ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005430
Parties:
Complainant
Respondent
Anonymised Parties
Kitchen Assistant
Hospitality
Representatives
Maria O'Donovan Maria O'Donovan & Co Solicitors
Pat Gill
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00007670-001
17/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
CA-00007670-002
17/10/2016
Date of Adjudication Hearing: 06/06/2017
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(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).
CA-00007670-001
Unfair Dismissal
Background
The Claimant stated that he commenced employment with the respondent on the 19th March ’15 until the 22nd April 2016. He was paid €324 gross per week and he worked an average of 36 hours as a Kitchen Assistant. The claimant stated that he was forced to resign his position because of the failure of the respondent to take corrective action against fellow employees who continued to harass and bully him and despite repeated request to the respondent they failed to take action to prevent this behaviour.
The respondent submitted that when the claimant commenced employment he was promised additional hours in high season. On 3rd April 2015, the claimant complained that his hours were not enough. On the 6th April the respondent offered the claimant additional hours doing breakfast which the claimant turned down as they did not suit him. In May the claimant came the respondent's office and he complained that he was not been treated fairly because he still was not getting enough hours. The respondent spoke to the Head Chef where it was agreed that the claimant would get as many hours as possible once he (the claimant) was prepared to work them.
The claimant was asked to leave the financial controller office after shouting. He was constantly up and down to accounts office on his tax issues. In June ’16 the claimant was fixing his car when he should be working and when he was asked to return to work by the Duty Manager he refused and continued to work on his car.
In August 2015 the claimant complained he was working too many hours. In December/ January, the claimant's hourly rate was increased from €9 to €9.50 to reflect the increase in the minimum wage. In April 2016 the claimant came to the General Manager's office and stated that he was not happy in the kitchen. He was asked what the issues were and he stated there was not a good atmosphere there. The claimant did not report for work the following day and the respondent received a letter from the claimant's representative in July claiming constructive dismissal.
Findings
I find there is a major conflict of evidence between the parties. I find that the claimant, on one hand, is complaining about the behaviour of the employees in the kitchen. I find that while the respondent accepted that they had different nationalities employed in the kitchen there was a certain amount banter that went on between them. I find that the respondent submitted a detailed account of the claimant's requests for additional hours. I find that based on the respondent's evidence when the claimant got extra hours that they were either unsuitable or that he was working too many hours. I find that when he was asked to return to duty he refused and he continued working on his car.
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.
I find that based on the evidence as presented at the hearing the claimant walked out of his employment and his claim for constructive dismissal fails.
CA-00007670-002
Terms of Employment (Information)Act 1994
The Claimant stated that he commenced employment with the respondent on the 19th March ’15 until the 22nd April 2016. He was paid €324 gross per week and he worked an average of 36 hours as a Kitchen Assistant. He stated that he was not provided with a contract of employment in accordance with section 3 of the act.
The respondent stated that they had given the claimant a contract of employment but it was not returned and a copy was presented at the hearing along with the respondent’s disciplinary and grievance procedures. The Claimant stated that he had no seen the contract at any stage.
Findings
I find there is a conflict of evidence between the parties. I find that having examined the contract of employment there is no signature or date either from the respondent or the claimant .. I find that the contract should have contained a date or a signature and on that basis, I am making the following ;
Decision:
Section 41 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.
I find the complaint to be well founded and in accordance with the spirit of the legislation I am awarding €600 in compensation.
Dated: 20th July 2017
Workplace Relations Commission Adjudication Officer: Jim O'Connell