ADJ-00005271

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005271

Parties:

Complaint:

Date of Adjudication Hearing: 10th March 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 4^th October 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 10^th March 2017. The complainant attended the adjudication and was represented by Doyle & Company Solicitors. The respondent company was represented by Anne O’Connell Solicitors and two witnesses attended on its behalf. As the fact of dismissal is in dispute, the complainant was first to present his case.

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant worked for the respondent as a chef from the 11^th July 2013 until the end of his role in May 2016. He asserts that he was unfairly dismissed by the respondent, a claim the respondent denies. The complainant was paid €540 per week.

Summary of Complainant’s Case:

The complainant commenced employment with the respondent on the 11^th July 2013. His role was that of Chef and he worked long hours, for example 81 hours per week. On the 5^th May 2016, the complainant had been due to work with a named colleague. The complainant asked a company director, a witness at the adjudication, if he could leave early and the company director agreed so long as the complainant found someone else. A colleague was available to work in the complainant’s place and this swap had occurred before. The complainant outlined that he was removed from the staff Whatsapp group the following day. He had tried to contact the colleague who had agreed to swap and also to contact his workplace. He then met with a company director who told the complainant that it was time for him to move on. The complainant had not wanted to find another job and a company director had advised him to get another job.

The complainant outlined that his last shift for the respondent was on the 5^th May 2016. He said that he was too tired to work shifts over the weekend after this date and raised this with the respondent. One company director said in reply that the complainant should “not come back again” and this director later threatened to have the complainant sent back to his home country. The complainant said that he received his P45 and the respondent’s email on the 1^st June 2016.

The complainant indicated that he had communicated with the respondent by text and by email regarding pay slips. He accepted that he had exchanged Whatsapp messages with the respondent on the 12^th and 13^th May 2016 where he was recommended for head chef roles. He said that he had only received one P60 in the time of his employment with the respondent and rarely received pay slips. He submitted that his last day of employment with the respondent was the 13^th May 2016 and that he was able to commence new employment on the 30^th May 2016. He had been dismissed without adherence with any procedure.

In cross-examination, the complainant said that he was not sure of his title as he carried out all functions in the kitchen. It was put to the complainant that his text message on the 5^th May 2016 that he could not work the evening shift had only been sent at 4.10pm; he replied that he had asked for permission not to work after the lunchtime shift. He denied that he left work mid-shift and without permission. He also denied going to attend a trial at another restaurant that day. He said that he was sick on the 5^th May 2016 and attended an interview and not a trial the following day. He said that he had not left the respondent high and dry on the 5^th May 2016 and had found a replacement. He did not accept that he had fought with a colleague on the 5^th May 2016. He did not accept that he had worked in a named hotel in the month of May 2016.

It was put to the complainant that a company director had tried to phone him on the 5^th May 2016; he replied that once he obtained cover for the shift, he did not answer any phone calls and that he needed to rest. It was put to the complainant that he had been intoxicated at the meeting of the 8^th May 2016; he denied this and also denied asking for a pay rise and said that the respondent had not provided documentation necessary for his work permit. It was put to the complainant that he had walked out before and as a result obtained a pay rise in week 13 of 2016; he replied that he had obtained a pay rise by asking a company director. It was put to the complainant that he had never worked 81 hours per week and that he had worked 40 hours a week, with no Sunday work; he replied that his average working week was 70 hours. The complainant accepted that the respondent had loaned him €1,000. The complainant was asked why he had not attended work after the 5^th May 2016; he replied that the situation was confusing and why would he have found a replacement if he was walking out on the respondent. It was put to the complainant that he had asked the respondent for more money and for Monday shifts in one of the respondent restaurants; he denied asking for more money and accepted sending the messages regarding Monday shifts.

In closing comments, the complainant outlined that he was out of work for a period of 25 days following the ending of his employment on the 5^th May 2016 and the start of his next role on the 30^th May 2016. It was submitted that it was a clear case of unfair dismissal as procedures had not been followed. The respondent had made the decision to dismiss the complainant at the disciplinary meeting of the 8^th May 2016. This arose as the complainant had not been able to work long days.

Summary of Respondent’s Case:

The respondent denies the claim and denies that the complainant was dismissed or that he could claim constructive dismissal. It submits that the complainant resigned to pursue an offer of employment at a different restaurant.

The first company director gave evidence. He outlined that on the 5^th May 2016 the lunch shift was coming to an end and he went to the other restaurant operated by the respondent in advance of the evening shift. He heard that the complainant could not work the evening shift and tried to phone him. Colleagues in the kitchen said that there was an argument earlier that day and a more junior chef arrived to take the complainant’s place. He said that he was able to reach the complainant, who criticised the kitchen and hung up. He said that he attended the meeting of the 8^th May 2016 as a witness. The complainant had raised his interaction with a named colleague. He also said that he had another job that would pay for his work permit. The company director said that they were happy to part ways and to supply the complainant with a positive reference, as well as his P45. The complainant later sought shifts in one of the respondent restaurants and turned up without notice. The company director said that the complainant asked for his job back and he replied that they had reached an agreement on the 8^th May 2016. He understood that the complainant had resigned.

