Labourcourt.ie

EMPLOYMENT APPEALS TRIBUNAL
UNFAIR DISMISSALS ACTS, 1977 TO 2001
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001
I certify that the Tribunal(Division of Tribunal)Chairman:
heard these claims at Tralee on 4 March, 16&17June, 13-15 September 2005 and
17-19 January 2006
Representation:

Claimant:
Mr. Donal Tobin, SIPTU, Park Road, Killarney, Co. Kerry Mr. Henry Downing B.L. instructed by Mr. Seamus Given, Arthur Cox, Earlsfort Centre, Earlsfort Terrace, Dublin 2 The determination of the Tribunal was as follows:The respondent employed the claimant from 1997 as a night porter; the employmentwas uneventful until the incidents, involving three different people, in 2003 that led tohis suspension and ultimate dismissal. The first incident occurred late at night or inthe early hours of the morning on 20 May 2003 and involved a guest (GP) who wasalso a performer in the respondent’s hotel. GP became frustrated at the difficulty hehad in obtaining service in the resident’s bar. The respondent’s position was that whenGP was served he felt that he was subjected to excessive scrutiny as to his being aguest in the hotel. Later on that morning when another individual in his groupcommenced a singsong with a guitar in the lobby, the claimant aggressively orderedthem to stop, as residents were asleep overhead, and picked on GP accusing him ofbeing a “troublemaker”, an “upstart” and having “hassled his colleagues in the bar”.
GP felt aggrieved because he was not the person who was playing the music. Whilstthere was a heated exchange and he left to stay in another hotel that night GP decided against making a complaint to the general manager (GM) of the respondent. However,the claimant and his colleague in the bar (NPS) made a written complaint to GMabout the conduct of GP. At a subsequent event in the hotel in early September 2003when GP met and spoke to the claimant in a friendly manner, he was subjected to anunprovoked barrage of abuse and foul language from the claimant. As a result GPreported both this and the May incident to GM and at GM’s request he submitted awritten complaint on 1 October 2003. The claimant’s position in regard to the May 2003 incident was that it was a busynight in the bar where NPS was on duty. GP was annoyed at the length of time it tookto get served. GP’s room had been block-booked in a company name and NPS wastrying to confirm that he was a resident. GP became abusive in the bar and later thatnight he went to the writing room in the lobby with a group of his friends, one ofwhom proceeded to play a guitar. The claimant asked the group in a polite manner tostop as guests were sleeping overhead. GP remonstrated with him and the group leftthe hotel. The claimant had received directions from management regarding the noiselevel at night and no music was allowed in the lobby. NPS and the claimant made awritten complaint to GM about GP’s behaviour. Whilst the Industrial Relationsmanager (IR) told NPS and the claimant that an apology would be forthcoming fromthe company GP had been working for on the night in question; however, no suchapology materialised. The claimant’s position in regard to the September 2003 incident was that he went tothe conference centre where a performance involving GP was finishing. When GPsaw the claimant he made a derogatory comment. The claimant replied that, “I’m notgoing through what I went through last time” and walked away. The confrontationlasted about one or two minutes. The claimant did not lodge a complaint to anyoneand denied that he was abusive on the night. The second incident concerned a letter of complaint the respondent received from adoctor (DR) about the attitude of two night porters on the morning of 2 October 2003,one of whom was the claimant. She complained about her secretary receiving abelligerent call from the claimant demanding an explanation why a guest at the hotelwas not receiving a house call and why the patient had to attend the clinic. Sheexplained that the decision was a clinical one, confidential to the patient, who hadbeen perfectly pleasant and did not complain.
The claimant’s position to this event was that on the morning of 2 October 2003, hetelephoned DR because an elderly guest was ill and the doctor would not come to thehotel. He spoke to the DR’s secretary and told her that it was ridiculous that DRwould not make a house call. The guest’s wife was annoyed at the service and theelderly guest was still in the lobby when the claimant finished duty over an hour later.
