ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008048
Parties:
| Complainant | Respondent |
Anonymised Parties | A bar supervisor | A brewery and pub business |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts |
CA-00010704-001 | 07/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00010704-002 | 07/04/2017 |
Date of Adjudication Hearing: 09/10/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Background:
The complainant commenced employment on October 2nd 2016 as a bartender and in December that year, he was promoted to the role of supervisor. He was dismissed on April 6th 2017. He was not represented at the hearing. The respondent company is one of three pubs which is part of a brewing and pub business established by two entrepreneurs in September 2013. One of the founders attended the hearing. |
CA-00010704-001
Complaint under Section 13, Industrial Relations Act 1969
Summary of Complainant’s Case:
Having joined the business working in the company’s Fairview pub, the complainant said that he got on well with his manager, who recommended him for promotion. When his manager was absent for six weeks due to an injury at work, the complainant took on the duties of the assistant manager, who had recently been dismissed. During this time, he said that he sometimes worked up to 60 hours per week. Between October 2016 and when he himself was dismissed in April 2017, he said that he received three pay increases bringing his hourly rate to €13.00. At the end of March 2017, the complainant said that he took five days’ holidays, during which he got a WhatsApp message from the person in charge of the three pubs querying why he ordered six bottles of spirits. He said that he replied saying that he would respond when he was back from holidays. On the day he returned, he was met by the pubs manager who told him that he was no longer required and instructed him to hand back his keys. He said that he was not given any reason for his dismissal. A couple of weeks later, he contacted the accounts department and on April 30th, he received a sum of €575.77 gross in respect of 44.29 hours’ accrued holidays. When he was asked for his opinion about the reason for his dismissal, he said that he thinks that the person in charge of the pubs took a dislike to him. When asked about his current job status, the complainant said that he got a full-time job in August 2017 and from the time he was dismissed until then, he did temporary work. |
Summary of Respondent’s Case:
On behalf of the respondent, the co-founder said that the complainant was dismissed for coming to work drunk. He said that he didn’t know when this occurred, as he had been informed about it by the person in charge of the pubs. He said that this person was not available to attend the hearing due to mental health issues. He also said that he was told that the complainant was ordering stock when he was not authorised to do so, although he himself could not say if the complainant was responsible. He said that in his own view, the complainant was not treated in an unfair manner. |
Findings and Conclusions:
Findings When he was questioned about coming to work drunk, the complainant accepted that this had happened once, shortly after he started with the company. He said that his manager had discussed the incident with him and had “forgiven him.” He said that he received two pay increases after this incident and he had been asked to substitute for the assistant manager. He said that this demonstrated that he and his manager had moved on from the issue. When asked to respond to the allegation that he was not authorised to order stock, the complainant said that he was working in the absence of a manager and assistant manager and that it was his job to order stock. He said that he ordered the particular six bottles of spirits because customers were asking for the product and he wanted to see how they would sell. From the evidence presented at the hearing, the facts are as follows: Having worked for the company for six months, the complainant was dismissed without notice and without going through a basic disciplinary process. He was not given a reason for his dismissal, was not informed that he could appeal the decision and he didn’t receive a statement confirming that his employment was terminated. Conclusion From the information presented at the hearing, it is apparent that the company where the complainant worked is not regulated in accordance with even the most basic procedures for managing the employment relationship. There is no evidence of the existence of an employee handbook in paper or electronic form and there are no procedures for managing disciplinary and grievance issues. The complainant was not issued with a contract of employment and there was no mention of induction, probation or training. Statutory Instrument 146/2000 establishes a Code of Practice on Grievance and Disciplinary Issues. Section 2.2 states: “…the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.” It is accepted that a relatively new business with a small number of employees may not have the resources to write up HR procedures and the purpose of this Code of Practice is to establish a baseline that all employers can adopt. The failure to have a procedure or to use SI 146/2000 creates uncertainty for employees whose conduct is being questioned and removes the requirement for clarity that a sequential process is intended to provide. In the case of this complainant, the failure to use a disciplinary procedure denied him the opportunity to respond to his employer’s decision to dismiss him, to ascertain the reason for his dismissal or to appeal against it. As a result of the absence of a proper procedure, the dismissal was unfair. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Due to the failure of the respondent to adhere to an accepted process for managing the dismissal of the complainant, I recommend that he pay the complainant compensation of €1,040, equivalent to two weeks’ pay, based on €13.00 per hour for 40 hours per week. An award of compensation is not subject to deductions of tax, PRSI or USC. |
CA-00010704-002
Complaint under Section 7, Terms of Employment (Information) Act, 1994
Summary of Complainant’s Case:
The complainant said that shortly after he commenced employment with the respondent, he asked for a statement of his terms and conditions of employment. He said that he made a number of requests but never received a statement. |
Summary of Respondent’s Case:
The respondent accepted that the complainant was not issued with a statement of his terms and conditions of employment. He said that he didn’t know who was responsible for HR matters, but that the company is working on statements for its employees. |
Findings and Conclusions:
Section 3 of the Terms of Employment (Information) Act 1994 requires an employer to provide a written statement of terms and conditions of employment not later than two months after the date of commencement of an employee. It is evident that no such statement was provided to this complainant and his complaint is upheld. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In these circumstances where the complainant has been dismissed and there is no opportunity for the employer to address the failure to provide a statement, I make an award of compensation of €2,080, equivalent to four weeks’ pay. An award of compensation is not subject to deductions of tax, PRSI or USC. |
Dated: 20.11.17
Workplace Relations Commission Adjudication Officer: Catherine Byrne