ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004276

Complaints for Resolution:

Date of Adjudication Hearing: 10/02/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Description of Parties : A Head Chef -v- A Restauranteur

Procedure:

This matter comes before the WRC Adjudication services on foot of a complaint made on the 29^th of July 2016. The Complainant states he was unfairly dismissed when his employment was terminated in and around the 3^rd of February of 2016 and it is accepted by this Adjudicator that he lodged a Workplace Relations Complaint Form with the Workplace Relations Commission within the six month period allowed from the date of termination of employment. The Complainant has an additional complaint under the Terms of Employment (Information) Act, stating he was never given a Contract of Employment outlining his terms of Employment. This matter has been referred in accordance with Section 41(4) of the Workplace Relations Act, 2015 to the Adjudication Services in order that a full inquiry into the issues can be made with an opportunity for the parties to be heard and any supporting evidence to be considered.

Complainant’s Submission and Presentation:

A book of documents was submitted and opened. The Complainant commenced his employment in and around September of 2014 and worked as a Head Chef in the Respondent owned Restaurant in Dublin City. The Complainant indicated that the Respondent was known to him though he had no reason to communicate with him by phone or otherwise on a regular basis. The Complainant said that the Respondent’s wife (Ms.R) managed the Restaurant but that the day to day running of the Restaurant was performed by Ms. Z with whom the Complainant as Head Chef would have acted closely with. There also seemed to be a third Manager type person (Mr. H) who oversaw this Restaurant on the Respondent’s behalf together with a number of the Respondent’s other units on some sort of quasi-contractual basis. There had been no issues surrounding his employment. In and around late 2015 and early 2016 the Complainant’s father became seriously ill and it became obvious to the Complainant that he needed to return home to his dying father. Things came to a head in early January and in response to a call from home (being Maritius) the Complainant travelled home at short notice. The Complainant travelled out on the 5^th of January and booked return flights for the 13^th of February – a period of circa six weeks. It is not clear if the Complainant explained to anyone in his workplace that his Hindu faith would require some 40 days of mourning in the event that his Father died and in fact it seems the issue of compassionate leave was not discussed nor was there any Contractual indication in circumstances where there was no Contract.

The Complainant’s father passed away while he was travelling there. Within a day of arriving in Mauritius, the Complainant notified Ms. Z. of his Father’s passing and she expressed her condolences and nothing further. The next communication was from Mr. H on the 15^th of January inquiring as to the intended return date. Mr. H made this inquiry through Ms.R’s phone. It is an unfortunate fact that the Complainant instead of replying to Ms.R phone chose instead to reply to Mr. H’s phone which he had incorrectly noted – by one digit. The phone message – sent on the 15^th of January, 2016 - was shown in the course of the hearing. Mr. H did not follow up his inquiry and the Complainant believed he had fully notified his Employer that his intention was to return to work a month later on the 15^th of February.

There was further communication between Ms. Z and the Complainant a few days later and the Complainant was made aware that the Respondent needed to “organise cover” arising out of his absence but was told by Ms Z that “It doesn’t matter when you come back but we just need to know”. The Complainant was clearly confused that Hugh had not already indicated the proposed return date but at this point on about the 20^th of January he confirmed with MsZ he would be back for work on the 15^th of February. He was advised by MsZ not to “worry about anything at all” .

There then follows, for the Complainant’s perspective, an unexpected change in attitude for the workplace when Mr. H sends a letter by email on the 29^th of January which purports to detail previous misconduct and issues 2 ultimata - that he is to contact Mr, H immediately and he is to return to work by the 3^rd of February at the latest.

The Complainant does contact Mr. H immediately as requested and his confusion is apparent in that he indicates that he (believed) had already notified Mr. H of his plans and he had certainly confirmed his plans with Ms.Z as of the 20^th of January some nine days earlier. The Complainant signalled that the reason for his delay had to do with the “prayer for my father”.

^3rd of February. Mr. H stated that he had not received any communication from the Complainant but appears to accept that he knew Zelda had communicated with him.

The Complainant protested that he had sent Mr. H a text (on the 15th) and Mr. H invited him to send proof of same.

