carrick was asked if she suggested that voids should have been checked and she confirmed that she did not.  It was put to Ms Carrick that this was another flaw in the investigation process.  Ms Carrick stated that she did not know how the system dealt with voids.  Ms Carrick confirmed that she attended at the place where the incidents occurred on 17/10/22 and Mr Tracey showed her the void receipts and explained what was happening.   Ms Carrick also confirmed that the Complainant was on duty when these voids occurred. 

It was put to Ms Carrick that the Complainant was under suspicion as he was working the shifts when these voids occurred, and she confirmed that was correct.  It was put to Ms Carrick that at any given time on a 5 over 7 roster there would be a supervisor or manager present and she confirmed that there would.  Ms Carrick was asked when the decision to suspend the Complainant was taken and she confirmed that it was after speaking with him and showing him the receipts.  Ms Carrick confirmed that there was no note of this meeting.  Ms Carrick was asked if Mr Tracey said that the Complainant had completed a void before the meeting, and she confirmed that was correct.  Ms Carrick confirmed that the meeting with the Complainant lasted about 10 minutes.  Ms Carrick stated that the Complainant was shown the receipts.  It was put to Ms Carrick that the Complainant denied doing the voids so what was the reason he was suspended.  Ms Carrick stated that this was the correct procedure.  Ms Carrick confirmed that she was familiar with the precedents and court rulings in relation to suspensions.  Ms Carrick was asked what the deciding factor was that led to the suspension of the Complainant.  She stated that Mr Tracey requested that the Complainant be suspended pending investigation.  Ms Carrick confirmed that a manager does have the authority to suspend an employee.  Ms Carrick also confirmed that it was not necessary to clear a suspension with a higher authority, but she did tell her manager.

Ms Carrick was asked about the letter dated 17/10/2022 and she confirmed that it was written by her on the afternoon after the Complainant was suspended.  It was put to Ms Carrick that Mr Tracey gave evidence that he made the decision to suspend the Complainant and she was asked if she disagreed with Mr Tracey.  She confirmed her disagreement with Mr Tracey.  Ms Carrick was asked what made her decide that the potential outcome could result in dismissal.  She stated that the misappropriation of money was involved.  Ms Carrick was asked if she believed if there was the theft of money and she confirmed that there was.   It was put to Ms Carrick that in her letter dated 17/10/2022 she stated that the suspension of the Complainant was an interim measure to protect his and the company’s interests and she was asked to clarify what interest were being protected as a result of the suspension.  Ms Carrick did not offer any examples.  Ms Carrick was asked if the suspension was fair, and she stated that at the time she believed it was.  She was asked if she now believed it was fair and she stated that in some areas it was.   Ms Carrick was asked why the Complainant was forbidden to contact any employee and she did not offer any explanation.  It was put to Ms Carrick that this provision was not necessary, and she confirmed that it was not.  It was put to Ms Carrick that this letter was a pro forma type of letter which was unfair and defective.  Ms Carrick did not respond to this proposition.  Ms Carrick confirmed that the letter was sent in the afternoon.

Ms Carrick was asked what happened after the Complainant was suspended.  She outlined that Mr Tracey gathered all the information such videos and receipts.  It was put to Ms Carrick that there were a number of other things not done and she agreed.[

Ms Carrick was asked if the video clips were taken by Mr Tracey alone and she stated that Mr A was present.  It was put to Ms Carrick that Mr A could have been present when any of the voids were done and she agreed.  Ms Carrick was asked if she agreed that it was a flaw not to have an independent present when Mr Tracey harvested the videos from the CCTV, and she agreed.

It was put to Ms Carrick that flaws can have a cumulative effect and she agreed.  Ms Carrick was asked if she agreed that the investigation was a defective process, and she did not agree.  Ms Carrick stated that she believed that they had “enough accurate evidence”.   Ms Carrick was asked if the evidence collected could have been better and she agreed.

It was put to Ms Carrick than any dismissal must have substantial reasons and a fair process, and she agreed.  It was put to Ms Carrick that the Complainant did not have a fair process given the number of flaws in the investigation.  Ms Carrick did not respond to this proposition.

Ms Carrick was asked about the letter of 18/10/2022 to the Complainant.  She confirmed that she wrote this letter.  She was asked to explain what was meant by the phrase “failure to use your assigned log in” and she confirmed that this related to the fact that the names on the void receipts were not that of the Complainant. 

Ms Carrick was asked what the salary differential was for team leaders and supervisors.  She confirmed that this was €1.00 and €2.00 per hour more that the catering assistants.  For managers the differential was possibly €5.00 per hour.

It was put to Ms Carrick that there was no reference in the investigation report to any failure to log in and she stated that there was not but that the Complainants name was not on the receipts.

Ms Carrick was asked if there “was any evidence, then or now, that money was misappropriated” and she confirmed that there was none.  Ms Carrick was asked why the report does not state that when it in the interests of fairness and transparency it should have stated that.  Ms Carrick was asked if she now accepted that the Complainant misappropriated money and she stated that she did not but that the till was up €137.00 on the day he was suspended.

Ms Carrick was asked if she had any evidence that the Complainant had put money in his pocket, and she confirmed that there was none.  Ms Carrick was asked how the trust and confidence in the Complainant as a supervisor could be broken.  She stated that only managers and supervisors can do voids on the till.  It was put to Ms Carrick that the Complainant’s evidence will be that he can’t do voids.  Ms Carrick stated that Mr Tracey told her that he could, and the evidence form the CCTV is that the Complainant was at the till.

Ms Carrick was asked to review the notes of the meeting with the Complainant on 19/10/2022.  She was asked about the use of the word “we”.  It was put to Ms Carrick that she was asking questions throughout the meeting, and she confirmed that she was.  It was put to Ms Carrick that she was the one doing most of the questioning and she stated that she did not believe she was.  Ms Carrick was asked what the time difference in the two systems was given at the meeting and she stated that this was one minute.  Ms Carrick was asked if she now believes that this is not the case and she agreed.  It was put to Ms Carrick that at the investigation meeting Mr Tracey stated to the Complainant that he was the only person at the till and completed a void and this shows that Mr Tracey had decided at that point that the Complainant had done the void.   Ms Carrick stated that Mr Tracey had looked at the CCTV.  It was put to Ms Carrick that she had decided early on in the investigation that the Complainant was telling lies and she denied this.   It was put to Ms Carrick that at the investigation the Complainant stated that he could not do a void as quickly as seen on the CCTV and he said that it would take about 30 taps on the till.  The WRC hearing was told that there was a possibility of doing a multiple of voids and Ms Carrick was asked when she became aware of this.  She confirmed that she heard it at the WRC hearing.

