ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Decision Reference: ADJ-00001497
Complaint(s)/Dispute(s) for Resolution:
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-00001882-001 | 12/01/2016 |
Date of Adjudication Hearing: 15/09/2016
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, 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).
At the end of the hearing , the claimant undertook to submit evidence of mitigation of loss as it was raised as an issue by the respondent.A series of correspondence ensued between the parties culminating in a final response from the claimant on the 25th.April 2017.The Union submitted that they had contacted the employer to whom the respondent had referred and established that the claimant was not engaged on a contract of service and had only worked on a few occasions for them.This was vehemently challenged by the respondent on the 28th.April 2017.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | An Employee | A Hotel |
Complainant’s Submission and Presentation:
Statement of Terms & Conditions of Employment identifies the claimant’s Job Title as Food and Beverage Supervisor. The claimant has worked in this capacity for a number of years. On 19 June 2015 a meeting took place to discuss alleged customer complaint and on that on that same date a letter issued advising that the Company had no option other than to take disciplinary action. A Written Warning issued which is Stage 2 of the Companies Disciplinary Procedures. The claimant responded within the allotted time frame saying decision not accepted but advising that due to holiday abroad a full response could not be made until return from holiday in September 2015. He was then out of the country from approximately the 28 June 2015 to 29 August 2015. On his return he phoned his manager to check when he was next rostered to work but was told that he was not on the roster. He then received a letter dated 2 September 2015 which said that because he had not replied to the letter of 19 June 2015 that he could not now be rostered front of house ie his normal post. He was requested to attend a meeting with HR Manager and Hotel Manager, for 10 September 2015 and was offered the position of Kitchen Porter. This meeting was then re-scheduled to 12 September 2015. The claimant explained the reasons for his inability to deal with the warning based on his annual leave arrangements and responded to the issue underpinning the warning issued. Following this on 14 September 2015 a further meeting took place where our member was represented by SIPTU official and Shop Steward. The issue relates to an alleged customer complaint, where in June 2015 a guest who was residing in the adjoin ing Hotel came to the Hotel for breakfast, and that the claimant was on the door and told the guest that there was a restaurant in the adjoining Hotel. This guest apparently said that she was made to feel that she was not entitled to eat in the Hotel , and that this same issue arose again on the following morning. The claimant rejects these allegations. He recalls a situation where there were three guests, woman, man and child who resided in the adjoining premises and who choose to have breakfast in the House. He says that he recalls one morning when it was raining, and he told this group that there was a restaurant facility in the adjoining Hotel. This was simply to ensure that they were not under the impression that they had to endure the walk across to the Hotel , in bad weather in order to have breakfast. He never suggested that they should not eat in the Hotel restaurant and he was courteous and helpful in his dealings with them. He had no issue with guests from the adjoining Hotel eating in the Hotel and he advises that this was quite a common occurrence for breakfast and or dinner. He refutes the suggestion that he made the customer feel like an inconvenience or that he said anything offensive to any of the three guests. There is no written/signed account of this complaint. A letter of 19 June 2015 indicated that he was receiving a Written Warning. It stated that the claimant’s performance would be kept under review but there was no indication that he was to be removed from the roster or moved to a different job. It appears from a letter to the claimant of 2 September 2015 that he is being punished for appealing the Written Warning that issued to him as it was only then that he was removed from his job as food & Beverage Supervisor and demoted to Kitchen Porter. It appears that this only came about as a consequence of our member making a decision to exercise his right of appeal. This was contrary to fair procedures and the principles of natural justice. The Disciplinary procedure outlines 4 Stages, the First being a Verbal Warning, however this step in the process was skipped and a Written Warning issued. The claimant is seeking reinstatement as no basis for his removal has been proven. He will obviously comply with any normal training that would be attached to his role and he would gladly accept any support and assistance that is made available to him. |
The claimant has been employed initially as a waiter and from 2007 as a Restaurant Supervisor – he has worked for the hotel for 14 years and is paid €452 per week.
The union set out a chronological account of the exchanges between the union and the respondent following the respondent’s processing of what was described as “ an alleged” complaint from a hotel customer in June 2015..The claimant was advised of his right to appeal against a written warning issued on the 19th.June 2015 to which the claimant had responded – expressing his unhappiness and indicating that he would deal with the matter on his return from annual leave spent in Bangladesh in Sept.2015.When he enquired about his roster at the end of August , he was advised by the operations manager that he was not rostered and would not be rostered until the issues surrounding the June warning were resolved.The claimant was advised by the HR manager on the 2nd.Sept. that he was being offered alternative hours as Kitichen Porter “until we reach an agreeable outcome”.
A detailed account of the ensuing exchanges and meetings between SIPTU and the respondent was set out.An option of redundancy was explored but ultimately the claimant’s employment was terminated on the 25th.Oct . 2015.The claimant submitted medical certs from the 25th.Sept. – 30th.Oct.
On the 27th.Nov. the HR Manager wrote to the claimant suggesting he had voluntarily resigned in and around the 18th.Sept. , that all options had been considered , but “the company were not in a position to offer the claimant employment” and he was no longer required to submit illness certificates.Siptu continued to seek the claimant’s return to work while the respondent were adamant that reinstatement was not an option.
It was submitted that the claimant’s dismissal was unfair as it had come about because the claimant had refused to admit to an unproven allegation, a warning and demotion.No investigation took place into the complaint made against the claimant.The claimant had no warning on his record the time the Stage 2 sanction was imposed .This was contrary to the respondent’s own procedure which provides for counselling and verbal warning before a written warning is issued.It was submitted that the claimant was the subject of close scrutiny by the HR manager and it was contended that “ t was conceivable that this attention was for the purpose of building a case against him”.It was contended that it was only when the claimant indicated that he would challenge the warning , that the demotion arose.The claimant had indicated he would appeal but no appeal took place.It was submitted that the respondent failed in their obligation to apply fair procedures and to test the veracity of an alleged customer complaint It was submitted that the complaint was entirely subjective and warranted investigation.It was advanced that no allowance had been made for the claimant’s poor level of fluency n English and that the proposed redeployment to the kitchen was humiliating and degrading for the claimant.In response to the respondent’s assertion that the warning had been accepted by the claimant’s Shop Steward , it was contended that nobody can accept a warning on anyone else’s behalf.
Respondent’s Submission and Presentation:
The respondent asserted that when the claimant attended a meeting with the respondent concerning the customer complaint against him, he was represented by his Shop Steward and “ with the agreement of the Shop Steward , the claimant was issued with a warning taking into account “ the severity of the complaint, the claimant’s positon of Supervisor, his length of service and a previous informal exchange with him on the 21st.May 2015 about customer service .It was advanced that the claimant “ admitted that he was unhappy in his position and accepted the warning”.The claimant subsequently indicated that he was not happy with the letter and would respond on his return from his extended holidays.
It was submitted that the manager attempted to contact the claimant during the last week in August to discuss rosters but had been unable to contact him.It was submitted that alternative hours were made available to the claimant “ pending an agreeable outcome” to the matter of the warning letter.The respondent set out their account of the ensuing exchanges with the union about the claimant’s grievance and assignment.It was submitted that at a meeting – attended by the claimant’s union official on the 16th.Sept. , the official tried to persuade the claimant to accept the warning and consider the alternative assignments offered by the respondent. Redundancy was considered in the context of a collective arrangement with other staff but was not agreed.A chronology of the correspondence that ensued between the parties was presented – the final response from the hotel indicated that the hotel was not agreeable to reinstatement but was open to discussing the matter further.It was submitted that the claimant had a right of appeal but did not exercise it. It was advanced that the claimant had rejected an offer to maintain his hourly rate for a trial period
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.
Decision:
I have reviewed the evidence presented at the hearing and noted the respective positions advanced by the parties.I have concluded that the assertion by the union that a proper investigation into the customer complaint was not carried out by the respondent is credible.I further find that the respondent failed to observe their own escalating disciplinary procedures and denied the claimant his rights under natural justice by presenting a demotion proposal without having conducted a proper investigation into the allegations made against him .I accept the union’s contention that the claimant’s appeal should have been processed on his return from holidays abroad.I further accept that the dismissal of the claimant was preemptive and that the respondent failed to observe the principles set out in SI 146/2000.For these reasons I find the claimant was unfairly dismissed.
I found the respondent’s assertion that the claimant had been giving mixed messaged about his wish to continue in the employment, to be credible – particularly so in circumstances where he apparently expressed an interest in redundancy.I also accept the respondent’s contention that they had attempted to explore alternative options with the claimant which on a temporary basis at least would have protected his income.I consider these matters were contributory factors in the dismissal.
The claimant has sought reinstatement and the respondent has indicated that they are entirely averse to any such proposal. I have concluded that the trust between the parties has broken down and consequently do not favour reinstatement.
I am taking all of the foregoing into account in addition to the supplementary submissions from both parties concerning mitigation of loss in requiring the respondent to pay the claimant €23,400 compensation for his unfair dismissal.
Dated: 07 June 2017
Emer O Shea Adjudicator