Complainant

Respondent

Parties

Krystian  Nawarski

Amber Springs Hotel Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Andrea Montanelli Peninsula

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-00057181-001

18/06/2023

The complainant commenced employment with the respondent, a hotel, as a night porter on 4 May 2021.  He worked 39 hours per week and earned a weekly gross pay of €476. Hi employment with the respondent ended on 17 January 2023.  A complaint for was received by the WRC on 18 June 2023.

The respondent provided a detailed written submission.

The respondent submits that on or around 4 January 2023 a sum of money (€150) went missing following on from which an investigation took place. This first investigation concluded that the complainant had taken the money from a safe.

The respondent accepts that the initial Investigation Meeting and Disciplinary Meeting were flawed in that the complainant was told at the Disciplinary Meeting that he was being dismissed not allowing sufficient time to consider the complainant’s representations. Because of this the respondent commenced a new investigation with a different investigator.

The second investigation was carried out by Mr Eibhear Coyle, General Manager.  The respondent submits that Mr Coyle reviewed CCTV footage which showed the complainant accessing a safe which he had been told never to go near except as directed and from which the €150 had gone missing. The complainant could not give any explanation why he went to that particular safe twice during the night. The investigator was satisfied that it was the complainant had stolen the money.

Following a disciplinary meeting which took place on 9 February 2023, of which the complainant had been put on notice and had been appraised of his rights, the decision was taken to dismiss him from his employment.

The respondent submits that in respect of the first disciplinary meeting a flawed disciplinary procedure does not render a dismissal unfair.  The respondent refers to a number of precedents to support this contention; Elstone -v- CIE (13 March 1987, unreported); Loftus and Healy -v- An Bord Telecom, High Court (Barron J) 13 February 1987; Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332.

The respondent also refers to Bank of Ireland -v- Reilly [2015] IEHC 241, with the regard to the reasonableness of the decision to dismiss.

The respondent submits stealing the €150 was an act of Gross Misconduct which breaches the bond of trust between an employer and an employee.

Mr Eibhear Coyle gave evidence at the hearing on Affirmation.

Mr Coyle detailed how he had reviewed the CCTV footage, which he said was very clear. He was convinced following this that it was the complainant who had stolen the money. This was a serious breach of trust.

Mr Coyle outlined the sequence of events following the realisation that money had been taken from the safe. The initial investigation commenced on 3 January 2023 (the complainant was suspended on pay). A disciplinary hearing followed on 12 January 2023.  After this a decision was made to dismiss the complainant on 17 January 2023. Mr Coyle was not involved in the disciplinary process.

Following an appeal of this decision by the complainant Mr Coyle carried out an investigation himself. He did this because he felt the respondent had failed to follow correct procedures in the first process.  This second investigation and disciplinary process was carried out to ensure the respondent was doing everything in line with natural justice and fairness. Following this second investigation and disciplinary hearing, Mr Coyle took the decision to dismiss the complainant.

The respondent submits that in all the circumstances the decision to dismiss the complainant was reasonable.

In his complaint form to the WRC the complainant submitted that on 5 January 2023 he was suspended from work.  On 12 January 2023, a disciplinary meeting took place after which he was dismissed.  He appealed this decision and following another disciplinary he was dismissed.  He had been accused of stealing €150 which he submits he never took. The complainant also provided several pertinent documents for the hearing.

The complainant gave evidence on Affirmation at the hearing.

Mr Nawaeski stated that he had often opened the safe from which the money was stolen many times during his employment with the respondent. He stated that on the night in question there was some €50,000 in the safe and would he not have taken the €50,000 [if he was going to take anything].

The complainant stated that he had only been doing his job when he went to the safe that night, firstly to take out keys and secondly to take out a float.

Mr Nawaeski believes the investigation and disciplinary processes were flawed.  He believes an independent external expert should have been appointed to carry out the investigation.  He was the only person who was suspended. There was no evidence to prove the money was there in the first place.

The complainant stated that he had started in a new job in April 2023, a better role, with improving terms and conditions. He was out of work for three months.

I have considered this matter carefully.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In this instant case I find the respondents decision to dismiss the complaint does fall within the band of reasonableness as outlined above. The respondent was sure that it was the complainant who had stolen the money.  It carried out two investigations, both of which reached the same conclusion.  That such a theft could be categorised as Gross Misconduct could not be deemed to be an unreasonable conclusion.

Regarding the fairness of the procedures, the principles of natural justice must be applied by the respondent in the policies and procedures it applies to the complainant’s employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated by Barrett J. in Boyle –v- An Post [2015] IEHC 589 “fairness is ever required, perfection is unattainable”.

 The question is whether or not the complainant was afforded fair procedures in relation to the investigation and termination of his employment contract.

I note the decision of the respondent to rectify what were perceived as faults with the disciplinary process it undertook by carrying out a second investigation and disciplinary process.

While the process undertaken was not without fault, on the whole, the process was comprehensive and fair and the respondent acted in accordance with its own policies.

Therefore, I find that the complaint fails.

The complainant was not unfairly dismissed.

