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Bartender Awarded One Year’s Pay For Dismissal After Serving Alcohol To An Underaged Customer

Facts: The Complainant commenced employment with the Respondent pub in March 2014 as a Bar Tender. On 4th July 2019, the Respondent alleged that the Complainant served alcohol to two customers who were under the age of 23 years without asking for age identification and they turned out to be 17 years old and 18 years old. The Respondent had a mystery shopper at the premises at the time. The Complainant was suspended on pay and a disciplinary process was initiated. A disciplinary hearing took place on 8th July and the Complainant’s dismissal was confirmed by letter of 12th July for Gross Misconduct. The Complainant appealed the outcome, which was heard on 31st July 2019 and the dismissal was confirmed.

At the WRC hearing, the Complainant argued that this was a result of the two legal actions she had initiated against the Company; first one being in relation to a breach of GDPR regarding a sexual harassment complaint and the second one regarding Personal Injury incident. The matters had not proceeded for a long duration which led to the Complainant’s solicitor writing to the Respondent on 27th June 2019 confirming that they were lodging the personal injury proceedings into PIAB, shortly after which the under-age incident took place. The Respondent argued that serving alcohol to minors is a serious legal issue and that they conducted the mystery shopper exercise where the Complainant served alcohol to 17 and 18 year olds. The Respondent also argued that full disciplinary process was conducted and all evidence was made available to the Complainant, based on which the Complainant was dismissed.    

Findings: While determining if dismissal was an issue of ‘another agenda’, the Adjudicator noted that there were two legal actions pending against the Respondent and the Mystery Shopper incident took place just a week after the Complainant’s solicitor’s letter. Referring to Section 37(c)(1) of the Intoxicating Liquor Act, 2008, the Adjudicator noted that the Mystery Shopper had to be a serving member of Gardai, however in this case it was not and that the names and identity of the young persons, to whom liquor was served, were never revealed. The Adjudicator also noted that the Complainant did not have any representation at the internal Disciplinary or Appeal hearings to properly test the evidence. Regarding the serving of the alcohol to the under-aged persons, the Adjudicator noted that the Complainant was a very experienced bar tender and that there was no suggestion that she had willingly sold the alcohol to the under-aged. The Adjudicator referred to the decision in ADJ-00013597, where the Adjudicating Officer referred to the need for a “balance between the responsibility of the Retailer and the capacity of a cashier to act as the first and only line of defence”. The Adjudicator also noted that there was no robust evidence from the Respondent as to what exactly “appears to be under 23” and the policy allowed for the bar tender’s discretion. The Adjudicator held that dismissal on grounds of Gross Misconduct, where there was ambiguity, did not stand up to any degree of legal scrutiny and was not in any way within the band of reasonableness for any employer.

Award: The Adjudicator awarded a sum of €20,000 to the Complainant, being approximately her one year’s earning, for unfair dismissal and four week’s pay, amounting to €1,520 as statutory minimum notice.  

Takeaway for the Employers: It must be noted that where policies allow for an employee’s judgement then such mis-judgement would have to be deliberate or malign to warrant dismissal where it is a first offence, as in this case. Furthermore, a lesser sanction should be shown to have been considered and then explained in the written outcome as to why it would not be sufficient or plausible sanction in the circumstances. Employers should also be very careful of any such action appearing to be a reaction to a separate issue with the same employee.

Authors – Anne O’Connell & Chaitra Girish Mallya

29th May 2020

https://www.workplacerelations.ie/en/cases/2020/may/adj-00024563.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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