ADJ-00033494 - Workplace Relations Commission Samuel Long V Flutter Entertainment Plc

• Jurisdiction: Ireland
• Judgment Date: 01 September 2023
• Court: Workplace Relations Commission
• Docket Number: ADJ-00033494
• Date: 01 September 2023
• Respondent: Flutter Entertainment Plc

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The matter was heard by way of two remote hearings pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

The Complainant was represented by Mr Eamon O’Brien and the Respondent was represented by Ms Niamh Ni Cheallaigh, Ibec (01/02/2023) and Mr James Cleary Ibec (10/08/2023). The Respondent’s witnesses were Mr Peter Higgins, District Manager and Investigation Chair, Ms Kim O’Callaghan, Employee Relations Specialist and Chair of Disciplinary Panel, Mr Pat Hand, Director of Operations and Mr Rob Linehan, District Manager.

All evidence in this case was taken on affirmation and cross examination of all witnesses took place.

Background:

The Complainant worked for the Respondent from 02/05/2006 until his dismissal on 25/11/2020. At the time of his dismissal, he worked as a Shop Manager. His hourly rate was €17.16, and he worked 40 hours per week. He was dismissed by reason of gross misconduct, and he submitted his complaint of unfair dismissal to the Workplace Relations Commission on 24/05/2021. The Complainant also submitted a complaint in relation to his hours of work. The fact of dismissal was not in dispute and in that context the burden of proof lay with the Respondent to prove that the dismissal was not unfair.

Summary of Respondent’s Case:

The Respondent operates a significant number of betting shops in Ireland and the UK. They also operate a leading online operation. The Respondent became aware that the Complainant was writing numerous bets and scanning them through the till when there were no customers present in the shop. On 11/11/2020 he was invited to an investigation meeting scheduled for 12/11/2020. He was provided with a copy of the Respondent’s disciplinary policy and the Employee Assistance Programme (EAP) brochure. At the meeting, which was held via Zoom, the Complainant confirmed that he was happy to proceed without representation. During the investigation meeting he admitted placing bets on behalf of a customer and that the customer did not always pay at the time the bet was placed. Following this meeting the Complainant was placed on paid suspension. A disciplinary meeting was arranged, and the Complainant was informed of the allegations against him and his right to be represented at the meeting along with the potential sanctions that could be applied. At the disciplinary meeting the Complainant took full responsibility for his actions. The outcome of this disciplinary hearing was that the Complainant was dismissed on the basis that his conduct constituted gross misconduct. The Complainant appealed the dismissal, and an appeal hearing took place without the Complainant as he would only attend if he could have legal representation. He was advised of the Respondent’s policy which allows for a work colleague or a registered trade union representative. The Complainant was advised on 18/12/2020 of the appeal hearing findings which was that the appeal was not upheld. Mr Peter Higgins gave evidence on affirmation on behalf of the Respondent. Mr Higgins was the Investigation Officer. He has worked for the Respondent for 10 years as a District Manager. Mr Higgins outlined that this matter arose as a result of another investigation into a matter in the same shop. Mr Higgins confirmed that the allegation was outlined in the invitation letter. He outlined that their policy states that an employee should be given 24 hours’ notice of any such meeting and in this case the Complainant was given 26 hours. Mr Higgins also gave evidence that the Complainant was advised that he could be represented by a work colleague or trade union official. The potential outcome was also advised to the Complainant in terms of action “up to and including dismissal”. Mr Higgins gave evidence that at the investigation meeting the Complainant confirmed that there were occasions where Credit Betting was taking place in his shop. Mr Higgins explained that Credit Betting occurs where a bet it taken without any payment. A customer is allowed to place a bet without payment. Mr Higgins gave evidence that the company policy is explicit in this regard. Employees are not permitted to take a bet in such circumstances. The Respondent must be mindful of its social responsibility and to ensure that the customer does not build up a loss. Mr Higgins gave evidence that the Complainant was involved in this practice on multiple occasions. This practice also had significant implications for the Respondent’s cash flow. Mr Higgins gave evidence that there are regular training modules for staff. The company policy is clear “No money, no bet”. Mr Higgins stated that his investigation concluded that this practice was carried out by the Complainant on many occasions, and he recommended that disciplinary action should be considered. He confirmed that the Complainant was placed on paid suspension and that his report was issued to the Complainant and the Respondent’s Employee Relations Team. Mr Higgins was cross-examined on behalf of the Complainant by Mr Eamon O’Brien. It was put to Mr Higgins that 26 hours’ notice of a meeting was not sufficient and particularly when the travel restrictions that were in place at that time were taken into consideration. Mr Higgins stated that the letter which was issued was in keeping with the Respondent’s policy. It was put to Mr Higgins that as the Respondent does not recognize trade unions it would be impossible for the Complainant to have trade union representation. Mr Higgins stated that the Complainant was advised of his right to representation, and it was a matter for him to decide if he wanted to avail of it. Mr Higgins was asked about the policy in relation to their social responsibility in relation to the taking of bets and Mr Higgins confirmed that this is monitored by the Respondent’s Retail Compliance Team. It was put to Mr Higgins that of the 571 bets that were deemed to be Credit Bets there was no loss to the Respondent and never likely to be any loss. Mr Higgins stated that the customer in this case had “a negative margin” which he explained worked out at about a 10% loss. Mr Higgins also confirmed that the Complainant put his hands up and said that the practice was not disputed by the Complainant. Mr Higgins was asked if he was aware that what the Complainant was doing was in fact the practice for years and in that context the Complainant had nothing to hide. Mr Higgins stated that he was not aware of what the Complainant’s motivation was. Mr Higgins also stated that he asked the Complainant if the District Manager was aware of the practice, and he confirmed that the District Manager was not aware. Mr Higgins also gave evidence in relation to the Anti-Money Laundering (AML) legislation and how this was implemented by the Respondent. Mr Higgins confirmed that he did not make any recommendation in relation to the outcome of the disciplinary process. In his redirection Mr Higgins confirmed that the Complainant did not ask for representation, and he confirmed that he was happy to proceed with the investigation meeting. Mr Higgins also confirmed that the Complainant did not raise any concerns in relation to the notice period of the meeting. Mr Higgins also confirmed that Credit Betting was not a regular practice and when he found out about it the matter had to be investigated. Ms Kim O’Callaghan gave evidence on affirmation on behalf of the Respondent. Ms O’Callaghan outlined that she is the Senior Employee Relations Manager for Ireland and UK with the Respondent and has held this role since 2018. She confirmed that she was part of the Disciplinary Panel in this case. Ms O’Callaghan confirmed that the Complainant was advised of his right to representation, but he confirmed that he was happy to proceed without representation. Ms O’Callaghan confirmed that she and the Disciplinary Panel were provided with a copy of the Investigation Report and reviewed this prior to the meeting. Ms O’Callaghan also confirmed that the seriousness of the matter was set out for the Complainant in writing in the letter inviting him to the disciplinary meeting. Ms O’Callaghan was asked if the Complainant put forward any mitigating factors at the meeting. She explained that the Complainant did not deny that he was involved in the practice and acknowledged that the behaviour was not right. Ms O’Callaghan was asked to outline the rationale which led to the decision to dismiss the Complainant. She stated that the Disciplinary Panel considered the seriousness of the situation, the breach of...