EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1219/2014
CLAIM OF:
Stephen O’Brien
– claimant
against
Master Burger Investments Limited t/a Gourmet Burger Kitchen
– respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington SC
Members: Mr J. O’Neill
Mr J. Jordan
heard this claim at Dublin on 22nd October 2015 and 4th May 2016
Representation
Claimant: Mr John McGuigan BL instructed by Ms Treasa Howell of Howell & Co. Solicitors, 2 Tower Road, Clondalkin, Dublin 22
Respondent: Ms Laura Reynolds of IBEC, 84/86 Lower Baggot Street, Dublin 2
The fact of dismissal was in dispute and therefore the claimant went into evidence first.
Claimant’s Case
The claimant gave evidence. The respondent’s business is a chain of restaurants. He was employed as the manager of the Liffey Valley restaurant. There are two other restaurants in the chain.
The claimant was asked to attend a disciplinary meeting on 18 December 2013 to discuss his performance with the operations manager and the assistant operations manager. He was accompanied by a work colleague. He asked for more training. The meeting adjourned and was never re-convened.
Two or three weeks later the assistant operations manager came to Liffey Valley and asked to speak to him. The claimant was delighted to be told that he would receive the training he needed. He would go to the city centre restaurant as a restaurant manager and work with the manager there and be trained by him. He believed that he had been listened to.
When his wages were reduced the claimant contacted the accountant but he refused to explain what had happened. The claimant sent an email on the 7th of February to the operations manager asking for an explanation. He had a meeting with the operations manager and the assistant manager. The operations manager informed the claimant that his pay cut and demotion was part of the disciplinary process. The operations manager asked the assistant operations manager if he had explained this to the claimant; the assistant operations manager looked for the disciplinary letter on his computer but the claimant was never given the letter.
The claimant was not informed of the outcome of the disciplinary process verbally or in writing. He was not given the opportunity to appeal. When he asked if anything could be done about his pay cut he was told that nothing could be done. As there was no outcome given to the claimant following the disciplinary meeting in December 2013 except the offer of training, the claimant thought that was the end of the matter.
The claimant resigned by letter dated 20 July 2014.
The claimant was asked to reconsider his resignation but he could not after the way he was treated. The claimant was fully aware of the grievance and disciplinary procedures but did not make a formal complaint. He had a conversation about his unhappiness with the change in his contract (to assistant manager) but did not take it any further; by raising the issues of the wage cut and demotion in the meeting the claimant believed he was following the grievance procedure correctly. The claimant was informed that if he completed his training register and improved his performance then he could return to his position as store manager. In the claimant’s eyes he was always a store manager but he did resign before completing the store manager training.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Respondent’s Case
The Operations Manager (KG) and the deputy Operations Manager (AC) gave evidence. As a result of an Internal audit the claimant received his first sanction in the form of a written warning for under performance in February 2013. As a result of further audit failures later in the same year further disciplinary action resulted in the claimant receiving a final written warning in June 2013. The claimant’s under performance only came to light when his very competent assistant manager was promoted and left the premises.
The claimant was offered assistance and was visited regularly by management to help him and make sure everything was running smoothly. In November 2013 a ‘mystery shopper’ report came back unsatisfactory. The claimant was investigated again for under performance in November 2013 which resulted in a disciplinary meeting in December 2013. The claimant was on a final written warning but he was also a long standing employee that was newly married; a sanction of demotion was considered appropriate.
A meeting took place on the 1st of January 2014 with the claimant where he was informed that due to his personal circumstances and long service he was not being dismissed but they would continue to help him improve his performance. He was informed that he was being offered a demotion effective from the 6th of January and would be moving premises for training. The claimant asked for time to organise transport to the new premises and was concerned what the staff would think of his demotion to assistant manager; the move was delayed until the 20th of January and he was told the demotion was confidential. He would be taking a pay cut for the duration of his re-training. It was envisaged that his re-training would take approximately 3 months and then depending on availability of a position he would be returned to a store manager position; the claimant was informed of this.
On foot of the email on the 7th of February a further meeting was held with the claimant. He was surprised at the assistant manager’s role he was now in but was reminded of the 1st of January meeting at which he was relieved not to have been dismissed. He again questioned the reasons for his demotion. He asked for notes, so was given the file note of the 1st of January meeting. A further meeting took place on the 30th of April, the claimant was then on annual leave and sick leave until his resignation. The claimant had informed the respondent that he would be returning to work on the 3rd of July 2014.
The respondent accepts that the outcome of the disciplinary meeting in December 2013 was not confirmed to the claimant in writing.
Determination
The Tribunal considers the respondent’s failure to notify the claimant at the start of the Disciplinary process and the failure to inform him of the outcome of the Disciplinary process ie. his demotion and reduction in salary as a fatal flaw in the procedures. However the Tribunal considers that the claimant had performance issues and contributed substantially to the issues that arose.
In the circumstances the Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €13,000 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)