Complainant

Respondent

Parties

Devendrasingh  Boodhun

The Schoolhouse Hotel Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Ken O’Connor

Graham Bailey

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059668-001

28/10/2023

The complainant commenced employment with the Respondent on 18th August 2018 and was most recently employed in the capacity of Bar Manager until the date of termination on 4 July 2023.

The complainant submits that he was unfairly dismissed after allegations that he was "defrauding customers" by adding 10% service charge to the bills of smaller tables that it would not normally attract a service charge.

The complaint was submitted on 28th of October 2023.

The complainant submits that on 22nd June 2023 – he was called in for a “catch-up” with the General Manager of the Schoolhouse Hotel, Mr. Jeff Cronin (GM).

 During this meeting there was a general conversation about service charges where staff were allegedly adding service charges to customers’ bills on tables of below eight people contrary to the respondent’s policy in this regard.

Policy in this regard had changed since March 2023 (however, the manner of the communication of this change was not clearly communicated to staff).

The complainant submits that  secondly, he was advised that a complaint was made against him by a member of staff under his supervision “informally”.   he was advised that this member of staff did not feel comfortable working or being around him.

He was told he was being suspended for two days on full pay.  He  got his things and left the premises immediately.

On 23rd June 2023. The complainant was advised by email by the GM  that an investigation was taking place and that he would be given full details. He replied raising questions as to what the allegations were; what policy the investigation was being conducted under; how long the investigation would take; what other measures were considered short of suspension and what were the team being told when he was off?   This initial suspension was never lifted.

On 26th June 2023 the complainant  was provided with details of two allegations by the GM ; firstly a statement of Mr. F, a member of the Schoolhouse staff which alleged improper conduct on the complainants behalf  and a new allegation was now introduced which related to an allegation that the complainant did not apply the service charge policy correctly with a list of supporting dates where service charges were found not to be in line with the new policy.   The complainant submits that this was the first time this allegation was raised against him.

On 27th June 2023 the complainant responded by email addressing all the allegations raised and asking  for clarification about the service charge issue now newly raised as he understood that he had been suspended on the basis of Mr. F s  complaint.

On 29th June 2023. Complainant was invited to an “investigation meeting” to be held on 30th June. He submits that he was not advised in advance what matters were to be discussed at the investigation meeting and was not provided with any evidence in advance. When he sought clarification as to what was to be discussed, was advised that only the service charge issue would be discussed but not the allegations raised by Mr. F.  as Mr. Fs allegations were not being further pursued.

On 30th June 2023. The “investigation meeting” was conducted by the GM together with a Mr. S a HR Consultant retained by the respondent. 

The complainant  was provided with a list of additional dates where it was alleged that service charges were raised on tables of less than eight persons contrary to company policy.

The complainant denied charging service charges inappropriately and put the following explanations forward.

 1. Customers often ask that a tip is added to a bill, this is actually common practice in restaurants/hotels, so the presence of a service charge on a bill does not of itself prove any misconduct on his part.

The customer may ask for this as a way of obtaining re-imbursement of the expense.

2. My till code was common knowledge among the staff, a fact known to the GM  so the fact that the complainants till code was used to process a bill proved nothing. The record of his  till code to process the transactions was relied on as proof of misconduct on his part.

 3. One of the dates listed was a day where he had already been suspended from duty and consequently not at work.

4. He was given no prior notice of these allegations – but was simply ambushed with these details at the meeting.

 The complainant submits that the way the service charge policy was originally communicated to staff was via a WhatsApp message to his private phone, which the complainant says was actually illegible and he suggest, highly irregular – the communication of the policy change to staff was inept.

Additionally, he submits that staff are actually prohibited by a term in their contract of employment from using a mobile phone while on duty.

 The GM and Mr S  rejected this response out of hand.    The complainant submits that he had understood all issues regarding service charge policy had been resolved until this allegation suddenly was resurrected .

The GM and Mr. S refused to consider that any innocent explanation was possible and decided the “evidence” presented proved misconduct on the complainant’s part  The “meeting” was closed in 12 minutes.

 On 3rd July 2023 the complainant was invited to a “Disciplinary” meeting to be held the following day on 4th July. Again, he submits that he was not provided with any documents or evidence in advance but was simply told that the company would outline their position following its investigation into various matters.

 On 4th July 2023 The meeting was again convened by the same parties, the GM and Mr. S at which the complainant submits he was simply handed a document described as a disciplinary outcome letter advising him that he was dismissed with immediate effect’s complainant submits that for the first time at this meeting, an entirely new allegation was raised about a video (from a private WhatsApp group he had  established among a group of friends with no connection to his employment, other than chance a co-incidence that some members were past or present employees.

This video had come into the possession of the respondent, but It did not identify the respondent  in any way.   The complainant submits that the respondent  again changed track to rely now solely on this video as grounds of “gross misconduct” to justify the complainants dismissal.

The complainant submits that he has subsequently discovered that an email was circulated among all staff of the on 4th July 2023 which referred to him in terms that can only be described as highly derogatory and even defamatory.

The complainant submits it that it was clear to him that any appeal process entertained by the employer subsequent to 4th July 2023 was only going to have one outcome – to uphold the dismissal.

On 19th July 2023. An Appeal Hearing was held convened by Ms. K co-owner of the premises together with again the HR Consultant/investigator/fact finder/decision maker already involved apparently at every stage of the process – Mr. S.  It is submitted that no meaningful appeal was conducted.

 The complainant  was advised on 25th July 2023 that his appeal had been unsuccessful, and the dismissal upheld.   The complainant submits that  the decision to dismiss me had been made by 22nd June 2023.

The complainant denies all the allegations which have been raised against him and submits that he has done so from the outset. But yet his employer refused to accept any innocent explanation which was put forward and accepted as fact the allegations raised without allowing him the opportunity to challenge his accusers. The complainant submits that the outcome was a foregone conclusion from the start  the process followed was grossly unfair, prejudicial and biased.

 The complainant submits that the decision to dismiss him had already been taken by 22nd June 2023 and the “process” that followed thereafter was simply a ruse to justify that decision.   The complainant submits that his employment performance for almost 5 years with the Schoolhouse Hotel was of an exemplary standard, such indeed that he was promoted twice most recently  to the position of Bar Manager on 14th October 2021.

There was never any issue raised with his performance by management or any of my colleagues until 22nd June 2023 and he was without any prior notice called in by the GM  on 22nd June, 2023 and advised that he was being suspended from duty as a result of what he was told initially was a complaint made against him by a member of staff under his supervision.

 The complainant submits that he believed the GM  was just calling him in to discuss various operational matters as he had asked him to drop in to him for a “catch-up”.

The complainant submits that the GM engaged in a discussion about service charges with him  at this first meeting of June 22nd, 2023, in an offhand casual way- but that there was no suggestion whatever that he was suspected of any wrongdoing.

 Secondly, it is submitted that the GM then stated that a member of staff had raised an informal allegation about the complainant without specifying what. And the complainant was then summarily suspended from duty.

 Subsequently on 26th June, the complainant states that he was told there were two allegations against him and he was  provided with a statement by a staff member, Mr. F which was in the nature of allegations of bullying/harassment together with an allegation that the complainant  was not fair in allocating tips to him.

The complainant submits that he responded to the allegations made challenging every point raised and that he  was never previously advised that there was any issue raised by Mr. F.   The complainant adds that Mr. F  is one of the staff members who continually communicated with the GM in Portuguese while on duty.

By the 27th of June, the complainant  was advised that the investigation now in place against him was relating to a breach of the service charge policy only and it appeared the complaints from staff members were not being proceeded with.

The complainant was invited to an “investigation meeting” to be held on 30th June 2023 at 10.30am Which he was notified of on 29th June 2023 at 11.19am.

The complainant submits that he was told at this short notice that only the service charge issue was to be discussed, and he was given only vague details of what these allegations were.   The issue of the alleged bullying of Mr. F was apparently no longer being proceeded with

The complainant submits that  the basis upon which he was suspended on 22nd June 2023 was no longer being proceeded with and instead another allegation of improper imposition of service charges on customers was being substituted in its place.

A list of six dates was sent to him in advance of the meeting during which it was alleged he had breached the service charge policy  which included a date where the complainant  was actually suspended from duty.