It was put to Ms Carrick that the Complainant was under pressure.  She stated that was not the case and he was calm and quiet during the meeting.  It was put to Ms Carrick that she was de facto a joint investigator with Mr Tracey.  She denied this.  It was put to Ms Carrick that she asked a question that was at the core of the case and throughout the notes of the meeting she is asking the Complainant questions.  She confirmed that she was.  It was put to Ms Carrick that at the meeting the Complainant consistently denied doing any wrongdoing and she agreed.  It was put to Ms Carrick that the only evidence was the void dockets and she agreed.

Ms Carrick confirmed that she drafted the report on her own and when reviewed by Mr Tracey he did not change anything.  It was put to Ms Carrick that she made a finding and she agreed.  Ms Carrick was asked why she used the plural “we” rather than the singular if she was not an investigator.  Ms Carrick stated that she did not know why she done this. Ms Carrick was asked if she kept her notes which she took at the meeting.  She confirmed that she typed those up and did not keep them.  She agreed that this was bad practice.  Ms Carrick agreed that the absence of those notes put the Complainant and the Adjudication Officer at a disadvantage, and she agreed.

It was put to Ms Carrick that the Complainant was denied a fair process and the Complainant could not be blamed for this.  Ms Carrick did not agree.  Ms Carrick was asked if the Complainant shown copies of the voided receipts at the meeting, and she confirmed that he was.  She was asked if copies of these were given to the Complainant at the meeting and she confirmed that he was not and agreed that he was entitled to be given a copy.

In response to a question from the Adjudication Officer Ms Carrick did not agree that the volume of her questions in the notes of the meeting which were highlighted confirmed that her role was that of an investigator. 

In redirection Ms Carrick confirmed that at no stage during the investigation meeting did the Complainant state that he did not have the credentials to complete a void on the till.  Ms Carrick was asked if there were any inconsistencies in the Complainant’s responses at the meeting at she said that his response to the issue on 4/10/22 was an example.  He stated that he did not have a tablet and the CCTV showed that he had one in his pocket.

Mr Yadwindr Singh gave evidence on oath on behalf of the Respondent. Mr Singh confirmed that he is the Operations Director with the Respondent.  He has worked for the company for 20 years.  Mr Singh confirmed that he has experience of conducting disciplinary hearings.  Mr Singh confirmed that he got a copy of the investigation report and HR decided that he would conduct the disciplinary hearing.  He was aware that the Complainant was sent a letter inviting him to a disciplinary meeting on 3/11/2022 in the company head office.  Mr Singh confirmed that he was aware of the allegations against the Complainant and that he had received the CCTV in advance.  Mr Singh confirmed that he was familiar with the Respondent’s disciplinary policy.   Mr Singh confirmed that the disciplinary meeting was also attended by a HR representative as a note taker.   The Complainant was offered representation but declined.  Mr Singh confirmed that if the Complainant had asked for a postponement this would have been agreed.  Mr Singh confirmed that he was happy that the Complainant had copies of the CCTV and receipts  for the meeting.  At the meeting Mr Singh confirmed his role and then went through each of the CCTV clips and gave the Complainant an opportunity to add anything and they also went through each transaction.  Mr Singh confirmed that the Complainant was consistent in saying that all you can see on the CCTV is him.  Mr Singh was asked about the Complainant’s response to the CCTV no 8 and he stated that the only reply he got from the Complainant was that all you could see was him and Mr Singh stated that the was looking to see if the Complainant could advance any other explanation on what he had already told the investigation meeting.

Mr Singh was asked if  the Complainant was given an opportunity to put any other information and he stated that he was.  Mr Singh stated that the Complainant never mentioned that the did not have the log on credentials go complete a void transaction.  Mr Singh also stated that the Complainant did not say that he spoke to a colleague regarding the correct procedure.

Mr Singh was then asked to review the Respondent’s disciplinary policy and in particular the section which sets out the  checklist that the disciplinary manager has to have regard to and be satisfied that these were complied with:

·         “There has been as full an investigation as is reasonably practicable

·         Due consideration has been given to the response made by the employee or his/her representative

·         He/she genuinely believes that the employee committed the alleged act and there are no reasonable grounds for that belief

·         The conduct as found necessitated the proposed disciplinary action

·         Any known mitigating circumstances (whether or not put forward b the employee or his/her representative) including the employee’s previous record, have been taken into account

·         That the proposed disciplinary action is fair and reasonable in the circumstances”.

Mr Singh stated that in relation to these points:

·         He was satisfied with the investigation and the evidence was passed on to him 

·         The Complainant was given an opportunity to respond, and these were taken into consideration 

·         The taking of cash is serious and any issue in relation to case is investigated and they bring it to its logical conclusion

·         As there was cash involved this was gross misconduct and a loss of trust and confidence in the Complainant

·         The Complainant’s good record was taken into account and there were no previous issues but given the seriousness of this Mr Singh felt that the Complainant should be dismissed

·         The process was fair and reasonable, and the Complainant had an opportunity to respond and explain and also given an opportunity to appeal.

Mr Singh was asked about the letter of dismissal dated 7/11/2022 and he confirmed that he authorised this letter.  The HR representative had no input in relation to the decision to dismiss the Complainant.  Mr Singh stated that as a result of the three reasons outlined for the dismissal of the Complainant it was difficult to have trust and confidence given his role as a supervisor.  He was in a position of power.  This was irregular behaviour which was not seen in other parts of the business.  As a supervisor the Complainant would be expected to be a role model.

Mr Singh was cross examined on behalf of the Complainant.  He confirmed his role as Operations Director and outlined that he is responsible for 7 outlets.  The management structure in the outlet where the incident occurs consists of a General Manager, 2 Assistant Mangers, 2 supervisors and between 35 – 40 staff.  Mr Singh confirmed that he agreed with the rates of pay as outlined by Ms Carrick.  Mr Singh also confirmed that the Complainant was paid €12.00 per hour.  Mr Singh was asked if it was the company’s position that someone who was paid .40c - .60c more per hour was on the management team.  Mr Singh said that they were supervisors.  He was asked to outline their daily duties and he stated that they provide assistance to managers and their primary role is on the floor.  He stated that it is his view that the lead a team and train them.