His colleague on duty that night (NPM) wrote a report of the incident in the nightporter’s logbook. Nobody from management approached the couple or the claimantafter that night. His main concern was to get the guest to the surgery. He denied beingbelligerent in his call to DR’s secretary. He telephoned DR to enquire why the doctorwas not coming. There was no reason at all for DR to send a letter of complaint. Theclaimant had no recollection of why his entry for that morning in the night porter’slogbook was whited out. He assumed it was because NPM had already made an entry.
The third incident occurred on the night of 16 July 2003, before the DR incident, butdid not become known to senior management of the respondent until a conversationbetween the claimant, Garda T and NPS in the hotel lobby at around 2.30am on 1October 2003. The respondent’s position is that the claimant told NPS and Garda Tabout how he had asked a guest with a Mercedes (MG), who had parked at the stepsof the hotel, to move his car. MG threw the keys to the claimant and told him to moveit himself. When the claimant relayed this incident to his colleague (NPM) who wason duty in the residents’ bar, NPM said, “I’ll take care of him”/”I’ll fix him”. Theclaimant told them that NPM trebled MG’s drinks on three occasions. The claimantthen phoned the gardai and MG was subsequently arrested for drink driving. NPO hadnot mentioned drugs in the conversation in the lobby. NPS reported this conversation to management and ultimately it was brought to theattention of GM who decided to investigate it. GM established from the CCTV that aconversation between the three individuals did take place in the lobby on the morningin question. On 3 October 2003, GM and the Divisional Accountant (DA) met withthe station sergeant and relayed the information to him. He identified Garda T fromthe CCTV as the garda who was present on the occasion in question. The sergeant gota frank and detailed account of the conversation from Garda T and subsequently gothis account in writing. From garda records the sergeant established that Garda M wasthe arresting officer and established the particulars of the arrest from him. On theGarda Superintendent’s instructions, a full garda investigation file was prepared andit, along with a covering report, were submitted to the Director of Public Prosecutions(DPP). A decision was made not to prosecute MG. The only entry in the NightPorter’s Book for 16/17 July is a short reference to security and a statement saying,“Nothing else to report”. There was no reference in it to any incident. Nor was there avague reference to it, as is the practice, in the Duty Pass-Over Book. Garda T confirmed the contents of the conversation in the lobby in his evidence to theTribunal. Garda F (the station orderly on duty on the night of 16 July 2003) receivedthe first phone call from the claimant regarding MG who was drinking and intendingto drive. She radioed the patrol car with this information. She emphasised to theTribunal that there was no mention of drugs in that phone call, as if there had been,she would have involved plain-clothes officers and she would not have used the radio.
Garda M confirmed receiving the call from Garda F at around 2.30am that MG wasdrunk and was about to drive from the hotel. As it was race night and busy, the patrolcar was unable to respond immediately. When Garda M was at the station at 4.00am,he received a phone call from the claimant again informing him that MG was drunkand about to leave and this time the claimant furnished the registration number ofMG’s car. In this call, the claimant also informed him that MG was passing “e-tabs”in the bar. Garda M subsequently arrested MG outside the hotel for drink driving. MGwas courteous and co-operative. In the course of a routine search of MG in the gardastation, Garda M found no controlled substances in his possession.
The sergeant reverted to GM and informed him that Garda T’s account confirmed thedetails of the conversation as reported to him by NPS. GM was very upset about theevents and extremely worried about the potential implications for the hotel’s licenseand reputation. NPS, who was reluctant to get involved in the respondent’sinvestigation, confirmed the details of the conversation in the lobby to GM and DA.
He would not provide them with a written statement but would give evidence at ahearing. Unknown to management the rumour that NPO and the claimant had got afellow from Limerick “bagged” had been circulating around the hotel since July. NPOhimself had also told this to NPS in July.
