Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A Restaurant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00009203-001

20/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00009203-002

20/01/2017

The complainant worked for the respondent between the 30th November 2011 and the 29th July 2016. He earned €356.85 per week. The complainant asserts that he was unfairly dismissed, a claim the respondent denies. The complainant further asserts that he was paid below the national minimum wage between 2011 and 2013.

The respondent outlined that the fact of dismissal is not in dispute. The complainant commenced employment on the 31st November 2011 and was suspended on the 29th July 2016.

The Manager gave evidence. She outlined that the 29th July 2016 was a busy Friday in the restaurant. She had to go through the kitchen to get high chairs and noticed they were dirty. She asked the complainant to clean them when he had the chance. He did not answer and she asked him again. He was rude and did not reply. The Manager was then five months pregnant and she left him alone as she did not know what to do. She asked him again, saying she would get somebody else to do it. The Manager then left the complainant alone as he seemed irritated. She returned after five minutes to say that it was not nice not to answer, but she was only able to say the complainant’s name when he dropped the plates he was then holding. The Manager was very scared as he had smashed the plates. The complainant called her “a f***ing bitch” and she left. The Manager said she was trying to get away and the complainant came after her. Her first instinct was to hold her belly and she thought he was going to punch her.

The Manager outlined that two, or maybe three, staff were present at the incident. She was trying to escape but he spat at her. In front of customers, the complainant said “you ***ing bitch”. The Manager then ran out of the restaurant, with her phone. She called the owner. The complainant remained in the kitchen and was agitated. She thought that he later left. She has not had contact with the complainant and was so afraid. Her husband had to bring her to and from work for a week afterwards. The Manager said that this was the first such incident. It was a small restaurant and she was the complainant’s manager. She had never had any previous problems, although she had seen him unhappy at being asked to do things. She always addressed him politely.

The owner outlined that the complainant was sent home after the incident and suspended without pay until the respondent found out what happened. It gathered statements from staff and they went through the statements. They communicated with the complainant by email, asked him what he wanted to do. The respondent paid the complainant back pay and notice pay and issued the P45. The respondent thought that this was the end of it.

In reply to the complainant, the Manager referred to the complainant’s evidence as “lies” and she would never use racist language. This was the first time she heard the allegation of her using a racial slur. The owner outlined that there were two other statements about what happened. The complainant lost control and staff would no longer work with him. His hands were tied. In respect of the phone call of the 4th August, the owner said that he went through the contents of the statements with the complainant’s wife. She replied that her husband did nothing. She did not mention any racial slur. He described the phone conversation as a short one. He said that the customers who witnessed the incident asked him whether the staff were okay. He outlined that the CCTV did not cover the location of the incident.

In respect of the national minimum wage claim, the respondent said that it brought in pay slips for staff in May 2012. This omission had been a genuine mistake. It had no issue if it was at fault.

The respondent concluded by saying that they were disappointed that the complainant’s wife did not believe their account that her husband had lost control. All staff were given their breaks and the respondent had longstanding staff. The manager outlined that no one wanted this situation and it arose because the complainant lost his temper. He was angry and did not stop when he went back into the kitchen.

The complainant outlined that he was dismissed without notice and the disciplinary procedure was not followed. He was not given an explanation and nor was he given warnings. No inquiry was conducted over the issues in conflict. The complainant was not paid for his final week or his notice pay. Two P45’s were issued, giving his date of dismissal as either the 19 or 29th July 2016. The complainant sought a reference from the respondent but none was issued. The complainant outlined that he was paid below the national minimum wage between 2011 and 2013 and sought redress for this.

The complainant outlined that on the 29th July 2016, he was working on this busy day and was asked to bring high chairs to the Manager. She told him “when you are free, please wipe down the chairs”. The complainant did not hear this the first time and the Manager repeated it. The complainant nodded his head. As he went into the kitchen, the Manager said “Chinese f***er”. He was upset but denied smashing cups or plates. A colleague came into the kitchen and asked the complainant if he was okay; he said he was. Later, the complainant was told to go home without any explanation.

The complainant’s wife outlined that her husband then came home and explained what had happened. She rang a colleague in the kitchen who told her that the owner’s wife said he should have been allowed stay for the investigation. There was no contact from the respondent. She texted the owner’s wife to ask whether her husband had a job. She replied that they should contact the owner. The complainant’s wife rang the owner on the 4th August and asked whether her husband had a job. The owner said that the complainant had the chance to explain what happened and there was now no job for him.

The complainant’s wife commented that in her emails to the respondent, she concentrated on getting notice pay and a reference. She requested the CCTV footage on the 4th August and the owner said he would not show this. In this phone call, the complainant’s wife informed the owner that her husband had been called a “Chinese f***er”.

The complainant outlined that he has not found work and referred to seeking work via a jobs website. The complainant outlined that he was happy working with the respondent and there were no issues. There were no previous incidents. He had lived in Ireland for 15 years and his son went to school close to the restaurant. They had bought a house and found it difficult to manage because of his dismissal. He had not lost his temper.