Mr Singh was reminded that Mr Tracey ran a weekly report when the investigation took place and Mr Singh was asked when this incident was brought to his attention.  Mr Singh said that he was aware  it happened and that it was being investigated.  Mr Singh confirmed that this took place before the Complainant was suspended and he stated that Mr Tracey would have mentioned this to Ms Carrick who is also based in the head office.  Mr Singh confirmed that Mr Tracey had the authority to suspend the Complainant.  It was put to Mr Singh that the decision to suspend the Complainant was extraordinary.  Mr Singh stated that if the matter is grave the mangers have the authority to suspend.  Mr Singh was asked how the suspension would protect an employee.  He stated that an example he would give would be that the Complainant was in the position of supervisor.  Mr Singh did not offer any further views on how the suspension would protect the employee.

It was put to Mr Singh that these incidents happened on Mr Tracey’s watch, and he was the General Manager, and he was asked if Mr Tracey was the most appropriate person to carry out the investigation.  Mr Singh did not think so.  It was put to Mr Singh that there was no investigation into Mr Tracey’s role and Mr Singh stated that there was no need to.  Mr Singh was asked who determines who the investigator is and if it was the local manager this could not be fair.  Mr Singh stated that process was that the investigation was carried out by the local manager.

It was put to Mr Singh that Ms Carrick agreed that the harvesting of the video clips was defective, and Mr Singh was asked if he accepted this.  Mr Singh stated that he did not accept this and that the receipts were also evidence.  It was also put to Mr Singh that Ms Carrick was asked if Mr A did not make voids and she stated that she said no and agreed that this undermined the process, and this was a serious matter.  Mr Singh did not offer any view on this.

It was put to Mr Singh that he had seen the minutes of the investigation meeting and he was asked if he would accept that Ms Carrick was also an investigator.  Mr Singh stated that Ms Carrick asked questions to get clarity.

Mr Singh was asked if he was not willing to accept that the investigation was flawed.  He stated that they were best placed to gather the information, and this was done in a very transparent and open manner.

It was put to Mr Singh that the notes of the investigation meeting were shredded, and he confirmed that this was done by Ms Carrick, and he confirmed that he did not see those notes. Mr Singh was asked if he would agree that when the receipts were not shared with the Complainant that this was another flaw in the investigation.  Mr Singh stated that the receipts were shown to the Complainant at the investigation.

Mr Singh was asked if it was his evidence that the Complainant had full manager functions on the till.  Mr Singh confirmed that his understanding was that he had.  Mr Singh did not know who gave the Complainant that authority.  Mr Singh also confirmed that the Complainant was able to do the X report.   Mr Singh was asked how the authority in relation to the till was communicated to the Complainant.  Mr Singh stated that this would be communicated by the manager or assistant manager and that he would have received on-the-job training.  Mr Singh did not know if there were any records of this training kept.

It was put to Mr Singh that there was a dispute in relation to what Mr Tracey said and the Complainant in relation to having a management code for the till.  Mr Singh was asked if the Complainant had a code and Mr Singh stated that “he would know the code”  and he confirmed that he would have a code because he was a supervisor.  It was put to Mr Singh that there was no evidence that the Complainant had a code and Mr Singh stated that he believed that he had.

Mr Singh was asked when he received the investigation report, and he could not recall the exact date and time but confirmed that he had received it prior to the disciplinary meeting and that he had read it.  He confirmed that he received the report from HR and in particular Ms Carrick.  Mr Singh was asked if he was surprised when he saw Ms Carrick’s role in the report and he stated that he took it at face value.  Mr Singh was asked about the sentence in the investigation report that stated:  “Jennifer Carrick and James Tracey were appointed to carry out the investigation into the matter” and if he agreed that this was true.  Mr Singh confirmed that it was.  Mr Singh was asked if the statement in the investigation report which read “… the investigators…” was true or an error he stated that it was true.  Mr Singh confirmed that the report contained appendices which included copies of the receipts, sales management report and three statements.  He was asked if he carried our any other investigation or check anything before he met with the Complainant and he confirmed that he did not.  It was put to Mr Singh that he accepted the report as correct, and he confirmed that he did.  Mr Singh stated that his job at the time was to conduct the disciplinary hearing.  Mr Singh was asked if he took any steps to check the report and he stated that he did not.  It was put to Mr Singh that he accepted the report as a finding, and he confirmed that he did.  Mr Singh also confirmed that he did not decide that he needed to talk with anyone else.    It was then put to Mr Singh that once the Complainant walked into the disciplinary hearing there was no possibility of anything other than a dismissal.  Mr Singh disagreed.  Mr Singh was asked what else the Complainant could have done, and Mr Singh stated that his job was to listen to the Complainant and give him ample opportunity to give his version.  It was put to Mr Singh that the Complainant’s answers were consistent throughout.  Mr Singh stated that some of his answers were different. 

Mr Singh was asked if he gave any consideration to the possibility that the Complainant may have been telling him the truth.  Mr Singh stated that the basis of his decision was the evidence of the CCTV footage.  Mr Singh was asked if he was conducting an investigation into a manager if it would be done as sloppy as this one.  Mr Singh did not offer any response to this.

It was put to Mr Singh that there were a number of deficiencies in this investigation:

·         All members of staff were not interviewed in the presence of a note taker.  This includes other managers

·         No one looked at the wider CCTV either side of the timing

·         The focus was on the Complainant and not the dockets.

Mr Singh was asked what he done when one of the clips showed no evidence of the Complainant on it.  Mr Singh stated that he took a note of this.

Mr Singh was asked if he would accept that there was one CCTV clip which exonerates the Complainant.  Mr Singh stated that his conclusion was that there was ample evidence.  Mr Singh stated that he accepted those clips at face value.  Mr Singh was asked how it could be known that the other clips are also not wrong, and he stated that they went through all the clips and the Complainant had an opportunity to put his case.  Mr Singh stated that he accepted the evidence placed in front of him.

Mr Singh was asked if the notes of the disciplinary hearing which stated that the Complainant had a copy of the CCTV and he stated that it was his understanding that he was given a copy of the same CCTV.  Mr Singh was asked if he checked the time difference and he stated that he checked the CCTV and compared it with the time on the receipts.  Mr Singh was asked if there were any inconsistencies in the Complainant’s responses and stated that these were noted on the notes of the meeting and the Complainant was unable to explain the high number of voids.

