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Unfair Dismissal

and the question of proportionality

Unfair Dismissal and the question of proportionality


The case of Mark Devlin v Ladbroke (Ireland) Limited UD442/2011 reported this week by the Employment Appeals Tribunal again demonstrates the key principle that any dismissal must be proportionate to the alleged misconduct.

Background

In this case the Respondent bough three shops from company S and the Claimant worked in one of these shops, namely company B. The company operated a security enquiry and investigation procedure to ensure that all security matters were dealt with in an efficient and professional way and all employees were regularly sent booklets, briefs and memorandum which gave clear guidance and assistance to enable the business to operate efficiently and safely. All employees were furnished with an employee handbook on commencement of employment and the Claimant signed for and was furnished with his handbook on 3 March 2007 which was subsequently revised in 2010 of which all employees were given a copy.

A simple rule which operated in the shops was that of “no money no bet”. The Respondent had authorised credit betting for selected high value customers in selected remote locations, but these had to be agreed at Senior Manager level with very strict limits in place. A security enquiry was carried out on 11 October 2010 as CCTV footage showed that the claimant entered the shop floor and appeared to go where a customer had been sitting and appeared to have removed a slip from his right hand pocket and scanned it. There appeared to have been no customer present at the time of pay out.

A subsequent investigation was carried out and the Claimant contended that the slip was given to him by a customer to put the cash in the customer’s account. The Claimant admitted that he placed bets for his brother and some customers standing outside smoking and also admitted to taking telephone bets. The Claimant also admitted that he did not take bets unless he had the money. The Claimant was subsequently suspended on full pay. At a subsequent meeting in October 2010 the Claimant was told that under no circumstances could he credit bet and he received a Stage 3 warning at that time as there were mitigating circumstances.

At the subsequent meeting the Claimant admitted that he had read the handbook and was aware that it was gross misconduct to credit bet and also admitted to placing bets for customers by credit betting. The Claimant contended that bets were always paid and that the till always balanced at the end of each day. The Claimant was dismissed for gross misconduct and offered the right of appeal at the conclusion of that meeting. The decision to dismiss was upheld. The Area Manager considered the demotion to Deputy Manager as an alternative to dismissal but did not consider this to be a viable option. The Claimant gave evidence that another caution would have been more appropriate rather than dismissal.

Determination

The Tribunal noted that the circumstances of this case concerned summary dismissal for purported gross misconduct by the Claimant in relation to his practice at work of accepting “credit betting” which was a bet accepted when the person accepting the bet was absent from the shop and made the payment for the bet at a later time.

The Tribunal noted that the Claimant had previously been issued with a warning in February 2009 for such behaviour but this warning was only placed on his record for a period of 12 months.

The Tribunal did not believe that the behaviour complained of and the alleged misconduct constituted misconduct which warranted dismissal and that the dismissal was not proportionate to the alleged misconduct.

The Tribunal referred to the judgment of Mr Justice Flood in the case of Frizelle –v- New Ross Credit Union Limited [1997] IEHC 137 (High Court on Circuit) which stated inter alia in examining the principles to be established to support the decision to terminate the employment for misconduct that

“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.”

The Tribunal decided that the dismissal was unfair but looked at Section 7(2)(f) of the Unfair Dismissal Act (as amended by Section 6(6) of the 1993 Act) and the extent to which the conduct of the claimant contributed to the dismissal.

The Tribunal awarded the Claimant the sum of €2500 under the Unfair Dismissals Acts, 1977 to 2007.