EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD464/14
CLAIM OF:
Jacqua O'Connor - claimant
Against
Cove Brewers Limited T/A Cove Bar - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Ms S. Kelly
heard this claim at Waterford on 9th June 2015.
Representation:
Claimant: Mr. Neil J Breheny, Neil J Breheny & Co, 4 Canada Street,
Waterford
Respondent: Bar Manager
The determination of the Tribunal was as follows:-
Respondent’s Case:
TD, Bar Manager gave evidence. The respondent runs a bar and serves bar food. It operates seven days a week. Four to five staff work in the kitchen while two to three staff are bar attendants.
Due to the downturn in the business the directors of the business decided that staff hours were to be reduced. It had been an ongoing process to cut back on staff hours. This had been carried out over a three to four month period. The claimant had worked as a kitchen porter. She was efficient and punctual. Her role entailed washing up and cleaning up in the kitchen area. The witness never saw the claimant preparing or serving food during her tenure.
In around September/October 2013 the respondent employed a new kitchen assistant (A). Her role entailed helping out with the cooking of food and cleaning up.
The witness was tasked with implementing the Board’s decision to terminate the claimant’s employment.
On 10th December 2013 the witness informed the claimant that she was being let go. He said that the claimant had been aware that the business was under pressure and that hours were being cut. There had not been enough work for a second kitchen porter. AM also worked as a kitchen porter but he had longer service than the claimant. A carried out the claimant’s role after the claimant’s employment was terminated.
Claimant’s Case:
A qualified chef AC gave evidence. She did the rosters and TD approved them. During the witness’s tenure the claimant prepped all the vegetables and helped out making sandwiches. The claimant was always helpful, capable and willing to help out with the preparation of food as well as doing her own duties. A also carried out kitchen porter duties when the kitchen porters were not rostered to work. A had initially worked the same hours as the claimant but A’s hours were significantly increased.
The claimant gave evidence. She worked as a kitchen porter for the respondent and commenced employment on 6th June 2011. Her duties entailed washing up and cleaning the kitchen area. She also helped the chef AC in preparing breakfasts and on Sundays when she was working she prepared the vegetables for dinners and also made up the desserts. AC also often asked her to prepare sandwiches for parties.
When A was employed the claimant showed her how to use the dishwasher and what her duties as a kitchen porter entailed.
On 10th December 2013 TD informed her that he would have to let her go as the kitchen was losing money. The claimant was taken aback and upset as she had not seen this coming. The next evening she called into the bar to check the roster for the following week but her name was not on the roster.
Since the termination of her employment she applied for several positions but has been unable to secure alternative employment.
Determination:
On balance, the Tribunal is of the opinion that the respondent has failed to meet the onus on it of establishing to the satisfaction of the Tribunal that the claimant was fairly dismissed. While it seems to have been the case that the respondent needed to re-organise its business to meet financial challenges, the Tribunal is not satisfied that due regard was had to the potential alternatives that may have been available to the respondent short of dismissing the claimant.
There was no prior consultation with the claimant and no opportunity given to her to make any observations or suggestions around her possible dismissal; the position was simply presented to her as a fait accompli. There was no evidence before the Tribunal that any alternatives were considered.
Further, a relatively short period prior to the claimant’s dismissal, a new employee was taken on which, from her introduction into the business, led to an immediate reduction in the claimant’s hours. While the new employee had the title of Kitchen Assistant as opposed to that of Kitchen Porter (the Claimant’s role), her introduction clearly saw her take over duties of both the claimant and of a fellow kitchen porter. The Tribunal felt that it was the introduction of this new employee and the consequent reduction in the claimant’s hours that ultimately led to a situation where her services were no longer required. There was something intrinsically unfair in the claimant’s selection for redundancy in that particular set of circumstances.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €6,000 in respect of her unfair dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)