In respect of the national minimum wage claim, the complainant outlined that he started in November 2011 but only received his first pay slip in May 2012. He was not paid the national minimum wage in his first two years of employment with the respondent. The complainant outlined that he was not given appropriate break times and referred to medical documentation which showed the impact on him. He said that he never complained about this as he was worried about losing his job.

The complainant referred two complaints for adjudication by the Workplace Relations Commission. The first is made pursuant to the Unfair Dismissals Act and relate mainly to the events of the 29th July 2016. The second is made pursuant to the National Minimum Wage Act and relate to the complainant’s rate of pay between 2011 and 2013.

CA-00009203-001 Unfair Dismissals Act

This is a complaint of unfair dismissal made pursuant to the Unfair Dismissals Act. The respondent submits statements from staff members regarding the events of the 29th July 2016. They are emails from staff members of the 3rd, 4th and 5th August 2016. They detail the evidence of the Manager and two colleagues.

The complainant’s contract of employment provides “All disciplinary procedures will be conducted with due regard to Natural Justice and fairness. Natural justice includes the following:

The right to know the nature of allegations against you;

The right to a fair and impartial hearing;

The right to representation;

The right to state your case;

The right of appeal.

…

For all potential disciplinary matters, a disciplinary hearing will be held. You will be invited to such a meeting in writing stating the purpose of the meeting. You will be notified of the right to bring a representative. The hearing will be conducted by a Manager. Another member of management may also be present. You will be informed of the nature of the allegations against you. You will be given an adequate opportunity to reply and state your case. Your representative will also have an opportunity to speak on your behalf once you have responded to the allegation/s. No decision will be made at a disciplinary hearing but rather will be made subsequently and following careful consideration of all factors by the investigating manager.

For serious matters, you may be placed on paid suspension pending the outcome of disciplinary investigations, procedures and the decision of the Company.”

The contract also provides “In cases of gross misconduct, a full investigation will be followed out [sic] by the company. You may be suspended with full pay pending this investigation. If following full investigation and a full disciplinary hearing you are found guilt [sic] of Gross Misconduct, then your employment will be terminated.” The contract further contemplates an appeal of any disciplinary action.

At the adjudication, the Manager gave a thorough and plausible account of the 29th July 2016. As recounted above, her account details an incident that would certainly fall within the rubric of gross misconduct in any contract of employment. The complainant denied that this account was accurate, although his recounting of the incident was hampered by his lack of fluency in English.

As is well-established in case law, the role of an adjudication is not to make findings of whether the act of gross misconduct occurred, but whether the employer had reasonable cause for believing that the act did, in fact, occur. The role of the adjudication is to decide whether the employer’s decision was one within the reasonable range of responses after a complete and fair investigation.

In this case, one can expect the employer to comply with the terms of the contract of employment it provided to the employee. As set out above, the contract provides that where an incident of potential gross misconduct occurs, certain steps will be taken. This includes the holding of a disciplinary hearing, where the employee will hear the case against them and have the opportunity to reply. It refers to the employee having representation. While the respondent gathered statements, they were not sent to the complainant. There was no disciplinary hearing. The complainant was sent home on the 29th July 2016. There was toing and froing by telephone and by email, but there was no disciplinary hearing or opportunity to appeal.

It follows that the dismissal was unfair because of these substantial procedural failings. The Unfair Dismissals Act allows for an award of redress to be reduced where an employee contributed to their dismissal. This is difficult to assess where there were no findings made by the employer. In this case, there remains a complete conflict in the evidence of the parties regarding the behaviour of the Manager and the complainant on the 29th July 2016.

In assessing redress, I can assess the efforts of mitigation of the complainant. While he refers to his lack of English and the lack of a reference as barriers to finding alternative employment, I note that this is a burgeoning area of work. He did not provide many examples of efforts to find alternative employment. Assessing redress that is just and equitable in the circumstances, I award redress of €6,750.

CA-00009203-002 National Minimum Wage Act

This is a complaint made pursuant to the National Minimum Wage Act. The complainant asserts that his hourly rate of pay between November 2011 and 2013 was below the national minimum wage, then €8.65 per hour. I note that the contract of employment provided for an hourly rate of pay of €8.65. The complainant provides five pay slips in support of this complaint.

I note that the complainant did not request of the respondent a statement of his average hourly earnings for any time period, as per section 23 of the National Minimum Wage Act. These are records an employer is obliged to maintain for three years (section 22). Given the absence of a request from the employee, there is no cause of action to the Workplace Relations Commission for any breach of the Act. The complaint is, therefore, not well founded.

CA-00009203-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €6,750.

CA-00009203-002

For the reasons set out above, I find that the complaint made pursuant to the National Minimum Wage Act is not well founded.

Unfair Dismissals Act / fair disciplinary process

National Minimum Wage Act

Section 23 / statement of average hourly earnings