EMPLOYMENT APPEALS TRIBUNAL
VGL Support Services Ireland Ltd., T/A Viagogo
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr J. Hennessy
Mr D. McEvoy
heard this claim at Limerick on 28th July 2016 and 13th October 2016.
Claimant: Mr. Tiernan Lowey BL, instructed by Ms Sonya Morrissy Murphy, Keating Connolly Sellors, Solicitors, 6/7 Glenworth Street, Limerick
Respondent: Mr. Vincent Nolan BL, instructed by LK Shields, 40 Upper Mount Street, Dublin 2
The determination of the Tribunal was as follows:-
The respondent is an online ticket marketplace for buying and selling tickets to live events. The company’s guarantee is as follows:
When you purchase tickets on the Site, the company guarantees that you will receive the tickets you paid for in time for the event. In the rare instance that a problem arises and the original ticket seller does not provide the buyer with the tickets listed for sale, the company will, in its sole and absolute discretion, review comparably priced tickets and offer the buyer replacement tickets at no additional cost or will issue the buyer with a refund for the cost of the tickets. Comparably priced replacement tickets are determined by the respondent in its sole and absolute discretion. When a seller sells tickets on the site, provided the seller supplies the exact tickets for sale and the ticket buyer successfully gains entry to the event, the company guarantees that the seller will be paid for his sale.
The ticket-selling policy includes:
- A team member may not sell more than 50 tickets using the respondent ticket marketplace in any 12 month period or more than 10 tickets in any calendar week or month
- A team member may not have a financial interest in any other respondent seller account that sells more than 50 tickets in any 12 month period nor benefit financially from the proceeds from a friend, business associate, or relative trading on the site
- All team members who sell tickets must register their company seller account in their own name/email and it will be classified under the seller affiliate “employee” category
- Any site seller account found to be a team member’s own account that has not been properly registered in the team member’s own name/email will result in disciplinary action.
EOS was Customer Service Operations Manager during the claimant’s tenure and the claimant reported to him. The claimant had initially worked in the UK based office and then moved to the Irish based office. The claimant’s role was that of Team Leader engaged in the problem solving area.
The claimant was involved in drawing up rules. Rule 3 specifies that an employee must not substitute/replace tickets into own account. Rule 4 (a) specifies that an employee must always pick cheapest listing for equivalent or better tickets and this is by a 15% ceiling (total ticket price + buyer fee). Rule 5 specifies that you must always offer a substitution/replacement within the substitution rules (regardless of ticket quality) before offering a substitution/replacement outside of the substitution rules and only escalate a substitution/replacement that breaks the max substitution loss limit if purchase was made on a .co.uk or.de website.
In the case of ten days remaining to an event and an order is broken and a buyer can’t be found then it is escalated to a Team Leader or Manager. An employee can ask his Team Leader for an over-budget substitution where the company can recover money from the original seller.
EOS met with the claimant on 1st April 2015 and enquired about a certain named account. Of concern was the misappropriation of company funds for the claimant’s own benefit and violation of the company’s team member’s selling policy. The claimant confirmed that it was his account. There was a lot of activity on this account of which some substitutions had been carried out that were over budget when there were other options available and this activity needed to be investigated. The claimant confirmed that at all times he would be mindful of the subbing process and would ensure that the seller could be charged for the difference at all times.
The claimant was suspended on full pay pending an investigation.
In an email from the claimant dated 7 April 2015 the claimant indicated that as long as he could keep his position in the company he was happy to walk away with any disciplinary action the company felt appropriate including returning any profit he made since the internal selling policy took place.
The claimant remained suspended. The investigation findings were passed to the HR Manager AL.
AL HR Manager gave evidence. She was appointed to that role in late April 2015. EOS furnished her with all the necessary documentation carried out during the course of the investigation. She believed on examining the spreadsheet with a listing of accounts that there were significant substitutions by the claimant which indicated that the claimant profited. She reviewed all the documentation and notified the claimant of the necessity to carry out a disciplinary hearing.
The disciplinary hearing took place on 1st May 2015. She was fully aware that substitutions were not allowed in the company. The spreadsheet was displayed on screen. The claimant agreed that he had made a profit at the expense of the company. AL put a scenario to the claimant that ‘would it be fair to say that if he saw a seller let a buyer down, he in his role sourced the ticket or privately sourced the ticket, he got the ticket, got the company to buy it from him at a profit to him’. The claimant agreed that it was a fair way of putting it. The claimant agreed that the transactions on the Spreadsheet were his transactions.