On his return to Ireland, the Complainant was not allowed return to the workplace and collected his belongings and set about looking for alternative employment, the Complainant was furnished with P45 and a letter which states that his last day of employment was on the 10-01-2016.

Respondent’s Submission and Presentation:

The Respondent himself was the only witness available to give evidence on behalf of the Employer and no application was made to allow time or opportunity for any other witness to give evidence in support of the Respondent’s case. The Respondent stated that he and the Complainant had met at the commencement of his employment and that he had indicated to the Complainant that outside of issues relating to food he, the Complainant, should feel free to contact him at any time. There is no evidence of any regular communication between the parties after that.

The Respondent heard through the grapevine it seems that the Complainant had headed off to Mauritius at short Notice. The Respondent was adamant that the Complainant had not flagged how long he expected to be away when he was leaving. The Respondent knew about the 40 day mourning issue though when he came to know of it is unclear as it is not directly referred to in any of the text messages. It seems there was general gossip on the premises but whether it emanated directly from Ms.Z (who the Complainant says he told about the length of time he intended being away when he was heading away) is unclear.

The Respondent gave evidence of an extremely difficult trading period without the Complainant in situ. The Second Chef was due to take holidays at the end of January but there seemed to be insufficient lead in time to obtain any temporary or agency cover. The Restaurant had to rely on the Respondent’s personal financial intervention to save the situation.

The Respondent stated that the Complainant should have communicated with him directly regarding this extended absence but at the same time in his direct evidence (not under the pressure of cross-examination) he indicated that the reason that the Complainant would not communicate with him is because he knew how “mad” his Employer would be with him. The employer himself created the impression that he had a short fuse and liable to lash out.

The Respondent believed that there was a casual concealment of the truth and that the Complainant had headed off to the funeral of his Father knowing that it would involve an inordinate number of days off. The implication seems to have been that had his Employer known, he would not have let the Complainant go. When questioned about the cultural differences which might be important to the Complainant, the Respondent indicated that these cultures did not operate here. This is an unusual stance for an employer in a hopefully pluralistic society.

Decision:

I have fully considered the evidence adduced and outlined above. I believe the Employer herein has failed to establish that it has acted reasonably and fairly in reaching the decision to terminate the Complainant’s employment. It is noted that the Employment herein appears to have been terminated Summarily on the 3^rd of February in circumstances where the Complainant had not arrived back from the funeral of his Father by that date. It is curious to note that the P45 was backdated to the 10^th of January and the evidence is that the Complainant was paid up to in and around that date and no Notice payment or other accruing payments were made beyond that date.

I am fully satisfied that the Employer was on Notice of the Employee’s plans and that all communication made through Ms. Z was entirely appropriate as this was the person with whom the Complainant worked most closely within the workplace and her status in the workplace was not that of a waitress but that she did indeed have a quasi- managerial role. Of anyone on the Employment staff it is worth noting that Ms. Z was the only person who offered the bereaved Complainant any sort of genuine sympathy and indeed gave him some comfort in his absence that everything was being handled back in the workplace. I do not accept that the Complainant was obliged to telephone the Respondent nor indeed do I have any evidence that the Complainant would feel obliged to contact Ms.R or Mr.H. Though when the latter did communicate with him he did of course albeit – and disastrously for him – to the wrong number.

I accept that the Complainant’s disappearance for upwards of six weeks made it very difficult for the Respondent, though have not been given evidence in relation to how perilously close to failure the business came. Had the Complainant been suddenly and catastrophically ill would not the Employer have been forced to cope in just such a reactive way as it had to do on the death of the Head Chef’s father half way around the world? The employer was unreasonable and heavy handed in this case.

I do not find that any fault attaches to the Complainant. He was without doubt Unfairly Dismissed and he must succeed under the Unfair Dismissals Legislation. In assessing compensatory loss pursuant to Section 7 of the 1977 Act (where the issue of re-instatement and/or re-engagement was not considered) I take into account that the Complainant was in full time employment in and around June of 2016 at a slightly lesser rate of pay. I award the sum of €23,500.00.

Dated:   9^th May 2017