 An additional six dates were produced at the “investigation” meeting of 30th June without any prior notification.    These were the dates where it was to be alleged the complainant had wrongly applied service charges to customers.

On 30th June, the complainant  attended the “Investigation Meeting” which was being conducted by Mr. S a HR consultant retained by the employer together with the complainant’s manager the GM.

It is further submitted that Company policy in relation to service charges had changed in March 2023 to the effect that service charges would be applied to tables of 8 and over where it had previously applied to tables of 6 and over.

The complainant pointed out; •

This matter had been discussed generally at a staff meeting on 7th June and he understood it was resolved.

He only became aware following GM s email  on 26th June that this matter was now being investigated against him,  so it appears the allegations of improper conduct towards staff was not being proceeded with, notwithstanding the fact that it was on the basis of that allegation he was suspended.

 It is submitted that there was confusion with the way this change in service charges was introduced. There had been two different service charges applicable to customers– one in respect of the drink’s menu (parties of over 6) and another for food (parties over 8). The way the service charge issue was regularised was to print new menus.

 The new service charges were then communicated to staff by means of printing new menus where the writing on the service charge issue was in small print on the bottom of the menu.

 These new menus were then circulated to staff by means of WhatsApp messages on the complainant’s private mobile phone, which was in fact illegible.   The complainant submits that this is the way this new policy on service charges was “clearly communicated” to staff.

 There was no such clear communication of the change with regard to service charges in fact it was most confusing.

 The complainant further submits that the Company Handbook and the Contract of Employment prohibit staff using mobile phones while at work.

The complaint submits that one of the dates forming the basis of the allegations – June 23 was a date where he was already suspended from duty. •

The basis of the allegation in respect of the service charges  the fact that the complainants till pin was used to authenticate the transaction on the till receipt. (only management personnel were in theory allocated such a till pin, but the reality was that it was common knowledge among the staff what this code was, and it was frequently used by other staff members to the knowledge of company management).

The complainant further submits that  customers often request that a charge of 10% is added to the bill as a tip.  These responses were immediately dismissed and rejected by GM and the HR consultant, Mr. S without any further enquiry.

 The complainant submits that his arguments were not considered and that they had made conclusions on the basis of their own flawed investigation and refused to consider that there could have been any merit in his response to the allegations.

Another issue of serious concern was the identity of the investigation team.

 Mr. S was represented as an outside HR consultant who was brought in to manage this investigation, but it appears the investigation work was done by GM the complainants  former manager.

It is submitted that the GM accepted as fact everything he was told from all parties except the complainant and allowed him no meaningful opportunity to test the credibility or accuracy of the issues accumulated against him.

 The complainant submits that the outcome had already been decided by the date of his suspension i.e. 22 June and then simply sought to accumulate “evidence” to support that conclusion.

 The complainant was invited on 3rd of July to a  “Disciplinary Meeting” to be held on 4th July. Again, he  was given less than 24 hours’ notice of the meeting and only scant details of what was to be discussed.

The complainant submits that at this meeting  he was simply handed an unsigned and undated decision sheet and told that he was dismissed with immediate effect.

In addition, the same team were present on behalf of the employer, namely Mr. S and the GM and this meeting lasted less than ten minutes.

The complainant submits that at this Disciplinary meeting new evidence was introduced in the form of the video which he has  already described earlier and relied upon as evidence of “gross misconduct” and so to justify his summarily dismissal.

The complainant submits that for the first time he was told that there were two more statements which had since come into the possession of the employer of colleagues who had raised complaints against him in the nature of bullying/harassment and/or breach of the service charge policy.

Following this “Disciplinary Meeting” the complainant submitted a detailed letter of appeal to his employer outlining all of his complaints regarding the process and the manner of his dismissal.

He also complained about the lack of partiality which had been displayed.  An appeal hearing was convened on 19th July 2023 which the complainant submits was an absolute charade.    Mr. S again attended the appeal with one of the co-owners of the business namely, Ms. K.

The complainant submits that  on the very day of his dismissal 4th July 2023 and within an hour of same, an email was circulated to staff at the respondent Hotel which referred to the complainant in most disparaging and derogatory terms.  This email made it clear, that there was never  any doubt as to the real mindset of the “Appeal Board” who sat to hear his appeal actually.  On 25th July 2023 the complainant was informed that his dismissal had been upheld by the “Appeal Board”

The Complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice.

