ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008542

Parties:

	Complainant	Respondent
Anonymised Parties	A Fast Food employee	A Fast Food Takeaway

Representatives

Self-Represented

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-00011183-001	07/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011183-004	07/05/2017

Date of Adjudication Hearing: 15/01/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994and 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).

1: Summary of Complainant’s Case:

1:1 The Unfair Dismissal Complaint: CA-00011183-001

On the 4th May 2017 the Complainant called to the Respondent’s business premises to collect her wages. The Respondent called her to one side and informed her that she was being dismissed. She was given no warnings or other advance notices of her dismissal. No appeal against the decision was offered.

1:2 Terms of Employment (Information) Act, 1994 Complaint CA-00011183-004

The Complainant had never received a written Contract or Terms of Employment.

2: Summary of Respondent’s Case:

2:1 The Unfair Dismissal Complaint: CA-00011183-001

The Respondent stated that the background to the case was that the work performance of the Complainant had deteriorated to such an extent that other staff members were complaining about her. They were requesting that they not be rostered with her. Several days previously she had spent most of her shift on her mobile phone leaving the other staff members with an unfair burden of work. This had been reported to him by reliable witness principally his son.

On the day in question, the Thursday, the Respondent had intended to give the Complainant a verbal waring about her work performance. He had a long relationship with her family, he had very successfully employed her two older sisters and the Complainant had come recommended as part of the same family. In view of the long relationship he wanted to sort things out rather than dismiss her.

The conversation with the Complainant had not gone well but he had not formally dismissed her.

The Complainant had left the Premises in a temper and shortly afterwards rang him to tell him very directly and with colourful language “where to stick the job”. He took this as tantamount to a resignation.

As regards appeals against the Dismissal the Complainant’s father had telephone shortly afterwards and he had explained the situation to him. Several days later the Complainant’s mother had verbally abused him regarding the ending of the Complainant’s employment.

2:2 Terms of Employment (Information) Act, 1994 Complaint CA-00011183-004

It was accepted that the Complainant had never received a written contract or Terms of Employment.

3: Findings and Conclusions:

There were no written submissions in this case and both parties made oral submissions only.

The Unfair Dismissal Complaint: CA-00011183-001

The major issue in dispute was the nature of the conversation in the Takeaway on the evening of Thursday the 4th May 2017. The evidence of the Respondent was that he had a long family connection with Complainant. In this context, he had only wanted to give the Complainant a good warning. It was clear that this conversation had become heated with the Complainant leaving in a temper. This was then followed minutes afterwards by the Complainant’s openly admitted very robust phone call to the Respondent.

On balance and having carefully reflected on the demeanour of the witness and their oral evidence I came to the view that on largely technical grounds an Unfair Dismissal had taken place. The Respondent had no employment procedures and the description of the conversation on the Thursday evening as a verbal warning was, in my view, stretching matters a bit far. The good procedural and legal practices as set out in the Unfair Dismissal Act,1977 and SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures were nowhere to be seen.

None the less the admitted behaviours of the Complainant in the Premises prior to the Thursday, at the time and immediately afterwards with an admitted abusive phone call removed, in my view, much of her right to redress.

Accordingly, I award compensation in the amount of 26 weeks’ wages = €120 X 26 =€ 3,120 but reduced by a factor of 90% in regard to the Complainant’s contribution to the Dismissal. The final figure is therefore € 3,120 – 90% = €310 as a final figure.

Terms of Employment (Information) Act, 1994 Complaint CA-00011183-004

It was openly admitted that no Contract was in existence.

I award the sum of €75 Euro in compensation for this breach of a statutory right.

4: Decision:

Section 41 of the Workplace Relations Act 2015, Section 7 of the Terms of Employment (Information) Act, 1994and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decision /Refer to Section 3 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00011183-001	The Dismissal was Unfair. Compensation of 26 weeks pay less an employee contribution of 90% giving a figure of €310 Euro is awarded.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011183-004	The claim is well founded. No contract existed. Compensation of €75 Euro is awarded.

Dated: 3rd April 2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

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