Although concerned about how MG would respond to the alleged events that occurredin July, GM and DA met him on 6 November 2003. MG’s recounting of the events of16/17 July 2003 confirmed the details already known to them (with slight variation onthe times and the manner in which he gave his keys to NPO). He further told them hehad a few drinks in the bar and paid for them by cash. Knowing that he was unfit todrive MG asked the claimant for a room but NPO had told him that there wereno rooms available either in the respondent’s hotel or in the two other hotels hehad telephoned at MG’s request. A friend offered him a spare bed in his room butas hewas walking towards it NPO insisted that he move his car from the front of thehotel.When he moved his car he was arrested. MG submitted a written statement toGM forthe investigation. MG confirmed these facts to the Tribunal andaccording to his evidence he was served twice and another guest (AG) had alsobought him a drink. For one of the rounds MG handed the claimant a €50.00 noteand told him keep thechange. The respondent’s evidence to the Tribunal was thatafter normal closing hourscash is not accepted in the resident’s bar and drinks arecharged to guests’ rooms. Nocash was returned to the respondent for thatnight/morning and there were fourteen rooms vacant in the hotel that night.
The Conference and Banqueting Manager was in the bar between approximately1.45am and 3.30/3.45am on 17 July 2003, roughly the same time that MG was there.
She spoke to both the claimant and NPM at the desk on her way in. In the bar she satat the counter with her friends and the duty manager joined them for some of the time.
The claimant served her a round of drinks and charged them to the manager’s account.
She did not notice MG nor was he brought to her attention. GM asked her about thenight but he did not ask her to write a report about it. AG, whose evidence played nopart in the dismissal, was a guest in the hotel and in the bar at the relevant time. MG,who was a stranger to him and had been going from group to group in the bar, joinedhis table and they tolerated him. He insisted on buying them a round of drinksand AG, most likely also included him in a round. Whilst AG saw him order thedrinks atthe bar; he did not see how he paid for them. Some time later MG became apest. Heproduced a Viagra tablet, which caused offence to the females in thegroup, and thegroup asked him to leave. AG informed NPM about the Viagraincident and NPM escorted MG from the bar. Whilst AG was the spokesman forthe group, all at the table complained to the claimant when he came over to them.
They did not mentione-tablets to the claimant. Nor did they say to him that MG“was passing drugs”. Nofemale left their table to complain.
The claimant’s position was that MG parked his Mercedes at approximately 1.20amon 17 July 2003 at the front of the hotel in the bus bay. The claimant asked MG tomove his car and MG replied that he was not a guest but he was just going in to pickup friends. MG said he would only be five minutes “and if you don’t believe me, hereare my keys”. MG went into the bar and a few minutes later NPM, who was on dutyin the resident’s bar, phoned the claimant at the front desk berating him for allowing anon-resident into the bar where he had tried to get a drink but had been refused byNPM. The claimant told NPM that MG had said he would only be there for a short time. About ten minutes later the claimant went into the bar and asked MG to leave.
MG was in company so the claimant “left him be”. Sometime later he got a call fromNPM to say that he was sending out a woman who was complaining that MG wasoffering drugs/tablets to her husband in the bar. She was upset when telling theclaimant and he telephoned the gardai who said they would attend as soon as possible.
It was a busy night. The claimant had used his own mobile phone, as there wereproblems with the handsets and walkie-talkies provided by the hotel.
The claimant felt that it would be inappropriate to escort/remove MG from the hotelas it might be deemed assault; it was a job for the gardai. The claimant telephonedGarda M again around 3.00am and explained about MG offering drugs/tablets in thebar. Garda M said, “Leave it with us, we’ll be up”. He had mentioned the drugs in thefirst phone call as well. It was his reason for calling the gardai.
MG came out to the claimant and asked for a room. The claimant thought he wasintoxicated and told him he had no rooms available. MG asked the claimant to phoneother hotels but the claimant didn’t do so, even though he gave MG the impressionthat he had. He told the Tribunal he did not want to “inflict” MG on anyone. MGasked the claimant for his car keys back. The claimant told him to take a seat on thecouch where he could keep an eye on him and if he fell asleep there would be “nobother”, but MG refused, asked for his keys again and threatened him so the claimantgave him his keys. MG walked towards the bar and the claimant saw the squad caroutside at this stage.