 The Complainant commenced employment with the Respondent on 18th August 2018 and was issued with a contract on 29th November 2018. The Complainant was most recently employed in the capacity of Bar Manager. The Complainant remained in employment with the Respondent until the date of termination on 4 July 2023.

Timeline 22/06/23 Complainant suspended pending investigation of allegations as a result of what appeared to be the inappropriate implementation of the service charge policy.

23/06/23 Witness statements taken around allegations.  Complainant requests clarification around duration of suspension.

24/06/23 Reply to Complainant addressing his specific bullet points above and providing him with a copy of the specific allegation.

27/06/23 Complainant responds to allegations, stating they didn’t know policy and someone else was using their till pin.

29/06/23 Invite to investigation meeting sent . 30/06/23 Investigation Meeting held. 

03/07/23 Disciplinary Invite Sent.  04/07/23 Disciplinary Hearing held.   Disciplinary Outcome Provided 

The Claimant was employed by the Respondent as a bar manager. 

On 22 June 2023, the Complainant was suspended as a result of what appeared to be inappropriate implementation of the service charge policy to allow the Respondent to investigate further. Several examples of these were identified.

 The claimant referenced a lack of awareness/knowledge of the service charge policy and has also suggested that other team members were using his PIN code, which is unique to each employee. He also stated that he was unclear of the changes to the service charge policy, despite these service charges featuring large for any sector and that the claimant, as Bar Manager who compiled and distributed the tips at the end of his shift, would have also benefited from the sharing of service charges.

The respondent submits that  as Bar Manager It was the complainant’s responsibility to know and understand the service charges, it was also his responsibility to train and explain it to other team members.

 As per the Respondent’s handbook: 2.3.1.1 “Company policy 1(e) states and therefore clear grounds for this action on some occasions temporary suspension on contractual pay may be necessary in order that an uninterrupted investigation can take place. This must not be regarded as disciplinaryaction or a penalty of any kind.”

 On 23 June 2023, the Complainant requested more information to be provided to explain the allegations made.    On 24 June 2023, the Respondent replied with a copy of the specific allegation. 

 On 27 June 2023, the Complainant responded stating he was not aware of the policy and that someone else must have used his till pin.

 On 29 June 2023, an email invitation was sent to attend an investigative meeting as per company’s policy. During the investigation a number of complaints were put forward by other team members at interview.

 As per the Respondent’s Handbook: 2.8.1 “Company Policy 1 (d) States On occasion it may be necessary for the company to conduct an investigation meeting to clarify a particular incident or occurrence prior to any potential disciplinary hearing. The purpose of this investigatory meeting is to establish the facts about a particular incident or occurrence, and the details of which will remain completely confidential…….”

 On 30 June 2023, an investigative meeting was held. As per the Respondent’s Handbook: 2.10.1 “Company disciplinary policy states Every effort will be made to ensure that any action taken under this procedure is fair, with you being given the opportunity to state your case and appeal against any decision that you consider to be unjust.

Company disciplinary policy E rules covering gross misconducted states: taking part in activities which result in adverse publicity to ourselves, or which cause us to lose faith in your integrity.”

The respondent submits that on 1 July 2023, it was confirmed by a colleague, Mr. G , that the Complainant had inappropriately applied the service charge policy.

Furthermore, a video was provided to have been taken on Respondent’s property in which the complainant appeared to take a colleague’s fruit for lunch and proceeded to rub them in the inside of his underwear.

This video was brought to the attention of senior management in the form of a WhatsApp video that had been made and distributed on the respondent’s premises and shared with a group of  employees.

 As per the Respondent’s handbook: 2.12.1 “Disciplinary policy states f (5) We reserve the right at our discretion the authority to bypass any step in the disciplinary process if we feel that the severity of the action warrants it. We will be fair in the application of such discretion.”

 On 4 July 2023, a disciplinary meeting was held,  A decision was made, and the Complainant was advised that if he is unhappy there is a procedure to appeal the decision.   As per the Respondent’ handbook: 2.15.1 “Company disciplinary policy K general notes 3&4 states

3. Gross misconduct offences will result in dismissal without notice. 4. You have the right to appeal against any disciplinary action.”