In making substitutions privately through the claimant’s account the claimant sourced a ticket and substituted that ticket to the buyer. The claimant stated where a customer needs a ticket and all avenues have been exhausted, that the best practice was not to refund a customer.
The claimant alleged that substitution of tickets was custom and practice throughout the company.
Through the claimant’s substitutions the company suffered a loss of €6,500.00. There had been no issue with sales.
The claimant took the opportunity of insider information to engineer sales for himself and was in breach of the company policy.
The witness had not made any pre judgment in advance of the hearing. She spoke to the employees who the claimant had referred to during the disciplinary hearing. At the conclusion of the disciplinary hearing the witness reviewed all the evidence before her.
By letter dated 8th May 2015 the claimant was dismissed for gross misconduct and was given one week’s notice as provided in his contract. He was offered a right of appeal. The claimant responded by letter dated 11th May 2015 indicating that he had little or no faith in any appeal and did not raise any grounds for an appeal and asked for a third party to conduct the appeal.
DOD who furnished the claimant with a reference was not an authorised company signatory and it was not appropriate that the reference stated that the claimant was currently employed. The claimant’s employment had been terminated on 8th May 2015. The witness had never seen this reference before and it had not been on the claimant’s personnel file.
GB, Training and Quality Manager, had been asked to carry out the claimant’s appeal. The appeal had been rescheduled to 2nd June 2015. The claimant did not attend the appeal hearing. GB upheld the decision to dismiss the claimant.
Witness W who worked in the role of Events Manager in the company gave evidence. She said staff were encouraged to sell tickets and to have their own accounts.
The claimant gave evidence. He had worked in the UK and had travelled to the office in Ireland on a weekly basis. He trained staff and clarified procedures. He subsequently moved to the Irish office and was there for four to five years.
On 1st April 2015 EOS marched into his office and asked him to confirm his email address and to attend a meeting. He had no notice of this meeting or was not aware of the subject matter of the meeting. Some days prior to this disciplinary meeting GB, Trainee Manager asked him to run through the company procedures with her. EOS told him there was too much activity on his account. At the conclusion of the meeting he was asked to leave the company and to leave the company property behind him. The system was locked on his laptop and his account was closed.
AL conducted the disciplinary hearing. She had only joined the company two days prior to this hearing. The claimant believed that as AL was new to the company she could not have been very familiar with the system. During the course of the disciplinary meeting with AL he was shown certain transactions on a spreadsheet. It was custom and practice in the company to make substitutions. The company advertised tickets prior to events being announced. He was always conscious that tickets would arrive in time to the customer.
The claimant had never being disciplined during the course of his tenure. He was dismissed by letter dated 8th May 2015. He was offered a right of appeal. He wanted an independent third party to conduct this appeal. This was denied to him. He chose then not to appeal his dismissal.
He secured alternative employment for a two month period after the termination of his employment. When his employment with that company ceased he immediately secured another role but at a significantly lesser rate of pay. He had to move to Dublin to take up this role.
The Tribunal carefully considered the evidence adduced over the course of two days. To arrive at a determination of this claim the Tribunal needs to consider whether the conduct of the claimant was such as to warrant dismissal and in addition whether the procedures relied on by the respondent were reasonable and robust in the circumstances.
The claimant was employed by the respondent for a number of years, initially in the UK and later in Ireland. He occupied a position of responsibility and was involved in staff training and drafting company procedures. He was suspended with pay on 1 April 2015 pending an investigation. The allegations against him were communicated to him in a letter of 3 April 2015. At the disciplinary meeting held on 1 May 2015 the claimant accepted that he had bought tickets himself and then sold them to the respondent company at a profit to himself. The claimant was reluctant to accept that this behaviour was contrary to the respondent’s team member selling policy. The Tribunal is satisfied that the claimant’s action in using his position to receive extra income at his employer’s expense constitutes misconduct for which the sanction of dismissal is not unfair.
The Tribunal believes that it would have been desirable to have the appeal heard by an independent third party who had no involvement in either the investigation or the disciplinary process. Notwithstanding this deficiency the Tribunal is satisfied that the claimant did not exhaust the appeals process or avail of all avenues open to him in that regard.
The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal