Complainant

Respondent

Anonymised Parties

Chef

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-00013313-001

25/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013313-002

25/08/2017

The Complainant was employed from 16th November 2013 until the employment was terminated without notice by the Respondent on 28th June 2017. The Complainant was paid €1150.00 per fortnight and he worked 37.5 hours a week. He was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred complaints to the Workplace Relations Commission on 25th August 2017 alleging he had been unfairly dismissed and that he had not been paid his minimum notice entitlements. The dismissal was not in dispute.

Unfair Dismissals Act, 1977 – 2015.

The Respondent is a wholefood restaurant and catering provider for the last 13 years. They employ some 150 staff. The incidents that gave rise to the Complainant’s dismissal took place in their central production kitchen which services the restaurants and catering clients. The Complainant was dismissed following an investigation and a Disciplinary Process on 28th June 2017 as this was the second incident of serious misconduct over a five-month period.

On 7th January 2017, the Complainant was involved in a physical altercation at work, namely a fist fight with a co-worker. The Complainant received a Final Written Warning which was placed on his File for a period of 12 months on 20th January 2017. The Complainant did not appeal this Final Written Warning and the co-worker involved in this incident was dismissed. The second incident involved the Complainant engaging in arm wrestling at his place of work with a co-worker on 12th May 2017. The Complainant had sent several text messages to this co-worker on 11th May 2017 containing derogatory language and pictures of his flexed arm and also stating “tomorrow” and also enquiring “Why did you f… off like a mouse”. An Investigation meeting took place on 19th May 2017 at which the Complainant stated that he saw his co-worker “and asked him if he wanted to do the arm wrestling”. Both the Complainant and his co-worker participated in this arm wrestling. The co-worker suffered an injury to his arm. The Complainant continued to send more derogatory messages to this co-worker after the event stating “he had a stronger left arm” – “tomorrow bitch” and “a stronger left arm and will show you next time”. The co-worker received a final written warning and the Complainant was dismissed.

There was an investigation meeting held on 19th May 2017 and a Disciplinary Meeting was held on 14th June 2017 and the Complainant was dismissed by letter dated 28th June 20`17. The Complainant had been provided with the outcome of the Investigation, including witness statements and recorded footage of the incident. The Complainant signed off on the Disciplinary notes as being accurate and following some queries these were responded to. Following reflection a decision was made to dismiss the Complainant. The Complainant was afforded a right of appeal of the decision but the Complainant did not appeal his dismissal.

Minimum Notice and Terms of Employment, Act, 1973

The Complainant was dismissed for gross misconduct and is not therefore entitled to payment of Minimum Notice

Unfair Dismissals Act, 1977 – 2015.

The Complainant was involved in an incident with a named colleague on the Company Premises on 7th January 2017. There was an investigation followed by a Disciplinary Hearing on 19th January 2017 following which he was issued with a final written warning for a period for reasons of gross misconduct for a period of 12 months.

There was a second incident on 11th May 2017, when a co-worker challenged him to an arm wrestle when the Complainant arrived at work at 7am and that it would take place at 2pm that day. This did not take place and the Complainant sent a number of text messages to his co-worker proposing an am wrestle the following day, 12th May 2017 and the co-worker responded that he was agreeable. The Complainant attended work and did engage in an arm wrestle with the co-worker. This was witnessed by two work colleagues, named and the incident was recorded by another named employee. The Complainant fractured his right arm in the incident requiring hospital treatment and he was on sick leave from 12th May 2017. There was an investigation meeting on 19th May 2017 while he was on certified sick leave. He gave his statement to the Investigation and watched the cctv footage. A Disciplinary Hearing took place on 14th June 2017, again while the Complainant was on certified sick leave. The Complainant was dismissed by letter dated 28th June 2017. The Complainant was afforded a right of appeal but did not do so.

The Complainant argued that the Respondent failed to consider that the Complainant had been invited to engage in the arm wrestle by the co-worker and that the Respondent had failed to consider the existing culture in that particular workplace where this was a feature. The Respondent also dismissed the Complainant while he was on certified sick leave following the incident. He underwent surgery on his injured arm on 31st May 2017 and was discharged from Hospital on 6th June 2017. The Complainant also alleged that the Respondent reached its decision to dismiss based on witness statements but there were clear inconsistencies in these. The Respondent also failed to provide adequate reasons for his dismissal and was not afforded fair procedures.

Minimum Notice and Terms of Employment Act, 1973.

The Complainant was unfairly dismissed and did not receive the requisite minimum notice entitlements.

Unfair Dismissals Act, 1977 – 2015.

On the basis of the evidence and written submissions from both Parties I find as follows –

The Complainant had been provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company.

