Complainant

Respondent

Anonymised Parties

A Chef

A Restaurant.

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-00010531-001

30/03/2017

The complainant commenced working in the respondent’s restaurant has a head chef in May, 2005. It was owned by a third party up until December, 2016. He was passionate about his work and had no issues until the respondent took over the restaurant on the 15th December, 2016. He was introduced to the two new owners. He carried on as if nothing had changed. After about a week or so one of the new owners came into the kitchen and told the complainant that from now on he was going to get paid for 30 hours which would be on the books and the balance in cash under the table. He said that the PRSI was too high and this way they could make some saving. He asked the complainant to sign a form. The complainant told him that what he was doing was illegal and that he wouldn’t sign it. The respondent then told him to ‘fuck off then’ . So he did. The complainant told him that he was going to hear from him, that he intended to sue. He had no further contact with him after that.

He also stated that he did not receive any payslips from the respondent. The two payslips produced at the hearing today are ‘fake’.   He stated that the figures on the payslips are all wrong. He was paid € 923.00 gross per week.

The complainant secured new employment on the 24^th April, 2017. He is getting paid less than he did with the respondent. He is earning € 568.00 gross per week now. He stated that he applied for over 50 jobs but many of them were too far away from his home to make it feasible.

The complainant left his employment. The respondent did not ask him to accept a sum ‘under the table’. He was merely asked to sign a tax credit form.

The respondent took issue with the complainant’s performance. He was late to work and he left early. The manager/owner saw him leave early on the first Thursday he was in charge. He spoke to him about it on the Friday ( 16^th December). He spoke to him about it again on the Monday ( 19^th December). The complainant disappeared on the Monday. He came into work, had a coffee and then left. Everyone was looking for him. The respondent stated that the conversation about the forms took place on a different date to the conversation about the tax forms.

The respondent conceded that the complainant was never disciplined in relation to late starts and/or early departures.

The respondent paid the complainant € 781.68 in cash. All of the PRSI , USC , income tax deductions had been made. The complainant expressed no issues or concerns about the payment amount or its method. He wasn’t given a payslip at the time as the respondent didn’t have his tax details.

Unfair Dismissals Act, 1977

Section 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.

The legal burden in relation to a claim of Unfair Dismissal is on the Respondent to prove that the dismissal was fair. In circumstances where the dismissal is in dispute, the burden shifts to the complainant to prove that he was dismissed.

It is clear from the evidence adduced by both parties that none of the facts leading up to the alleged dismissal are agreed. The complainant stated that he worked for the previous owner, without issue for 11 years ad 8 months. He was passionate about his job. He states that following a dispute in relation to the respondent’s proposed illegal payment method he was told to “fuck off”. He interpreted that to mean that he was being fired. He was devastated, not only because he loved his job but also because he had three children to care for and it was the week before Christmas.

The Respondent, whose evidence was not clear, stated that following a conversation about the complainant’s time keeping he just walked out. However, he didn’t do so for three days. The respondent was adamant that its payment methods were totally above board. However, I note from the two payslips produced, that no income tax was deducted from the complainant’s salary.

I can find no credible explanation as to why the complainant would simply walk out o his job, a job he loved, merely because the respondent had a word with him about his time keeping, particularly when he didn’t actually leave for three days following the conversation. I prefer the complainant’s evidence in this regard. On the balance of probabilities it is more likely that he left his employment because he was told to ‘f… off’. The payslips produced corroborate the complainant’s evidence that all was not above board in relation to the respondent’s tax affairs.

On that basis I find that the complainant was dismissed from his employment and that dismissal was unfair within the mean of the Acts.

The complainant found new employment in April, 2017. He stated that he applied for approximately 50 positions but unfortunately many of them weren’t suitable due to his geographical location. He is earning €355.00 less per week now.

In all of the circumstances I award the complainant € 10,000.00