ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024563
A Bar Person/ Waitress
A Public House & Restaurant Chain
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 05/02/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andSection 12 of the Minimum Notice & Terms of Employment Act, 1973following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The issues in contention concern the alleged Unfair Dismissal of a Bar Person by a Pub Chain. A minimum notice claim is also attached.
1: Summary of Complainant’s Case: Precis of Oral and Written Submissions.
1:1 Unfair Dismissal complaint: CA: -00031252-001
The Complainant commenced employment in the Respondent pub in March 2014. All went well until 4th July 2019 when it was alleged by the Respondent that the Complainant served alcohol to two customers who were under the age of 23 years. The Complainant was suspended on pay and a Disciplinary process followed. A Hearing took place on the 8th July and a Dismissal was confirmed by letter of the 12th July. The Dismissal was for Gross Misconduct. An Appeal hearing followed on the 31st July 2019 and the Dismissal was confirmed.
The Complainant maintained that she had been the victim of a very selective process as a result of the fact that she had two legal actions already in place against the Company. The first, being a GDPR complaint relating to inappropriate disclosure of information regarding a sexual harassment complaint and the second in relation to an alleged Personal injury which took place in December 2017. Both Legal actions were commenced in August 2018. Matters did not really progress and on the 27th June 2019 the Complainant’s Solicitor wrote the Respondent informing them that the injury complaint would now be proceeding to the PIAB.
The date was significant as it was shortly afterwards, on the 4th July, that the Under-Age incident took place. The Complainant questioned the basic legality of the manner in which Incident took place. It had been organised by a Private Investigator. It was not confirmed that the Investigator was a serving member of the Gardai as required by Law and the Dept of Justice guidelines in relation to Test purchasing of Intoxicating liquor of October 2010. The details of the background to the Private investigator involvement were not forthcoming. The timing was unusual, just before the Lunch busy period, and the Complainant was working on her own serving customers. It was alleged that it appeared to have been a “sting” operation to target the Complainant.
The Complainant was a very experienced Bar Person and in relation to the incident on the day had formed the reasonable opinion that the Purchasers were over 23 years of age. The Respondent Policy states that “Any customer who appears to be under 23 years of age must be asked for proof of age”.
The Complainant openly admitted serving the two Customers and was very upset to discover that they were in fact under 23 years of age.
The Complainant’s Legal representative made the point very strongly that Section 6(2) of the Unfair Dismissals Act,1977 specifically refers to Dismissal arising from “Civil Proceedings against the Employer” being deemed, automatically, to be an Unfair Dismissal.
The Dismissal of the Employee for Gross Misconduct was completely Disproportionate and Unreasonable in the circumstances. It was, the Complainant’s Legal representative strongly maintained, in effect a base retaliatory action by the Employer arising from the two earlier civil Actions. It was completely Unfair by any standard.
Considerable Legal precedents were quoted in support of the Complainant case.
1:2 Minimum Notice Complaint CA: -00031252-002
The Complainant was dismissed for Gross Misconduct and did not receive any notice pay. As the dismissal was alleged to be Unfair, the notice complaint follows as equally in breach of the Legal requirements.
2: Summary of Respondent’s Case: Precis of Oral and Written Submissions
2:1 Unfair Dismissal complaint: CA: -00031252-001
The serving of Alcohol to minors is a very serious legal issue and is covered particularly in all Respondent Handbooks and Training materials. On the 4th July the Complainant served alcohol to two customers aged 17 and 18 years as part of a Mystery Shopper exercise. The Mystery Shopper identified himself and confirmed the incident. A Full Disciplinary process followed on the 8th July with all proper employment procedures followed. Representation was offered at all times but declined by the Complainant. All evidential materials, including CCTV, were made available to the Complainant. A full Appeal was allowed and carried out on the 31st July 2019. The Complainant never at any stage denied the incident.
The Respondent is a major Company in the Licenced Trade and the possible sale of Alcohol to young person is taken most seriously. It is first of all a significant legal matter that could result in the Complainant losing their Pub Licence. It is also the subject of extensive Staff Training which the Complainant had received. A major breach of trust between the Employer and the Employee had occurred.
