ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002243

Complaint for Resolution:

Date of Adjudication Hearing: 16/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, 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.

Respondent’s Submission and Presentation:

The respondent denied the claim for unfair dismissal. The respondent submitted that the complainant had commenced work as a kitchen porter in January 2006 .The Hotel operated seasonally on winter closures March to October , annually . During the years of the complainant’s employment, his daughter and other family members were employed at the hotel.

In early September, 2015,the complainant approached the Deputy Manager , Mr DM , of the hotel to discuss the winter closures and was assured that work was available for him during September and into October .The complainant informed his Manager that he wished to finish in September and return for the Spring opening .This did not suit the hotel . The complainant proceeded to fill out two cessation forms on blue paper on 4 September, 2015, these recorded the cessation for himself and his daughter .The respondent issued a P45 and cessation pay.

The complainant returned from Poland in or around 29 September and met with the Manager of the hotel, Mr M with the benefit of an Interpreter ( a supervisor) .The complainant requested to cancel his P45 ,which was refused .Instead the respondent offered the complainant an immediate return to work . This was followed up by a Solicitors letter from the complainant claiming unfair dismissal two weeks later.

On October 6, the respondent responded to a request for a Department of Social Protection payment for the complainant, confirming a voluntary termination due to short time .The respondent disputed that the complainant mistook a cessation form with an annual leave request form as they were differentiated by colour and the complainant had completed over 20 annual leave request forms during his employment.

The respondent disputed that a constructive dismissal occurred citing Conway V Ulster Bank UD 474/1981.

The respondent submitted that the company acted on a bone fide cessation form and that this was a reasonable act. In addition, the claimant was offered his position back, which he unreasonably refused. The respondent submitted that the complainant’s position remained open for him.

The respondent denied that a holiday request was made by the complainant in June 2015,as no record of such a request existed .The complainant had not actioned a grievance .The respondent submitted that the complainant’s claim for compensation as his chosen remedy was a clear attempt to extract a monetary award and asked for the claim to be rejected .

The Hotel Manager, Mr M, gave evidence that the complainant came to the hotel on the recommendation of his brother in law, the head chef at the time. He was a good employee .Mr M was on holidays during September 2015 and did not see the complainant until the meeting of 29 September, in the company of a Supervisor, Ms S, who assisted in translation. The complainant’s English was reasonably good and he had requested the meeting.

He recalled being requested by the complainant to reverse his P45 during the meeting which lasted 20 -25 minutes.

During cross examination, Mr M disputed that the complainant was unable to read or write English.

Mr DM told the hearing that he understood that the complainant was seeking payment for his holidays and had spent 2-3 hours at his house after he completed the forms . The complainant had approached him about 1 hour after he signed the cessation forms .Mr DM understood that the complainant was accommodated with the leave he sought .

The complainant was a friend of his and the Chef prepared the kitchen rosters on a weekly basis .Mr DM understood that the complainant was accommodated in his payments of annual leave with the assistance of the Financial Controller and in his leaving by the hotel . His last working day was 30 August 2015. He did not handle any grievance raised by the complainant .

Mr DM was on holidays from 28 September for two weeks. He confirmed that he had signed acceptance of both cessation forms .

Complainant’s Submission and Presentation:

The complainant is a Polish national .

The complainant submitted that he was very disappointed by the evidence of the respondent as he stated that it was untrue. He submitted that the hotel let him go to bring students who worked for less.

In June 2015, he requested time off to attend to a dental problem in Poland. This was refused by Mr DM and it was suggested that he take some time off in September .Previously, he had annual leave sanctioned by the Head Chef, but now he had to go to Mr DM.

Two weeks before his holiday was due to start in September, he recalled Mr DM stating that as the Hotel was not busy he could take a couple of additional days .His holidays were due to start on 6 September 2015. The complainant engaged with Mr DM to sign what he thought were his daughter’s cessation papers and his own annual leave papers. He asked for payment for annual leave owing .

While, he was on leave, he received an email, discovered by his daughter confirming that he had terminated his employment and attaching a P45 dated 6 September as the last working day. He was due to return to work and he was shocked to discover that he had been fired.

He returned to the Hotel and requested to meet with Mr M, whom he found a different person at the meeting .Mr M did not know anything about Mr D Ms involvement in his termination or that he had lost his job .He disputed that he was offered his position back at the meeting .He was sad as he had liked the job.

During cross examination, the complainant confirmed that he was no longer friendly with Mr DM, he had no idea that a holiday form would be misrepresented as a termination form by him. He was not rostered on his return to the hotel and he had developed a distrust of the respondent .He had not succeeded in securing further work in Ireland and he submitted evidence of mitigation and loss.

His stated loss up to day of hearing was totalled at €19,703.72

Decision:

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.

