EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Alexsander Kocot
UD267/14
Claimant MN101/14
WT37/14
Against
Newdara Limited, T/A The Portobello Hotel
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr G. Mc Auliffe
Ms. E. Brezina
heard this claim at Dublin on 1st September 2015 and 20th September 2016
Representation:
Claimant: Ms Eve Bolster BL Law Library, Four Courts, Dublin 7 instructed by
Mr. Marcin Szulc, Rostra Solicitors, 78 Benburb Street,
Smithfield, Dublin 7
Respondent: In person
The determination of the Tribunal was as follows:-
This being a case of constructive dismissal it fell to the claimant to give evidence first.
Claimant’s Case:
The respondent owns a hotel and a bar. RMcD is owner. It was the claimant’s case that he commenced employment in March 2007 in the respondent’s bar and was employed as a barman. He worked a 40 hour week. He reported to JC, General Manager. He was not furnished with a job description or a contract of employment. Over time he was given extra responsibilities. He assumed a managerial role and was not remunerated accordingly. His hours of work increased to 45 hours per week. He was not given payslips on a weekly basis but handed a bundle to cover a 5 to 6 month period. He was given three weeks’ holidays. He wrote to the respondent concerning his extra responsibilities and sought an increase in his salary. He did not receive a response. In 2008 he ended his employment with the respondent and secured three part time jobs.
In mid 2009 the claimant was approached by JC and offered his job back. His role would be that of bar man only with no managerial responsibilities. The respondent facilitated him when he attended college. Approximately six months later his role changed and he assumed the managerial duties that he had held when he had previously worked for the respondent. He was provided with a managerial key. He spoke to JC and requested a pay rise. JC told him he could not be given a pay rise but instead he would receive complimentary meals in the bar. He arrived for work prior to his shift each day to avail of the complimentary meals. Day staff were provided with complimentary meals. When RMcD became aware that the claimant was receiving complimentary meals he instructed that this was to cease.
The respondent installed a cocktail bar in the night club and the claimant was given full responsibility for the bar. He saw a gap in the market and purchased a poker table and a set of chips and this brought in extra takings for the respondent. The claimant took pride in his role and always did the best for the company.
In around May 2013 an altercation occurred in front of the bar between two people. There was a lot of aggression. One of the two individuals (K) commenced a tirade of abuse at the claimant. The claimant took an executive decision and asked K to leave the bar. K was unhappy with this and assaulted the claimant. A member of security then entered the bar area and told the claimant to go downstairs.
The next day JC met him. He was told he should not have left the bar and that a complaint could be lodged with the respondent. The claimant tried to give his version of events but he was constantly being told it was all his fault. He enquired about CCTV footage but none was available. He was suspended for two weeks without pay.
In November 2013 GH (a security official) approached the claimant and told him that he had better go and look for another job. GH was making life difficult for the claimant and the claimant did not get on with GH.
On 9th December 2013 the claimant noticed that someone had been smoking in the toilets and he went upstairs to report it to GH. GH became very aggressive towards the claimant and a tirade of abuse then ensued. The claimant was scared of GH and told him that he was going to make a formal complaint. He furnished JC with his complaint. JC told him he would have to pass it on to RMcD. The claimant subsequently received a text message from the owner who asked him to meet him the next day.
As he had no one to mind his very young child he took the child with him to the meeting the next day, 10th December 2013. Two employees looked after his child while he attended the meeting with RMcD. RMcD ripped up the claimant’s statement in front of him and told him that he would need to retract it or he would be sacked. The claimant was told to leave the building immediately and if the claimant was reporting the incident there would be consequences for him. RMcD then assaulted him. He subsequently telephoned the Gardai and reported the incident. He was scared and petrified and could not return to work. He sought legal advice.
There were no grievance or disciplinary procedures in place in the company.
Approximately five months later the claimant secured full time employment.
Respondent’s Case:
RMcD owner and Director of the respondent company gave evidence. JC, General Manager made him aware of an incident that had occurred between the claimant and Security Official, GH on 9th December 2013. The claimant had written a letter and this letter was passed to the witness. When he read the letter he realised that he needed to speak to the claimant and asked JC to contact him and ask him to attend the following day. The claimant was not rostered for work until Wednesday.
The claimant arrived with his baby daughter in a pram. Two employees who were on the premises looked after the baby while he met the claimant. The claimant sat down and placed his papers together with his mobile phone on the table. The witness realised the phone was recording and he asked the claimant to switch it off. The claimant said the phone was not recording. Within minutes Day Time Manager, PS arrived to attend the meeting.