The Dismissal was not a disproportionate actions and extensive legal precedent was quoted to support this argument. The Complainant was an experienced staff member and the actions involved in selling alcohol, without requesting identification/age, could only be characterised as Gross Misconduct.
The Dismissal was a fair response and indeed the only possible decision by the Employer.
2:2 Minimum Notice Complaint CA: -00031252-002
As the dismissal was for Gross Misconduct Minimum notice does not apply.
3: Findings and Conclusions:
Section A - Unfair Dismissal Complaint – CA-00031252-001
3:1 The Law.
Section 1 of the UD Act, 1977 under Definitions defines Dismissal as
“dismissal”, in relation to an employee, means—
( a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,
Section 6 of the UD Act,1977 provides
6.— (1) 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.
Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.
3:2 Natural Justice
In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.
In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:
The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.
The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied.”
More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.
3:3 The Role of the Adjudicator
There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.
The cases of Foley v Post Office  ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited  IEHC 445
“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:
“The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”
The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones  ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.
The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.
The Tribunal applies the test of “reasonableness” to
1. the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,
2. whether the procedures adopted were fair and reasonable and
3. the reasonableness of the conclusion arrived at by the Respondent.
However, all case rest on their own evidence and factual matrix and I will now examine these.
3:4 Consideration of the Evidence.
There was considerable Oral and Written evidence presented in this case. As a guideline I will look at the points made by Mr. Justice Flood, as quoted above, in the Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC137 and in particular point one
The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
and with regard to Section 6 (2) (c) of the Unfair Dismissals Act, 1977.
( c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness.
However, I am also conscious of the proper role of the Adjudicator is not to substitute themselves for the proper decision-making employer.
There are four key questions in this case
1. As per Justice Flood above, was there another Agenda at play here?
2. Is the Alcohol Under Age policy and its implementation legally and HR Procedurally robust such as to justify a Dismissal for Gross Misconduct -particularly for a first offence?
3. Was the Dismissal “Proportionate”?
4. Employer Procedural issues regarding the Dismissal and Employee contribution if any?
3:4:1 Another Agenda?
It is not for an Adjudicator to make unjustified assumptions and to read into matters things that are not available to proof of a required level.
However, a reasonable doubt can be raised or as in an Equality Case a “Reasonable inference” can be raised by Employee Legal representatives and the Respondent Employer invited to rebut.
In this case the Complainant had two legal actions running against her employer. The Employer had been tardy in response and the Complainant’s Solicitor had written on the 27th June mentioning the possibility of a Reference to the PIAB. It was a fairy standard and not necessarily overly bellicose legal missive. The Mystery Shopper than appeared on the 4th July, barely a week later, and carried out his test when the Complainant was effectively alone as a Food/Drink serving person in the Pub.
The Mystery Shopper did not give evidence to the Hearing, but the Respondent witnesses explained that he normally took his instructions direct from the Owner of the Chain. It appears that he is a retired member of the Gardai. The Respondent witnesses effectively knew very little about his modus operandi and his choice of time and place for his exercise.
The issue raised by the Complainant’s Legal Representation was the fact that Under Age Alcohol testing as set out in the Guidelines is properly a function for the Gardai. Section 14 of the 1998 Act 2008 amending Section 37(c)(1) of the Intoxicating Liquor Act, 2008 Act clearly refers to
The Mystery Shopper was not a serving member of the Gardai, the names and identity of the Young Persons were never revealed, and his report was not subjected to any reasonable questioning.
As the Complainant did not have, by her own choice, any Representation, at the internal Dismissal or Appeal Hearings these are issues which remain unanswered.
The Respondent witnesses, Manager, Ms Xa and Manager Ms. Xb were in their Oral evidence, to my mind, very weak in this area other than to acknowledge the close relationship between the Mystery Shopper and the Owner of the Chain.
