EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant
Employer - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Hennessy
Mr F. Dorgan
heard this claim at Clonmel on 1st March 2013
and 1st May 2013
Claimants: Cian O'Carroll, Solicitors, Friar Street, Cashel, Co. Tipperary
Respondent: Mr Kevin O'Reilly, John P. Carrigan & Co, Solicitors,
Slievenamon Road, Thurles, Co. Tipperary
The claimant and his brother worked for the respondent company which is a restaurant. There was a burglary in the restaurant and the Gardaí were called. One of the brothers was arrested but was not charged. They met management of the restaurant and they subsequently had monies deducted from their weekly pay. Both have claims under the Unfair Dismissals Acts, 1977 To 2007 and Payment of Wages Act 1991 (separate determinations).
The claimant (AK) gave evidence to the Tribunal. He and his brother (EK) worked in the restaurant. He worked initially as a waiter. He then worked as a supervisor. On 3rd May 2010 he was working in the restaurant. His brother left early because he was not well. Another worker (worker A) was on duty as well and he was a supervisor. It was his job and worker A’s job to lock up. At the end of the evening shift he was closing up the till. He checked the kitchen and asked worker A to lock up the restaurant while he waited outside. Worker A was to open the restaurant the next day. He went home.
The next thing that happened was that he got a call from worker A to say that there had been a break in. This was before 8.00 am the next morning. Worker A told him that the safe was open and the key was in the safe. He immediately woke his brother and they went to the restaurant. He phoned the general/marketing manager (BG). CR the manageress was on holidays.
When he spoke to BG he told BG that it might be his fault and he felt responsible. He expressed regret. He accepts that he said he would pay the monies back. The Gardaí called to the restaurant. He spoke to the Gardaí and he was questioned by the Gardaí. He was not arrested. His brother EK was arrested and questioned.
He and his brother agreed with the management to deductions from their wages to pay the monies that went missing. He felt that they had no choice otherwise they would lose their jobs.
The deductions continued for some months. Then he and his brother re-considered their positions. They wrote to the respondent. Sometime later they resigned.
The claimant’s brother gave evidence to the Tribunal. He worked as a barman and waiter. He worked for circa 6 months as a manager. However he stopped working as a manager one or two months before the 03rd May 2010. An event occurred on the night of 03rd May 2010, in that the restaurant was burgled.
The night before the burglary he went home early at about 7.00 or 7.30 pm and consumed alcoholic beverages. Later that night the security company phoned him about the burglary. He told the company to call the Gardaí.
He did not know why the security company phoned him because it was the manageress’ responsibility. He was not given special pay to be on call nor was there an on call rota register. It was the responsibility of the person who opened the restaurant on the day and a Mr. R had the responsibility. His brother also had keys.
The Gardaí arrested him and questioned him but he was released without charge.
He later met the director/s management of the company with his brother. DS was present, BG the marketing manager and CR the restaurant manageress. He and his brother agreed to repay the money that was lost by paying €150.00 per week. He understood that he would lose his job if he did not. The deductions were made with immediate effect.
The deductions continued for some months. Then he and his brother re-considered their positions. He himself thought why he was paying money when he had done no wrong. He wrote an e-mail to the respondent and a week later BG called to see him and his brother at the restaurant. BG said that money was still owed and he BG had calculations with him. The meeting ended and his thoughts were that he had no choice (to continue with deductions) or he would lose his job.
A week or so later, on or about 16th November 2010, he and his brother left their jobs.
The Tribunal heard evidence from PS who is a shareholder in the respondent company. He visits the restaurant every “other” week. He explained that EK was fully in charge in the absence of the manager. EK was an assistant manager and was responsible for locking up. Also his brother AK was a trainee manager. EK was responsible for locking the safe and bringing the key home with him; “total responsibility was with (EK) in (the manageress CK) absence”. The witness explained that the other (worker A) named by the claimant and who the claimant contended was a supervisor or responsible for matters was not a supervisor he was a standard employee who never had anything to do with the computer or cash.
There were three keys that were for opening up and those keys were kept with managers and one other that CK had as her own.
There was only one key for the safe and this was held by either the manageress or an assistant manager. That safe key should have been held by EK and he should have brought it home. The witness explained they “do not keep the safe key on the premises, ever”.
It was made crystal clear to EK that he was in charge. EK should have responded to the alarm callout regardless if he had a few drinks or not. He should respond to let the guards in and to see if the wind had set off the alarm and to re-set the alarm. In response to assertions about worker A, the witness explained that Worker A never had anything to do with the safe and he never ever handled the safe key. It was EK’s role to deal with the money and after EK it was his brothers (AK’s) duty.
The meeting of 15th July 2010 was understood to be held to discuss the repayment of monies. He asked AK and EK if they would be able to pay €150.00 (per week) and they agreed that it would be manageable.
There was no complaint made to him about the deductions. The first he heard about it was the letter from EK and AK (November letter). BG informed EK and AK that they would be available to meet EK and AK on 16th November. He thought that they would re-structure the payments and that is what they would have done, i.e. to change the payments to €75.00 or €125.00 per week and “that would be the context of what we would do.
The witness was surprised at the letter of resignation. When asked if they were happy with EK and AK as employees he replied “Very much so, yes”. Regarding the actions of the employees regarding the night in question he explained that it could have been considered gross misconduct and that other employers would consider it a sackable offence, but “in our situation I was prepared to give them a second chance”. Following their agreement to repay monies he did not treat them any differently than what he had done before.
In cross-examination the witness was asked if he suspected if the burglary “was an inside job and that the boys were involved” he replied, “not at all”. “We never suspected the EK or AK were involved”. The Gardaí said the case was closed and no charges were being made.
