ADJ-00016904

Complainant

Respondent

Anonymised Parties

A waiter

A Restaurant

Representatives

Self

Owner

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-00021855-001

14/09/2018

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

CA-00021857-001

14/09/2018

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

CA-00021858-001

14/09/2018

It should be noted that the complaint was made three times and the 3 complaints are referenced, CA-00021855 – 001; CA- 00021857 – 001 and CA -00021858, three complaints have been amalgamated into CA – 0002185 and placed into a single Adjudication File ADJ – 00016904.

The Complainant is a waiter and commenced employment with the Respondent restaurant on 01/08/2014. It is alleged by the Complainant that he was dismissed from employment on 12/09/2018.

At the time of this alleged dismissal the Complainant was being paid €10 per hour and working between 40 and 45 hours per week.

This complaint was lodged with the Workplace Relations Commission on 14/09/2018.

The restaurant owner admits that the Complainant came to him and told him that he would have to do something about the behaviour of the individual. The Complainant also made some rather rude and uncomplimentary remarks at the same time.

The atmosphere in the kitchen was constantly changing, when things were very busy everyone was working under pressure and it was possible that individual staff would be shouting at each other one minute and laughing with each other the next.

The owner’s version of events was similar to that of the Complainant’s on the night of 12/09/2018 but in a different context. The owner was afraid the two individuals i.e. the Complainant and the other individual would get into a full-blown fight in the kitchen and had to get them out of the kitchen in an attempt to defuse the situation and sort things out, he then ushered them out of the back door and down the staircase. He claims that he did not tell the two individuals to have a fight to “sort it out”.

The owners of the restaurant maintain that the Complainant resigned from their employment and signed a letter of resignation on 16th September 2018, a copy of this letter of resignation was produced at the hearing and read as follows:

“Following the meeting that we have on 12/09/2018 I wish to confirm that I will finish working on the 12/09/2018. I want to take this opportunity to thank you for the position you give me”.

Regards

Signature included.

The owner who was not involved on 12/09/2018 informed the hearing that they, the owners, had been very good to the Complainant on both a professional and personal level and spoke quite highly of the Complainant adding that he was a nice guy but could be volatile and eventually this will get him into trouble.

The Complainant was experiencing some problems with another staff member who, he alleges, was bullying him. Strong words had been exchanged on several occasions and the Complainant brought the matter up with the two owners of the business and the restaurant manager, it is the Complainant’s belief that nothing was done to address the situation.

On another occasion the same individual spat at the Complainant while the Complainant was taking a rest break at the back stairs to the restaurant. When the Complainant reported this to the owners and manager he was told they would consider the matter. Nothing was done and the same individual continued to antagonise and verbally abuse the Complainant daily.

The Complainant informed the owners that he was running out of patience and that something had to be done before the situation got worse.

The same member of staff continued to verbally abuse the Complainant and on 12/09/2018 the staff member who was mopping the kitchen floor at the time mopped over the Complainant’s shoes. The Complainant asked the individual not to do that again and words were exchanged between the two individuals. A short time later the same thing happened again, the individual mopped over the Complainant’s shoes and then threatened the Complainant “Wait for me outside after my shift”. The Complainant made another complaint to the owner and the restaurant manager, once again nothing was done.

Shortly after this more strong words were exchanged and the Complainant, much to his regret, grabbed the individual and pushed him back.

The owner then came in and brought the two, the Complainant and the other individual, out the back stairs and tried to move the two men down the stairs in order that the two men could fight to “sort it out”.

The Complainant refused to do this and was informed by the owner to “Get out of the restaurant”.

The Complainant sent text messages to the restaurant manager who informed him that he should not come back but should speak to the owner.

The Complainant sent a text message to the owner and got no response.

On the 16th September the Complainant signed a letter of resignation that had been prepared by the owner of the restaurant. It is maintained by the Complainant that later that day, sometime in the evening of 16/09/2018 he sent a text to the owner that read:

“I want to confirm that I didn’t fully understand the paper I signed today. And when I asked to review the company back you refused to show it to me”

I have considered the arguments presented by both parties to this complaint.

The Respondent should have acted in a more timely and formal manner in addressing the complaints from the Complainant that he was being bullied and verbally abused by the individual.

The Complainant should not have reacted the way he did in grabbing the individual, he is aware of this and has some regrets for doing it.

The other question that has to be answered is was there an actual dismissal or did the Complainant resign?

I have come to the conclusion that the Complainant was dismissed from employment. He signed the letter of resignation some four days after the date of his dismissal.

In any case of dismissal, the Respondent (employer) must have substantial grounds for dismissing an employee, in this instance the Respondent had substantial grounds but failed to apply fair procedures.

The basic principles to be followed in any dismissal case are:

1.       The procedure is fair and rational.

2.       The basis for the disciplinary procedure is clear i.e. the employee knows what he has done wrong.

3.       The penalties are clear.

4.       An internal appeals mechanism is in place.

The Complainant’s actions on the night in question were not acceptable and nothing can justify him taking the actions that he did.

I find that the Complainant was unfairly dismissed through the lack of procedures and find that he contributed 50% to his own dismissal.

I note that the Complainant commenced new employment on 01/10/2018, approximately three weeks after his dismissal from the Respondent Restaurant.

I award the Complainant the sum of €600 (50% of three weeks wages) under the Unfair Dismissals Act, 1977.

This sum should be paid to the Complainant within 42 days from the date of this notice. 

The complaint is well found, the Complainant was unfairly dismissed. The Respondent should make a payment of compensation of €600 to the Complainant.

Unfair Dismissal. Lack of procedures.