Complainant

Respondent

Parties

Maria Cassidy

Capital Entertainment and Leisure Limited

Representatives

Gemma Cassidy, aunt of the complainant

Michael Mulcahy BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00061526-001

09/02/2024

Capital Entertainment and Leisure Limited trades as Jackpott’s Bingo, with four venues in Dublin, mainly in the former Gael Linn bingo halls.  There are around 80 people employed across the four locations.  The venues have a machine-operated bingo game, which is a fast game of bingo played with coins.  Access to this game is by membership only.  The complainant commenced working in the Crumlin venue on July 5th 2022.  Her contract of employment states that she was employed as a team member, reporting to the venue manager.  I understand that she worked as a machine attendant and occasionally, as a front door attendant.  She worked part-time and had no set hours of work.  She was paid €11.80 per hour and she worked around 20 hours per week.

The complainant was dismissed following an investigation into an incident that occurred on August 31st 2023, when a man perpetrated a “short-change scam” and stole €650 when she was on duty.  The respondent concluded that the complainant failed to adhere to the cash-handling procedure and, when the man was on the premises, that she failed to get assistance from a senior member of staff.  It is the complainant’s case that the sanction of dismissal was too severe.

Opening the respondent’s case, Mr Mulcahy described the complainant’s job as a cashier in the Crumlin bingo venue.  He described the fast bingo game played on machines by members of the clubs.  Pay-outs from the machines are in cash.  The cashiers wear a money belt to hand out money to winners.  Mr Mulcahy said that, to protect the respondent’s business, it is essential that employees follow cash-handling procedures.  If the procedures are not rigorously enforced, Mr Mulcahy said that “the whole thing breaks down.”

Mr Mulcahy described what occurred on August 31st 2023 when a man came into the venue “with bad intention” and, by a trick of the wrist, scammed the club out of €650.  The complainant dealt with this man when he entered the club.  It is the respondent’s case that she facilitated the success of the scam by,

1.      Failing to validate the man’s membership;

2.      Changing cash for the man;

3.      Failing to get assistance from a senior member of staff.

Mr Mulcahy said that this was a regrettable outcome because all the staff had been trained about how to deal with this short-change scam following a similar incident in the Tallaght venue in March 2023. 

It is the respondent’s position that it was reasonable to dismiss the complainant and that the process that ended with her dismissal was fair.

Evidence of the Venue Manager, Ms Vanessa Butler

Ms Butler said that she started working for the respondent in 2004.  She was appointed as the manager of the Crumlin venue in November 2011, having been a supervisor in the other venues beforehand.  Ms Butler described the venues as a place for people to play bingo.

Ms Butler said that she employed the complainant in July 2022.  Her first job was as a general customer services assistant.  She was responsible for checking the safe, keeping a float of €3,500, balancing cash and bringing cash back to the safe.  Ms Butler said that the complainant did very well in that that job.  From February 2023 until her dismissal after the incident on August 31st 2023, she was a machine attendant and a front door attendant.  In this role, she was responsible for ensuring that each customer produced a membership card and that they were logged in to play on the machines.  This results in the business knowing who is in the building and the customers also receive loyalty points for playing.

When a customer arrives at the entrance to the venue, the door attendant asks them for their membership card and logs them in.  A stranger at the venue must be asked for a membership card.  Ms Butler said that the person who perpetrated the short-change scam on August 31st was not recognisable as a member.

Machine attendants on duty carry a “bum bag” with the float of cash.  They also carry a panic button and a clip-board.  They are trained on the cash handling procedures.  Ms Butler referred to a short-change scam that occurred in March 2023 in the Tallaght branch.  Staff in all four venues were notified afterwards about this scam in which a man had come in with €300 in €10 euro notes and had asked for six €50 euro notes.  The attendant doesn’t count the money being given out and the scam occurs when the person slips some money up a sleeve or into a hand and claims not to have received the correct amount.

Ms Butler referred to an email from the regional manager, Ms Sandy Coleman, on March 20th 2023, following the “sleight of hand” scam in the Tallaght venue.   Ms Coleman asked the venue managers to notify and advise staff of the same scam “we have seen many times before.”  Managers were asked to ensure that staff were up to date with the cash control policy and that they were trained in the policy and that they understood it.  Ms Coleman concluded her email saying, “Most importantly, we do not give change to non-members!”

Arising from this email, Ms Butler said that they introduced panic buttons for cashiers.  She said that she showed staff in Crumlin the footage of the Tallaght short-change scam and she also gave them an example of how the scam is carried out.  Ms Butler said that she remembers speaking to the complainant about the scam and that it is not correct to say that she wasn’t trained about how to prevent it.

