EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1151/2014
CLAIM OF:
Ondrej Zahora
against
WS Restaurants Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: M. L. Tobin
Mr P. Trehy
heard this claim at Dublin on 24th November 2015
Representation:
Claimant: Ms Bernie Thornton, SIPTU, 3 Peppar's Court, Peppar's Lane, Portlaoise, Co Laois
Respondent : No representation listed
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the evidence adduced. The Claimant worked as a Pizza maker/Chef with the Respondent franchise outlet in the Whitewater shopping centre in Newbridge. The Claimant commenced his employment in 2009 though there was a dispute as to the exact start date.
For no very good reason the claimant was never given a job-specific contract of employment. Not only is this failure contrary to good practice and a breach of the Terms of Employment Act but the non –provision of a contract of employment served no useful purpose other than to cause the claimant concern.
Despite the fact that there was no physical contract the parties engaged in a lawful employer/employee relationship for the next few years and up to the middle of 2012.
The Respondent witness (Managing Director) gave evidence to the effect that the outlet in this particular shopping centre was ultimately never really viable. The competition in the foodcourt was such that this pizza/pasta unit was only ever just surviving.
The respondent witness indicated that the pizza making job was 70% of the business and that the Claimant along with 2 or 3 other individuals having that skill, was integral to the running of the operation. If the pizza maker didn’t turn into work, the whole place could conceivably grind to a halt.
In the course of his employment, the Tribunal finds, as a matter of fact, that the Claimant was in the habit of not turning into work or turning in late to work. The Respondent’s store manager and MD repeatedly reprimanded the Claimant and indeed tended to issue the Claimant with verbal warnings which appeared to have very little effect on his performance.
The Tribunal heard evidence to the effect that a lot of time and attention was put into the claimant who was very good at his job when he performed at his optimum level. There were, however, an increasing number of occasions when the Claimant’s work standards, punctuality and general enthusiasm for the job were falling well below an acceptable standard.
Matters came to a head in July 2012 when for about the seventh time that month the Claimant arrived into work late. The Store Manager gave evidence saying that he spoke to the Claimant about his tardiness and that the Claimant erupted with anger. The Tribunal accepts that the Claimant (whose English was not good then and is not good now) became angry with his line manager. This anger stemmed from a general annoyance with his employer over the lack of a contract, long hours of employment, general dissatisfaction with the work and a resistance to being corrected.
The Tribunal finds that the exchange was capable of being perceived as being menacing and the generally gentle and mild-mannered Store Manager was not at all comfortable with the way this anger was vented.
The MD was brought into the workplace later that day and a “meeting” was convened at which the Claimant’s employment was terminated for gross misconduct.
The Tribunal finds that the manner of this dismissal was contrary to any recognisable norm. There were no obvious disciplinary measures in place in this workplace other than a franchise handbook which is somewhat light on the procedures to be adopted. The fact that this franchise was being run on a shoestring does not in anyway entitle the owners and employer to not have reasonable and proper procedures and practices in place.
On balance, the Tribunal finds the dismissal to have been unfair but only insofar the method for getting to the point of dismissal was unfair and unreasonable. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant €2,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)