ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001875

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Respondent’s Submission and Presentation:

The claimant was employed as a Chef de Partie with the respondent since 2005 – he was reissued with a contract in 2011 , when a receiver was appointed but it was submitted that he refused to sign same.It was submitted that the claimant had a history of performance deficits culminating in a counselling session with the HR Manager in Feb.2014.The claimant was issued with a first written warning on the 20^th.March 2014 and while other issues were raised by the Head Chef in relation to the claimant’s performance in December of 2014, it was concluded that the claimant had presented a satisfactory explanation for the matters raised.

A written warning was issued on the 14^th.May 2015 and while other performance issues surfaced on the 22^nd.May 2015, no further action was taken as the claimant committed to raising his performance.An alleged breach of food hygiene arose on the 26^th.May 2015 – no action was taken.On the 24^th.September 2015, the claimant was issued with a final written warning for serving incorrectly cooked steaks and for failing to accept responsibility for same .It was submitted that a row broke out the following day when the claimant challenged the Head Chef about the final written warning – it was submitted that the claimant walked off shift and absented himself from work that weekend.The disciplinary procedure was again invoked , an investigation ensued and the claimant was dismissed for gross misconduct on the 14^th.October 2015.The claimant did not appeal and it was submitted that the respondent had acted in accordance with the grievance procedure and had no alternative but to dismiss the claimant.The hotel manager asserted that the claimant was acting aggressively on the 25^th.Sept . when he challenged the Head Chef and that he smelled of alcohol.The HR manager asserted that the company had been lenient with the claimant and this was evidenced on the number of occasions where performance issues had arisen but the disciplinary procedure was not invoked.

Complainant’s Submission and Presentation:

The claimant submitted   because he had pursued a personal injury case and was on relatively high wages the respondent wanted to get rid of him and some other chefs.He set out a chronology of the disciplinary steps taken against him – he denied receiving the final written warning and attributed any performance deficits to understaffing in the kitchen.He asserted all performance issues were directly related to understaffing on the particular days the problems arose .He denied he was n any way aggressive on the 25^th.September and asserted that account should be taken of his length of service with the respondent since 2005 – he contended that all of the performance issues arose in the last 6 months .He denied smelling of alcohol on the 25^th.September and advanced that he had to absent himself from work for personal reasons- he submitted a medical cert stating he was suffering from stress from the 29^th.Sept. to the 5^th.Oct.2015

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

I have reviewed the evidence presented at the hearing and the documented account of the final disciplinary meeting and have concluded on the balance of probability that the respondent’s representatives had already made their minds up that the claimant was guilty of gross misconduct in advance of the claimant giving his account of events from his perspective.The submission from the respondent refers to “ He was verbally advised that absenting himself from work was gross misconduct and informed that his conduct would be investigated”.The notice of the disciplinary hearing states “ Given the serious nature of these( alleged )– the word alleged is crossed out on the notification – offences I have no option but to suspend you with pay , subject to the outcome of the disciplinary meeting”.The text of the disciplinary meeting indicates that before the claimant was given an opportunity to offer his defence he was advised that he had absented himself from work and “ this alone was gross misconduct”.I find that the claimant was denied his rights under natural justice and accordingly uphold the complaint of unfair dismissal.Notwithstanding this, I accept the respondent’s contention that the claimant had a history of serious performance deficits and accordingly I find he contributed significantly to his own dismissal.As a consequence I am limiting the award of compensation to €4,000.

Dated:   25^th October 2016