EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Agata Kot Swider -claimant UD1037/2013
MN510/2013
against
Copper Alley Inns Limited T/A Darkey Kelly's -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath B.L.
Members: Mr. C. McHugh
Mr. A Butler
heard this case in Dublin on 29 September 2014 and 12 November 2014
Representation:
Claimant: Mr. Christian Douglas BL instructed by Ms Róisín Magee, Frank Ward & Company, Solicitors, Equity House,
Upper Ormond Quay, Dublin 7
Respondent: Ms. Elaine Finneran BL instructed by Mr.Kenneth McDonnell,
Kilrane O'Callaghan & Co, Solicitors, Ballaghaderreen, Co. Roscommon
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced over the course of the two days of hearing. The claimant operated as a bar person for the respondent company which said entity ran the public bar area of a hotel operating in the Temple Bar area of Dublin. The claimant was the longest serving and highest paid of the bar staff working in the bar on behalf of the respondent company.
The respondent witness NT managed the bar and held the contractual entitlement to own and operate the bar which was situated in the said hotel. The hotel was owned and operated by HC who did not give evidence in the course of this hearing but whose name did repeatedly crop up in the course of the hearing.
In the course of evidence, the Tribunal has been given the impression that NT when operating the bar was obliged to keep on the right side of HC who presumably as the hotel owner would be anxious that the bar on the premises would be generating a good impression and good business. The Tribunal recognises that the relationship between the two commercial entities of bar and hotel have to operate hand-in-hand and in a symbiotic way.
The claimant’s employer NT gave evidence to the effect that in 2013 the claimant’s interest in the operation of the bar had fallen off. The claimant had opened up her own second hand retail unit which she was excited about but which, NT said, distracted her from her work at his bar.
A number of incidents arose which required NT to talk to the clamant about her demeanour and attitude at work. NT was disappointed as he had always found the claimant’s work to be excellent in its execution. So, for example, being told that the claimant had been smoking on the premises was both unacceptable and disappointing to NT. There were, however, never any formal disciplinary steps taken and the employer and employee’s relationship was largely unaffected by these matters.
It is common case between the parties that there was the necessity to “handover” the bar facilities from the public bar to the residents’ bar every evening. As is common to any bar last orders are called and after a reasonable period of time to allow the patrons to clear the bar the public bar will be formally closed. It is also to be expected in a hotel situation that hotel clientele are entitled to order drinks after the bar has been formally closed and in this incidence there is actually a residents' bar to facilitate this.
The moving of clientele from the public bar to the residents’ bar is of necessity to be handled carefully and it seems there should be some assurance that the residents’ bar is actually open and under supervision before guests are moved to that area of the hotel.
The evidence adduced to this Tribunal is that there was an onus on the claimant to ask the hotel porter to open the residents’ bar at a time she presumably judges to be right. There was no obligation to operate the residents’ bar which task fell to the night porter. It is accepted that the claimant and her colleagues were obliged to keep that bar stocked and ready for the residents’ needs.
On or about the 10th June the claimant was coming to the end of her shift. The Tribunal was shown some C.C.T.V. footage which showed that there were three to four people in the bar, two of which were HC, the hotel owner, and his friend. The claimant is clearly visible working away on the cleaning up and generally finishing up. The evidence is that the hour was at least midnight and into the early part of the 11th of June.
The footage shows up to two groups of people coming to the bar. One of these groups is given a large round of drinks and they retreat back into the hotel. The other group is not served and there seems to be some confusion as to whether this group may have appeared to be underage or what their presence in the bar meant.
The claimant says that she had requested the night porter to open up the residents’ bar at least three times. The C.C.T.V. footage shows the claimant leaving the bar to go into the hotel lobby, which is consistent with what she says. In addition the claimant gave evidence that HC went out and came back into the bar and told the claimant to serve some of the residents which she duly did. Again the Tribunal notes this version of events is borne out by the C.C.T.V. footage.
The claimant says that HC became irate because the residents’ bar was not opened up and it is further suggested that he was unhappy with the way the residents bar was stocked. He also believed that the claimant had failed to serve customers which she should have recognised as legitimate residents in the hotel. The claimant says that things escalated and there certainly does seem to have been an unwarranted intrusion by HC into the claimant’s space behind the bar and it is the claimant’s evidence that HC became unreasonably angered and told her that she could no longer work behind the bar and to get out. It was about 1am by the time the claimant left.
The claimant is faced with the unusual predicament of being “fired” by an individual who is not her employer but is a person to whom her actual employer is beholden in this commercial set-up.
The claimant immediately rang her employer and it is accepted that she was upset by the nature and outcome of the row. NT told the claimant that he would come back to her as soon as he knew what had happened and the next day he did, indeed, ask the claimant to meet him at a local Starbucks.
It is clear to the Tribunal that this meeting was never intended to be an investigative meeting in the context of a disciplinary situation. NT had taken the measure of HC’s annoyance and what is common case to both parties’ version of the meeting is that HC was not going to tolerate the claimant’s return to the workplace and that NT needed to let a “cooling off” period pass before that option might arise.
The parties met a week later and again the nature of this meeting cannot be clearly defined under the traditionally recognised disciplinary process. However, the employer NT did say that he had talked to people in the meantime and he had been convinced that the claimant had lied about a number of matters. This fact however does not really seem to have been put to the claimant so she had no real idea that a formal investigation had taken place and a right of reply should have been therefore afforded.
In short, it seems to this Tribunal that the employer was caught in a very difficult situation which fact he made known to the claimant when at the end of this second meeting he in effect explained that the renewal of his contract is at risk where HC – a person with no part in this employment contract – would not tolerate the claimant’s presence on the hotel premises.
Whilst the Tribunal may have every sympathy for the position the employer found himself in, the Tribunal cannot find this process for reaching a decision to dismiss as anything other than unacceptable. The claimant was not given any of the usual rights which should be afforded to anyone faced with the ultimate sanction of losing her job. No proper investigation was performed and HC was not challenged on his interference and was simply acquiesced to. The claimant has simply been a victim of this high handed attitude and the employer did nothing to protect his employee’s interests.
In all the circumstances the Tribunal finds that the claimant was unfairly dismissed and awards her the sum of €18,962. The Tribunal takes the efforts to find employment into consideration in reaching this figure. The Tribunal also finds that the claimant is entitled to the sum of €1,038 (being the equivalent of two weeks’ gross pay) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)