The claimant went out to speak to the driver (Sergeant F) and told him that he hadtelephoned twice about MG who had tablets/drugs in the bar. Sergeant F said, “Leaveit with us”. MG passed him on the steps as he went back into the hotel. MG got intohis car and drove off. He never spoke to the gardai after that. He denied assisting ingetting MG arrested. About forty or fifty minutes after this, he met with NPM. Hedidn’t think that they discussed MG’s drinks but he might have told NPM about thegarda call and MG being arrested. His big fear at all times was about the drugs. Hehad telephoned the gardai on previous occasions when problems had occurred.
The claimant was called to a meeting with GM and DA on 21 October 2003. At thismeeting the claimant and his shop steward were informed about the complaints fromDR and GP and were given copies of both letters of complaint. The claimantwas suspended with full pay, in accordance with the agreed disciplinaryprocedure, pending further investigation of the complaints. Despite the fact thatrumours of MG’sarrest for drink driving had been circulating around the hotelsince July 2003 and while NPS had told management about the rumour of theclaimant’s and NPM’s involvement in it, he was unwilling to put it in writing.
Furthermore, Garda T’s statement was in the garda file, which they were awaiting.
GM therefore felt unable toraise the allegation of the drink driving arrest with theclaimant at the meeting on 21October 2003.
The claimant and his union official (TU) attended a disciplinary meeting on 28October 2003. He was provided with an opportunity to answer the complaints given tohim at the previous meeting. A further complaint about the arrest of MG in July wasraised at this meeting. The claimant was asked if he knew anything about this incidentand if he had anything to do with it. The claimant admitted to telephoning the gardai from his own mobile phone, as a colleague NPM had informed him that a lady in the
bar had made a complaint about something being passed. GM informed him that a
garda investigation was ongoing and that the gardai may want to speak to him at a
future date about making a false report, wasting garda time and the perversion of the
course of justice and that the matter may have serious implications for the hotel. The
claimant’s shop steward understood this to be by way of advice but felt that it had
some effect on the claimant. A further meeting was arranged for a week later.
At a meeting on 5 November 2003 the specific allegations in Garda T’s report were
disclosed to the claimant. He denied making the comments. TU sought the name of
the garda and the NPS to whom the allegations in relation to the drink-driving
incident had been made. He was informed of the time and date when the conversation
with the garda had taken place, and told if he wanted this name, he needed to contact
the garda station directly. The sergeant had advised GM not to release the name of the
garda until the file was returned from the DPP but had agreed to disclose this name to
TU. The identity and statement of the Garda would be available once the file was
back from DPP. Further discussions were then held regarding the other incidents. The
transcript from DR was to be available at a later date. The claimant was told that GP
was willing to attend a meeting with the claimant to confirm the details in his letter of
complaint, which was given to the claimant on 21 October 2003.
Thereafter there followed a course of correspondence between the parties in which
GM arranged a further meeting for 14 November 2003. In these GM offered to have
DR, GP, MG, a representative of the Garda Síochána and NPS present at the meeting
and forwarded a list of the hotel guests who charged drinks to their room on the
morning of 17 July 2003, the one transcript available of the conversations with
DR/her secretary (for technical reasons the others were not available), the specific
details of the conversation in the lobby (as per Garda T’s report), as well as MG’s
statement and he put the claimant on notice that he would be raising questions, arising
from MG’s statement: MG’s paying cash for drinks and his being told that rooms
were not available in the hotel on the night. All of those mentioned had agreed to
attend the meeting. Although TU on behalf of the claimant had sought the names of
some of these, in his letter, which crossed with one of GM’s, he did not avail of the
offer to have them at the meeting and accordingly GM, with notice to TU, stood the
witnesses down. In his latter letter to the claimant GM commented:

“As I have spoken to each of the persons listed, conveyed to (the claimant) their
comments and furnished all available documentation, I do not believe that it isnecessary to call any of them now that (the claimant) has decided not to exercisehis right”. On 14 November 2003, in what turned out to be the final disciplinary meeting, theCCTV stills, names of the Garda T and NPS were furnished to the claimant and TU.
TU denied the allegations on behalf of the claimant. GM noted that the claimant haddeclined to meet with any of the persons who made complaints against him. TU, onbehalf of the claimant, denied the statement made to Garda T and denied that theclaimant was guilty of the charges alleged against him. The claimant when asked if hehad anything to say, replied, “No comment”.
GM did not believe the claimant’s denials and felt that he had acted inappropriately in relation to DR, that he had used grossly offensive language to GP and that he had
wrongfully colluded with another member of staff in procuring the arrest of a guest as
described to Garda T and NPS on 1 October 2003. GM regarded the claimant’s
behaviour as a serious breach of trust and confidence and it sundered the relationship
between employer and employee, in particular considering the senior position of trust
the claimant held in the hotel. He felt that this amounted to gross misconduct and as a
result the claimant was dismissed.
The claimant’s response to the allegations put to him during the disciplinary process
was that he did have a conversation on 1 October 2003 in the hotel lobby with NPS
and Garda T. They were discussing sport and other general things and the subject of
an arrest for drink driving came up in the conversation. He couldn’t remember who
initiated the subject, but all he said was that the customer “must have been drinking
doubles or trebles in the bar because he was fairly drunk when he came out”. It was an
off-the-cuff remark and just a joke.
The claimant felt that he was suspended on 21 October 2003 without being afforded
the opportunity to explain. He was not told under which disciplinary procedure the
issue was being dealt with. During the meeting on 28 October 2003, GM had made a
reference to Section 12 of the Criminal Justice Act, 1976, where allegations of making
a “false report”, “wasting police time” and “perverting the course of justice” were
thrown at him. He felt shook, very afraid and said he was, “only a mere layman”.
After this meeting he took legal advice and was advised not to say anything that could
implicate himself under this Act but to attend meetings and co-operate as far as he
could. He was advised to say nothing that may implicate him in a criminal justice
matter.
The claimant was under the impression that Garda T was the complainant and formed
that opinion during the meetings, but he could not remember why. He denied the three
allegations in relation to making a “false report”, “wasting police time” and
“perverting the course of justice”. No Garda had ever called to his door. He felt he
was entitled to know who made accusations against him under the Act. It was a very
serious offence he was being accused of. He never made a false report.
Determination:

The Tribunal wishes to state that the claimant accepted, during the hearing before it,
that the allegation that MG was involved in the passing of drugs whilst on the
respondent’s premises was wholly unfounded. The gardai confirmed this.
The fact that there were two parallel investigations arising from the same allegation, a
criminal investigation by the gardai into the safety of a prosecution and an
investigation by the respondent for the purposes of the disciplinary process, created
some difficulties for the respondent.
The claimant and NPM were both dismissed for their alleged involvement in
procuring the arrest of MG for drunken driving. On application to the Tribunal by
their union representative (TU), both cases were heard separately.
In cases of gross misconduct the function of the Tribunal is not to determine the
innocence or guilt of the person accused of wrongdoing. The test for the Tribunal insuch cases is whether the respondent had a genuine belief based on reasonablegrounds arising from a fair investigation that the employee was guilty of the allegedwrongdoing.