 It is submitted that the Respondent followed the correct procedure to deal with gross misconduct that resulted in termination of the Complainant’s employment.  Lastly, it is submitted that the Complainant was provided a right to appeal.

 On 28 October 2023 the Claimant commenced the within claim.

  In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

 The Complainant was informed in advance as to the nature of the allegation against him. He was afforded the right to representation. He was further provided with a fair and impartial hearing, at which he was given every opportunity to respond to the allegations against him.

 All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken.

 In light of all of the above, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.

The Respondent contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015.

This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

Without prejudice to the preliminary issues raised in respect of this claim, the Respondent denies that the Claimant was unfairly dismissed.

 The Respondent relies on section 6 (4) of the 2015 Act which states as follows: Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: …….. The conduct of the employee …….. …….. 4.5

 It is the Respondents position that based on the balance of probabilities that the Complainant was adding the service charge inappropriately.    This amounted to the Complainants conduct being deemed gross misconduct and as such the Complainant was dismissed in accordance with the Respondents disciplinary policy and procedures.

 The Respondent further relies on the Employment Appeals Tribunal decision in Hennessy -vRead & Write Shop Ltd UD 192/1978 which set out the general approach in respect of dismissals for conduct: In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.

The Complainant was provided with the Respondent’s handbook when he commenced his employment and as such was provided with a copy of the disciplinary procedure of the Respondent from that time. This complies with section 14(1) of the 1977 Act, which states:

An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. 

A copy of the disciplinary procedure was also provided to the Complainant at both the investigation stage and the disciplinary hearing stage and as such was well aware of the procedure that the Respondent intended to follow.

 In the High Court decision of Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, Flood J set down a list that must be established by the Respondent in order to support their ascertain that the dismissal for conduct of the Complainant was fair. The list set down by Flood J is as follows:

 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 or her version noted and furnished to a 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 the 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.

 It is submitted that in this current matter before the WRC, all of the above premises were met by the Respondent and as such the decision to dismiss for conduct was fair in the circumstances.

 The above High Court decision was supported by the Labour Court in their decision in Kilsaran Concrete -v- Vet UDD 11/2016 where the Court stated the following: However, there are a certain fundamental requirements of fair procedures that cannot be dispensed with regardless of theparticular circumstances that arise in an individual disciplinary matter. They include: The requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; The requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and In the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

The Respondent respectfully submits that the above three fundamental requirements of fair procedure as set down by the Labour Court were followed and adhered to when dealing with the Complainant.

As dismissal was not in dispute the burden of proof was on the Respondent to show that the dismissal was not unfair.

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“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.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, at this s.6(4)(b), the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable. 

In tandem with the reasonableness of the decision to dismiss an employee, the Act also requires an employer to have regard to fair procedures.  Section 6(7) addresses this issue:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(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 by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

The  Respondent submits s that the complainant was dismissed for gross misconduct arising from the  inappropriate implementation of the respondent’s service charge, by adding 10% service charge to the bills of smaller tables that  would not normally attract a service charge.   The respondent stated that it took the matter very seriously as the act of overcharging customers  had the potential to cause serious damage to the  respondent’s reputation.  

The respondent advised the hearing that the complainant was dismissed following a thorough investigation and disciplinary process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice.

 The respondent advised the hearing that the  Complainant commenced employment with the Respondent on 18th August 2018 and was most recently employed in the capacity of Bar Manager.

The respondent advised the hearing that the complainant was  suspended on full pay from 22nd of June 2024 pending an investigation into allegations that he was incorrectly applying a 10% service charge to table of less than eight customers who would not attract a service charge according to the respondent service charge policy.

The respondent advised the hearing that the complainant requested and was provided with details of the allegations. 

The respondent went on to advise the hearing that the complainant was invited to an investigation meeting which took place on 30th of June 2024.

The respondent advised the hearing that the complainant initially claimed that he was not aware of the service charge policy.  The respondent stated that this was not true as the complainant was Bar Manager and was responsible for notifying other staff about the policy.     