I was left with a clear feeling that the presence of another agenda in relation to the Civil Actions as per Section 6 (2) was possibly at play here. I was not convinced by the denials or demeanour of the Respondent witnesses.
However, I had to acknowledge that my uneasiness, especially in the face of a lack of any concrete evidence, was not in itself sufficient grounds to decide the Unfair Dismissal case.
3:4:2 The Under-Age Policy.
This is set out at Page 56/57 of the Employee Handbook.
“Any customer who appears to be under 23 must be asked for proof of age. You must check the ID and their date of birth and be fully satisfied the customer is of legal age”
There was much discussion as to the meaning of the phrase “Appears to be under 23 years of age”.
The Complainant was a very experienced Bar Person both with the Respondent and previously. She strongly maintained that in her view the persons concerned were over the 23-year mark. She had not asked for Age identification as she felt that it was unnecessary.
I felt her oral evidence was straightforward and heartfelt. There was absolutely no suggestion that she had willingly, by Commission so to speak purposefully sold the Alcohol. It was an act of at best Omission to which she willing admitted. It was interesting that she declined to view the CCTV on the incident and was completely open in her admissions. She also proceeded without any support or Representation initially believing that Employer policy largely precluded this.
In precedent cases referred to and in particular the recent case of ADJ-00013597 the Adjudication Officer comments on the need for balance between the strict prohibitions on the underage sale of Alcohol and the often, necessarily ambiguous, Company Policy particularly in the area of Age determination.
In ADJ-00013597 the Adjudicator refers to the need for a
“balance between the responsibility of the Retailer and the capacity of a cashier to act as the first and only line of defence”.
In the case in hand the Complainant was very experienced, had been well trained and had often, previously, asked for age evidence.
There was no robust evidence from the Respondent as to what exactly “Appears to be under 23” actually means and how a Bar person can realistically implement it short of asking all Customers, not positively and obviously middle aged, to produce age identification.
In short there is a grey Area in the lower ages, the early to mid-20s, that will never be adequately addressed and the Alcohol policy by the “Appears to be” phraseology allows for this. The discretion of an experience bar person, such as the Complainant has also to be allowed for particularly in the efficient running of a busy Pub.
To base a Dismissal on Grounds of Gross Misconduct for effectively a first offence in relation to the Age grounds is not a sustainable policy in view of the ambiguities involved.
The Policy in the Handbook is a good effort at addressing a most serious issue but of practical necessity has a grey area. As a basis for first offence Gross Misconduct dismissals, where there is clearly no wilful intention on the part of an experienced employee to break the rules (she openly admitted she had made an inadvertent mistake), it simply does not stand up to any degree of Legal scrutiny.
3:4:3 Was the Dismissal proportionate?
The Hennessy v Read and Write Shop Ltd. UD192/1978 case referred to abovesets out the basic tests involved here. On the first face of the tests the Respondent has complied with all requirements of good procedures and proper Hearings.
However, all Legal precedents point to the definition of Gross Misconduct as something completely egregious - so utterly bad and malign that only one employer option is possible. Physical assault, serious theft, commercial fraud, major wilful damage to property are often cited as examples.
From the evidence in this case none of these issues were present. One issue of interest was that the Under-Age Incident was a private affair not involving the Gardai. There was no automatic legal follow for the Employer in regard to the Liquor Licence.
The sanction of Dismissal has often been referred to as the “Nuclear Option” in Employment situations. From reviewing all the evidence in this case, I could not come to the view that a “Reasonable” employer would see the ending of employment in this case as “being in the band of reasonableness”.
There was a range of lesser sanctions that could have been used,particularly in the case of a first offence by a long standing very experienced employee. The Employee had openly admitted the offence and made no efforts to deny or conceal the matter. She had raised it immediately with her manager.
It was of interest to note from the minutes of the Staff Training session of the 15th May that the issue of Under Age was under investigation in two Group Premises and that the Gardai were investigating. It was stated that staff would be disciplined - full disciplinary procedures will be gone through. The issue of an almost automatic dismissal is not mentioned. The Respondent witnesses, when asked regarding other possible sanctions, were, I my view, quite uncomfortable.
