ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033280
Flutter Entertainment PLC
Ms. Niamh Ní Cheallaigh, IBEC
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 13/10/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced employment with the Respondent on 17th February 2015. While initially engaged as a retail assistant, the Complainant was promoted to the position of deputy manager in the course of her employment. The Complainant was a permanent, full-time employee and received an average weekly payment of €555.20. The Complainant’s employment was terminated by the Respondent on 25th November 2020 on the ground of alleged gross misconduct.
The Complainant referred the present complaint to the Commission on 12th May 2021. Herein, she alleged that the sanction of dismissal was disproportionate given the relevant mitigating circumstances. In denying this allegation, the Respondent submitted that the dismissal of the Complainant was a proportional response to the misconduct accepted by the Complainant.
A hearing in relation to this matter was convened for, and finalised on, 13th October 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
As the fact of dismissal was not in dispute, the Respondent presented their case first.
Summary of Respondent’s Case:
The Complainant commenced employment with the Respondent on 24th February 2015. At the commencement of her employment, the Complainant’s job title was that of “retail betting assistant”. In the course of her tenure, the Complainant was promoted to the position of “deputy manager”.
On 11th November 2020, the Complainant was invited to an investigation meeting regarding an alleged breach of the Respondent’s security policies and procedures. This investigation took place the following day. During this meeting, the Complainant accepted that she had been read and signed the Respondent’s procedures regarding security, shop procedures and compliance on 25th February 2015. In particular, the Complainant confirmed that she signed a memo regarding personal betting and IOU’s. The Complainant’s attention was drawn to a section of the same which states that “You cannot give credit to a customer. All customers must pay for all bets in advance.” During this meeting, the Complainant disclosed that there had been instances of facilitating credit betting in the branch and falsification of cash shortages through adjusting cash balances. In disclosing the same, the Complainant accepted as true the allegations that the Respondent raised.
Following the investigation meeting, the Complainant was placed on paid suspension pending a disciplinary hearing. The Complainant was provided with the notes of the investigation meeting and her training records in advance of the disciplinary hearing. During a meeting dated 19th November 2020, the Complainant again accepted that she provided credit to a customer in breach of procedure. She accepted that she had been trained in relation to this matter and was aware that it was against company policy. In her defence, the Complainant states that she had often observed credit being issued customers in other stores. She was also aware that the co-manager was engaged in the same activity. She was concerned that if she did not provide credit to customers in this manner, the branch would lose business. The Complainant further started that she had a clean disciplinary record and gave assurance that the misconduct would not occur again. On 25th November 2020 the Complainant was informed of the outcome of the disciplinary process. She was advised that in circumstances whereby she had knowingly breached company procedures regarding the provision of credit and the falsification of cash shortages the bond of trust and confidence had been broken. As a consequence of the same, the Complainant was dismissed on the grounds of gross misconduct.
The Complainant elected to appeal this outcome in line with company policy. However, on 9th December, the Complainant advised that she wished to withdraw her appeal.
By submission, the Respondent submitted that the accepted actions of the Complainant constituted gross misconduct for the purposes of the present Act. It was submitted that credit betting is expressly in breach of the Respondent’s procedures. Such practice is prohibited on good grounds as it could potentially lead to customers incurring insurmountable debt and facilitate gambling problems. The policy regarding credit betting and the seriousness with which the Respondent views the same is strongly referenced from the commencement of employment and throughout. It was submitted that the Complainant’s contractual and natural rights were respected throughout the disciplinary process and that the decision to dismiss fell within the band of reasonable responses open to the Respondent. Finally, the Respondent submitted that the Complainant’s failure to appeal the sanction of dismissal should be fatal to the present complaint.
In evidence, the Complainant’s District Manager stated that he could not recall the specific conversation referred to by the Complainant is her submission. Notwithstanding the same, he stated that if he was informed of such activity he would immediately state that it is against company policy and that it should stop immediately.
Summary of the Complainant’s Case:
The Complainant stated that she commenced employment as a “retail betting assistant” and by virtue of her hard work and trustworthiness was promoted to “deputy manager”. The Complainant stated that throughout her career she had seen several instances of credit betting being facilitated. She stared that this might occur when a customer needs to go to the ATM or has forgotten to bring payment with them. At their particular branch, the Complainant’s manager allowed a certain individual to place bets over the phone and pay for the same later on. This particular manager also instructed one of the staff members to accept such bets from the customer. Given that the Complainant was the deputy manager of the branch, she was occasionally working without the manager or the instructed employee present. In such circumstances, the Complainant stated that he was expected to accept such bets from the customer. The Complainant stated that she would take the bet, write WTC (“written for customer”) on the docket and attach the customer’s name to the docket. This process sometimes involved falsifying the cash balance, as the cash for the transaction would not be in the till but during cash checks it would be added to the total.
The Complainant stated that she accepted that this conduct was incorrect and felt deeply uncomfortable with these actions. She stated that she was doing so only on the instruction of her manager and felt she was in an extremely difficult position. The Complainant stated that this issue of bets being phoned in was discussed between her Manager and the District Manager in her presence. At this time, the District Manager stated that this is against policy, but no further action was taken.
During the investigation and disciplinary meetings, the Complainant was completely open and honest about the activities and accepted that she had committed some wrong-doing. Notwithstanding the same, she submitted that she had been placed in an extremely difficult position by her manager. The Complainant stated that in her six years of service, she did not have any disciplinary sanctions. Having regard to the same, the Complainant submitted that the sanction of dismissal was disproportionate and that she had been unfairly dismissed. The Complainant stated that she did appeal the sanction but that she withdrew the same due mental burnout.