The respondent in its evidence advised the hearing that there had been a change in the service charge policy and that the new policy had been communicated to all staff on 4th of March initially via a WhatsApp message to a group in which the complainant was a participant.  The respondent states that complainant read this message.  The complainant in his reply on this to the respondent stated that the message was sent to his private mobile phone and that mobile phones are strictly prohibited at work.  The respondent advised the e hearing that the policy was communicated again on two more occasions via email on 29th of March and again, on the 7th of June 2002.

The complainant in his evidence sought to assert that WhatsApp message sent on 7th of March was illegible and sought to rely on an assertion  that he was only notified of the change in service charge policy in June.  

However, the complainant in cross examination admitted that he had been notified of the policy in March via a WhatsApp message which he admitted was legible.  The respondent advised the hearing that the complainant was also notified of the change in policy by emails dated 30th of March and again on 7th of June.  The respondent also stated that the service charge policy was printed at the bottom of the menus.    The respondent stated that the matter of the complainant overcharging tables of less than eight by applying the 10%service charge  was brought to its attention by staff and then checked against till receipts where the complainants till pin was used.   The respondent stated that it found a pattern of applying 10% service charge to tables of less than eight who should not attract a service charge under the policy.  

I note that the complainant  denied the allegations relating to the improper application of the service charge  initially providing a number of reasons as to how or why it may have appeared that he was incorrectly applying the policy.

In doing so he had put forward the following reasons.

Other staff using his till pin.

Customers asking for 10% tip to be added to the bill by way of a tip.

The complainant in his evidence to the hearing addressing what he said to the company during the investigation process, he said: "My point was, it's basically, for eight-and-under tables, if a party of four comes in… they've had a good decent service, starters, mains, desserts, they can say: 'Is a service charge included in that? No? Add 10%'".   

The respondent stated that it did not accept this explanation stating that this would be very unusual for customers to specify that they wished to have 10 % added to their bill as  people would usually just ask to round up a bill or leave an arbitrary amount as a tip.

Witness for the respondent GM when asked how the complainant went for being a great employee to being dismissed due to incorrectly applying the service charge stated that staff members had reported that the complainant had also been instructing them to incorrectly apply the service charge as well as doing it himself.

The respondent in this case stated that it took the matter very seriously as the act of overcharging charging customers it had the potential to cause severe damage to the  respondent’s reputation.

The complainant at the hearing was questioned by the respondent representative and was asked  how he thought the "inappropriate" taking of tips outside of a company's policy could "potentially impact on a brand's reputation".

The complainant replied that it would "probably tarnish the image" of any business.

I am thus satisfied from the evidence adduced that the complainant was aware that the  practice of overcharging customers could negatively impact the business.   

The respondent advised the hearing that on 1 July 2023, it was confirmed by a colleague, Mr. G , that the Complainant had inappropriately applied the service charge policy.

The respondent also advised that furthermore, a video was provided which was purported to have been taken on Respondent’s property in which the complainant appeared to take a colleague’s fruit for lunch and proceeded to rub them in the inside of his underwear.

The respondent advised that this video was brought to the attention of senior management in the form of a WhatsApp video that had been made and distributed on the respondent’s premises and shared with a group of  employees.

On 4 July 2023, a disciplinary meeting was held, and the complainant was dismissed.  

I note that the respondent in its evidence to the hearing stated that the act of applying the service charge of 10% to table which should not attract a service charge leads to a perception that the respondent is overcharging customers.

The complainant in his evidence to the hearing stated that one of the dates on which he had been alleged to have overcharged customers was a date on which he was not even in work as he was already suspended.   The complainant stated that a staff member must have used his till pin on this occasion as he stated that it was known to other team members.    The respondent in reply to this stated that other team members should not have had the complainants till pin as it was a pin used by management only and the respondent added that the complainant had been asked a number of times to change his pin in order that staff members could not use it.

The complainant also added that the 10% charge on tables of less than 8 could be explained by customers asking that 10% be added to their bill as a tip.   This was addressed by the respondent earlier in the hearing .

The complainant in his evidence also referred to the video stating that it was a prank between friends.  The complainant added that this video was not brought to his attention until the very last meeting.  

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows.

: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

 It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case.