Mr Singh was taken through the Respondent’s disciplinary policy and the six bullet points that he is required to be satisfied about.  It was put to Mr Singh that after hearing the evidence of Mr Tracey and Ms Carrick it was not open to him to say that the investigation was done properly.  Mr Singh stated that he believed it was done properly.  It was put to Mr Singh that Ms Carrick who is a HR professional accepted that if he had done his job properly, he would have examined the flaws in the investigation process.  Mr Singh stated that he accepted the evidence of the investigation.  Mr Singh was also asked what due consideration he gave to the responses of the Complainant, and he stated that having taken into consideration what the Complainant said he was given an opportunity to state his side of the events.  It was put to Mr Singh that the policy states that he must be satisfied that the conduct necessitated disciplinary action the only action he considered was dismissal.  Mr Singh stated that the behaviour in this case was irregular.  He was asked if he considered any alternatives to dismissal, and he stated that they take cash issues very seriously.  Mr Singh was again asked if he considered any alternatives and he stated that “nothing else was available”.   Mr Singh was asked if he considered any mitigating circumstances and the stated that the issue was about cash which was gross misconduct.

It was put to Mr Singh that the Complainant had a blemished free record and he confirmed that he had.  Mr Singh also agreed that there were no previous issues such as timekeeping, trustworthiness and that he was a good worker.

Mr Singh confirmed that he was responsible for the letter of dismissal dated 7/11/2022. This outlined three reasons for the Complainant’s dismissal.

Mr Singh was asked what evidence there was that the Complainant had misappropriated money.  Mr Singh stated that there were a high number of voids.  Mr Singh was asked what evidence he had that money was stolen and the stated that the only purpose of the voids was to steal money.  He was asked what evidence there was of this and he stated that the high number of voids.

It was put to Mr Singh that he was stating that what he believed was the purpose of the voids was the proof he was accepting and there was no evidence that he could rely on.  Mr Singh stated that the voids were the evidence and he believed that there were too many voids for hot chocolate.

In response to some questions from the Adjudication Officer Mr Singh confirmed that he concluded that the actions of the Complainant were gross misconduct.  Mr Singh was asked to outline where the disciplinary policy provides for this, and this was not available in any copy of the policy at the hearing.  Mr Singh was asked to clarify what points made by the Complainant he gave detailed consideration to, and he stated that there was a lot of voids, and the Complainant could not explain these.

In a closing submission the Respondent ‘s representative noted that their written submission contained a legal submission.

The concerns of the Respondent were that there were a number of unusual voids, and the Complainant was rostered for work when these occurred.  The CCTV showed him at the till on these occasions and some occasions he was alone at the till.  The Complainant was given every opportunity to provide reasonable answers.  It should be noted that the Complainant never mentioned at the investigation or disciplinary hearings that he did not have the log in credentials to create a void.  The Complainant was given ample opportunity to respond to the CCTV and void receipts.  On each occasion the Complainant was defensive and evasive.  It was a matter for the employer to decide what to do in the circumstances.  He had a fair process which allowed for representation and an appeal, but he did not avail of these.  The Respondent’s representative noted that the case of ADJ-00299939 was relevant in relation to a Complainant’s failure to lodge an appeal.

The Complainant had a change of explanation in relation to the incident on 4/10/22.  He had no receipt printed and the till did not open, and he could not offer any explanation for what he was doing at the till.

The Complainant made minimal efforts to mitigate his loss.  He provided no documentary evidence of his applications for work and no documentary evidence of any rejected applications. The lack of documentary evidence shows that he has not made sufficient efforts.

The decision to dismiss the Complainant was reasonable in the circumstances and a fair procedure was followed.  If, in the event that it was found that the dismissal was unfair then it is clear that the Complainant made a significant contribution to his dismissal.

It was submitted on behalf of the Respondent that it was reasonable to view the Complainant’s social media page and it was reasonable to raise questions in relation to aspects of the activity noted.

The Complainant, Mr Andrei Avram, gave evidence on oath.  He gave evidence that he is from Romania and has lived in Ireland for seven years.  He worked in the Respondent’s unit at the Airport  as a catering assistant.  He was promoted to team leader and later to supervisor.  He confirmed that the increase in pay arising from the promotion would be in the region of 30-50 cents per hour.  He worked in the Airport unit for four years and then moved to the other unit as supervisor in 2021.  The Complainant stated that he was contacted by Mr Tracey who asked him to work for him.  The Complainant stated that when he started working with Mr Tracey, he was working with a different till access code number, and he was given his own after a long time. The Complainant stated that Mr Tracey would give him his code if he was asked to cash up. The Complainant gave evidence that he could not create a void using his own code.  He explained that a void had to be done by an assistant manager or the manager and you had to request them to do it.  The Complainant stated that he could not do a void without it being authorised by an assistant manager or by the manager himself.

The Complainant stated that he never received any warnings while working with the Respondent.  The Complainant stated that there were five people who could do the cash up.  The manager, Mr Tracey or an assistant manager decided who would do this and the person would be told at the end of the day.  The Complainant stated that he could not decide to do the cash up himself.  This was something you had to be asked to do.   The Complainant explained the procedure in relation to how the cash up was done.  The sales for the day were printed, then the X report and you then cleared all the tablets and took out the till drawer and went to the cash office where you put the credit card payments in an envelope and the cash sorted according to the security bags.  A float was kept, and this was put into one of the safes.  The Complainant confirmed that the till tray stayed in the office, and it would be taken out the following day by the person opening the shops.  The Complainant stated that access to the cash room was by means of a key and a code.  The code was given to him by Mr Tracey and employees would not know this code.  If cash was required during the day the staff had to ask a manager.  The Complainant confirmed that he had no other management function, and his main role was customer service and he done the same work as a catering assistant.

The Complainant confirmed that his only role in relation to staff rosters was to organise breaks.  He did not set up the rosters.

The Complainant was asked if he ever created voids on the system and he confirmed that he did not.  The Complainant was asked if he every stole any money and he confirmed that he did not.

The Complainant was asked about the meeting on 17/10/2022 and he explained that he was doing his job serving customers and Mr Tracey asked him to join him at  a table.  He was looking after a customer, so he put this on the till.  When he went to meet Mr Tracey, Ms Carrick and Mr A were also there.  This took place at a table and not in a private room.

The Complainant stated that at that meeting Ms Carrick said that there was a situation about receipts and put questions to him.  He was in shock as he did not know anything about the voids.  The Complainant believes that the meeting lasted about five minutes and he was told he was suspended and to take his things and go home.  The Complainant stated that he was not told at that meeting why he was being suspended.  The Complainant stated that Mr Tracey asked him two questions at that meeting.  The Complainant stated that he received a letter by e-mail that afternoon.  The Complainant confirmed that he had a log in number, and he was never told not to use a previous log on.  The Complainant was asked if he carried out any of the voids noted and he confirmed that he did not. The complaint also confirmed that he had no knowledge of who carried out the voids.  The Complainant gave evidence that he never stole money from the Respondent.

