Complainant

Respondent

Parties

Shayla Carracedo Berdonces

Luxury Reservations Limited

Representatives

Tomás Ó Síocháin

Independent Workers Union

Shane Crossan

O'Flynn Exhams Solicitors

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-00054389-001

06/01/2023

The Complainant  was employed by the Respondent  in Cork as a Senior Elite Services Associate starting April 18, 2018. Her salary was €31,648 p.a. at the date of her dismissal on 10 October 2022. She was  investigated for suspected irregularities of wrongfully  distributing  loyalty points in the Respondent’s hospitality scheme to herself, and to members of her family. The Complainant took responsibility for her actions, and she was dismissed by the Respondent for gross misconduct after a procedure that included an investigation, disciplinary hearing, and appeal. It is the Complainant’s case that she was unfairly dismissed because  she was not offered the right to representation during the investigation and at the disciplinary stage.

 The Complainant joined a trade union, the Independent Workers’ Union, on 15 August 2022 in order to gain representation in further dealings with the Respondent. A trade union representative was present on behalf of the Complainant at the appeal stage.

The Complainant’s representative accepted, at the hearing, that the substantive reason for dismissal is not in dispute but that the case is grounded on the argument that the failure of the Respondent to offer the right of representation to the Complainant made the dismissal automatically unfair.

It is the Respondent’s case that that the Complainant engaged in gross misconduct and her actions have been of a deliberate and fraudulent nature. The Respondent submits that they followed fair procedures, provided the Complainant with all relevant documentation and information, and acted fairly and reasonably in the circumstances.

Ms Natasha Keating, Director of Human Resources gave evidence on the training that the Complainant had received for issuing  loyalty points. She had been informed, as were all staff,  that abuse of the system could lead to  dismissal. She described the investigatory and disciplinary processes that had taken place. The witness had heard the appeal. The manager who conducted the disciplinary hearing had since moved on. Because of the misappropriation over four different periods  of thousands of  loyalty points, which were considered currency by the Respondent,  she felt that a lesser sanction than dismissal was not appropriate.

In  cross-examination the witness accepted that the Complainant was offered the opportunity to have a colleague appear as witness at meetings but not offered the opportunity to avail of representation, except at Appeals stage when the Complainant was allowed trade union representation. The witness said that the disciplinary policy was amended by the Respondent in November 2022 to reflect a right of representation in response to a Labour Court recommendation advising compliance with the Code of Practice of Grievance and Disciplinary Procedures SI 146 of 2000 (hereinafter “SI 146 of 2000”).

The Complainant gave evidence that she accepted that  she had wrongfully misappropriated the loyalty points by  retaining them for herself and members of her family but did not consider it fraudulent activity. She stated that she was not offered representation at the investigatory and disciplinary meetings.

The Complainant argues that she was not properly informed of her right to union representation by the Respondent,  throughout the process, as required by SI 146 of 2000.

No documentary evidence of mitigation of loss was submitted by the Complainant. The Complainant stated that she returned to her native Spain in March 2023 and engaged in  summer work in the hospitality industry in Ibiza for two months during the summer. She accepted a role as a hotel receptionist later that year on a salary of €19000 p.a.

Applicable Law:

The Unfair Dismissals  Acts 1977-2015,  in their relevant part provide:

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.

Section 6(7) of the 1977 Act provides:

"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 sole issue in this case raised by the Complainant was that the procedures were flawed by reason of the fact that that she was not offered the opportunity to avail of  representation  contrary to S.I 146 of 2000. The Code states that the procedures applied in a disciplinary process  must comply with the general principle of natural justice and fair  procedures, which include that, amongst other things, the employee concerned is given the opportunity to avail of representation, by the Respondent. The uncontested evidence in this case was that no representation was offered at the investigatory and disciplinary stages. This was particularly  egregious in this case due to the fact that the Complainant was Spanish and therefore not familiar with conventions expected in Irish  disciplinary procedures. I am satisfied therefore that the procedure was flawed, and  it was a process which did not afford the Complainant her rights under  natural justice. Accordingly, I decide that  the dismissal was unfair and in breach of the protections afforded by the Act.

Redress. Redress for unfair dismissal is provided for under Section 7 where it provides:-

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid...

When evaluating compensation, I  must adhere to section 7(2)(b) of the Act, as mentioned earlier, which mandates consideration of the Complainant's contribution to her  dismissal. The Respondent informed the hearing  of the Complainant’s serious  undisputed breach of the loyalty bonus points policy. The Complainant accepted that she inappropriately took thousands of loyalty points both for the benefit of herself and her family. Based on my assessment, it is evident that the actions of the Complainant were the primary cause of her dismissal, justifying a 100% contribution to the decision. Consequently, I deem it appropriate in this case that no compensation is payable to the Complainant.

 CA-00054389-001: For the reasons outlined above, I decide  the Complainant was unfairly dismissed by the Respondent, however, I also decide that the Complainant contributed 100% to her own dismissal therefore I find that no compensation is payable in this case

Unfair Dismissals Acts 1977-2015, No Representation, Unfair Procedures.