I have considered the oral and written submissions of the party’s .I have listened carefully to the evidence adduced at the hearing. The claim was lodged by the complainant on 4 March 2016, there were a number of adjournments sought in the case to accommodate the provision of an Interpreter and the complainant’s period of illness in September 2016.The case was eventually heard on 16 November 2016.

There was an obvious dispute between the parties on their respective recollection of the events leading up to the complainant’s booked annual leave in September 2016. The complainant understood that he was taking time off and the respondent understood that he was leaving. I inquired into the circumstances surrounding the composition and submission of the annual leave forms and both forms were considered by the parties.

I understand that both parties were working in a very busy organisation during the summer months of 2015. There are a number of pertinent points for me to consider in this case.

Firstly, I can see that there was some variance in the actual practice of application for annual leave in the complainant’s area of work, between head chef and ultimately the Deputy Manager .This led to a certain amount of confusion. I note that the forms have not been rebranded with the new respondent logo.

A careful analysis of the two cessation forms incorporated in the respondent submission allows me to make the following statements.

1 I am not satisfied that the complainant understood the content of the cessation form and he accepted the explanation given by Mr DM more as a friend than as a manager as to what he signed. I am satisfied that his priority was to address the manner in which annual leave was applied to his salary rather than termination.

2 There is a reference to “no notice” on the form and this is inconsistent with the contract of employment.

3 There was no reference to any of the ceremonies normally associated with leaving an employment e.g. surrendering of uniforms, equipment’s, and given the complainants service, I would have expected that.

4 There are a vacuum in the space on the date on which employment was due to cease .The date of approval was altered.

The form would have been properly presentable to cover an end of season finish , however, I am satisfied , on the evidence before me ,that the complainant did not indicate that he was leaving his employment on 6 September 2015 .

I note the disdain of the respondent that the complainant neglected to action the grievance procedure following the meeting of 29 September, 2015 and instead secured legal representation .I also would have preferred to see the complainant rely on his contractual procedures; however, I understand that he felt he was in a challenging situation. I find that the absence of Mr DM, through annual leave was critical to the interpretation of events at this time.

The discussions at the heart of the meeting of September 29 are in dispute and the situation is not helped by the absence of any written record of the exchange from either party .I note the respondent’s vivid recollection that he offered the complainant his job back at this meeting and that the complainant neither accepted or rejected the offer, but agreed to revert. I note that there was work at the hotel for the complainant at that time. I also note the submissions of the complainant’s representative that discussions on the case during October did not contain an offer of re-engagement. I note and accept the evidence of the complainant that he was of the understanding that he was addressing the methodology of arranging holiday pay rather than his termination of employment. He told the hearing that he had not been approached regarding his return date for March 2017 when he went home for his annual leave.

I adjourned the hearing for a brief time and following the adjournment, the respondent submitted that that they accepted that there was an honest misunderstanding on their management of the complainant’s termination in September 2015 and they wished to offer him re-engagement for the 2017 season with a facility for mediation if desired.

The complainant was not keen to accept this offer given his negative experience and he contended that the barrier to return was too great. He sought the remedy of compensation.

I am satisfied that I have canvassed the views of the parties in accordance with The State ( Pharmaceutical Union ) V EAT ,1987 ILRM 36.

Section 6: Unfair dismissal.

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.

I am satisfied that there were no substantial grounds justifying the complainant’s dismissal and I must, therefore pronounce the dismissal actioned by the respondent as unfair.

There were a number of contributing factors to the professed misunderstanding on both sides and I make a suggestion here that the respondent addresses these to minimise a re-occurrence of this set of circumstances in the future.

I have found that there was a serious shortfall between what I would have expected a reasonable employer to do between 28 August and 6 September 2015 and what actually happened. This   was not remedied in the aftermath and stretched the band of reasonableness further.

Section 6(3)(a) of the Unfair Dismissals Act 1977 permits me to have regard for the reasonableness of the employer in relation to the dismissal .

1 All work related documents should be translated into a language understood by an employee. Complainants V Goode Concrete Ltd DEC-E2008-020 applied. The contract should reflect the actual working year rather than the calendar year .

2 All meetings and discussions with staff should be documented, placed on a personnel file and be retrievable in accordance with optimal human resource and Data protection practices.

3 The respondent should undertake workshops on the grievance procedure.

I have given consideration to an appropriate remedy in accordance with Section 7 of the Act. While I have reflected on the stated hesitation of the complainant to return to work for the respondent, I find that his evidence on mitigation and loss confirmed a comprehensive search for work in the geographical area of the hotel, which to date had been unsuccessful. I have found that the respondent made a genuine offer to re-employ him.

Having regard to all the circumstances, I order the remedy of re-engagement consisting of the following.

The complainant should be re-engaged from September 6, 2016 to close of business for that 2016 season. Furthermore, the complainant should be re-engaged from opening of the season in 2017 on the same terms and conditions as before.

Patsy Doyle, Adjudicator.

Dated:   30/03/2017