The Complainant was asked what would happen when a customer gives a cash tip.  He explained that this was put in the tips cup and the manager, or an assistant manager would distribute those. The Complainant explained that if a customer wished to give a tip using a credit card the customer would state the amount and this amount would then be put from the till into the tips cup. The Complainant also explained that if a customer wanted to split a bill this would be done by noting the amounts or the way the customers wanted to split the bill. 

The Complainant confirmed that he got the invitation to the investigation meeting by e mail, and he attended the meeting with Mr Tracey and Ms Carrick.  The Complainant stated that Ms Carrick done most of the talking at the meeting.  The Complainant confirmed that he was not given copies of the receipts at the meeting.  He was shown 10 CCTV clips.  The Complainant confirmed that Mr Tracey said at the meeting that he created a void before the meeting on Monday 17.  The Complainant confirmed that he denied doing this.  The Complainant also stated that he was not aware that voids could be done by means of multiplication.  The Complainant stated that when he was at the till, he could have been completing an order.  The Complainant was asked why he did not use a tablet and he said that on occasions the Wi-Fi can be down.  The Complainant confirmed that Ms Carrick moved quickly through each of the ten clips.  The Complainant stated that the meeting took place in the head office, and he was sitting in front of Mr Treacy and Ms Carrick, and he viewed the CCTV on a laptop.  He was not given a second chance to view the CCTV.  The Complainant stated that during the meeting he tried to explain as much as he could, but Ms Carrick would not let him explain.  The meeting lasted between 30-40 minutes.

The Complainant confirmed that he was invited to a disciplinary meeting.  He explained that he understood the term “misconduct” to mean that he broke a rule, and it was serious rule.  The Complainant confirmed that he understood that stealing money would be a serious matter.  The Complainant gave evidence that using a log on from someone else could happen if you were busy or under pressure.  The Complainant also confirmed that he was instructed in the letter not to contact any employee and he obeyed this instruction.  The Complainant also confirmed that he did not talk to any colleague.  The Complainant confirmed that he was given 5 CCTV clips on a memory stick and copies of the receipts prior to the disciplinary meeting.  The Complainant stated that at that meeting they were trying to clarify voids and videos and he could only provide the same answers and he had no change to his answers.  He was told it was his last chance to change anything.  The Complainant confirmed that he was shown the CCTV clips again at this meeting.  At the end of the meeting the Complainant was shown the last CCTV and asked to explain any he could only say that he did not create any voids.

He received a letter telling him he was dismissed and the got paid for the three weeks he was suspended.  The Complainant confirmed that he did not receive any pay in lieu of notice.

The Complainant was asked about his attempts to seek work since his dismissal on 7/11/2022. He obtained work on 30/1/2023 until 18/5/2023 and he got work again on 20/6/23 until 7/7/23 and he obtained other employment on 24/7/2023 until 28/9/2023 and had not worked since then. The Complainant stated that he was looking for work in construction or catering but did not have any success.   He confirmed that he is in receipt of the jobseeker’s allowance.  The Complainant provided details of the work he was doing in the various jobs and the reasons why the employment ended.  The Complainant stated that since he last worked on 28/9/2023 he applied for work every day and is registered for jobs with agencies but to date has no success.  The Complainant also explained that before he came to work in Ireland he worked as a glass installer, and he does not have any other skills or training.  The jobs he obtained so far paid between €18 and €19 per hour.

It was put to the Complainant that he was dismissed for gross misconduct, and he was asked if he done any of the voids or if he ever removed money by creating voids and he confirmed that he did not.  The Complainant also stated that if he was doing this he would be seen.  There were 25-30 people employed and there would usually be 7 – 10 staff present.

The Complainant was cross examined on behalf of the Respondent.  He confirmed his employment dates with the Respondent and the various promotions he received.  He confirmed that he was climbing the ladder and agreed that the Respondent had place a lot of trust in him.  It was put to the Complainant that it was his evidence that he did not have the credentials to create a void and he confirmed that he did not.  The Complainant confirmed that the employees named on his complaint form, Ms A and Ms H, were catering assistants.  The Complainant denied that he was suggesting that they may have created the voids but agreed that they were beside him at the till.  It was also put to the Complainant that he stated that he had Mr Tracey’s log on and that could get him to a point where he could create a void. The Complainant stated that you could not do a void in that manner.

It was put to the Complainant that the foundation of this matter arose from the Gross Sales Margin Report, and he was asked if he accepted that hot chocolate was not a popular item and he agreed it was not.  The Complainant was asked if he ever saw an order for 30 hot chocolates and he confirmed that he did not.  The Complainant was asked how long the meeting on 17 October lasted and he confirmed that it was about five minutes.  The Complainant confirmed that  the meeting invitation of 18 October he was given the opportunity to have representation and at the meeting on 19 October he confirmed that he was happy to proceed without representation.  The Complainant confirmed that he was.  The Complainant was asked if he had any friends or relations working for the Respondent and he confirmed that he had friends but no direct relation.  He confirmed that he did not ask any friend to be his representative and he had no reason for not doing so.

The Complainant was asked to about the CCTV dated 17/10/23 and what he was doing.  He stated that he was putting an order through the till.  He was asked if the tablet was mainly used to put the orders through and he stated that it could have been a special order, or it may have been an allergy related order.  It was put to the Complainant that he made no reference to this at the investigation meeting which took place two days after he was at the till.  The Complainant stated that it is difficult to remember.  He was asked why he did not use the tablet and he stated that it is faster to use the till.

The Complainant was asked about the CCTV for 14/10/2022 and what he was doing at that time.  He stated that he was at the till and doing an order for a customer.  It is difficult to recall exactly.  It was put to the Complainant that at time there was a void for a hot chocolate put through on the till and he was asked if he agreed that he was the only person at the till.  He agreed that he was the only person at the till.  It was also put to the Complainant that in relation to the CCTV for 8/10/22 that he was the only person at the till.  He agreed that was the case.