The claimant said he knew it was his last monologue here and also how great he was in the company. He started getting very agitated and kept raising his voice. He would not let the witness get a word in. RMcD found this to be disrespectful. The claimant wanted €7,500.00. The claimant said he hoped that Revenue would get the witness for not paying tax. The witness told the Tribunal that all his taxes were up to date. The claimant referred to GH as being a criminal. The claimant then got up to go. RMcD put his hand on the baby’s pram. The claimant then flung RMcD’s arm in the air. The witness then grabbed at the claimant at his chest and told him never to say that again. RMcD admitted he lost his composure that day but the claimant had pushed the boundaries. The incident involving the claimant and GH was never discussed.
A previous incident had occurred on the premises in May 2013. RMcD became aware that the claimant had attacked a customer outside the bar. The customer had been in the bar with his wife. The claimant took offence at what the customer had said and had come from the behind the bar and attacked the customer. The claimant had been sent downstairs to defuse the situation. Two days later the witness took a decision to suspend the claimant for two weeks. The claimant had pleaded with him not to sack him. RMcD did not want to sack him.
There were lots of problems with customers and the claimant was consistently confrontational with customers. When he arrived for work he immediately ate his dinner on the premises.
The back bar closed at 9 pm and the claimant was closing it between 8 and 8.15 pm even though he had been consistently asked not to close the bar until 9 pm.
The witness believed he had been very fair to the claimant. He had broken his service and then came back to the respondent seeking his job back. The witness had mentioned to the claimant that maybe he should look for another job as he could do something stupid again. The claimant asked for his P45. The claimant was furnished with all monies due to him.
The respondent did not dismiss the claimant.
JC is General Manager. On 9th December 2013 he had heard the claimant roaring outside his office and saying that he could not take any more. He burst into the witness’s office saying that he could not go on as he was being abused. There had an interaction between the claimant and GH. He told the claimant to go back to work. The claimant had told him he wanted a meeting with RMcD and later that evening him he handed him a letter.
The witness always provided all staff including the claimant with good references during their time working for the respondent.
The claimant took smoking breaks every ten to fifteen minutes during his working day.
The claimant never seemed to be happy and there was no pleasing him. The claimant was ambitious and he felt he should be the Manager and had to be often told that he was not the manager. His behaviour seemed to be worsening.
PS is Day Manager. He was aware that there were issues over the claimant’s punctuality. He attended the meeting with RMcD and the claimant on 10th December 2013. He found the claimant to be disrespectful towards RMcD during the course of that meeting. Staff had been told not to eat their meals as they were about to start work. The claimant continued to eat his meals during his working hours.
The witness told the Tribunal that if the owner grabbed him by the chest he would not return to work.
KE was a customer in the bar of the hotel on the particular day in question in May 2013. During a conversation with another customer in the bar the claimant got involved in the conversation and it became heated. He told the claimant to shut the f… up and get back to Poland. The claimant then grabbed him by the throat and the witness fell back. In a telephone call later with the respondent the witness indicated that he did not want to see the claimant being sacked because of that incident.
Determination
The Tribunal carefully considered the evidence adduced over two days of hearing this case. The claimant, to succeed in a claim for constructive dismissal, would have to satisfy the Tribunal that in all the circumstances of his employment it was reasonable for him to leave.
The general manager told the Tribunal that there were issues with the claimant’s behaviour and that he never seemed to be happy. The claimant left his employment in 2008 but sought his job back in 2009 and the respondent duly offered him his job back.
Two separate incidents prompted the claimant to leave his employment. The claimant had an altercation with a customer during May 2013. The evidence of RMcD was that he became aware that the claimant assaulted a customer and as a result he took the decision to suspend the claimant without pay for two weeks. The respondent had no formal grievance or disciplinary procedures in place during the claimant’s tenure. No investigation was carried out to deal with the allegation of wrong doing by an employee to establish what actually happened. The claimant should have been given details of the allegation against him and this preferably in writing and then give the opportunity to respond to the allegation. Also when imposing a relatively severe sanction the respondent should have explained in detail the reason for the sanction and outlined the consequences for the claimant if the alleged wrong doing were to occur again.
Later in December of 2013 the claimant made a written complaint about his colleague GH. Under these circumstances an employee is entitled to expect to have his grievance taken seriously. The absence of a formal grievance procedure does not eliminate the respondent’s responsibility to take the claimant’s grievance seriously and carry out an investigation and to at least consider the possibility that the claimant’s complaint has merit. The claimant’s frustration and agitation at the meeting does not justify RMcD losing his composure and grabbing the claimant at his chest.
The Tribunal finds that following the respondent’s inadequate and inappropriate handling of the two issues involving the claimant together with the absence of any demonstrable policies for dealing with difficulties that arise in the workplace and following the owner of the respondent grabbing him at the chest when the claimant was called to a meeting to consider his complaint, the claimant was entitled to consider himself constructively dismissed in this case. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €8,200.00.
As this was a case of constructive dismissal the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails. The Tribunal awards the claimant €410.00 under the Organisation of Working Time Act 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)