The Complainant received a Final Written Warning to remain for a period of 12 months on 20th January 2017. This followed an investigation and disciplinary process and the evidence was that the Complainant was afforded a right of appeal of this warning but did not do so. The Complainant was asked by the Adjudication Officer at the Hearing why he did not appeal this and replied “Don’t know why”. This Warning was active when the second incident occurred on 12th May 2017 when both Parties confirmed that the Complainant did engage in arm wrestling on the Respondent’s premises and while at work. This resulted in the Complainant receiving an injury and he was on certified sick leave. An Investigation Meeting took place on 19th May 2017 and the Respondent was represented by the Head Pastry Chef and the Purchasing Officer. Both Parties confirmed that the Complainant was provided with the notes of the outcome, including witness statements and cctv footage prior to the Disciplinary Meeting which was held on 14th June 2017 and the Respondent was represented by the HR Manager and the Head of Catering. The Complainant was accompanied by a co-worker.

I note that the emails to the Complainant to attend the Disciplinary Hearing scheduled for 14th June and that he was asked if he could attend. The Complainant confirmed at the Hearing that he did not inform the Respondent or provide any medical evidence that he was unable to attend the scheduled Hearing. However, I also note that by email dated 30th May 2017 from the Complainant to the Respondent he did indicate he would not be available to attend the hearing previously scheduled for 31st May 2017 as he indicated he was going for “hand surgery”. I also note that in an email dated 6th June 2017 from the Complainant to the Respondent he did confirm he would attend the rescheduled Hearing on 14th June 2017. The Complainant was provided with the Meeting Notes arising from this meeting and he was informed that no decision would be made until all the evidence was considered, including questions the Complainant had raised. The Complainant confirmed by email dated 21st June 2017 that he had signed off on the notes of the Disciplinary Hearing.

I note in an email from the Respondent, dated 26th June 2017, to the Complainant it states – “We will reach an outcome over the coming days. The options available for consideration are: dismissal for misconduct as you are on a written warning for misconduct since January 2017 -Action short of dismissal (demotion, salary decrease or other sanction), The outcome will be decided over the coming days. The Complainant was informed of the decision to dismiss by letter dated 28th June 2017, effective from 29th June 2017.

The Complainant was afforded a right of appeal of the dismissal but did not do so. I note an email dated 11th July 2017 from the Respondent to the Complainant, in which she states in part as follows – “As you are aware the appeal time has now elapsed…..I am still happy to discuss the outcome with you and I have tried to contact you on many occasions but your phone is switched off and you haven’t responded to my emails. I would like to speak to you before I forward on your P45 to discuss any queries you may have “. The Complainant did not respond. The Complainant stated that he went to Poland on 21st June 2017 and did not return until 25th July 2017. He did not offer any explanation as to why he did not respond to the email of 11th July 2017 from the Respondent.

I do not accept the argument of the Complainant that the Respondent should have had regard for the “culture” that pertained in the workplace.

Minimum Notice and Terms of Employment Act, 1973.

Section 8 of the Act provides as follows – “ Nothing in this Act shall prevent the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party. I find that the Complainant was on a Final Written Warning effective from 20th January 2016 for a period of 12 months when the incident of 12th January 2017 occurred which involved the Complainant engaging in arm wrestling with a fellow employee on the Respondent’s Premises and while he was working. This was considered gross misconduct by the Respondent. I do not find in favour of the Complainant.

Minimum Notice – dismissed for gross misconduct.

Unfair Dismissal not well founded.

Complainant

Respondent

Anonymised Parties

General Operative

Care Sales Trader

Representatives

Appeared in Person

No appearance

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00012777-001

25/07/2017

The Complainant presented a claim for a Redundancy lump sum payment on 25 July 2017. There was no response or appearance at hearing by the Respondent.

The Complainant gave an outline of his claim for Redundancy. He submitted that he had worked for the Respondent Car Sales from 1 October, 2012 to 30 June 2017. In June 2017, he was informed by the Respondent that the Business was going to close. He received four weeks’ notice that his position was to be terminated. The Respondent informed him that he had insufficient funds to pay Redundancy. There was another employee, but he did not have two years’ service.

The Complainant submitted a copy of P45 and pay slips which identified his gross weekly wage at €341.13. He had not received a RP 50.

The Complainant gave evidence of his seeking payment of a Redundancy lump sum payment directly from the Respondent without success. This was a deeply upsetting time for him as he had understood that the Respondent and he were long standing friends and he had tried to help him.

The Complainant gave an outline of seeking to commence a self-employment business on foot of the closure of the Respondents business. This was unsuccessful.

There was no appearance by or on behalf of the Respondent at the hearing. No response or defence of the claim has been filed.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act. I award the complainant a redundancy lump sum payment under the Redundancy Payments Acts 1967 to 2014 based on the following details.

Date of Commencement:     1 October 2012

Date of Termination:           30 June 2017

Gross Weekly Pay                       €341.13

There were no reported breaks in service or Lay Offs.

This award is made subject to the Complainant having been in insurable employment under the Social welfare acts during the relevant period.

Redundancy