After a break for lunch, Ms Butler resumed giving evidence.  She referred to the investigation meeting held on August 31st 2023 and the notes that show that the complainant was aware “from working here that’s the main way that I’ve heard of people being scammed.” 

Ms Butler referred to the disciplinary meeting held on September 7th 2023.  She said that the complainant argued that she was being treated unfairly and she felt “hard done by.”  She agreed at this meeting that she didn’t know the man who perpetrated the scam, that she didn’t know his name or his membership number and that she never saw him before.

On the evening that the short-change scam occurred, Ms Butler said that the assistant manager was in the main office in Crumlin and that the complainant could have asked him for assistance.

Cross-examining of Ms Butler by Ms Gemma Cassidy

Ms Cassidy said that the complainant didn’t attend training after the scam in the Tallaght venue.  In response, Ms Butler said that she went through the footage with the complainant before she started her shift after the Tallaght scam occurred.  Ms Butler said that the complainant accepted this at the investigation meeting.

Evidence of the Regional Manager, Ms Sandy Coleman

Ms Coleman said that she was the venue manager in Crumlin for seven years until 2018, when she was appointed as the regional manager.  Ms Coleman described the business as a “high cash business” with four or five people on duty every evening carrying cash in “bum bags.”  For the most part, the job of cashier is filled by students, and for many, it is their first job.  Ms Coleman said that these new employees have very little experience of cash-handling and they have to be trained in how to manage cash. 

Ms Coleman described the Tallaght scam as “an old scam.”  The individual walked into the premises seeking to change money and the cashier was short-changed.  Ms Coleman said that they no longer change cash for non-members, although, occasionally, a local pub might look for change.

In response to the complainant’s contention that she wasn’t trained in cash-handling, Ms Coleman said that the instruction not to change money for someone walking in off the street is high on the company’s agenda.  The man who carried out the scam that resulted in the complainant being dismissed was in the games room for 10 minutes and he wasn’t signed in.  Ms Coleman said that this was a serious oversight.  She said that if people were not signed in, it would result in chaos, with no traceability of pay-outs.

In March 2023, after the Tallaght scam, Ms Coleman said that she sent an email to the venue managers to instruct them not to permit staff to handle cash until they were trained.  She said that she did the cash handling training with the staff, but the complainant wasn’t able to attend.

At this point in Ms Coleman’s evidence, the CCTV of the incident on August 31st 2023 was played.  The video shows a man entering the games hall and standing at a gaming machine.  He asked the complainant for change and she went to the office.  The man followed her to the office.  Then another employee, identified as Ms Amanda Holmes, followed her into the office.  The complainant informed the venue manager, Mr Ian Brunton, that the man was following her.  The complainant then left the office and changed the money for the man.  At this point, Mr Brunton was outside the office.

Asked by Mr Mulcahy what the complainant should have done differently, Ms Coleman said that she should have checked that he was a member when the man came into the premises.  Before agreeing to change money, she should have checked that he was a member.  She should have activated her panic button, which would have resulted in the Gardaí being alerted.  She could have remained in the office and asked Mr Brunton to go out to the man.

Ms Coleman said that the complainant could have brought the incident to the attention of two members of staff who were present at the time, Ms Holmes and Mr Brunton.  She said that Ms Holmes prevented the man from following the complainant into the office.

Mr Mulcahy referred to the CCTV which, he said, shows no evidence that the man was aggressive, whereas, the complainant said that she was afraid of him because he was aggressive.  Mr Mulcahy submitted that there is an inconsistency in the complainant’s version of events, because there is no sign of aggression on the CCTV.

Ms Coleman agreed with Mr Mulcahy that the cashiers know most of the clients who come into the venues.  The complainant had said that she didn’t know the man.

Cross-examining of Ms Coleman by Ms Cassidy

Referring to the fact that the complainant didn’t ask the man who carried out the scam for his membership number, Ms Coleman said that she had two opportunities during quick interactions with him during 20 minutes of quiet in the games room.  Ms Coleman noted that the complainant entered the date and time that the man entered the premises.  Ms Coleman agreed that the complainant attempted to take his membership number.

Ms Cassidy said that the complainant told her manager that she had just been scammed and the man who did the scam was allowed to walk out.  Ms Coleman replied that the complainant was responsible for letting the man in and they can’t prevent people from leaving.  She said that the manager was unaware of what had happened.

Ms Cassidy put it to Ms Coleman that the complainant was frustrated when the man tried to confuse her by telling her that a machine was broken.

Ms Cassidy asked why the Gardaí were not called by the security guard who arrived on the premises after the scam.  Ms Coleman accepted that the Gardaí should have been called on the day of the incident, but she said that they were notified later.

