EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD707/2015
WT115/2015
CLAIM OF:
Maciej Jakubowski
- Claimant
against
CM Bard Tavern Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 26th October 2016
and 2nd March 2017
Representation:
Claimant: Ms. Rita Kilroy BL instructed by:
Ms. Rosemarie Loftus, Bourke Carrig & Loftus, Solicitors, Teeling Street, Ballina, Co Mayo
Respondent: Peninsula Business Services, Block W, Eastpoint Business Park,
Alfie Byrne Road, East Wall, Dublin 3
The determination of the Tribunal was as follows:-
Background:
The respondent company runs the business of two adjoining public houses – PM and BS. The claimant, who is of Polish decent, was employed as a Cleaner / Stocking Staff (title as per contract of employment) from the 5th of February 2014 until the termination of his employment on the 15th of February 2015. His hours of work were 30-35 hours per week and he was paid, initially, a salary of €400 gross weekly.
Respondent’s Case:
The co-owner / Director (CC) of the respondent company gave evidence. CC explained to the Tribunal that in 2014 the respondent required a cleaner and employee to replenish the stock and generally set the premises up before opening to the public. CC knew the claimant as he was working as a cleaner in a public house (H) adjacent to the respondent’s premises.
On the 2nd of February 2014 CC met the claimant where he was offered the position and given a letter and his contract of employment (which was opened to the Tribunal). It stated he would be paid a salary as opposed to an hourly rate of pay along with his duties. CC told the Tribunal the claimant did not sign the contract even though she did ask him on a number of occasions to do so. When asked at this point if the claimant’s knowledge of the English language was good, CC replied that he could speak English albeit not fluently. On occasion a colleague was present for translation if required.
There were a few issues in the first few weeks with duties not being carried out but it was thought the claimant had just forgotten and he would be reminded to do them. He had received a full weeks training in his first week of employment. CC told the Tribunal that it was noticed that the claimant was also “going missing” during his shift. It transpired he was working in the pub H next door leaving the back doors open of both premises for entry / exit. It was also noted that he was using the respondent’s cleaning products to clean the other premises, H, which the claimant was also employed in. This cleaning was taking place on the respondent’s time.
On the 12th of April 2014 CC met with the claimant. CC told the claimant that she had received a complaint from bar staff that some of the work the claimant was to carry out had not been done. Floors were unwashed and sticky, bottle bins were not emptied, bottles were not crushed and rubbish was not disposed of. The bar staff had to do these duties themselves. CC also raised the issue of the claimant “double jobbing” and working in H when he was paid to clean the respondent’s premises. The claimant said he would “work on it”. It was a short meeting. The claimant was given a verbal warning.
CC told the Tribunal that the claimant’s work did improve but only for a day or two and she had cause to speak to him again on the 25th of May 2014 as again the claimant was “double jobbing” and not carrying out his duties for which the respondent paid him. CC also raised the issue that the claimant was being paid €400 but other bar staff were finishing off the work he, the claimant, was not doing. The claimant was given a second verbal warning on this occasion.
By June 2014 the claimant was put on the clocking in system like the rest of the employees. CC explained to the Tribunal that she wanted to know when the claimant was clocking in / out for work.
On the 2nd of November 2014 CC again met the claimant and discussed the same issues again with him. On this occasion he was given a first written warning. The
claimant continued to work as he had previously. On the 6th of February 2015 CC met the claimant and again the same issues were raised including his working in H while being paid by the respondent. CC told the claimant that she proposed to meet him again the following week to discuss his rate of pay and “moving forward”. The proposal was to pay the claimant an hourly rate of pay. CC told the Tribunal that she could have let the claimant go at this point but she wanted to sort it out with him.
On the 10th of February 2015 the claimant wrote to CC stating he wanted his original contract of employment and did not want to be paid an hourly rate. The claimant stated he would not sign the new contract of employment.
CC arranged to meet the claimant on the 15th of February 2015. The claimant, CC and an employee “M” attended to interpret. At this meeting the claimant stated he would not sign the new contract and wanted to be paid his €400 per week and not an hourly rate. CC said she told the claimant he would get paid for the hours he worked. CC handed him a letter of dismissal which stated:
“I refer to your letter dated the 10.02.2015 outlining our unhappiness with contract of employment which was issued to you during your probationary period, and note your refusal to sign it.
In light of that, and having rethought the position, and, after discussion with our Accountant, giving in fact the business has declined for us, we no longer have this position available.
We are giving you in writing one weeks notice.”
CC stated, when asked, the meeting took about 1 ½ hours.
CC told the Tribunal that she felt the claimant had dismissed himself.
Under cross-examination CC stated that having looked everywhere she could not locate her diary with the entries of the two meetings she had with the claimant on the 12th of April and 24th of May 2015. The premises had been extensively renovated and it had been misplaced.
CC stated that she had spoken to the Accountant prior to the meeting with the claimant on the 15th of May and had discussed the claimant and his work. The Accountant had said that the respondent was paying for two people to do one person’s job.
When asked, CC said that she had never observed the claimant working in “H” but her bar staff had seen him leave the respondent’s premises and informed her he could be gone for up to 1 ½ hours.
CC stated that the employee M had been present to interpret at a number of meetings with the claimant. (M was not available to give sworn evidence during this hearing)
CC agreed she had employed the claimant’s wife and brother in the past and they had since been let go.
CC stated that in hindsight she should have stated the reason for the claimant’s dismissal was because of his conduct, i.e. working in H while being paid by the respondent and using the respondent’s cleaning equipment to carry out this work.
