Complainant

Respondent

Parties

David  White

Imac Facilities Gormanston Park

Complainant

Respondent

Anonymised Parties

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Representatives

 Gareth Kyne Management Support Services Ireland Ltd

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-00065896-001

10/09/2024

The Complainant was employed as a Business Development Manager from 14th March 2022.

At Christmas 2023, the staff were invited to take home some bottles of white wine. As it was white wine the Complainant politely declined.

On 23rd August 2023, the staff were preparing for a large BBQ which the organisation were hosting. Some of the stock for the BBQ was left in the Complainant’s office including 4 cases of red wine. He opened one of the boxes, noticed they were nice bottles and left two bottles on his desk. Two staff members were in attendance, he jokingly told them not to say anything.  He placed the opened box on a trolley and covered the box with full unopened boxes of wine. He left the two bottles on his desk and made the stupid decision to bring them home.

The staff members informed management what occurred. When the Complainant returned to work on Monday 26 August, 2023 he was asked about the wine. He initially denied any wrongdoing but soon admitted his mistake. He went home retrieved the two bottles and returned them. He was suspended, and told an investigation would be carried out. On 31 August, he was informed of the reports and investigation findings. On 2 September 2023, the Complainant submitted his response to the General Manager, Director and HR advisor. Soon after emailing the three, the HR advisor replied with one word...”crap”.

On Tuesday 3 September 2023, the Complainant was told a separate Director was going to replace the HR Advisor. On 4 September 2023, the Complainant explained his version of events, he apologised profusely several times and asked for an opportunity to right the wrong done. On Monday 9 September 2023 the Director who took over the hearing emailed the Complainant to state he had gone through the correct procedures and decided to dismiss him with immediate effect. The Complainant feels the penalty is severe, and has an unblemished HR record. He worked extraordinarily hard to build the business, taking phone calls out of hours all the time, working weekends if there are staff shortages, or to oversee an event or to bring in potential client for a site visit. He has thoroughly enjoyed the role. This has had an impact on the Complainants personal life, and family and left them in a vulnerable position with mortgage and bill repayments. He is devasted with the recent events and would like the decision to dismiss reconsidered.

The Respondent denies the dismissal was unfair and submits the dismissal was warranted due to the actions of the manager. The Complainant was employed as a business development manager with the organisation.

On the weekend of 24th August 2023, the Company’s client was organising a BBQ and provided wine and food for their visitors for the BBQ. On 24th of August 2023, it was brought to the Company's attention that the previous day, the Complainant removed two bottles of red wine from the boxes purchased by the Client for the BBQ. He had been asked to store them in his office. Two catering assistants, charged with the job of carrying the boxes to his office, reported when they delivered the wine, the Complainant immediately proceeded to open a box and take out two bottles of red wine and place them on his desk. He then closed the box and placed it in a “cage”, with the other boxes of wine stacked on top of this opened box. In addition to appearing to be concealing the opened box, the Complainant said to the two members of staff “you did not see anything” and also went on to say “if anyone says anything to you I signed for it” and then he started to laugh. The two members of staff, who were significantly junior, said nothing. However, they immediately reported what had happened as they were concerned, they could be blamed for the missing bottles of wine. The General Manager, Ms. Aislinn Creamer, contacted Mr. John Farren, the Chief Executive Officer, on the following Monday morning to make him aware of what she had been told.  The General Manager asked the Complainant what had happened. The Complainant told her it was a joke that he put the bottles straight back after taking them. She informed him that she would have to look further into this and may have to check the cameras. He then admitted to taking the bottles of wine. He returned with the bottles of wine. He stated that the reason he took them was because at Christmas everyone was offered wine, but he didn't take any so when he had seen the bottles there he took them in replacement for the ones at Christmas time.

The General Manager met with the Complainant and subsequently issued her report. The Chief Executive Officer decided that it warranted a disciplinary hearing. A HR advisor was requested to conduct the disciplinary hearing and issue a recommendation. The HR Advisor subsequently withdrew from chairing the disciplinary hearing and instead Mr Gerald Kerlin, a senior employee of the Respondent who had no involvement in the matter, chaired the hearing on 4th September 2024. The Complainant provided a written response in advance, admitting the essential facts and explaining various aspects of his thinking and behaviour.