In cross-examination, it was put to the company director that he had given in evidence the grounds for the complainant’s dismissal. He did not accept this, saying that the complainant had resigned. He said that he was happy with the complainant’s work but that he had walked out three times and then resigned. He had been able to pick things up as he was also a chef. The disputes in the kitchen occurred when he or the other company director were not there. The process was that a staff member had to get permission to leave on grounds of sickness, either from the head chef or from him. He confirmed that he had not been contacted by the complainant on the 5^th May 2016. He denied speaking to the complainant in person on that morning. He confirmed that it had been agreed at the meeting of the 8^th May 2016 that the complainant would move on and he picked up the complainant’s shifts. He denied that the respondent had made any prior decision regarding the complainant prior to the meeting of the 8^th May 2016. He said that he had only had one conversation with the complainant on the 5^th May 2016 and also spoke to kitchen and floor staff. It was put to the company director that he had not sent letters or issued written warnings to the complainant; he replied that issues had been raised verbally with the complainant.

The second company director gave evidence. He said that he was the front of house manager. On the 5^th May 2016, he contacted the complainant by phone, who raised issues in relation to the kitchen. They spoke on the 7^th May 2016 and agreed to meet the following day. At the meeting, the complainant raised the terms of his employment, including payment of his work permit and his rate of pay. He wanted a colleague moved from the kitchen and also raised the better offer he had. The company director considered that the complainant had resigned and offered him a full reference. He denied ever having dismissed the complainant. The respondent paid the complainant’s annual leave and went above and beyond what was necessary for the complainant. In telephone calls of the 12^th and 13^th May 2016, the company director suggested that the complainant pursue head chef roles via an agency and said that he would put in a good reference to support applications he made for head chef roles.

In cross-examination, the second company director said that there had been an issue with previous walk-outs. It was put to the company director that alcoholic consumption had been the grounds for dismissal; he replied that there had been no dismissal and the complainant had set out his terms for coming back at the meeting of the 8^th May 2016. It was put to the company director that if it was a matter of coming back, had he already been dismissed; the company director did not accept that moving someone from a Whatsapp group amounted to dismissal and that they had not known that the complainant was sick. In respect of the complainant being under pressure on the 5^th May 2016, the company director said that he had not known that the complainant was stressed and that he was aware of tensions in the kitchen. At the meeting of the 8^th May 2016, the respondent sought to investigate what was going on in the kitchen. The company director said that the complainant had resigned on the 5^th May 2016 and had gone ‘AWOL’. He sought to set his terms at the meeting of the 8^th May 2016. He did not accept that the meeting of the 8^th May 2016 was a disciplinary meeting.

In closing comments, the respondent outlined that the complainant had gone ‘AWOL’ on the 5^th May 2016 and did not have permission to leave the workplace. He had refused to answer phone calls. At no time had the complainant been dismissed. The complainant had never referred to the meeting of the 8^th May 2016 as a disciplinary meeting and this meeting had been an attempt to convince the complainant to stay. The complainant had received a pay rise in April 2016, but the respondent could not meet his demands at the meeting. The respondent did not have the chance to address the issue of the complainant walking out of work on the 5^th May 2016 at the meeting of the 8^th May 2016. The respondent outlined that the complainant had not submitted sick certificates regarding stress. There had been no dismissal and the extent of the complainant’s loss was two weeks’ pay.

Findings and Conclusions:

The definition of dismissal provided in section 1 of the Unfair Dismissals Acts provides:

“dismissal”, in relation to an employee, means—(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,(b) the termination by the employee of his contract of employment with            his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of       employment without giving prior notice of the termination to the employer, or(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”

Having considered the evidence and submissions of the parties, I make the following findings in relation to this case. The complainant left the workplace on the 5^th May 2016 and arranged for a colleague to take his place on the evening shift. It is not in dispute that the complainant did not work for the respondent again. Having considered the evidence of the parties, I am satisfied that the complainant effectively resigned on the 5^th May 2016. He indicated in a telephone call that day that he was leaving the respondent’s employment. On the 8^th May 2016, he met with the company directors, where the complainant set out terms, such as higher pay and the removal of a colleague, for his return. This was not agreeable to the respondent and the employment relationship never resumed. As a matter of fact, I find that the date the employment relationship ended was the 5^th May 2016, but this cannot be categorised as a dismissal and was, in fact, a resignation. This finding is supported by the transcript of Whatsapp messages and the log of telephone calls submitted as evidence. There is also no basis for finding that the complainant was constructively dismissed as he did not take any steps to raise the interpersonal issues arising in the kitchen. It follows that the complaint of unfair dismissal is not well-founded and does not succeed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

CA-00007394-001

I find that the complaint made pursuant to the Unfair Dismissals Acts is not well-founded and does not succeed.

Dated:   31/08/2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissals Acts