Procedures, substantive matter, investigation

Complainant

Respondent

Parties

Krystian  Nawarski

Amber Springs Hotel Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Andrea Montanelli Peninsula

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-00057181-001

18/06/2023

The complainant commenced employment with the respondent, a hotel, as a night porter on 4 May 2021.  He worked 39 hours per week and earned a weekly gross pay of €476. Hi employment with the respondent ended on 17 January 2023.  A complaint for was received by the WRC on 18 June 2023.

The respondent provided a detailed written submission.

The respondent submits that on or around 4 January 2023 a sum of money (€150) went missing following on from which an investigation took place. This first investigation concluded that the complainant had taken the money from a safe.

The respondent accepts that the initial Investigation Meeting and Disciplinary Meeting were flawed in that the complainant was told at the Disciplinary Meeting that he was being dismissed not allowing sufficient time to consider the complainant’s representations. Because of this the respondent commenced a new investigation with a different investigator.

The second investigation was carried out by Ms Eibhear Coyle, General Manager.  The respondent submits that Ms Coyle reviewed CCTV footage which showed the complainant accessing a safe which he had been told never to go near except as directed and from which the €150 had gone missing. The complainant could not give any explanation why he went to that particular safe twice during the night. The investigator was satisfied that it was the complainant had stolen the money.

Following a disciplinary meeting which took place on 9 February 2023, of which the complainant had been put on notice and had been appraised of his rights, the decision was taken to dismiss him from his employment.

The respondent submits that in respect of the first disciplinary meeting a flawed disciplinary procedure does not render a dismissal unfair.  The respondent refers to a number of precedents to support this contention; Elstone -v- CIE (13 March 1987, unreported); Loftus and Healy -v- An Bord Telecom, High Court (Barron J) 13 February 1987; Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332.

The respondent also refers to Bank of Ireland -v- Reilly [2015] IEHC 241, with the regard to the reasonableness of the decision to dismiss.

The respondent submits stealing the €150 was an act of Gross Misconduct which breaches the bond of trust between an employer and an employee.

Ms Eibhear Coyle gave evidence at the hearing on Affirmation.

Ms Coyle detailed how she had reviewed the CCTV footage, which she said was very clear. She was convinced following her that it was the complainant who had stolen the money. This was a serious breach of trust.

Ms Coyle outlined the sequence of events following the realisation that money had been taken from the safe. The initial investigation commenced on 3 January 2023 (the complainant was suspended on pay). A disciplinary hearing followed on 12 January 2023.  After this a decision was made to dismiss the complainant on 17 January 2023. Ms Coyle was not involved in the disciplinary process.

Following an appeal of this decision by the complainant Ms Coyle carried out an investigation herself. She did this because she felt the respondent had failed to follow correct procedures in the first process.  This second investigation and disciplinary process was carried out to ensure the respondent was doing everything in line with natural justice and fairness. Following this second investigation and disciplinary hearing, Ms Coyle took the decision to dismiss the complainant.

The respondent submits that in all the circumstances the decision to dismiss the complainant was reasonable.

In his complaint form to the WRC the complainant submitted that on 5 January 2023 he was suspended from work.  On 12 January 2023, a disciplinary meeting took place after which he was dismissed.  He appealed this decision and following another disciplinary he was dismissed.  He had been accused of stealing €150 which he submits he never took. The complainant also provided several pertinent documents for the hearing.

The complainant gave evidence on Affirmation at the hearing.

Mr Nawaeski stated that he had often opened the safe from which the money was stolen many times during his employment with the respondent. He stated that on the night in question there was some €50,000 in the safe and would he not have taken the €50,000[if he was going to take anything].

The complainant stated that he had only been doing his job when he went to the safe that night, firstly to take out keys and secondly to take out a float.

Mr Nawaeski believes the investigation and disciplinary processes were flawed.  He believes an independent external expert should have been appointed to carry out the investigation.  He was the only person who was suspended. There was no evidence to prove the money was there in the first place.

The complainant stated that he had started in a new job in April 2023, a better role, with improving terms and conditions. He was out of work for three months.

I have considered this matter carefully.

S6(4)(a) of the Act states 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 the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In this instant case I find the respondents decision to dismiss the complaint does fall within the band of reasonableness as outlined above. The respondent was sure that it was the complainant who had stolen the money.  It carried out two investigations, both of which reached the same conclusion.  That such a theft could be categorised as Gross Misconduct could not be deemed to be an unreasonable conclusion.

Regarding the fairness of the procedures, the principles of natural justice must be applied by the respondent in the policies and procedures it applies to the complainant’s employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated by Barrett J. in Boyle –v- An Post [2015] IEHC 589 “fairness is ever required, perfection is unattainable”.

 The question is whether or not the complainant was afforded fair procedures in relation to the investigation and termination of his employment contract.

I note the decision of the respondent to rectify what were perceived as faults with the disciplinary process it undertook by carrying out a second investigation and disciplinary process.

While the process undertaken was not without fault, on the whole, the process was comprehensive and fair and the respondent acted in accordance with its own policies.

Therefore, I find that the complaint fails.

The complainant was not unfairly dismissed.

Procedures, substantive matter, investigation