It was put to the Complainant that he was “caught out” by the CCTV and he denied that he was.  It was put to the Complainant that he was putting an order through and closing the till and he denied having a tablet until the tablet in his pocket was shown to him on the CCTV.  The Complainant stated that he didn’t realise he had the tablet.  The Complainant was asked if he agreed that the CCTV showed that if he was closing a sale no till drawer opened on that occasion and he agreed that was correct.  It was put to the Complainant that there were a number of inconsistencies in his evidence, and he agreed that there were.  It was put to the Complainant that these inconsistencies would call his credibility into question and the Complainant stated that it would not as he did not know what happened.  It was put to the Complainant that his responses did not make sense.  The tablet was predominantly used but he did not use it.   The Complainant stated that it was not a rule to use the tablet.

The Complainant confirmed that he was shown 10 CCTV clips at the investigation meeting on 19/10/2022 and that he was given an opportunity to respond.  The Complainant also confirmed that he was working on each of the dates on the transactions and that he was in the vicinity of the till.  It was put to the Complainant that on each of the occasions involved in these transactions the till balanced and the Complainant stated that he did not know about that.  It was then put to the Complainant that on 17/10/2022, the day he was suspended, the till did not balance as it was over due to the void that was created for €130.00.   The Complainant stated that he had heard that.  He confirmed that he was sent home on that day.  It was put to the Complainant that the only day the till did not balance was the day he did not finish his shift and he agreed that was the case.  He asked if this was a coincidence that the till did not balance on the only day, he was sent home and the Complainant stated that he did not know.

The Complainant was asked if he has access to cash during the day and he confirmed that all bills were paid at the table.

It was put to the Complainant that the letter dated 01/11/2022  inviting him to the disciplinary meeting told him he could have representation and he was asked why he did not organise this.  The Complainant stated that nothing could change the situation and he did not know what to do.

It was put to the Complainant that there was a gap of approximately three weeks between the investigation meeting and the disciplinary meeting and if he had any concerns about the investigation, he had plenty of time to raise these concerns.  The Complainant confirmed that he did not raise any concerns.  It was put to the Complainant that he was not under any illusion in relation to the possible outcome and he confirmed that was correct as he was the only one in the CCTV.  He was asked why he attended the disciplinary meeting and the Complainant stated that he attended because he did not do it. The Complainant accepted that he had an opportunity to review the CCTV at the disciplinary meeting and that he was also provided with a copy of the void receipts.  The Complainant confirmed that he only got 5 CCTV clips on the memory sick.  The Complainant confirmed that he got an opportunity to comment on all the CCTV and void receipts at the disciplinary meeting.    It was put to the Complainant that Mr Singh gave him “an open canvass” to provide any explanations and he stated that he did but noted “what more could I have said”.  

It was put to the Complainant that the majority of his replies were that he had nothing to add, and he was asked why he did not state that he had no log in to allow him create voids.  The Complainant stated that he got no chance to do so at the first meeting.  It was put to the Complainant that he had two weeks to correct that, but he did not do so.  The Complainant stated that everyone was in a different situation, and he now realised how the system works.  It was put to the Complainant  that the most obvious explanation was that he did  not have the code, but he did not provide this.  The Complainant stated that was what he was thinking.

It was put to the Complainant that there were inconsistencies in relation to the 04/10/2022 incident.  The Complainant stated, “my answer was I didn’t do the void, I was putting something on the till”.

It was put to the Complainant that the company had reasons to lose trust and confidence in him based on his inconsistent answers.  The Complainant stated that they did not as he answered all the questions, and he had nothing to hide.

It was put to the Complainant that the dismissal letter dated 07/11/2022 gave him an opportunity to appeal the decision to dismiss him and he was asked why he did not appeal.  The Complainant stated that he did not appeal as he didn’t know what to appeal.

The Complainant was taken through his efforts to obtain employment and it was put to him that it did not make sense that he was unable to obtain work in the hospitality industry from 07/11/2022 until 30/1/2023 when this was the busiest time of the year in that industry. The Complainant stated that no employer would look at him as he had no reference.  The Complainant stated that he had copies of his job applications in his e mail.

The Complainant was taken through the various jobs he obtained and asked to explain the kind of work he was doing and the reasons these jobs ended.

The Complainant was asked if he was ever out of the country in the last year and he confirmed that he returned home on one occasion to renew his passport and to visit his family. The Complainant was asked if he ever worked as a Digital Creator, and he confirmed that he did not.

The Complainant was asked if he had a Facebook account and he confirmed that he had.  It was put to the Complainant that his Facebook account states that he is a Digital Creator and he confirmed that he had no knowledge of this and this “looked strange to me”.  The Complainant was asked if he was out of the country as the Respondent has noted that there were videos on his Facebook account which would seem to indicate that he was.  The Complainant denied that this was the case and that any videos on his Facebook account were videos that he liked to remember and Facebook plays displays these at various times.

It was put to the Complainant than in the last 56 weeks he was only able to obtain work for 26 weeks and he confirmed that was correct.  He also confirmed that he was unable to obtain a job in hospitality.

Under redirect the Complainant stated that the Facebook videos were memories of past occasions which Facebook shows on occasions.  He confirmed that he was not out of the country as suggested by the Respondent.  The Complainant also stated that he is not a Digital Creator, and he has never work in IT.

In relation to the CCTV no 10 on 2/10/2022 the Complainant was asked what he was doing, and he stated that he was printing a bill and taking the credit card machine to a customer.  The Complainant was asked if he was accused of creating a void at that time and that this was also put to him by Mr Singh at the disciplinary hearing.  The Complainant confirmed that it was put to him by Mr Singh. 

The Complainant was asked if there were ever problems with the Wi-Fi link between the tablets and the till and he confirmed that there were.  He confirmed that they would not work when this happened.  The Complainant confirmed that the total number of tablets was four and that the number of staff using these would be 12.

In a closing submission on behalf of the Complainant his representative noted that there were two elements to be considered – substantial grounds for dismissal and fair procedures.

In relation to fair procedures, it was submitted that because the initial process was extensively flawed everything that followed was also flawed.  Once Mr Tracey identified a problem, he went straight into investigation mode and in doing so he targeted the Complainant.  No other employee was investigated.  There was no enquiry to see of the voids could be done by any other way such as by tablet or in the back office.  There was no consideration of any other person.  The investigation did not look at a level  below the Complainant as the catering assistants do not have the authority and they did not look at any higher-level employee.  As this happened on Mr Tracey’s watch he was not looked at and Mr Tracey was not sure if the Complainant had the authority.  The Complainant’s consistent evidence was that he did not do it.  The Complainant does not have an obligation to prove anything.  The Respondent starts on day one with the Complainant and relies on the CCTV clips taken by Mr Tracey.  There was no examination of why Ms C’s name was on the receipts. There was evidence that following the dismissal of the Complainant the Respondent tightened up their system.

