EMPLOYMENT APPEALS TRIBUNAL
Bulent Yilmaz - Appellant
against the recommendation of the Rights Commissioner in the case of:
Walls Leisure Limited T/A Hilton Dublin Airport Hotel - Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington SC
Members: Mr. A. O’Mara
Mr S. O'Donnell
heard this appeal at Dublin on 8th April 2015
and 20th May 2015
Appellant: In Person
Respondent: Michael McGrath, IBEC, 84-86, Lr. Baggot Street, Dublin 2
This case came before the Tribunal by way of the appellant (the employee) appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-132144-ud-13/JW).
This order should be read in conjunction with UD1745/2014 as they were heard in tandem. Both parties are appealing the Rights Commissioner Recommendation of an award of €5,000.00 to the employee.
The determination of the Tribunal was as follows:
The employee (appellant) was employed as a Night Manager from the 25 June 2007 to the 27th September 2012 in the respondent’s 166-bedroomed 4* hotel in North Dublin. The appellant had a contract of employment and a full job description.
He was dismissed for gross misconduct when he allegedly failed to secure the hotel, failed to consistently ensure the reception desk was staffed and supervised and failed to ensure that cash was placed in the safe while he was on duty as Night Manager on the night shift on the 18th / 19th September 2012.
The employee (appellant) filed a claim under the Unfair Dismissals Acts, 1977 to 2007 to the Rights Commissioner. The Rights Commissioner found in his favour and awarded him the sum of €5,000.00. Both parties appealed this decision to the Employment Appeals Tribunal.
CCTV footage on the date and time in question was views by the Tribunal.
At 3.45am on the 18th September 2012 an unknown individual entered the unlocked door of the hotel and made their way through the unattended reception area. They checked a door which was locked and then approached the reception pods. They opened an unlocked drawer and removed a package contained a €750 cash float. The appellant (employee) returned to the reception area with a coffee in his hand and confronted the individual who then tried to escape through the unlocked front door of the hotel. At this time the Night Porter and the Shuttle Bus Driver were also present who then apprehended the individual. The individual was ultimately let go by the appellant and fled.
Respondent’s (Employer) Position:
The Area Human Resource Manager (YB), the, then, General Manager (PF) who held the disciplinary meeting and the General Manager of a sister hotel (MM) who held the appeal hearing gave evidence.
Following the night of the incident the appellant reported the incident by email to the Deputy Manager (AMB),YB, PF and one other member of management. It was decided AMB would hold an investigation meeting. Statements were submitted by the Night Porter and the Shuttle Bus Driver.
The appellant was invited to attend a meeting on the 20th September 2012. The appellant attended alone, although he was asked did he want anyone with him and declined. YB was present as note-taker. AMB questioned the appellant regarding the unlocked hotel front door, it was required to be locked at this time of night, and why the cash floats for the morning shifts were not only in the reception pods so early in the morning and why they were in unlocked drawers. The appellant replied that he liked to be ahead of himself and had never locked the drawers in the past. The meeting lasted for over an hour. On its completion AMB decided as investigation officer the matter should be forwarded to the General Manager (PF) due to the seriousness of the matter.
(It should be noted AMB was not present at the hearing to give sworn evidence in this matter)
A disciplinary meeting was held by PF on the 26th September 2012. Again the appellant declined to have someone attend with him. During the forty minute meeting PF again went through what had occurred on the night in question. The appellant said he had been very busy on the night in question, the hotel was full. He brought up the fact there had been rostering difficulties but told PF that he had not brought it to the attention of management as he did not want to bother them. The appellant stated that he knew the respondents procedures on cash and said that he said it was his responsibility that the hotel door had been unlocked. Having considered the seriousness of the matter the decision was made to dismiss the appellant on the grounds of gross misconduct. He was given the right to appeal the decision.
The appellant appealed the decision to MM who held the appeal hearing on the 18th October 2012. Again the incident was discussed. The appellant did not dispute he had left the door and drawers containing the cash unlocked. When asked by MM the appellant agreed he had gone through the hotels checklist but not until the end of his shift. The appellant agreed it was not company procedure to leave the cash floats in the unlocked drawers. The appellant told MM that he had discussed with PF the issue of the rostering of staff.
MM told the Tribunal that he felt the decision to dismiss the appellant was correct and upheld this decision.
The appellant gave evidence. In previous times there had been up to seven staff scheduled for the night shift but these numbers had depleted over the years to two or three.
On the night in question the reception area had been very quiet even though the rooms were fully occupied. He and a Night Porter were on duty. The Shuttle Bus Driver was scheduled to start his shift at 4.00am. At approximately 2.00am he entered the safe and retrieved two €750.00 cash floats and lodged them into two of the reception pods leaving them unlocked. He explained that he had lodged the money early as he felt he would be busy later on in the morning with early checkouts. However, these cash floats may not have been used until the reception staff came in at 7.00am.
At around 3.45am he went to carry out some duty at the tea and coffee station and asked the Shuttle Bus Driver, who had arrived early, and the Night Porter to stay around the reception area. On his return to the reception desk he encountered the intruder. He contacted the Gardai who informed him they could not tell him when they could arrive. He then released the intruder having caught and checked his pockets as, he said, he did not want him around when guests could arrive to check out. The intruder had no money on him. However, when he checked the cash drawers he realised one of the cash floats was missing. The following morning he reported the incident to management. He attended the investigation, disciplinary and appeal hearings.
He gave evidence of loss.
On cross-examination he agreed that it would have only taken a couple of minutes to put the cash floats into the reception pods but he had a lot of work to do on the night in question. He agreed that it was his responsibility to ensure the hotel was secure and should have had the front door and cash drawers locked. It had been a mistake not to do so. When asked he said that he believed that breaches in procedures did warrant some form of discipline. When put to him he said he had raised the issue of staff rostering in the past as on the night in question, and other nights, he had been short staffed but was still required to carry out the same duties as when there were seven staff on the same shift in the past.
The Tribunal has carefully considered the sworn evidence adduced in this matter and finds the appellant was unfairly dismissed. However, the Tribunal finds the appellant did contribute to his dismissal by failing to secure the premises and the cash present at the reception pods.
Accordingly, the Tribunal upholds the Rights Commissioners recommendation and awards the appellant the sum of €5,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal