A barman who was sacked after pub customers accused him of drinking on the job while its owner was absent for cancer treatment has won €9,000 for unfair dismissal.
The Workplace Relations Commission (WRC) ruled Cerlock Ltd, the operator of an unidentified pub in Limerick City, was not entitled to rely on CCTV footage of the worker, Kenneth Malone, pouring himself a drink, as he had been sacked without a chance to view the recordings.
Upholding Mr Malone's claim under the Unfair Dismissals Act 1977, the WRC adjudicator who heard the case called the employer’s handling of the matter "a catalogue of all the things you should not do to support a claim that someone was dismissed fairly".
The publican, Lee-Ann Graham, said Mr Malone, who had worked for her since 2015, had admitted to her that he had an "alcohol issue" after she served him with warnings over his work performance and attendance in February last year.
She said the barman took leave to seek treatment, but that when she returned she herself was diagnosed with cancer and had to go for urgent treatment – leaving the running of the pub to Mr Malone.
Later that year, Ms Graham learned from customers that Mr Malone was drinking at work, she said.
The pub’s CCTV confirmed it and Mr Malone "did not deny" the allegation when she raised what she had seen with him on 18 July 2022, she said.
At the hearing, Mr Malone denied the employer’s claim that he had been drinking in a store-room when he was seen leaving it with an empty can in his hand.
Mr Malone said he was sacked on the spot on this date and that Ms Graham only invited him to a "disciplinary meeting" a week later as "window-dressing" after he hand-delivered a letter to his employer complaining of unfair dismissal, along with further alleged breaches of employment law.
Ms Graham's evidence was that she had only suspended Mr Malone on 18 July pending a disciplinary meeting, which the complainant "refused to attend".
Alongside an alleged failure to provide written terms of employment or correct breaks and rest periods, Mr Malone wrote in his letter his former employer had not provided him with any payslips during his time working at the pub, he said.
In a legal submission, Mr Malone’s solicitors Dundon Callanan LLP said payslips produced to a WRC inspection were "constructed after the event" and "do not reflect the hours worked".
He had lodged secondary complaints under the Terms of Employment (Information) Act 1994 and the Organisation of Working Time Act 2004.
The pub’s owners maintained that Mr Malone was "well aware and acknowledges the existence of his contract of employment".
Cerlock Ltd was "already subject to an investigation and notification of contraventions" in respect of the working hours issue on foot of an inspection by the WRC in January this year.
In her decision, adjudicator Janet Hughes noted that the video evidence submitted by the publican after the hearing showed Mr Malone did pour himself a drink "on occasion".
However, the worker never had a chance to give his version of events prior to his dismissal, as he was never shown them by his employer, Ms Hughes noted.
"My overall conclusion is that the respondent has not proven that the complainant was drinking in the storeroom/off-licence," she wrote.
"While he can be seen to have a drink or two at the bar counter, the CCTV footage is not 100% reliable that this was gross misconduct and not 'one for the bartender’ at the end of a shift," Ms Hughes added.
"Basically, it is a catalogue of all the things you should not do to support a claim that someone was dismissed fairly," she said of the process leading to Mr Malone’s dismissal.
Ruling the dismissal unfair, she ordered the pub operator to pay €9,000, a sum equivalent to three quarters of the losses claimed by Mr Malone.
Ms Hughes found she had no jurisdiction in the terms of employment claim because it had been lodged too late.
The adjudicator also rejected the working hours claim, writing that there was "no real evidence provided by either party on the specific complaint" – but noting that Mr Malone "running the bar and doing the rosters" himself.