This was “a shambolic investigation” and as it happened on Mr Tracey’s watch  he was not the person to investigate this. Mr Tracey did not harvest sufficient amount of video recording on the clips he obtained.  Mr Tracey gave evidence that to create a void you needed to make 20 taps and on the second day of the hearing he changed his evidence to say that you can do multiple voids.

The role of Ms Carrick is interesting.  It is clear from the notes of the meeting that she had a wider role, and this was not explained.  Mr Tracey in his evidence stated that he was the only investigator and yet it clear from the other hearing days  that this was not so. 

Ms Carrick agrees that the process if flawed and Mr Singh’s evidence is that he took the investigation findings at face value and the CCTV transaction 10 was put to the Complainant. It is clear from Mr Singh’s evidence that he took the view that the Complainant was guilty and for all these reasons the dismissal of the Complainant was unfair.

In relation to the substantial reasons there was no evidence provided and only the clips harvested by Mr Tracey were the basis for this investigation.  There were errors in these clips and Ms B and Ms A were mixed up and there were four clips with Ms C, and this was not followed up.  This was a flawed disciplinary process, and no reasonable employer would have progressed this to a disciplinary hearing.  It was not up to the Complainant to offer alternatives;  it was the duty of the Respondent to properly investigate these matters.

This was “a sloppy process” which resulted in an unfair dismissal and no evidence was provided.  This dismissal resulted from a belief that the Complainant was stealing money and there was no evidence provided to confirm this.

The Complainant is seeking compensation and it is likely that he will continue to suffer loss and the lack of reference is a factor as the Respondent would have to state their reasons for dismissal.

It was submitted on behalf of the Complainant that the Respondent’s introduction of the Complainant’s Facebook was remarkable and should not have been dropped into the hearing in the manner in which it was done.  This has clearly backfired on the Respondent and this action is symbolic of the Respondent’s investigation and disciplinary process in this case.  The Respondent could have written to the Complainant’s legal representative with any questions they felt were relevant.  They did not do so.

CA-00056231-001:  This is a complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.  The fact of dismissal is not in dispute in this case. 

The applicable law, Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states as follows:

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:

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

c)       the conduct of the employee,

d)      the redundancy of the employee, and

e)       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 these 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.  As the Adjudication Officer in this case, it is not my responsibility to establish the guilt or innocence of the Complainant in relation to the events which occurred between 02/10/2022 and 17/10/2022.  The Employment Appeals Tribunal (EAT) in the case ofLooney and Co Ltd v Looney UD 843/1984provides a valuable summary in relation to the role:

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

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 guild 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.”

In the within case there was an issue which the Respondent was required to address. 

I have carefully considered the submissions received and evidence presented by both parties over the three days of  hearings.  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.  The Respondent had a duty to deal with the incidents which related to the period 02/10/2022 and 17/10/2022 which  were discovered by Mr Treacy while undertaking a review of the Gross Sales Margin Report.

Arising from his discovery of these anomalies Mr Treacy consulted with HR and the Complainant was suspended on 17/10/2022.  Mr Treacy also decided to conduct an investigation process immediately and notified the Complainant of this on 18/10/2022.  The investigation meeting was held the following day and the Complainant attended without representation although he had been advised of his right to do so.  The investigation was also attended by Ms Jennifer Carrick, HR Business Partner.  At this meeting the Complainant was shown a total of 10 CCTV clips along with till receipts showing  voided transactions.

The notes of the meeting, which were prepared by Ms Carrick, indicate that the Complainant was not able to provide any explanation for these voids and stated that he could not understand why they were done. The Complainant was provided with a copy of these notes, and he responded to outline his disagreement with some parts of those notes. 

Arising from this an investigation report was prepared by Ms Carrick and this concluded that as the Complainant was present and active at the till at the time of the voided transactions, he was unable to provide a reasonable explanation.  The report concluded that the Complainant “... voided the transactions and on the balance of probability feel that this was done with the overall intention of misappropriating company monies”.

The investigation report was furnished to Mr Yadwinder Singh, Operations Director to determine the next steps.   Mr Singh convened a disciplinary meeting on 03/11/2022.  The outcome of this meeting was that the Complainant was dismissed from his employment with immediate effect and for reasons amounting to gross misconduct.

The Complainant did not appeal this decision although he was advised that he had a right to do so.

In reviewing the investigation process it is clear that a number of concerns arise.  The decision to suspend the Complainant was made by Mr Treacy.  No rationale was provided for this and it is clear that alternatives were not considered.  The anomalies were discovered by Mr Treacy while undertaking his managerial function of reviewing the Gross Sales Margin Report.  Mr Treacy then reviewed CCTV footage and formed the view that the Complainant had a case to answer.  Mr Treacy then began an investigation process.  The reality is that Mr Treacy was investigating his own complaints.  He conducted a review of the Respondent’s CCTV and took what he considered to be relevant clips.  It was clear from the evidence adduced at the hearing that these were of limited duration and did not take account of the time difference between the CCTV and the till reports.  There was no evidence that the investigation looked into the various cash transactions for each of the days to determine if there was any shortfall in the daily cash reports and no review of who completed the cash up on these dates.  The Respondent did not investigate why different log on credentials were in use and what the process was for providing log in details to employees.  The investigation failed to examine who had authorised the voids or how the authorisation took place.  There was no clear evidence obtained to confirm that the Complainant had or did not have a code which allowed him to complete voided transactions.  The CCTV was not independently harvested and properly witnessed.  The X and Z reports were not retained as part of the investigation. 

The Complainant was not provided with any CCTV or any documentation in advance of the investigation.  The investigation consisted of the Complainant being shown CCTV and receipts and immediately asked to provide an explanation there and then.  His failure to provide a “reasonable explanation” led the investigation to determine that he was or intended to misappropriate company money.

The onus was on the Respondent to conduct a thorough investigation and to provide any evidence obtained to the Complainant.  This was clearly an investigation that was conducted without any terms of reference or an investigation plan.  The result of this was that there was no regard given to fair procedures or respect for the rights of the Complainant.  