Having considered these, Mr Kerlin decided that dismissal was appropriate. The Complainant appealed the decision. The appeal was heard by an independent consultant, Mr. Eugene Healy and the decision to dismiss was upheld on 27th September 2023. The Complainant was not appealing the facts, he made representations to explain the background to the facts and stated he believed the punishment was too severe and was seeking to have it reduced. He argued his actions were not premeditated but a lapse of judgment, and, he had apologised to all who were affected. The Complainant also stated that the decision to dismiss would have a significant effect on his personal circumstances and asked for this to be taken into consideration.

The Respondent says they have a zero tolerance policy on theft which is contained in the company handbook. This clearly shows that the theft of any property is deemed to be a gross misconduct. The organisation accommodates vulnerable people, and there is company property and personal property on the premises. The policy makes it quite clear that theft, regardless of intent, would result in dismissal. The Complainant’s conduct placed two junior members of staff in a compromised position as they could have been accused of theft of the bottles of wine. In addition, the Complainant initially denied the removal of the bottles of wine and only subsequently, admitted it.

The Respondent submits the Complainant was a senior and trusted employee and, as a leader he had responsibility to behave in an appropriate manner and he should not have attempted to involve other staff in his deception. The Respondent submits the dismissal was fair.

I have heard and considered the submissions, and evidence of the parties and their witnesses.

The Complainant was a Business Development Manager of the Respondent which provides accommodation and hosts events for clients since 2022. He was dismissed following an unauthorised removal of two bottles of wine from a client event on 23rd August 2024. In an unfair dismissal claim, the onus rests on an employer to establish the dismissal results wholly or mainly from the conduct of the employee and there are substantial grounds justifying the dismissal.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

Various boxes of wine were dropped into the Complainants office for storage prior to a BBQ being hosted by the Respondent for one of its clients. The Complainant admits he took two bottles of wine out of the boxes in front of two junior employees and says he jokingly told them not to say anything. He then put unopened boxes on top of the opened box on the trolley. The incident was reported by the two employees to the Catering Department.

The Respondents Disciplinary procedure provides for summary dismissal for gross misconduct in the following instances:

(i)                  Dishonesty towards the business or a fellow employee or visitor.

(ii)                Any attempt to defraud the business, or a customer or a supplier by any means

The General Manager Ms. Creamer gave evidence at the hearing that the premises consists of accommodation for residents and a sports centre. The Complainant was responsible for management of the sports hall, tuck shop, and stock for events. When the issue was reported the Complainant initially claimed it was a joke and he put the wine straight back. However, when he was notified the CCTV would be checked, he admitted taking two bottles of wine. He returned the bottles of wine. The Managing Director Mr. Farren said the company manages the facility which consists of cash receipts for a café, tuck shop, vending machines and stock for events. He said the Complainant was in a position of trust when he took property of a client without permission.

The Complainant gave evidence of his good record managing cash. He had very good working relationships with management. Nothing had ever gone missing. The Complainant said he was denied his bonus a few weeks previously, he hit revenue but the costs had escalated. He had increased the business year on year. He had apologised for his mistake, and made sure there was no impact on other staff. He asked why the HR representative did not hear the appeal. The company confirmed the HR representative was removed from the process.

Mr. Kerlin Director gave evidence he conducted the disciplinary hearing. He said the facts were clear, the Complainant had admitted to taking the bottles of wine. The Complainant tried to involve two other employees and attempted to conceal this. The organisation has fifty staff and cannot allow any staff take something small. Mr. Kerlin believed a final written warning would not suffice as the Complainant was in a position of trust, was handling cash and goods.

In Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following: Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

1 “ …. should state the complaint, factually clearly and fairly without any innuendo or hidden inference or conclusion;

2 The Employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment;

3 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;

4 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 the dismissal on the employee. Put very simply, principals of natural justice must be unequivocally applied.

The appropriate test to be applied is set out by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 by Lord Denning MR at pg. 93 applied by Judge Linnane in Allied Irish Banks v Purcell [201] ELR 189:

“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.”

The Complainant accepted he took the two bottles of wine without authority. I find the disciplinary process conducted by the company was in the most part fair. The Complainant argues that the dismissal is disproportionate. However, he was a senior manager and part of the management team with fifty employees. He was responsible for stock and cash handling for the organisation and knew the wine was owned by a client. In all the circumstances, I find the dismissal was fair and the actions of the Respondent come within the band of reasonableness of an employer.

The dismissal is fair.