FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : FAUGHILL PROPERTIES LIMITED T/A PADDY'S BAR (REPRESENTED BY THOMAS J. WALSH SOLICITORS) - AND - DERRY O' SULLIVAN (REPRESENTED BY GILMARTIN & MURPHY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No.ADJ-00002126
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Unfair Dismissals Act 1977-2015. A Labour Court hearing took place on 22nd June, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr. Derry O’Sullivan against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made against his former employerFaughill Properties Limited t/a Paddy’s Bar, where he alleged that he was unfairly dismissed. By decision dated 16 August 2016 and bearing reference no ADJ-00002126, CA-00002872-001, the Adjudication Officer held that as the Complainant was not present at the hearing, he found that the complaint was not well founded and rejected the claim for lack of prosecution .
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Derry O’Sullivan will be referred to as “the Complainant” and Faughill Properties Limited t/a Paddy’s Bar will be referred to as “the Respondent”.
The Complainant did not appear before the Adjudication Officer for reasons which were explained to the Court.
Background
The Complainant commenced employment in November 2014 on a part time basis, as a Bar Manager to run and manage the business known as “Paddy’s Bar” in Kiltimagh, Co. Mayo. He was paid €260.00 gross per week. His employment came to an end on 3rd January 2016.
Summary of the Respondent’s Position
Mr Declan Hynes, Thomas J. Walsh, Solicitors on behalf of the Respondent denied that the Complainant was unfairly dismissed from his employment, he contended that the Complainant left his place of employment by his own volition, therefore therewas no dismissal. Mr Hynes said that theRespondent became aware that the Complainantwasbeing prosecuted for an assault on a member of the public and for an assault on a member of an Garda Síochana.The Respondent sought to speak to the Complainant in relation to the said assault charges and the Complainant became angry and left the premises and did not return.
The Respondent later received a phone call from the Complainant telling him that he was not returning to work and that he had in his possession certain paper work and the keys to the pub premises which he was refusing to return to the Respondent. Mr Hynes said that as a result of the non-return of the property held by the Complainant, theRespondent was forced to close his place of business for approximately three days and in the intervening period had to arrange to have all of the locks to the premises changed and thereby incurred substantial costs.
Summary of the Complainant’s Case
Mr Charlie Gilmartin, Gilmartin & Murphy Solicitors, on behalf of the Complainant, claimed that the Complainant had been unfairly dismissed by the Respondent. Mr Gilmartin told the Court that on 3rd January 2016 the Complainant was on duty as Bar Manager.He stopped serving customers at approximately 1.15am.At 2.05am three people came into the premises and there was no one behind the bar. MrMallee a directorand shareholder of the Company and the person to whom the Complainant reported, asked that they be served. The Complainant refused to serve them asitwas long afterclosing time. Sometime later when the entire crowd had cleared,Mr Mallee came back and asked him what was going on and why was he not serving drink to the customers. TheComplainant said that it was too late and that he had been put under pressure by the Gardaí who had called previously and had warned him about late hours.MrMallee said that he should be serving and if he didn't he could'f*** off'.He told the Complainant that he was sacked withimmediate effect and not to come back. The Complainant left the public house at about 2.45am.
Witness Testimony
Evidence of Mr Derry O’Sullivan, the Complainant
The Complainant told the Court that he took on the role of Bar Manager with the Respondent on a part time basis. He also worked as a Care Assistant in another organisation on other days of the week. On the night in question - 3rdJanuary 2016, he said it had been a very busy night and the bar stopped serving drinks at 1.10am. At 2.10am two gentlemen in the bar sought to be served. Mr Mallee instructed a junior barperson to serve the drink, however, the Complainant counter instructed her and there was nothing further about the issue until sometime later when the bar was cleared. At that point Mr Mallee asked the Complainant why the customers were not served and when he responded that it was too late and as Bar Manager and nominated licensee, he was under pressure not to serve drink at that hour. The Complainant told the Court that at this response, Mr Mallee was annoyed and said to him “you’re no good to me, you’re fired”. The Complainant denied making a telephone call to Mr Mallee the following day. He said that he did receive texts the following day from Mr Mallee, who was looking for the pub’s paperwork.
The Complainant said that earlier that evening there had been a discussion between him and Mr Mallee about the alleged assault. He said that Mr Mallee had been aware of the details of the alleged assault for some time and that there was no issue about it.
