ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002392

Complaints for Resolution:

Date of Adjudication Hearing: 31/05/2016

At: Workplace Relations Commission, Haddington Road, Dublin 4.

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Complainant was employed from 23^rd October 2014 until the employment was terminated on 26^th February 2016. The Complainant was paid €10.50 an hour and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, with the Employee Handbook and the Grievance and Disciplinary Procedures of the Company.

The Complainant referred a complaint to the Workplace Relations Commission on 18^th March 2016 alleging he had been unfairly dismissed and alleging his Employer had not paid him his Minimum Notice.

Summary of Respondent’s Position.

The Complainant had been issued with a formal written warning on 3^rd February 2015 following a complaint of sexual harassment made by another employee.

The Complainant had been issued with a Final Written Warning on 27^th November 2015 in relation to being late for work on a habitual basis. He was informed that any further infringement would lead to his immediate dismissal.

The Complainant lived in an apartment above the Premises in which he worked. There were constant complaints from other employees that he was persistently late for work. Suppliers to the Respondent call every Monday morning to the Premises to get orders and deliveries are then made around 11am the same morning. There were constant calls from the suppliers that there was no response from the Premises. A letter from the Suppliers was presented to the Hearing but the Supplier did not attend the Hearing to give direct evidence.

The Complainant is expected to commence work as per his Contract of Employment at 8am. However when the Respondent visits the Premises the foodstuff is never prepared for sale. The Complainant has been trained and retrained on a number of occasions. A Final Warning was issued to the Complainant on 27^th November 2015.

However on 26^th February 2016, which was Election Day, he was requested to have all the orders ready for 12 Noon. When the Respondent attended the Premises at 11.40am the orders were not complete. The Complainant was asked to explain and he stated that he did not have time to complete the orders.

The Complainant was offered alternative work in the Kitchen in an alternative Premises owned by the Respondent but the Complainant refused.

When he refused alternative employment the Respondent stated he could remain until he found alternative employment elsewhere. The Complainant stated he would not seek alternative employment.

The Respondent stated he would help him seek alternative employment again this was refused.

The Respondent stated he was aware that the Complainant had brought two Unfair Dismissals Complaints against his previous two Employers.

The Respondent further stated that they did not have a clock in system in the Premises but that the Complaint regularly claimed payment for 40 hours a week.

The Respondent dismissed the Complaint at 4pm. He did not provide him with a letter of dismissal.

The Respondent stated that his Revenue in the Premises had increased since the Complainant had been dismissed.

The Complaint was not paid Minimum Notice as he was summarily dismissed.

Summary of Complainants Position.

The Complainant did receive a Disciplinary Warning from the Respondent on 27^th November 2015. On 26^th February 2016, some 15 minutes before the end of his shift, the Respondent informed him that he was dismissed and he would be replaced shortly. There were no allegations put to the Complainant nor was there any Disciplinary Process or a suggestion of redundancy.

A Staff Wanted Notice appeared on the front of the Premises.

The Complainant was not paid his Minimum Notice.

During Questions at the Hearing the Complainant confirmed that he had received a warning dated 3^rd February 2015. The Complainant stated that he was scheduled to work from 8am to 4pm and he confirmed at the Hearing that yes he was late for work at times. The Complainant stated that he was offered additional hours to work in alternative premises but stated this was not an alternative to his normal work.

The Complainant stated that he had been requested to have all foodstuffs ready on 26^th February 2016 and that when the Respondent arrived he confirmed he had not prepared the foodstuff.

The Complainant stated he had not worked since his dismissal and provided evidence of his attempt to mitigate his loss. The Complainant stated he was in receipt of Jobseekers Benefit. He was requested to provide a statement from the Department to cover the period from his dismissal to the date of the Hearing. He did provide a statement dated 1^st June 2016.

On the basis of the evidence from Both Parties I find as follows:

1. The Complainant confirmed at the Hearing that he had received a Formal Written Warning in February 2015 and a Formal Final Written Warning on 27^th November 2015 in relation to being late for work and for refusing to carry out reasonable instructions from the Respondent. The Complainant was informed that any further infraction would result in immediate dismissal.
2. There was no dispute between the Parties that on Election Day, 26^th February 2016, the Complainant had been requested to have specific food orders ready for 12 noon on that day. Both Parties confirmed at the Hearing that the Complainant did not have the orders ready when the Respondent arrived at the Premises at 11.40am on the day.
3. The Complainant was unable to give any explanation at the Heating as to why the orders were not ready and completed.
4. There was a dispute between the Parties in relation to the offer of alternative work in other Premises of the Respondent. The Respondent stated the Complainant was offered work in the Kitchen in alternative Premises assisting in the Kitchen. The Complainant stated he was offered additional work to his normal hours of 40 hours a week. However the Complainant was unable to state when this offer had been made and if he had availed of it. In the circumstances of this case I find the Respondent’s evidence to be more credible.
5. I note that both Parties do confirm that the Complainant was dismissed on 2^6th February 2016. I further note that despite the offer of alternative employment the Respondent did not conduct a Disciplinary Hearing prior to the dismissal of the Complainant. This is in breach of fair procedures and natural justice in relation to the dismissal.
6. In relation to the Complainant of non-payment of Minimum Notice I find the Complainant was summarily dismissed by the Respondent and therefore is not entitled to payment of Minimum Notice.

Decision:

Section 41(5) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Minimum Notice and Terms of Employment Act, 1973.

On the basis of my findings above I declare the complaint is not well founded.

Unfair Dismissals Act, 1977

On the basis of my findings above I declare the complaint of unfair dismissal is well founded. The Respondent did not apply fair procedures and natural justice to the dismissal of the employee.

However in accordance with Section 7 (2) (b) of the Act, which provides that in determining the amount of compensation payable, regard shall be had to (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct of the employee, I find that the Complainant contributed to his dismissal by his actions.

I also find that the Complainant was offered alternative employment in other Premises of the Respondent working in assisting in the Kitchen but that the Complainant refused this thereby contributing to his financial loss.

I declare the complaint of unfair dismissal is well founded. I direct the Respondent to pay the complaint compensation of €500.00 (five hundred euro) within 42 days of the date of this Decision.

Date 16 August 2016