 As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

The respondent in its evidence to the hearing stated that it had considered other possibilities apart from dismissal such as demotion but added that the evidence from staff members was that the complainant had been overcharging customers and instructing staff members to do the same. 

Witness for the respondent Ms. K stated that  they had a responsibility to the rest of the team to make the right decision.

Ms. K also added that the complainant had always given the impression that he was on side with the owners adding that she had not been aware how much the team members were ‘unduly influenced’ by the complainant. 

Ms. K stated that the complainant had handled the communication with staff members to such an extent that the owners would never have questioned him. Ms. K advised the hearing that there were complaints from four staff members about the complainant with two formal complaints lodged against him. 

The complainants  representative stated that the issue of the complainant’s behaviour towards staff was not raised with him during the meetings.

Ms. K also advised the hearing  that  the  complainant’s’ actions could have ruined their business..

The respondent submits that the actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal.

This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that: “[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

I note also that the reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[3].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee. 

Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[4],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

It is not for me therefore, as the Adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to his employer to make the decision they made, or if could they have made a different decision and applied a lesser sanction, or no sanction at all. 

Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”

I note that the respondent dismissed the complainant following an investigation into allegations that he was incorrectly applying the service charge policy by applying it to tables of less than eight people whose bills would not usually attract a service charge.    The respondent in this case stated that it took the matter very seriously as the act of overcharging charging customers it had the potential to cause serious damage to the  respondent’s reputation and stated that it could have ruined their business if it became known that they were over charging customers.

Conclusion

It is my view that the respondent in this case acted reasonably by dismissing the complainant therefore the dismissal was substantively fair..

I must now look at the procedures utilised by the respondent in the investigation disciplinary and appeals process employed by them in dealing with this matter.

Procedural Fairness

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd(2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”. 

I also note the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair.” [emphasis added] 

I note that the complainant was placed on paid suspension for the period for the investigation and that he was notified of same on 22nd of June 2024,  The complainant in his evidence to the hearing advised that he was not at the time told what the allegations were only that he was being suspended, and he has also claimed that he was left in the dark about the matter for an entire weekend.  

The complainant also advised the hearing that he was initially  told that there was a complaint against him by a staff member and that it was only after his suspension that he discovered that the allegations against him related to the improper application of the service charge.

The complainant stated that the respondent had raised further allegations against him during the process including referring to a video which was sent by the complainant to a number of friends some of whom happened to be staff of the respondent.   The video showed a person taking a banana and placing it inside his pants.    

The complainant stated that this was a joke among a private group of friends sent from his personal mobile and that it  had nothing to do with the respondent.  The respondent at the disciplinary hearing for the other matter had referred to this stating that it was a ‘vile act’ and stated that it warranted summary dismissal on its own.   I note that no separate investigation took place into this matter.

The complainant has sought to assert that the investigation and appeal outcome was a foregone conclusion, and this is due to the email of 12th of June from the respondent owner Ms. K to the GM in which Ms. K in respect of the allegation that the complainant has been overcharging customers by incorrectly  applying the service charge stated in her email to the GM that “any answer is unacceptable “.     Witness for the respondent and owner of the business Ms. K advised the hearing that she had sent this email as an instruction to the GM to meet with the complainant to get “his side of the story”.

The complainant appealed the decision to dismiss and that this appeal was heard by Ms. K.  I note that Ms. K is the owner of the company and that it was Ms. K who raised the matter with the GM.   

Ms. K went on to hear the appeal and upheld the decision to dismiss.

In considering whether the dismissal was procedurally fair I note that additional matters were raised with the complainant at the disciplinary meeting which had not previously been raised with him.  I also note that there was a significant cross contamination between the individuals who handled the various different stages of the dismissal in particular in respect of the involvement of the GM and the owner  Ms. K.

Having taken all matters into account I find that the Complainant’s dismissal was procedurally unfair within the meaning of the Acts.  Accordingly, I find this complaint to be well-founded.

Having regard to the totality of the evidence presented and taking into account all the circumstances of this case I award the Complainant the sum of €8,000.

I find that the Complainant’s dismissal was procedurally unfair within the meaning of the Acts.  Accordingly, I find this complaint to be well-founded   I award the Complainant the sum of €8,000.