EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Cristian Zamfir UD917/2013
against
Lorien Enterprises Limited T/A Ct & Z
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr R. Murphy
Mr J. Maher
heard this claim at Dublin on 6th October 2014 and 25th November 2014
Representation:
_______________
Claimant: Ms. Aisling Quinn, O'Hanrahan Quaney, Solicitors,
54 Fairview Strand, Fairview, Dublin 3
Respondent: O'Riordan & Co, Solicitors, 23 Kingram Place, Dublin 2
Determination:
TheTribunal has carefully considered the evidence adduced in the course of this two day hearing. The claimant makes the case that he was dismissed with 2 week’s notice on the 3rd April 2013 and in the course of a meeting with the general manager of the company who was questioning his failure to follow his supervisor’s instructions. The claimant had been employed with the respondent company as a commis chef since June 2007.
There was some question about the existence of a health and safety statement which appeared to set out many of the procedures and policies which operated within the company workplace and the content of which the staff were expected to appraise themselves of. Some members of staff have signed it but the claimant had not and the Tribunal cannot be sure that the claimant had sight of this statement during the course of his employment. Equally, it is certainly worth noting that the claimant never had a contract of employment and therefore had no written job description.
The claimant had worked his way up from the position of kitchen porter to that of a commis chef, having self- taught himself the appropriate skill-set in the workplace.
It is argued by the respondent that the claimant had no formal job description though by April 2013 he was certainly a commis chef, with no clear contractual terms to set out what was expected of him.
The respondent has confirmed the fact that it terminated the employment and in the circumstances the respondent will have to establish that it has acted fairly and reasonably in all the circumstances.
There can be little doubt that the disciplinary process applied were somewhat lacking so that, for example, a letter of warning can issue in the aftermath of a single meeting which is accepted
to be both investigative and disciplinary in nature. In addition, this letter fails to notify an employee of a right of appeal, though it is noted same is allowed for in the safety statement which is purportedly known to all staff.
Ultimately all matters of discipline fell on the shoulders of the general manager who had responsibility for three restaurants and whose style seems to have been more reactive than pro-active. The general manger seems to have no obvious training in human relations which had resulted in a lack of note taking, advance notice, and other processes which would have been considered best practice in disciplinary hearings. The essentials set out in the code of practice on grievance and disciplinary procedure have simply not been observed or applied in this workplace.
It is noted that the company health and safety statement seeks to incorporate a quasi-disciplinary policy within its pages but this only provides for a manager to investigate “in an even handed and impartial manner”.
It is however clear that the company does have a very strong written policy with respect to issues of abusive, bullying and aggressive behaviour which is emphasised across two pages (40 and 65) in the respondents book of papers, and certainly clearly identifies swearing, criticism, humiliation and critical behaviour as not being tolerated in the workplace.
The respondent had adduced evidence on the first day from a number of its employees (including two supervisors) which relates to the claimants general demeanour in the workplace.
Whilst the claimant denies the veracity of the evidence adduced the Tribunal believed the general allegation that the claimant was “hot-headed” in the workplace. The Tribunal recognises that some workplaces, including restaurants tend to be more robust and there is an expectation that staff will work with the pressures loaded on them in the course of working shifts. The Tribunal was impressed with the general tenor of the two supervisors who acknowledged that they would generally take the abusive argumentative and exasperating traits which the claimant displayed but recognised that he very often “crossed the line” and was hurtful and rude to them and others. The evidence was that the claimant tended to pick on the kitchen and waiting staff rather than the supervisors who gave evidence. An incident did occur which left one of the kitchen porters very distressed and whilst he said kitchen porter did, in evidence move away from how significant the event was, the supervisor did, at the time of the incident report it to the general manager who disciplined the claimant on foot of it. The general manager was well aware how the claimants temper was giving rise to some difficulty in the workplace. The matter was raised with him by his supervisors from time to time. It is noted that the supervisors gave evidence to the effect that they only ever reported half of the incidents for the sake of harmony. They witnessed many more unacceptable scenes than those that were raised.
The general manger, as has already been noted, took the claimant aside rather than conduct a formal investigation and issued the claimant with a letter of warning – which fact is denied by the claimant.
The claimant does recall the incident with the kitchen porter though his version of events is somewhat tamer than the version outlined by the supervisor who witnessed the distress being experienced by the porter.
The claimant was issued with a letter of warning (though he denies this) in response to the purported bullying of the kitchen porter. It is unacceptable to the Tribunal that a letter described as a “final warning letter” does not refer to a right to appeal. It is not good enough to indicate a general right of appeal is mentioned in the health and safety statement when the respondent cannot even be sure that the claimant has had sight of same. Ultimately on April 3rd of 2013 there was in incident in the workplace which brought matters to a head. The claimant was instructed by his supervisor to clean the bathroom which was a job ordinarily carried out by the commis chef at the lunchtime shift. The claimant had not carried out the task to the standard expected and when he was told to re-perform the task he became very abusive. The witness AI described the scene as very angry and intimidating and she had to back off which she did, although she did report this incident to the general manager. On balance, the Tribunal accepts the supervisor’s version of events. The general manager came to the workplace later that day and again took aside the claimant with a view to addressing the scene that had been described to him by his supervisor and over which his supervisor was very upset.
Whilst the general manager gave evidence to the effect that he was aware of complaints made by staff of threatening (albeit not violent) and abusive behaviour, his own experience in the past was that the claimant always promised to improve in the aftermath of being warned – whether by letter as asserted by the respondent or on a verbal warning having been given by the general manger.
On this occasion (3rd of April 2013) the general manger, on behalf of the respondent, addressed the issue of the earlier argument with the supervisor and in particular, regarding the failure of the claimant to clean the bathrooms and there followed a scene of unacceptable irateness. The claimant denied the truth of the description given by the general manger of an explosive scene in front of staff and customers alike.
The claimant says the discussion became heated by reason of a change in work rosters and not a wilful refusal on the part of the claimant to follow a reasonable instruction given by a supervisor.
On balance, and on foot of the evidence heard and the demeanour of all the relevant witnesses, the Tribunal finds that the claimant over-reacted and used foul and abusive language and escalated the scene from one of reprimand to one from which it would be difficult for either party to pull back from.
There was no “cooling- off” period and in the course of this argument the general manager in effect fired the claimant albeit he specifically allowed for a two week notice period.
It has been put to the Tribunal that the manner in which the claimant was fired then and there and on the spot is wholly unfair in circumstances where the general manger initiated the scene and goes on to terminate the employment as part of that same scene. The Tribunal acknowledges that the correct thing to do would have been to suspend the claimant and report the matter to the company director for the purpose of having an investigation or a disciplinary, with perhaps a supervisor from one of the other restaurants carrying out the investigation.
The Tribunal recognises that the general manger was ill-equipped to deal with the H.R. matters and that this was not his fault as no provision appears to have been made to upskill him in this regard. The Tribunal does not necessarily blame the general manger as an individual but must find that the respondent has, in all the circumstances, unfairly dismissed the claimant.
In assessing compensation the Tribunal must also take into account that the claimants behaviour has contributed significantly to the termination of his employment. Whilst the Tribunal might condemn the manner of the dismissal the Tribunal recognises the unacceptable nature of the claimant’s workplace demeanour.
The Tribunal awards the sum of €10,000 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)