The allegation that the claimant had colluded with NPM to procure the arrest of MGarose from a statement made by the claimant himself during the course of aconversation with NPS and Garda T in the respondent’s hotel lobby on the morning of1 October 2003. NPS’s and Garda T’s account of the conversation were almostverbatim. This was confirmed to the respondent by the station sergeant. In the courseof the investigation the claimant denied having made such a statement and contendedthat he had phoned the gardai on the night as NPM said a lady had complained abouttablets or drugs being passed by MG. The Tribunal finds, by majority, that it was reasonable for the employer to believe thecontents of the conversation as related by the claimant to Garda T and NPS in thelobby on the morning of 1 October 2003. This finding is supported by the followingfacts. Neither night porter recorded in the Night Porter’s Log an event, so serious thatit merited calling the Gardai on two occasions. Neither of them reported it to eitherthe Duty Manager or to the Conference and Banqueting Manager although both werein the bar at the relevant time and instead they decided to telephone the gardai. Theevidence shows that the claimant must have known that the Conference & BanquetingManager was in the bar. Nor did they contact GM whose home and mobile phonenumbers were available to them. NPO’s refusal to give MG a room or to seek one forhim, as requested by him, as well as the claimant’s denial that he served MG drinks inthe face of evidence to the contrary from MG also go to the reasonableness of therespondent’s conclusion. Furthermore, the testimony of both Garda F and Garda M, given before the Tribunal,is strong corroborative evidence for the version of the incident as relayed by NPO inthe lobby on 1 October 2003. It seems to the majority that the respondent was notaware of their evidence as to why the gardai had been called, at the time of thedecision to dismiss. Similarly, the evidence of AG strongly corroborates that versionas well as the fact that there was no problem about drugs in the bar on 1 October2003. AG’s evidence also corroborates MG’s evidence that he bought drink in the baron the morning of 17 July 2003. At the meeting of 21 October 2003 the claimant was suspended on pay on the basis ofthe two complaints involving GP and DR. He was not informed of the MG complaintat that stage as NPS was unwilling to give a written statement and the respondent didnot have the Garda statement. This was in the file, which was being submitted to DPP.
While it would be best practice to have informed the claimant at this stage that he wasbeing suspended for gross misconduct, this suspension was provided for in the agreeddisciplinary procedure. The claimant was represented by his shop steward andaccording to the disciplinary procedure, suspension with pay only occurs in cases ofgross misconduct.
The majority is satisfied that the respondent carried out a fair investigation into theallegations. Whilst the identity of both NPS and Garda T was only disclosed to theclaimant at the final disciplinary meeting the full contents of the conversation/allegation as related by the claimant on 1 October 2003 were disclosedand put to the claimant as early as 5 November 2003. Furthermore the date and timeof that conversation were also revealed to him as well as affording his representativethe opportunity to meet the sergeant. The claimant declined the respondent’s offer tohave the various witnesses attend at the meeting on 14 November 2003. The majorityis satisfied that the claimant was afforded a fair opportunity to deal with theallegations. The majority does not accept that the mention by GM, at the meeting of28 October 2003, of possible Garda questioning into making a false report, wastingGarda time and the perversion of the course of justice adversely affected theclaimant’s participation in the process or rendered the process unfair. This point wasnever raised throughout the disciplinary process and was first introduced at theTribunal hearing.
In determining the reasonableness of the respondent’s decision to dismiss the claimantthe Tribunal has not taken into account the DR incident as DR did not give evidenceto the Tribunal. The Tribunal was given conflicting versions of both encountersbetween the claimant and GP. Following the first encounter there was a complaint toGM from both the claimant and NPS, GP decided against making any complaint as hefelt that there was fault on both sides. However, following the second encounter,which occurred in a public place immediately following his performance, GP was sooutraged at the unprovoked barrage of obscenities that he sought out GM to make acomplaint. Having considered these facts and the whole of the evidence of theincident the majority, on the balance of probability, prefers the evidence of GP in thisregard.
For these reasons and having considered all the evidence the Tribunal, by majority, issatisfied that it was reasonable for the respondent to believe that theclaimant’s behaviour constituted gross misconduct, sundering the relationshipof trust and confidence between the employer and the employee. In thecircumstances the dismissal was fair and reasonable. It follows that the claimunder Unfair DismissalsActs, 1977 to 2001 fails. This being a dismissal for grossmisconduct the claim underthe Minimum Notice and Terms of Employment Acts,1973 to 2001 also fails.
Sealed with the Seal of theEmployment Appeals TribunalThis ________________________(Sgd.) ________________________ (CHAIRMAN)

Source: http://www.labourcourt.ie/en/EAT_Import/2007/03/b5c2d388-d4b5-4e28-86d6-3a3765dbdb6c.pdf