In summary the sanction of ending employment for a first, openly admitted, mistake by an experienced employee in an ambiguous situation, who made no effort to conceal her actions, was not in the Band of Reasonableness, serious Legal issues notwithstanding, for any Employer.
3:4:4 Procedural Issues/ Employee contribution.
There was much Written and Oral evidence in this case. The Dismissing Manager, Ms Xc from HR, was no longer an employee and the witness was Ms Xa, primarily a Finance Person, the Group Payroll Accountant, who seemed to me quite uneasy in her entire involvement. She had accompanied Ms. Xc at the Hearing. In her Oral evidence and in cross examination by the Complainant Legal representative it was obvious that she had understood, in advance, the result that was expected from Higher Management. The Appeal Chairperson, Mr. Xd, did not give evidence but the accompanying Manager Ms.Xb gave evidence. Ms. Xb was a Head Office Manager who appeared to have a general overseeing role in the Company. Again, it was clear from her evidence and demeanour the result that Senior Management wanted from this case. I had serious doubts about the stated professional Independence of the Respondent witnesses in considering any defence from the Complainant.
An Adjudication Officer cannot allow him or herself to engage in speculative guess work or to make unfounded assumptions, but a reasonable inference can, at the same time be drawn.
My final summary on this point is that, from the evidence given at the Oral Hearing, there was a significant inference of a lack of Independence from the views of Higher Management in Manager decision making and fair consideration of evidence from the Complainant.
3:5 Final Summary in relation to Unfair Dismissal.
My finding is that the Dismissal was primarily Unfair on grounds of Proportionality – Dismissal is a Nuclear Option and the facts of this case did not in my mind warrant an almost Automatic Dismissal for Gross Misconduct.
The Under-Age Policy in the Handbook allowed for an element of interpretation by the Staff member. The Complainant was a very experienced Bar Trade worker and there was absolutely no evidence presented that she had wilfully or with malign intent served the underage persons such as to escalate it to a Gross Misconduct penalty.
The Mystery Shopper incident was not carried out by a serving member of the Gardai. The Complainant’s Legal representative rightly queried the whole basic legality of the incident. To base a Penalty as severe as Dismissal on the Incident was in my mind not one that a reasonable employer would support.
In coming to this decision, I also had serious doubts in regard to how “close to the wind” the Respondent came in regard to Unfair Dismissal Act, 1977 Section 6(2) and automatic Unfair Dismissal where an employee is involved in civil proceedings against the Employer. Concrete evidence to support his view was lacking but none the less I was distinctly uneasy. The dates involved between Complainant legal correspondence and the Mystery Shopper incident when the Complainant was on her own were a very questionable temporal coincidence.
Likewise, the Oral Evidence and their replies to cross examination by the Complainant’s Legal representative from the two Managers who attended the Hearing did not give me any reassurance of the Independence of the Process.
In final overall summary, therefore, I find that the Dismissal was Unfair.
Section B – Minimum Notice Complaint
3:6 Minimum notice complaint CA-00031252-002
As an Unfair Dismissal has been found the Minimum notice complaint is automatically well founded,
Minimum Notice of 4 weeks’ pay weeks is awarded.
4: Decision and Redress.
Section 41 of the Workplace Relations Act 2015; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andSection 12 of the Minimum Notice & Terms of Employment Act, 1973requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim CA -00031252-001 consisting of a grant of redress in accordance with section 7 of the 1977 Act.
As Redress for Unfair Dismissal I award the sum of €20,000 being approximately one year’s earnings. I was satisfied that the Complainant had made serious efforts to secure other employment.
For Minimum Notice CA-00031252-002 I award 4 weeks’ pay being € 380 x 4 = € 1520 as Statutory Minimum notice.
The Taxation of the above amounts is to be considered in conjunction with the advice of the Revenue Commissioners.
Workplace Relations Commission Adjudication Officer: Michael McEntee