Summary of the Complainant’s Evidence

The complainant said that in the week that the incident occurred and the previous week, she was scheduled to work 35.5 hours for both weeks.  On the day in question, Thursday, August 31st 2023, she started work at 9.30am and the incident occurred around 4.30pm.  A man entered the premises and had a look at the machines.  She said that when she approached him, he was “giving out” about the machines.  He complained that he wasn’t getting money back.  The complainant said that she was dealing with other customers at the time and the man had “cashed out” on a specific machine.  When she was trying to get his membership number, the man appeared to have broken English and she couldn’t understand him.  At one of the machines, the man asked the complainant for change and she went to the safe to get change.  The complainant changed money for the man and realised that she had less money than she should have had.  She said that the man heard her saying, “he has scammed me.”  On the CCTV, he can be seen sneaking out of the premises.

The complainant said that Mr Brunton asked her to balance her cash bag.  She then completed an incident report and went back to continue her shift.  She said that the security guard was very unhappy about what happened.  The complainant said that he told her, “You’re not allowed to carry that bum bag.”  She said that he grabbed the bag out of her hand when she was balancing the cash.  The complainant said that she understood that this was an allegation that she wasn’t good enough to carry cash.  She said that Mr Brunton was sympathetic.  She said that she was upset and she asked if she could go home.

The complainant again referred to the fact that the man who carried out the scam had broken English.  She said that she tried her best to follow protocol and that this was the first time that she failed to get a membership number from a client.

In response to questions from me, the complainant said that she never received a warning before about any disciplinary matter and that she had been a very good employee and was flexible regarding her availability.  She said that she is studying for a business degree and that she hasn’t been able to find an alternative part-time job.

Cross-examining of the Complainant by Mr Mulcahy

Mr Mulcahy challenged the complainant’s explanation for not taking up employment since her dismissal on September 7th 2023.  She replied that she is doing a course in business and she attends lectures for 16 hours a week.  She said that she applied for some jobs and she also tried to get work through her college.  She is a qualified barber and she tried to get a job as a barber.  Mr Mulcahy remarked that the complainant provided no documentary evidence that she has looked for a job.

Mr Mulcahy referred to two legal precedents which demonstrate that there is a responsibility on a dismissed employee to seek alternative employment:  the decision of the Labour Court to award four weeks’ pay to John Read in his complaint against Speedking Couriers Limited[1] was influenced by Mr Read’s failure to show that he applied for alternative employment after his dismissal.  In the decision of my colleague, Pat Brady, in Norris V KCMG Engineering Limited[2], Mr Brady was not satisfied that Ms Norris made a reasonable effort to find another job, although he accepted that she was hampered to some degree by her responsibilities as a parent.

Returning to the incident on August 31st 2023, the complainant said that she approached the man who carried out the scam first.  He had not approached her.  He was complaining about a broken machine and she is responsible for fixing machines.  Other customers were also present at the time.

Mr Mulcahy referred to the fact that Ms Coleman and Ms Butler said that they never saw the man before, but the complainant said that she knew he was a member.  The complainant said that another employee also said that he had been in the venue before.

The complainant said that she didn’t get any training about short-change scams.  She said that she understands that the people who now work as attendants don’t carry cash.

The complainant suggested that the lead up to her being dismissed stemmed from a complaint about her wages.  This occurred two weeks before her dismissal.  The problem with her wages was sorted out.

Mr Mulcahy suggested that the complainant changed her story.  At the disciplinary meeting, she agreed that she was trained in how to deal with short-change scams.  She said that she saw the man previously in the club and she made claims about gender discrimination.  She claimed that she wasn’t to blame for the scam.  Mr Mulcahy said that if the complainant had followed the training protocols, she would have asked the man for his membership identification.  She could also have asked for help before handing out the cash.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…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.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, at this section 6(4)(b), the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable[3].  In the case of the complainant, her letter of dismissal states that she was dismissed because of,

“…several failings on your part which led to the company losing €650.  Specifically, you failed to check that this customer was a member when they entered the club.  You failed to check that this customer was a member of the club before handing over a cash payment and also failed to check that this customer was a member of the club before exchanging large sums of cash in which he scammed over €650.”

In tandem with the reasonableness of the decision to dismiss an employee, the Act also requires an employer to have regard to fair procedures.  Section 6(7) addresses this issue:

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

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Section 14(1) of the Act refers to the obligation on an employer to provide an employee with a written copy of the procedure that will be used “before and for the purpose of dismissing the employee.”  A copy of the respondent’s disciplinary procedure was included in the complainant’s contract of employment issued to her when she commenced work and was re-issued on September 1st 2023 in advance of a disciplinary investigation meeting the following day.

The complainant raised no issue with the reasonableness of the procedure that ended with her dismissal and there is no requirement for me to review the respondent’s adherence to the procedure.  I accept that the respondent followed their disciplinary procedure and my focus in this investigation is on the reasonableness of their decision to dismiss the complainant and on the proportionality of the sanction.

Was it Reasonable to Dismiss the Complainant?

There are many precedents where the issue of the reasonableness of an employer’s decision to dismiss an employee are examined.  In 2009, when he was found to have distributed inappropriate emails to colleagues, Mr James Reilly was dismissed from his job as a sales manager with Bank of Ireland[4].  In an appeal to the High Court, Mr Justice Noonan observed that:

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.” 

In the case of Pacelli v Irish Distillers Limited[5], the task of the former Employment Appeals Tribunal (EAT), and now my task, is to consider if the respondent’s decision to dismiss the complainant was consistent with what “a reasonable, prudent and wise employer would have done having regard to the nature of the case.”

The respondent’s disciplinary procedure, like all others, is a step by step, sequential process, progressing from a moderate sanction to a serious sanction all the way to dismissal over a period of time.  Its objective is to give an employee an opportunity to stop doing something, or to do something differently, and, in this way, to avoid being dismissed.  The complainant made a mistake on August 31st 2023.  She had been employed for just over a year at that point and there were no concerns about her conduct or her performance.

I note that, “Fraud or dishonesty – including breaches of the business’s cash-handling procedures” is listed under the heading of “Gross Misconduct.”  Considering how the complainant’s conduct was dealt with however, I must have regard to the criterion of reasonableness which is set out in the case law to which I have referred.  This means that I must take account of the complainant’s junior position in the company and the effect that a dismissal would have on her, compared to its effect on the company. 

Gross misconduct warranting summary dismissal usually falls within the realm of behaviour that cannot be tolerated for a moment longer and is generally, behaviour that has some element of a “shock” impact.  This was outlined in the seminal decision of the EAT in the case of Lennon v Bredin[6]:

“We have always held that this…applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

Findings

I have reviewed the evidence of the respondent’s witnesses and I have also taken account of the complainant’s explanation regarding her conduct on August 31st 2023, when a man successfully perpetrated a short-change scam that resulted in a loss to the respondent of €650.  It is apparent to me that the “scammer” may not have been successful if the complainant had acted differently, and if she had established that he wasn’t a member of the club in the first instance.  It seems to me however, that the scam is highly sophisticated, and the perpetrator acted to confuse and destabilise the complainant, with the result that she didn’t adhere to the cash-handling procedures.  I note that, when the scam occurred, the security guard wasn’t on duty.  I accept that the complainant should have checked the man’s membership ID and she could have asked for assistance from a colleague or a manager.  There was no dispute however, about the fact that, as the man was leaving the premises the complainant exclaimed “He has just scammed me!” or something along those lines and the man was permitted to leave the premises without being questioned.  The loss of €650 suffered by the respondent may not have occurred if a security guard had been on duty at the time.

In her evidence, the venue manager said that the respondent’s business relies on a significant level of cash being available to staff on duty.  It is my view that responsibility for safeguarding this cash cannot be the total responsibility of the most junior employees and I find that it was unreasonable to dismiss the complainant for a first offence under the cash handling procedure.  All the complainant’s responses at the disciplinary investigation, the disciplinary meeting and the appeal hearing indicate that she regretted her failure to deal with the challenge of the scammer in line with procedures and that she learned from her mistake.  One of the critical objectives of a disciplinary procedure is to give an employee a chance to do just this, and to not repeat the errant behaviour.  It is my view that the complainant learned a valuable lesson from what occurred on August 31st 2023 and that it is highly unlikely that she would have repeated her mistake.

Considering the approach of Mr Justice Noonan in the case of Reilly v The Bank of Ireland (footnote 4), I must consider the impact of the loss of €650 on the respondent compared to the effect that the loss of her job had on the complainant.  Even on the date of the hearing of this matter, one year after her dismissal, the complainant was still distressed.  As a young person starting out in her working life, it is my view that the sanction of dismissal was disproportionate and a more reasonable approach would have been to issue a written warning or a final written warning. 

I have decided that the dismissal of the complainant was disproportionate and unfair and that a more reasonable outcome would have been a written warning.  I am satisfied that, if a warning had been issued, there would have been practically no risk of a recurrence of a similar incident and a committed employee would have been retained in the employment of the respondent.  I note with some regret that, on the date of the hearing, the complainant had not taken up another job and, in circumstances where there is practically full employment in Ireland, the complainant provided no explanation for this.  Taking all these facts these facts into account, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the respondent to pay the complainant compensation of €1,200 gross, equivalent to approximately four weeks’ pay.

Dismissal, gross misconduct, failure to follow procedures, failure to mitigate losses, proportionality of the decision