ADJ-00016261

Complainant

Respondent

Anonymised Parties

Catering Assistant

Café

Representatives

Dudley Potter of Arthur McLean Solicitors, Damian Poenaru

Lisa Conroy Peninsula Group, David Ryan, Paula Ryan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018894-003

26/04/2018

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

CA-00018894-004

26/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018894-001

26/04/2018

The Complaint was employed as a Catering Assistant from 26th August 2017 to 12th January 2018. She was paid €10.00 per hour. She worked an average of 30 hours per week. She has claimed that she did not get a written contract of employment within the allowable time period and she was wrongfully dismissed. She has sought compensation.

Complaint CA 18894 – 001 was closed

CA 18894/003

She did not receive a contract of employment within two months of commencement. On 4th January 2018 the Respondent gave her a contract of employment. It was unsigned, and it contained terms that were never discussed or agreed with her. She told the Respondent of her unhappiness. The Respondent then gave her another contract of employment which was the exact same as the one that she declined to sign because of her unhappiness. She has claimed compensation.

CA 18894-004

They stated that the Complainant was given a contract of employment on 30th December 2017. They accept that it was not issued within the requisite two months from commencement of employment. The contract was signed with a computer signature.

I note the conflict of evidence regarding the date of issuing the contract.

I find that the written statement of the terms and conditions of employment was not issued within two months of commencement of employment.

Sec 3 (1) of this Act states, “ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

I find that the Respondent has breached Sec 3 of this Act.

The Worker stated that on 12th January 2018 the Chef started an argument with her. She walked away from her and she then argued with a colleague. When she returned to the kitchen the Chef was not there, apparently, she went outside to phone the Owner/Employer alleging that the Worker had been aggressive with her. The Owner/Employer came in and told the Worker to get the “F” out. She denied threatening the Chef. There had been problems between the three girls that worked there. She wanted to collect her belongings, but he wouldn’t let her. She asked for reasons why she was told to go, she then asked for the reasons in writing. He did not give them. He replied “there are no reasons, I don’t want you here”. She refused to leave without a reason and he said he would call the Gardai. He then mentioned “serious misconduct”. She waited outside for the Gardai and she had a smoke. The Gardai arrived and told her not to go back into the premises but they said it was not fair what he had done to her. This was a summary dismissal in complete breach of natural justice and all employment laws. She was given no reasons for the summary dismissal. If he had reasons he should have told her and he could have suspended her on full pay while investigating the matter. She is seeking compensation. She started looking for work in mid-February and found work by early April, earning a bit more income than before.

The Worker had been in receipt of verbal warnings and texts about her conduct. On 12th January 2018 they received a call from the Centre that rents the café space, alerting them to an incident in the café. When he arrived in the café about 35 minutes later he spoke to the Chef who told him that the Worker had threatened her and she became upset. The Worker became aggressive with the Employer and shouted at him. Because there were about 15 customers waiting to be served he dealt with them first but the Worker kept shouting at them. She followed him around and continued to shout at him. He denied shouting at her. He then asked her to go home but she refused and continued to shout at him and make a scene in the café. He then called the Gardai to remove her. She followed him around the cafe with an iPad in her hand and tried to get him to say that he was dismissed. The Gardai removed her from the premises. On 5th February 2018 the Worker emailed the Owner to confirm that she had finished her employment. The Employer concedes to the fact that the Worker was dismissed from her employment and that they had to called the Gardai to have her removed from the premises. They referred to the case of McCarthy -v- O'Sullivan Bros DIY (UD800/1989) / [1991] ELR 44 the Tribunal held that, “It is well established that the procedural aspects of a dismissal have always been regarded by the Tribunal as important when deciding its fairness. As we have found that the claimant’s conduct was such that the respondent company was within its rights to summarily dismiss him, we are of the view that the facts in the procedures adopted by the respondent should not interfere with our determination that he was not unfairly dismissed.” The test in respect of fair dismissals was recently summarised by Noonan J in the case of Bank of Ireland v Reilly [2015] IEHC 241 in the following terms, “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

In light of the Worker’s actions, the sanction of dismissal was well within the range of reasonable responses open to the employer. The claim for unfair dismissal under the Industrial Relations Acts should fail due to the severity of her actions.

I note that there had been difficulties with the relationship between the three girls.

I note that the incident on 12th January was sufficiently serious as to warrant a call from the Landlord to the café owner to deal with the staff problems.

I note the Owner’s assertion that warnings had been issued previously concerning the Workers conduct but these were not formal warnings.

I note the conflict of evidence concerning the conduct of both parties when the Owner arrived on the premises: the Chef was upset, the Worker was upset, allegations of shouting, Gardai called to the premises, the Worker being instructed by the Gardai to leave.

On the balance of probability, I find the Employer’s evidence more compelling.

I find that the Worker had acted in a very aggressive manner and continued to do so up till the Gardai arrived warranting them to instruct her to leave the premises.

I find that the Owner reacted and dismissed the Worker.

I find that the Owner was provoked, and he rather hastily dismissed the Worker.

I find that the Owner had grounds to take serious disciplinary action against the Worker up to and including dismissal.

However I find that the dismissal was seriously flawed regarding the procedures used.

I find that the Worker should not have been summarily dismissed.

I find that she should have been suspended with pay and a proper calm investigation should have been conducted.

I find that the Worker was entitled to know what exactly she was accused of, given the right to defend herself and the right to representation. All this should have been done before any decision to dismiss was taken.

Therefore, I find that this was a wrongful dismissal primarily because it was flawed procedurally.

I find that the Worker has contributed substantially to her dismissal.

Wrongful dismissal