UD855/2012, MN611/2012

 EMPLOYMENT APPEALS TRIBUNAL

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:    Mr R. Maguire BL

Members:     Mr T. O’Grady

                     Mr S. O’Donnell

heard these claims at Dublin on 27 August 2013

Representation:

Claimant: 

Respondent:

Dismissal being in dispute it fell to the claimant to establish the fact of dismissal

The determination of the Tribunal was as follows:

The claimant was employed as a waiter in the respondent’s restaurant from February 2006. The employment was uneventful until the incident on 14 February 2012 which resulted in the employment relationship coming to an end.

That evening, being St Valentine’s Day the restaurant was arranged with the maximum number of tables for two. The claimant and a colleague (AC) were responsible for the tables in the back section of the restaurant; the policy of the respondent was for the two waiters in this section to be prepared to wait on all the tables in the section as the need arose.

Later in the evening a complaint was made by a customer at the cashier’s desk to the effect that it had taken ten minutes for their bill to be produced. At this point the managing director (MD) became involved and this led to further complaints about the level of service that had been afforded to them. As the restaurant had been relatively quiet that evening MD was very concerned about this complaint and decided to investigate and spoke to both the claimant and AC after all customers had left.

The respondent’s position was that whilst, initially, both the claimant and AC had denied any knowledge of why there might have been a problem with service at the table in question AC later came to MD and told him that the claimant had refused to serve the table in question on account of their sexual orientation.

Whilst there is a dispute between the parties as to whether the next time the claimant met MD was on 15 or 16 February 2012 it is not in dispute that when the claimant came to the restaurant MD took the claimant into an office to discuss the events of 14 February 2012 and in particular AC’s assertion that the claimant had refused to serve gay people.

The claimant’s position was that, whilst he had taken the initial drinks order from the table in question, he knew nothing about their complaint as he had not served that table after that. He then told MD that the reason he had not served this table was because of the arrangement he had come to with AC about splitting the tables in their section in order for to get AC who was relatively new to the respondent to be totally responsible for some tables, he arranged with AC for him to wait on some six tables whilst AC would wait on two tables and that this arrangement was agreed between them at the start of service when there was only one table occupied in their section. The respondent’s position was that during this meeting the claimant accepted that he had not served the table in question on account of their sexual orientation.

It was common case that MD told the claimant to go home and that they would both think about it.

The respondent’s position was that he told the claimant to come back the next day. The claimant’s position was that MD said he would call the claimant after he’d thought about it. The claimant did not return to work and around a week later texted the restaurant manager to enquire about his status. As a result of this enquiry the claimant’s P45 was prepared.

Determination:

For the respondent’s assertion that the claimant was not dismissed to stand up to scrutiny the Tribunal must be satisfied that the termination of the employment was at the behest of the claimant. At no stage was any evidence tendered which suggested that the claimant took any steps to bring his employment to an end, rather when the claimant enquired of the restaurant manager about his status his P45 was prepared. Accordingly, the Tribunal is satisfied that the claimant was dismissed and that the dismissal was effected at the meeting in the respondent’s office be that on 15 or 16 February 2012. At no stage did the respondent invoke its disciplinary procedure and it must follow that the dismissal was unfair. The Tribunal awards €12,000-00 under the Unfair Dismissals Acts, 1977 to 2007.

The dismissal being effected without notice the Tribunal further awards €1,610-00, being four weeks’ pay, under theMinimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)