The Tribunal heard evidence from a witness in relation to mitigation of losses told the Tribunal that he had met the claimant while he was working in a restaurant after he had departed from the respondent.
The Tribunal heard evidence from BG the marketing manager. AK phoned him on the night of the burglary. AK told him that the restaurant had been robbed and that the thieves had broken in through the window. He asked how they accessed monies and told him that he had left the key in the safe. He asked who was in charge and he said EK was and EK had gone home early. He was told that they would repay the monies.
At a meeting in Cashel EK and AK agreed to repay the monies. He never told them that they would lose their jobs. He did see a letter from EK and AK stating their dissatisfaction regarding repaying monies. He had arranged to meet them on 16th November. The letter of termination from EK and AK was received from them before the meeting of 16th. He was surprised at the letter. They had not voiced any grievance. He had not seen any change in the working atmosphere between the claimant’s and that he was not distant with them and they were definitely not distant with, him.
In cross-examination the witness explained that he had not the authority to stop the deductions and PS had the sole authority to do that.
The Tribunal heard evidence from (CR) the manageress. She told the Tribunal that on the night of the burglary she was in the middle of a two week vacation.
The witness explained the procedure for dealing with alarm calls. If the alarm is activated the alarm company phones the designated person and also calls the Gardaí. She then goes to the premises and waits for the Gardaí. When they arrive she enters the premises to check and re-sets the alarm.
She explained that EK had been a manager previously and in fact had trained her to be a manager. He changed to being an assistant manager.
When she went on holidays she told EK that she had informed the alarm company that he was the designated person. AK was a trainee manager. EK and AK were the only two people in charge of the money on the day in question. Whoever does the final cash puts the money in safe and takes the safe key. Three people had use of the key, herself EK and AK. So the key would always be in the hands of a manager or assistant manager.
The Tribunal is of the opinion that the Claimant was careless in fulfilling his duties on the 3rd of May 2010. This failure to fulfil his duties may well have warranted Disciplinary Action but none was taken. The Claimant did feel some responsibility for what had occurred which he saw as moral obligation. He was also concerned for his job and his brother who had come under Garda scrutiny.
The Respondent’s witnesses expressed confidence in the Claimant’s innocence of any involvement with the robbery which occurred and indicated that the Claimant was a good employee. PS the Managing Director of the Respondent Company advised the Tribunal that the Respondent had no trust issues with the Claimant.
PS made it absolutely clear to the Tribunal that in deducting monies from the Claimant’s salary he relied on the Agreement reached with the Claimant for repayment of half of the loss incurred. He informed the Tribunal that it was a voluntary agreement and accepted that, otherwise, the Respondent had no legal entitlement to these monies. He agreed that the offer to pay could have been withdrawn by the Claimant at any time.
This stated position appears to contradict an entry in the Minutes of the Meeting of the 16th of July which read that the Claimant and his brother would have “this on their record until monies paid back”.
The Tribunal acknowledges PS and BG, witnesses for the Respondent, to be decent and well intentioned people, however, on this occasion both exhibited poor judgement and, in all of the circumstances, acted unreasonably. The anxiety that the Respondent would not be out of pocket clouded their Judgement.
A reasonable Employer could not have considered the Agreement made to be a voluntary one. It would have been abundantly clear to a reasonable employer that the stress on the claimant had a significant and fundamental role in the agreement to pay.
A reasonable employer would have questioned whether the Agreement to pay was voluntary given the backdrop to same and the perceived threat to the Claimant if he did not pay. It would have been clear to a reasonable Employer that the Claimant feared for his brother, his job and for his reputation and the Tribunal is of the opinion that the balance of probability would favour the view that the Respondent contributed to these fears and used them to its advantage. The Claimant was credible in his evidence to the Tribunal that he believed he had no choice and would either have to pay or lose his job.
Notwithstanding the clarity of the Claimant’s communication of the 1st of November (“when will it end?”) the deduction continued. Any reasonable employer would have considered this communication to be a revocation of any Agreement to Pay.
Indeed the meeting of the 16th of July had the sole purpose of putting a schedule in place. It is reasonable to surmise that a withdrawal of the offer to pay at that time would have had serious implications for the Claimant. On a number of occasions it was re-iterated to the Claimant that the offence was sackable and that another Employer might well have dismissed. The Tribunal did not have sight of the original notes of the meeting nor were the Minutes co-signed by the Claimant to evidence his acceptance of the content.
While there is a conflict of evidence around whether a meeting was scheduled for the 16th of November, it was clear from the evidence of PS as witness for the Respondent that the sole purpose of any such meeting, as he saw it, was to reschedule the payments. This would have disregarded the content, tenor and clear purpose of the Claimant’s letter of the 1st November. BG in evidence, when asked why this letter was not treated as a withdrawal of the agreement to pay, indicated that it was a matter for PS.
Indeed, even after the Claimant’s resignation, the Respondent was still looking to recover monies from him.
PS in evidence could not explain why he did not respond to the letter of the 1st of November by stopping deductions.
The Claimant resigned (a resignation that was readily accepted) in circumstances where deductions were being made from his salary in breach of the Payment of Wages Act, where he had clearly communicated his dissatisfaction with making any such payments and in circumstances where PS, for the Respondent, confirmed to the Tribunal that the Respondent had no legal right to those monies save under the agreement referred to. The Tribunal accepts that the Claimant believed that there would be no reprieve as regards the repayments.
In all of the circumstance, the Tribunal is of the Opinion that failure to pay the Claimant his full salary entitled him to treat his contract has repudiated and to leave his employment. The Tribunal finds the Claimant to have been unlawfully dismissed and awards the sum of €12,000 by way of compensation.
Sealed with the Seal of the
Employment Appeals Tribunal