The investigation was further impaired further by the ambiguous role of Ms Carrick.  Her sworn evidence was that she was only the notetaker.  A review of her own typed notes clearly demonstrate that she made approximately 36 interventions during the meeting and at least 22 of those were questions of significant interest to the investigation. In her evidence Ms Carrick stated that the viewing of the CCTV took up about 70-80% of the meeting and it is clear that her role was more aligned to that of investigator than that of notetaker.   The Complainant took issue with the notes prepared by Ms Carrick and provided some feedback to her on these. There was no engagement with the Complainant to agree the notes.  The investigation report simply contained both sets of notes.  It was not possible to obtain any clarity in relation to these as  Ms Carrick confirmed at the hearing that she shredded her handwritten notes of the meeting with the Complainant.  She did acknowledge that she should have retained these.

The investigation report, prepared by Ms Carrick, clearly stated that Ms Carrick and Mr Tracey “were appointed to carry out the investigation into this matter”.  What was clear from the evidence is that these appointments were self-made and there was no plan prepared which would seek evidence for the various aspects which were essential to this investigation.   There were inaccuracies in some of the names outlined in the investigation report and these were not rectified.  The hearing also heard evidence that the CCTV no 10 did not have any relevance to the Complainant but this was not noted in the report.

I am satisfied that there was no independent investigation of this matter by the Respondent.  The Latin maxim “Nemo judex in causa sua” [no-one is judge in his own cause] is a fundamental principle of natural justice and is most appropriate in this instance.  

The Labour Court in T.E. Laboratories Ltd v Jakub Mikolajczyk ([2019] 30 E.L.R. 198 stated that the guidelines in relation to disciplinary investigations in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order 200 (S.I. 146 of 2000) are “not without reason” and are so that “facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process”.

As a result of this report a disciplinary meeting was held on 03/11/2022.  Mr Singh gave clear evidence that he accepted the report on face value.  His failure to make any inquiry or check the details is quite simply impossible to understand.  He was tasked with deciding what the outcome should be based on the Respondent’s policies.  The outcome was dismissal with immediate effect.  The Respondent failed to conduct a disciplinary hearing in line with its own policies.  These policies clearly state the requirements that the disciplinary manager must be satisfied that a full investigation has taken place before taking any disciplinary action.  The evidence adduced was that the investigation report was taken at face value and no other inquiry was made by the disciplinary manager.  The Respondent’s requirements of a disciplinary manager are outlined earlier in this decision, and I am satisfied that the disciplinary hearing, in this case, did not give due consideration to the investigation process and did not adhere to its own procedures.

A right to fair procedures and natural justice is implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first Respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

The Complainant was  advised of his right to trade union representation at the disciplinary meeting.  The Respondent has a duty to ensure that their procedures are fair and transparent.  The Complainant was given a mere one days’ notice of the investigation meeting, and this can only be regarded as acutely inadequate and particularly in circumstances where the Complainant was not provided with any CCTV, documentation or any information in advance of the meeting.  The Complainant is entitled to have time to prepare his case and to consult with a representative if he so chooses.  I find that the Respondent’s view that the Complainant did not object to the short notice is unacceptable.  The Respondent has a duty to ensure that fairness exists in its dealings in such circumstances.

The Complainant did not appeal the decision to terminate his employment.  It would have been useful if he had done so as could, potentially,  have provided an opportunity to look at some of the issues surrounding the investigation and disciplinary process.

In an Employee V an Employer ADJ-0000381on the subject of appeals the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

Overall, I find that there have been serious procedural flaws in the investigation process and disciplinary hearing which resulted in the dismissal of the Complainant.  It is difficult to understand why these deficiencies were not recognised at the disciplinary hearing.

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the Complainant in the circumstances. There was no independent investigation and there was no evidence to confirm that the Complainant misappropriated any money.  There was no evidence to confirm that the Complainant completed all the cash voids on the system.    I find that the dismissal of the Complainant was unfair for the purposes of the Acts and the Complainant’s claim is well founded.

Regarding a remedy, objectively, this employment relationship is irretrievably broken, and reinstatement and re-engagement are not viable options.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. The Complainant provided limited evidence of his attempts to mitigate his loss.  He obtained various work for a period of 26 weeks.  While he made some efforts to mitigate his loss, I am not satisfied that he approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated:  “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

I accept that not having a reference from his previous employer creates difficulties in seeking employment, but I do not accept that this is a barrier to a Complainant seeking to mitigate his loss. I note that the Respondent submits that the Complainant’s efforts were insufficient.  The Respondent also seeks to justify its social media search to see what the Complainant was doing.  I find that this was an absurd trawl and the failure to engage with the Complainant or his representative to seek clarification in advance of the hearing dates was not adequately explained.

The Respondent has made significant submissions in relation to the Complainant’s obligation to mitigate his loss as set out in Section 7(2) (c) of the Unfair Dismissals Act and that is taken into consideration in any case when deciding on compensation.

For the sake of completeness, the obligation on the employee in Section 7(2)(c) is only one of six tests that are set out in that section and that Section 7(2) (c)  does not have a greater primacy than any of the others.  For convenience, the other five tests are again set out below:

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to -

(a)    the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer.” 

(b)    “The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee“

(c)     The extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of Section 14 of this Act or with the provision of any code of practice relating to procedures regarding dismissal approved by the Minister”.  

(d)    The extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and  

(e)    The extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.   

It follows from the foregoing extract from the Act that in considering compensation, regard must be had to all of subsection of Section 7 and these tests are not confined to the efforts of the Complainant to mitigate his loss. In this case I find that the Respondent did not meet the tests set out in subsections (a), (c) and (d).  There was no right to fair procedures, and I find that the Complainant made no contribution to the decision to dismiss him.

The Complainant submitted that his gross pay from the Respondent was €468 per week.  This is not disputed.  The Complainant worked in various roles for a total of 26 weeks.  Based on his weekly wage of €468 I estimate his loss for the period of time he was not working as €14,066. 

Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.” Evidence was given in this case that the Complainant had 5 years unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise, and I would put a value on this prospective loss at €5,800.00.

Having regard to all the circumstances in this case, I find that the appropriate compensatory sum to be €15,000.  This quantum reflects the Complainant’s failure to appeal the decision to terminate his employment and his limited efforts to mitigate his loss.

CA-00056231-001:

The complaint of unfair dismissal brought by the Complainant, Mr Andrei Avram against the Respondent, Home Fair Services Unlimited Company, is well founded.  The Respondent is to pay the Complainant €15,000 in compensation.

CA-00056231-002:

This complaint was not advanced at the hearing, and I find that it is not well founded.

Unfair dismissal.  Fair procedures.  Mitigation of loss.