In answer to a question posed by the Adjudicator, the Complainant stated that she was aware of the Respondent’s whistleblowing policy. When asked why she did not engage with the same when she knew she was engaging in prohibited activity, the Complainant stated that she hoped the matter would resolved without recourse to the same.
Findings and Conclusions:
Section 6(1) of the Unfair Dismissals Acts provides that,
“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”
Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed….not to be an unfair dismissal” for the purposes of the Acts.
Section 6(6) provides that,
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4)”
Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:
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…..with the procedure….or with the provisions of any code of practice….”
The matter of Noritake (Irl)Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:
· “Did the company believe that the employee misconducted himself as alleged?
· If so, did the company have reasonable grounds to sustain that belief?
· If so, was the penalty of dismissal proportionate to the alleged misconduct?”
In the present case, the Respondent has asserted that they acted reasonably in dismissing the Complainant on the grounds of gross misconduct, and as such the Complainant’s application under the Acts must fail. In the alternative, the Complainant, while accepting the conduct in question occurred, submitted that the Respondent failed to consider the relevant mitigating circumstances. Consequently, she submitted that the sanction of dismissal was disproportionate and consequently her dismissal was unfair for the purposes of the present Act.
The Respondent is one of the largest gaming and gambling companies in the country. As such they have understandably strict rules and policies regarding the acceptance of bets and cash handling procedures. One such of these rules prohibits the granting of store credit, or the acceptance of a bet without payment on the understanding that payment would follow shortly thereafter. It is clear that such a practice is strictly prohibited by the Respondent. The Complainant, and all other retail employees undergo training in relation to the same at the commencement of their employment, in addition to a six-month refresher course throughout their employment. It is also apparent this rule is in place for extremely good reasons. The provision of store credit could easily serve to enable poor gambling practices, and could potential exacerbate gambling addictions. Such behaviour also inevitably leads to the falsification of cash receipts as the employee has credited the system with funds that have not yet been provided.
Following on from the above, it is reasonable that the Respondent would take a strict view regarding a breach of this policy by an employee. In this regard, the Respondent’s employee handbook list a “Serious breach of company security policies and procedures” as an example of gross misconduct.
In the present case the Complainant, to her credit, at all times accepted that she knowingly and deliberately breached the store credit and cash handling procedures. She further accepted that she had received the relevant training regarding the same. The case advanced by the Complainant is that while she committed the misconduct in question, the mitigating factors present were such as to render the sanction of dismissal disproportionate.
The first such mitigating factor advanced by the Complainant is that the misconduct was committed on the behest of her manager. The first point to note in relation to the same is that the Complainant is a long-standing member of staff of the Respondent and was herself a manager at the relevant time. By the Complainant’s own account she engaged in the misconduct when the manager in question was not in the premises or at work. The Respondent has extensive procedures regarding the reporting of such activities and the Complainant accepted that she was aware of the same. It appears that the Complainant, in an act of misplaced loyalty, followed the wishes of direct manager rather than reporting the issue to the Respondent in the correct channels.
The second point raised by the Complainant is that the matter was raised with the District Manager but nothing was done following the same. In this regard, taking the Complainant’s evidence at its height (and it must be noted the District Manager disputes this version of events), a vague issue regarding store credit was raised with the District Manager during a casual conversation. At this point the District Manager advised that such action is prohibited and against company policy. It is the Complainant’s position that the District Manager should have done more to prevent the misconduct happening at this point. Having considered this submission, I cannot find in the Complainant’s favour. In the absence of the Complainant making a complaint about the actual persons involved in the misconduct through the relevant channels, it is difficult to envision what the District Manager was to do about the situation. Rather, it appears that the District Manager was informed of potential misconduct and advised that it was to stop immediately.
Finally, the Complainant submitted that as she had no previous disciplinary sanctions on file, she should not have been dismissed. In this regard I note that the Respondent’s submission that that the misconduct was of such gravity that this did not mitigate the sanction to be imposed.
The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly  IEHC 241, Noonan J. approved the following passage,
‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
In the present case, I do accept that the Complainant was placed in an unenviable and difficult position. I accept that she was asked by a manager to take a course of action that she was deeply uncomfortable with and caused her distress. The Complainant was placed in a position where she had to make a choice between taking her manager’s instruction or reporting the matter through the correct channels. Unfortunately, the Complainant made the incorrect decision and committed misconduct that she knew to be against company policy and potentially harmful to the business and its customers. From the Respondent’s point of view, they are entitled, if not obliged, to strictly enforce their rules and procedures regarding gambling behaviour.
Having regard to the same I find that while the dismissal of the Complainant could potentially be viewed as a harsh outcome, the sanction of dismissal fell within the band of reasonable responses available to the Respondent.
Finally, I note that the Complainant briefly engaged with the appeals process prior to terminating the same. In the matter of An Employee v An Employer ADJ 0000381 the Adjudication Officer stated that:
‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction”.
Having regard to the accumulation of the foregoing points, I find that the Complainant was not unfairly dismissed and consequently her complaint is not well-founded.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complainant was not unfairly dismissed and consequently her complaint is not well-founded.
Workplace Relations Commission Adjudication Officer: Brian Dolan
Gross Misconduct, Band of Reasonable Responses, Appeal