The Complainant told the Court that it was his responsibility to organise all paperwork associated with the running of the pub as Mr Mallee resided in England. He said that on the night in question he had all the paperwork in his car. He said that as he sought to be paid €1,500 in payments due to him he decided to hold on to the paperwork. When the Gardaí became involved seeking the return of the paperwork, he returned it through his solicitor. However, he said that no monies were paid to him.
The Complainant outlined for the Court the losses he incurred since 3rd January 2016. He took up a position as Duty Manager in a Hotel in July 2016 and therefore the losses he incurred was six months’ salary.
Evidence of Mr Joe Mallee
Mr Joe Mallee, owner of the bar said that he purchased the property in 2014. He is based in London working in construction. He said that late on the night in question, after serving time the Complainant was having a drink in the bar with his father, when some regular customers who had been there from earlier on sought more drink, Mr Mallee asked a junior member of staff to serve them however, the Complainant instructed her not to do so. The witness said that at the time he did nothing about the issue but later on he had an argument with the Complainant about not serving the customers.
Furthermore, he said that while he was aware for some time that the Complainant had been involved in an altercation unrelated to his workplace, he had just discovered the true extent of that altercation and the fact that two members of the Gardaí were involved. He said that this was now a more serious issue and he decided to confront the Complainant about it as he was not happy about the Complainant being involved in this way with the Gardaí. He said he was concerned about the possibility of the Gardaí coming into the pub making their enquiries regarding the alleged assault. Mr Mallee said that he brought this issue up with the Complainant during the argument about the customers and he told the Complainant to f***k off out of his sight. The witness denied that he dismissed the Complainant and said that he had no intention of dismissing him. He said that the Complainant simply walked out that night and he had not seen him again until the hearing before the Court.
In cross-examination the witness accepted that he received a letter dated 6thJanuary 2016 from Gilmartin & Murphy Solicitors, on behalf of the Complainant addressed to his legal representatives, Thomas J. Walsh Solicitors. He accepted that this letter made reference to the circumstances of the night in question and that it stated that the Complainant“was summarily dismissed by your Client”. He accepted that he did not instruct his legal representatives to dispute this statement. While a response was received it related to the issue of the withheld paperwork. Mr Mallee told the Court that in hindsight it was a mistake not to clear up the point with Gilmartin & Murphy Solicitors that the Complainant had not been dismissed.
Mr Mallee stated that the argument on the night in question was blown out of all proportion over the non-serving of drinks, but that the Complainant had not been sacked. He said that the Complainant telephoned him the following day seeking €1,500 in exchange for the paperwork. Mr Mallee did not take the opportunity to tell him that he was not sacked or to clear up the matter of his employment status.
Dismissal as a Fact
The fact of dismissal is in dispute between the parties.
Section 1 of the Acts defines dismissal as follows:-
- ‘“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)[not applicable]
Conclusions of the Court
The Complainant disputes the allegation that he abandoned his employment on 3rd January 2016. Equally, the Respondent denies that it dismissed the Complainant on that date. It follows that the Court must determine whether or not a dismissal within the meaning of the Act occurred.
The Court notes that the Complainant did not seek reasons for his dismissal from the Respondent, as provided for in Section 14(4) of the Acts. However, his legal representatives on his behalf did enter into correspondence with the Respondent’s legal representatives on the question of his summary dismissal by the Respondent, to which neither the Respondent nor its legal representatives replied.
On the basis of the evidence adduced and on the balance of probabilities, this Court is of the view that Mr Mallee by his words and actions dismissed the Complainant on 3rd January 2016. Mr Mallee told him that he was no good to him anymore and to get out of his sight. He made no effort whatsoever to clarify the status of his employment, despite speaking to him on the phone the following day. The Respondent made no effort to rectify the clear perception that the Complainant had that he had been summarily dismissed. This was clearly outlined in the letter from his legal representatives on 6thJanuary 2016. Other than make strenuous attempts to organise the return of the pub’s paperwork, including involving the Gardaí, the Respondent made no effort to clarify matters with the Complainant.
Therefore, the Court finds that it was not unreasonable for the Complainant to be of the belief that he had been dismissed by the Respondent on 3rd January 2016.
Section 6(1) of the Acts states:-
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Determination
The Court, for the reasons stated above, finds that the Complainant was unfairly dismissed by the Respondent. In all of the circumstances the Court finds that the amount of compensation which is just and equitable is €3,000. The Respondent is required to make a payment in that amount to the Complainant. The decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th July 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.