Labour Court Database __________________________________________________________________________________ File Number: CD8949 Case Number: AD8915 Section / Act: S13(9) Parties: GRANARY BAR - and - A WORKER |
Appeal by the worker against Rights Commissioner's Recommendation No. BC288/88.
Recommendation:
5. Having considered the submissions made by the parties the
Court finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD8949 APPEAL DECISION NO. AD1589
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: GRANARY BAR
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation No. BC288/88.
BACKGROUND:
2. The worker had previously been employed as a part-time barman
at another of the employer's licensed premises, while still
serving as a member of the Defence Forces. He had built up a good
working relationship with the employer and was interested in a
career in bar management. In April, 1987 the employer purchased a
new premises (The Granary) and he offered the worker a permanent
post as a bar manager. The worker resigned from the Army in May,
1987 and took up his new position. He accepted the conditions
offered by the employer in relation to his weekly wage, hours of
duty, and also the offer of accommodation on the top floor of the
new premises. In February, 1988 the employer advised the worker
that, because of financial difficulties, the premises was being
sold. The worker was declared redundant in April, 1988 and
received his statutory entitlements. The worker claimed that he
was entitled to an ex gratia payment in view of the amount of work
which he had put into the enterprise. The employer rejected the
claim and as local discussions failed to resolve the issue the
dispute was referred to a Rights Commissioner for investigation
and recommendation on the 4th November, 1988. On the 30th
November, 1988 the Rights Commissioner issued his recommendation
as follows:-
"In the light of the above and in view of the fact that the
worker threw over a career in the Army to join the employer I
recommend that he make an ex gratia payment to the worker of
#500 and that this is accepted by the worker in full and
final settlement of all claims on the employer in relation to
the termination of his employment."
(The Rights Commissioner named both parties in his
Recommendation).
The worker rejected the Rights Commissioner's Recommendation and
on the 18th January, 1989 appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Court
hearing took place on the 10th February, 1989.
WORKER'S ARGUMENTS:
3. 1. At the time of the offer of "live in manager" from the
employer the worker was serving as a sergeant in the Army and
was in his twelfth year of service. His term of engagement
was due to expire in December, 1987, with an option to sign on
again to complete twenty one years' service. During his
service in the Army he had worked in the bar/catering trade
and had ambition to manage his own pub. He accepted the
employer's offer as a step in the right direction. He was
required to commence his new employment in May, 1987 and
therefore had to apply for an early discharge from the Army.
2. The employer agreed that the worker would move into the
flat above the premises initially on his own. After
decoration the flat would be occupied by his family. The
employer who guaranteed the worker that after six months he
would receive a contract and a percentage of the profits. The
weekly wage agreed upon was #230. Since commencing employment
in May, 1987 the worker worked seven days a week. He did not
take nor did he seek any time off until August when he took
ten days holidays with his family. During the first few
months the worker's wife brought his meals to him at his place
of work. The worker converted one of the offices into a
bedroom/office/dining area. Assuming that his future was
secure he availed of a bank loan and bought a car.
3. His working day began at 8.30 a.m. because the premises
had neither a cleaner nor a cellerman and the other barman did
not start work until 10.00 a.m. The worker was in effect
totally responsible for the security of the premises and was
therefore actually employed twenty four hours per day. The
employer later took on worker's nephew as a "junior" and this
took some of the pressure from the worker. When rumours began
in January, 1988 that the premises was for sale, the worker
approached the employer and asked him to confirm that this was
true. The employer stated that the premises was always for
sale at the right price. In early April the employer advised
the worker that he was selling the premises and on the 23rd
April the worker was declared redundant. He was offered #30
per day to work part-time until the close of sale, and also #5
per night to act as a security man. The worker refused this
offer and the premises remained open for six weeks manned by
part-time staff. He received his statutory entitlements and
moved back to his home.
4. The worker feels that the Rights Commissioner's
Recommendation of #500 is not sufficient. Given the amount of
time and energy which he put into the business, and he is
seeking an increased ex-gratia payment. He is still trying to
pay off a loan which he would never obtained had he known that
four months later he would be drawing the dole. He has since
tried to rejoin the Army but has been informed that he is now
over the required age limit.
EMPLOYER'S ARGUMENTS:
4. 1. When the worker was employed as a part-time barman from
1985 to 1987 he indicated many times to the employer that he
wished to leave the Army. He was constantly in pursuit of
jobs in the licensed trade. When the offer of full time
employment was made to the worker the employer made clear to
him at the time the enormous financial commitment involved in
purchasing the premises. The employer explained to the worker
that as manager he was expected to work long hours.
2. After approximately ten months trading, during which time
substantial losses were sustained (details supplied to the
Court), the Employer received an offer for the sale of the
premises which he decided to accept. The sale was not
completed for several months, and during his time the worker
was kept fully informed of the situation, given paid leave and
advised by the Employer to seek alternative employment. He
attended a number of interviews with the full support of the
employer. The employer spoke to the new owner in an effort to
have the worker continue in his employment. The purchaser
agreed to meet with the worker with a view to offering him
employment, but the worker refused the offer of an interview.
The worker resigned his position some four weeks before the
close of sale. This was done of his own accord.
3. During the period, of his employment the worker was paid
#250 per week gross plus #53.00 travelling expenses. He
received #500 cash payment (over and above his normal weekly
wage) during the three week period for the late licence
extension for the Dublin Theatre and Film Festivals. He
received eleven days holidays with full pay during the nine
months of his employment, and on being declared redundant he
received his full statutory entitlements. During the period
of his employment the employer regularly gave the worker's
family casual work on a number of occasions. The worker was
also given theatre tickets for his family and friends and also
a dinner for himself and his wife on the occasion of his
birthday. The employer negotiated a bank loan from his own
bank for the worker so that he could purchase a car. The
employer claims that the worker was fairly treated at all
times.
DECISION:
5. Having considered the submissions made by the parties the
Court finds no grounds for altering the Rights Commissioner's
Recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
________________________
24th February, 1989 Deputy Chairman
T.O'D./J.C.