EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD1644/2011
RP2181/201
MN1697/2011
WT650/2011
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr D. Hegarty
Ms H. Kelleher
heard this claim at Cork on 5th March 2013 and 3rd May 2013
Representation:
Claimant(s) : Mr Andrew McNamara B.L. instructed by Harry McCullagh & Co., Solicitors,
Rathmore House, Rathmore Lawn, South Douglas Road, Cork
Respondent(s) : Ms. Rachel O'Toole, Solicitor,
7/8 Liberty Street, Cork
Background
The claimant was one of three directors and shareholders of the respondent and also an employee thereof in the role of bar manager of its licenced premises (the bar) from July 2005. A complex business arrangement existed between the three directors. Director C (DC) supervised the business and Director B (DB) was responsible for the administrative side of the business. DB and the claimant and DB were involved in another business. The claimant disputed DB’s evidence that he had prepared and provided him with a contract of employment.
Respondent’s Case
DC’s position was that within a few months of the claimant’s commencement as bar manager he began to receive complaints from customers about the claimant’s attitude, that he was being abrupt and heavy-handed with them. The bar had a solid and regular clientele who, in the particular locality, liked to have a fuss made of them. DC spoke to the claimant about the complaints to no avail and thereafter it got worse in that DC received numerous complaints including complaints that the claimant came to work intoxicated and verbally abused customers. Other problems with the claimant included his arriving late for work or failing to turn up for work. DC did not initially bring these problems to the attention of DB and when he did, DB pleaded with him to give the claimant a chance, hoping he would sort himself out and the claimant did improve for a short while. As the problems continued DC documented many of them in letters to the claimant, having first met with the claimant to discuss the complaints. These letters, covering a period from 23 June 2007 to February 2011, were produced in evidence. DB was also present at many of these meetings and had pleaded with the claimant several times to improve. DC had, on several occasions, told the claimant, “It is all going to end”. DC informed the claimant of the identity of some of the complainants. Every one DC spoke to about the claimant made negative comments about him. In December 2010 DC decided to set up a roster and henceforward time-off had to be requested the previous week. On 13 February 2011 the claimant arrived to work in a very intoxicated state and following a meeting the next day DC issued him with a letter of “Final Warning” in respect of (i) customer complaints, (ii) non adherence to roster and (iii) arriving for work intoxicated. The claimant sought the following Saturday off and a late start at 7.00pm on the Sunday was agreed. However, the claimant, having got his brother to cover for him on Sunday evening (20 February) did not arrive or work until 11.45 pm and was in a very intoxicated state. Following a disciplinary meeting on 25 February 2011 the claimant was dismissed. Minutes were not taken of the disciplinary meetings. Although the meetings were referred to in the diaries of DC and DB (copies of which were produced at the hearing) the entries did not indicate that that disciplinary matters were discussed at those meetings. DC denied that the entries in the diaries were fabricated. While DC accepted that the letters he issued to the claimant did not contain warnings, his evidence was that he had issued warnings to him at the meetings he had with the claimant prior to issuing the letters. DC could not understand how the claimant could deny getting his letters of complaint; he had handed many to him and left others over the till in the bar, the usual place for leaving mail.
Claimant’s Case
The claimant’s position was that he got on well with most of the customers but any barman will not get on with all of the customers all of the time. He admitted to having some altercations with some customers. He first saw the series of letters regarding customers’ complaints at the hearing of the case. DC was also involved in the day to day running of the bar and there were peaks and troughs in their relationship. DC was easily annoyed and they had disagreements about such things as entertaining friends after hours, smoking on the premises, methods of work and cleaning-up. The relationship became more volatile as time went on and when there was a downturn in the business.
He heard about customer complaints having been made about him at management meetings under item AOB but he was never provided with details of the complaints or the identity of those who made the complaints. This happened three or four times each year. He denied that he failed to turn up for work when rostered; if he needed time off he always ensured that he had someone to cover his shift. On one such occasion he asked his brother to cover his shift as there was nobody else available and he attended the premises to lock up that night; that was on 23 January 2011 and not 20 February as indicated by DC. He accepted that he had consumed alcohol that night at another premises; he could not remember the number of drinks he had but he was not intoxicated. The claimant denied the incidents referred to by DC regarding customer complaints. He further denied ever having received the letters opened to the Tribunal by DC dating from June 2007 to 15 February 2011. The claimant never attended any disciplinary meeting and was never asked to defend or rebut any of the incidents referred to by DC. On 28 January as DC was about to leave he came up to him and said, “You won’t make a fool of me anymore.” DC was referring to the fact he had changed the roster. The claimant was baffled as he had changed rosters over the five years and nothing was made of it. The claimant, adamantly maintaining that he was never intoxicated at work, denied putting the licence at risk.
At a management meeting on the 8 February 2011 he was asked if he wished to leave or buy the other two directors out. It was put to him generally and there was no proposal or any definite proposal as to how he could exit the business but he told them that he did not wish to leave and was not in a position to buy them out. The meeting concluded as usual. Approximately two weeks later at a further meeting he was told that DC was no longer happy with their business arrangement, he was again asked if he wanted to buy DC and DB out and he was asked not to work inside the counter but to carry out administration work for a period. He agreed with this arrangement. On 15 March 2011 he was handed his P45. He was surprised by this and had expected a negotiation process and an exit strategy. He at no time believed he would be removed from employment and was never given an opportunity to present his case as matters were never formally raised. He did not receive a letter of dismissal in late February. He was not told the meetings were disciplinary; they were primarily management meetings. The claimant denied drinking while working but on occasion had a drink during his breaks. DC could not understand why the claimant did not get the letters as he had handed him some and left others over the till.
Determination
The Tribunal accepts that the respondent had a number of problems with the claimant’s performance. It further accepts, on the balance of probability, that these complaints were documented in letters to the claimant. DC accepted that neither the specific details of the customers’ complaints nor the identity of most of those who made the complaints were communicated to the claimant. Warnings to an employee that his job is in jeopardy must be clear and specific, leaving no room for misunderstanding. The letters issued to the claimant did not contain any such warning and the Tribunal is further satisfied that the claimant had not received any such verbal warnings. Accordingly, the Tribunal finds that the procedures adopted in dismissing the claimant on 25 February were seriously flawed and that the dismissal was procedurally unfair. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
The claimant made a significant contribution to his dismissal. The claimant successfully found alternative employment, albeit at a lower wage, within a short period following his dismissal. Taking these factors into account, the Tribunal, finding compensation to be the appropriate remedy, awards the claimant the sum of €4,000.00 as just and equitable compensation under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal notes the evidence of DC and DB that they would pay the claimant the monies owing to him in respect of holidays. In the event of failure by the directors to make this payment, the Tribunal awards the claimant €420.00under the Organisation of Working Time Act, 1997 as compensation in respect of holidays that had been due to him.
As the claimant was paid up to 13 March 2011, he is entitled to compensation in the sum of €600.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The claim under the Redundancy Payments Acts, 1967 to 2007 was withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)