CC told the Tribunal that the claimant would have still been working for the respondent had he signed the new contract.
MF, a barman employed in BS, gave evidence. He informed the Tribunal that he did have a written contract of employment with the respondent.
MF explained that he had initially given the claimant one weeks training in his position. MF said that he had previously done the job himself. During this first week MF said that he started work with the claimant at 7.30 -8.00am, his normal start time was 11.00am.
At first there were no major issues with the claimant’s work. One or two things arose which were not unusual for a new recruit. However, as time passed it appeared the claimant was not fulfilling all his duties. Bottle bins and bins were left unemptied and stock was not replenished on the shelves. MF did mention it to the claimant but felt it was not his place to reprimand him. He spoke to CC about the issues because he, MF, had to finish the claimant’s duties himself. The claimant’s work improved for a week or two but then the same issues began to arise. MF said he again mentioned it to the claimant. Another employee (LF) was brought in to help.
When asked, MF said he had observed the claimant, CC and the employee M sitting down having a meeting. He thought this was around the time the claimant was let go in February 2015.
Under cross-examination MF said he had observed the claimant leaving the respondent’s premises during his shift.
When asked who took over the claimant’s duties following his termination MF replied he did for a time and then LF took the role over full-time.
LF, the person who took over the claimant’s role as Cleaner / Stocking Staff gave evidence. He explained that he had ben employed by the respondent for a number of years. Firstly on a part-time basis helping out during busy times and then full-time. He explained that he started his job at 7.30-8.00am. carrying out the claimant’s previous duties for the respondent.
LF told the Tribunal that he had observed the claimant leaving the premises during his shift with the respondent. The claimant would leave by the back door and go into the premises H nearby. The claimant could be gone for 1 ½ to 2 hours. LF said he spoke to CC about it.
Under cross-examination LF stated that he was not aware what time the claimant commenced his shift while employed by the respondent. LF explained, when asked, that he now had a young lad assisting him during busy times.
MR, a barman employed in PM, gave evidence.
He stated that he had had a few issues with the claimant work. The keg room was overfilled leaving little room to manoeuvre and the fire in the pub was not lit. He mentioned it to CC.
When asked, MR said he had not observed the claimant leaving the respondent’s premises during his shift to go into H.
Claimant’s Case:
The claimant gave evidence. He commenced employment with the respondent as a Cleaner on the 5th of February 2014. He was not given a written contract of employment and was paid a salary of €400 per week. He explained that he was offered the position by the two owners – CC and her husband MC. The claimant’s wife was working for the respondent at the time. CC and MC told him the details of the role.
The claimant told the Tribunal that CC and MC were well aware he was working for H at the time and would be continuing to work there if he took up their offer.
The claimant’s brother also commenced employment with respondent on the same day. However he was dismissed in July 2014. The claimant’s wife had also been let go from the respondent.
The claimant gave details of his day’s work. He first cleaned PM as it was the smaller of the two premises and it opened first. He then cleaned the smoking area in BS and washed the floor area. As he waited for this area to dry he would take his break and go next door to H and clean it. It would only take a half hour as it was a very small premises, with only four tables in it. He would then return to BS to complete his duties.
The claimant told the Tribunal that he had never been reprimanded over his work by any of his colleagues or CC or MC. He had no meetings with CC, as she had stated in her sworn evidence, and did not receive any warnings.
In early February 2015 MC and the Manager (D) asked to speak to him. MC handed him a new contract of employment. The claimant said that he was surprised. He asked if he could take it home for his wife to translate it for him. When he and his wife looked through the contract they found a few anomalies, for example his start date.
On the 10th of February 2015 he wrote to CC querying the contents of this new contract of employment. He did not receive a written reply.
On the 15th of February CC asked to speak to him after his shift. He met her upstairs at around 11.45am-12pm. CC handed him his letter of dismissal. He asked could he bring it home for his wife to translate. At this point he noticed his colleague M. He
asked CC could she join them to translate for him. M looked through the letter and told him it was a letter of dismissal. He took a picture of the letter on his mobile phone and sent it to his wife. He did not sign off on the letter of dismissal. The meeting lasted about 15 minutes.
The claimant gave evidence of his efforts to mitigate his loss of earnings since the termination of his employment.
Under cross-examination the claimant stated that on the 6th of February 2015 MC told him he was to clock out when leaving the premises. The claimant told the Tribunal that he had no issue doing this.
When put to him the claimant refuted he had been off the premises in H for 1 ½ to 2 hours.
Determination:
This is a claim for Unfair Dismissal, and places an onus on the Tribunal to look at the reasons why the Claimant was dismissed and decide if they were fair.
These reasons are set out in the letter from the respondent to the Claimant, and dated the 15th February 2015, and are stated to the Claimant’s refusal to sign a Contract of Employment and the fact the Respondent’s business had declined. No other reasons were given. However, the Respondent stated under cross examination, and from direct questions from the Tribunal, that the business had not declined, in addition to stating that if the Claimant had signed the Contract of Employment, he would not have been dismissed.
Further evidence was given by the Respondent that the main reason for the dismissal of the Claimant was because he was double-jobbing.
In the circumstances, the Tribunal are legally bound to look no further that the contents of this letter. The Respondent is estopped by the contents of the dismissal letter and the Tribunal cannot accept any further reasons as given by the Respondent in evidence. The Tribunal must, as a matter of law, find that this dismissal is unfair.
Accordingly, the Tribunal awards the sum of €5,000 (five thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
No evidence was adduced during the two days of this hearing in respect of the claim under the Organisation of Working Time, Act, 1991 and therefore the claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)