ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001095
Parties:
| Complainant | Respondent |
Parties | A Worker | A Gastro-Pub |
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-00001513-001 | 16/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001513-002 | 16/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00001513-003 | 16/12/2015 |
Date of Adjudication Hearing: 26/07/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
At the outset , the complaint under the Employment Equality Act 1998 was withdrawn.
At the hearing , the claimant undertook to submit documentary evidence supporting his complaint of unfair dismissal – however, despite 2 reminders no further submissions were received from the claimant post the hearing.
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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)/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).
Unfair Dismissal’s Act 1977
Summary of Claimant’s Case
The claimant was employed a s a kitchen porter with the respondent from the 2nd.March 2014 to the 5th.August 2015 when he alleged he was unfairly dismissed.The claimant’s gross pay was €350 per week. The claimant asserted that he was dismissed without notice and via text while he was on certified sick leave for shingles.He asserted that he had been an employee of good standing without any previous sanctions.He asserted that he had been offered a significant pay rise by the respondent when he indicated that he might be leaving to take up a job in a local hotel.The claimant contended that he had been required to attend work despite suffering from the serious condition shingles and when he advised the respondent that he was fit to return to work the respondent replied that he had already obtained a replacement.When he challenged his dismissal , the reason the manager advanced for terminating his employment was that “ he had been let down a number of times”.The claimant asserted that he was unaware of any dissatisfaction with his work and had been awarded a 15% pay increase the previous May. The claimant submitted that the respondent knew he had shingles and contended that he had never received any previous warnings or sanctions. |
Summary of Respondent’s Case:
The respondent denied that the claimant was unfairly dismissed and asserted that the claimant voluntarily terminated his own employment. It was submitted that from late 2014 onwards , the claimant began to frequently phone in or text to change his shifts at short notice.The claimant had indicated that he was supplementing his income by doing a few hours part time in a Nursing Home.it was submitted that the Chef began to get annoyed re the frequency in the claimant’s request for shift changes and he was spoken to about same.The Chef consulted with the claimant in advance to check out his part time work commitments and it was submitted that the roster was adjusted accordingly.The Chef offered the claimant a raise to encourage him to concentrate on his employment with the respondent – he understood the claimant was working part time hours in the Nursing Home and was unaware that he was working full time in the second job.It was contended that the claimant was given a strong warning about the numerous shift changes in June 2015 and was told if he didn’t improve he would be out of a job.On the 29th.July and 31st.July 2015 , the claimant rang in at short notice to say he could not come to work.It was contended that no mention was made of shingles.The Chef warned him that he would loose his job and the claimant responded “ f… your job , you can keep it”.It was submitted that no sick cert or contact was made by the claimant between the 31st.July and the 5th.Aug.2015.In the meantime, the Chef concluded that the claimant had resigned and proceeded to hire a new porter.The claimant texted the Chef on the 5th.August as follows “ Hi P, I have sick cert until Friday , so I can do Friday morning”.The Chef advised him that he had been replaced.The respondent was adamant that it was his understanding that the claimant had resigned. When the claimant called to the premises on the 2nd,Sept. 2015, the manager and the Chef told the claimant his record had been atrocious , he had been on a warning and his resignation had been accepted.It was submitted that the respondent had since established that the claimant had been working full time at the Nursing Home – the potential for breach of the Organisation of Working Time Act 1997 was highlighted and it was argued that the claimant had jeopardised the respondent’s registration with the Food Safety Authority by attending work with a communicable disease like shingles. It was submitted that the claimant’s words to the Chef “ F… your job, you can keep it” were clear and unequivocal.His change of mind a week later did not alter this ad the respondent was under no obligation to allow the claimant revoke his resignation.It was submitted that in any event the respondent would have been justified in dismissing the claimant because of his conduct – late shift changes, the breach of the OWT Act , the failure to notify the respondent of shingles and the potential sanction by Revenue in thecontext of his second job.The claimant produced a sick cert for the Nursing Home on the 20th.July 2015 but continued to work for the respondent in breach of Food Hygiene requirements.It was submitted that the claimant contributed 100% to his own dismissal by reason of his gross misconduct. |
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.
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 have reviewed the evidence presented at the hearing and noted the polarised positions of the parties with respect to events leading up to the termination of the claimant’s employment.I note the claimant did not have a contract of employment and no records of previous performance deficits were presented at the hearing.I further find that notwithstanding the exchanges that took place over the phone regarding the ending of the claimant’s employment - it is not disputed that the claimant was ill .I find the respondent should have sought clarification from the claimant before replacing him following a heat of the moment telephone exchange and consequently I find he was unfairly dismissed .However, I did find the respondent’s evidence with respect to the claimant’s attendance to be credible and given the inevitable conflict that arose from the claimant endeavouring to hold down 2 jobs and the claimant’s tardy disclosure regarding shingles, I have concluded that the claimant contributed fully to his own dismissal.In such circumstances , I am not awarding compensation.
Minimum Notice and Terms of Employment Act 1973
Summary of Claimant’s Position
The claimant submitted the respondent was in breach of the Act for failing to pay him notice on termination of his employment.
Summary of Respondents Position
The respondent submitted that the claimant had voluntarily terminated his own employment.It was submitted that in the alternative , the claimant had contributed entirely to his own dismissal ; that consequently the dismissal was not unfair and that notice was accordingly inappropriate.
Decision
In light of my finding that the claimant was unfairly dismissed , I am satisfied that he was entitled to notice and accordingly I require the respondent to pay him one weeks notice within 42 days of the date of this decision.
Dated: 17 May 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea