Complainant

Respondent

Anonymised Parties

A Bar Manager

A Public House

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-00014016-001

19/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014016-002

19/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014016-003

19/09/2017

The Complainant was employed by the Respondent as a Bar Manager from 16 October, 2015 until 27 April, 2017 when he was summarily dismissed from his employment. The Complainant claims that he was unfairly dismissed from his employment within the meaning of Section 6 of the Unfair Dismissals Acts.

The Complainant also claims that the Respondent has contravened the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements.

CA-00014016-001 – Complaint under the Unfair Dismissals Act 1977

The Complainant was employed by the Respondent as a Bar Manager for approx. 18 months. On 27 April, 2017 the Respondent telephoned the Complainant and asked to meet him in his car. When the Complainant sat into the car the Respondent stated “The show’s over, you’re fired. Give me your keys”. The Complainant did not receive any prior warning, either verbally or in writing, from the Respondent that his employment was in jeopardy.

The Complainant submits that he is aware through third parties that the Respondent has made false allegations against him alluding to the misappropriation of a sum of money by him. The Respondent indicated in correspondence to the Complainant’s legal representative that he was undertaking an internal investigation into the matter. However, the Complainant has challenged the Respondent verbally and twice in correspondence through his solicitor to substantiate these allegations, but to date he has failed or neglected to do so. The Complainant emphatically denied that he was involved in the misappropriation of any money during his period of employment with the Respondent and contends that these allegations were fictitious and used as an excuse to terminate his employment.

The Complainant submits that he did not have access to the Respondent’s business bank account for the purpose of paying suppliers and that it was the normal practice for him to make payments from a float that was retained in the bar. The Complainant states the Respondent was fully aware of this practice and he contends that money was never misappropriated from this float during his period of employment.

The Complainant contends that the only reason he can think of for his dismissal was that the Respondent considered he was too strict in relation to the barring of customers from the pub. The Complainant submits that the bar had a poor reputation under the previous ownership, and as a result, he did not tolerate any unruly behaviour by customers during his period of employment. However, the Complainant submits that the Respondent did not raise this issue or any other performance related issues with him prior to his dismissal.

CA-00014016-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant was employed by the Respondent from 16 October, 2015 until his employment was terminated on 27 April, 2017. The Complainant claims that he received only two weeks’ annual leave during the entire period of his employment with the Respondent which were taken during November, 2016.

The Complainant claims that the Respondent failed to pay him compensation for the loss of holiday entitlements contrary to Section 23 of the Act.

The Respondent did not engage with the WRC or forward any written submission in relation to these complaints. The Respondent did not attend the oral hearing or did not subsequently provide any explanation for its non-attendance.

CA-00014016-001 – Complaint under the Unfair Dismissals Act 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of   the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The Complainant adduced evidence that he was summarily dismissed from his position as a Bar Manager on 27 April, 2017 without any prior notice or warning. In particular, I note that the Complainant totally refuted the claims which he contends the Respondent had made to third parties following his dismissal that he had been involved in the misappropriation of a sum of money.

I have found the Complainant to be a very credible witness and I accept his evidence that his dismissal was not in any way attributable to misconduct or performance related issues. The Respondent did not attend the hearing to give evidence in relation to this matter and therefore, based on the uncontested evidence of the Complainant, I find that his dismissal was both substantively and procedurally unfair.

Accordingly, I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts.

CA-00014016-003 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent has contravened the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997 in relation to his annual leave entitlements. The Complainant claims that he received only two weeks annual leave during the entire period of his employment from 16 October, 2015 until 27 April, 2017. The Complainant contends that he was not paid his outstanding entitlements to annual leave upon the cesser of his employment on 27 April, 2017.

The Complainant’s employment was terminated on 27 April, 2017 and the instant complaint was referred to the WRC on 19 September, 2017. By application of the time limits provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period covered by this claim is confined to the six-month period from 20 March, 2017 to 19 September, 2017.

Section 23 of the Act makes provisions for the payment of compensation to an employee where annual leave is outstanding at the cesser of his/her employment and, where this occurs during the first half of that annual leave year, he/she is entitled to any outstanding annual leave in respect of that annual leave year, the previous leave year or both those years.

The relevant leave year is defined by Section 2(1) of the Act which provides that a leave year is a year commencing on 1 April. Therefore, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave accrued in the leave year ending on 31 March, 2017 and his outstanding entitlement to leave in the annual leave year commencing on 1 April, 2017 up to the date on which his employment terminated.

Section 19 of the Act provides that an employee is entitled to a maximum of 20 days paid leave in a leave year. I have found the complainant to be a credible witness and based on his uncontested evidence, I find that he is entitled to cesser pay in respect of annual leave accrued for the 2016/2017 and the 2017/2018 leave years as follows:

-          2016/17 leave year – I am satisfied that the Complainant received only two weeks’ annual leave (i.e. 10 days) during the leave year ending on 31 March, 2017. I find that the Complainant is due cesser pay in respect of 10 days’ annual leave accrued during the 2016/17 leave year.

-          2017/18 leave year – The Complainant’s employment terminated on 27 April, 2017 and I find that he had accrued an annual leave entitlement of 12.8 hours for the period from 1 April, 2017 until the date of termination of his employment i.e. being the equivalent of 8% of the 160 hours (4 weeks by 40 hours per week) which he is deemed to have worked during this period.

CA-00014016-001 – Complaint under the Unfair Dismissals Act 1977

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts.

In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded, I note that the Complainant was earning a gross weekly wage of €629.00 per week at the time of his dismissal (which equates to a gross annual salary of €32,700).

The Complainant provided evidence that he has been available for work and has been actively seeking to obtain alternative employment following his dismissal. The Complainant gave evidence that he obtained alternative employment on 10 January, 2018 in respect of which he is receiving a gross annual salary of €28,000.  

Having regard to the foregoing, I deem that an award of €15,000 (fifteen thousand euro) to be the appropriate award in the circumstances of this case. In accordance with the provisions of Section 7 of the Unfair Dismissals Acts, I award the Complainant the sum of €15,000 by way of compensation under the said legislation.    

CA-00014016-003 – Complaint under the Organisation of Working Time Act 1997

In accordance with the provisions of Section 27 of the Act, I declare that the complaint under Section 23 of that Act is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements. I order the respondent to pay the Complainant:

-          €1,258.00, subject to any lawful deductions, in respect of the 2016/17 annual leave year,

-          €201.00, subject to any lawful deductions, in respect of the 2017/18 annual leave year, and

-          €200.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

Unfair Dismissals Acts 1977-2015 – Summary Dismissal – Uncontested Claims – Redress Awarded – Compensation – Organisation of Working Time Act 1997 – Sections 19 and 23 – Annual Leave – Cesser Pay