ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008693

Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011682-001 31/05/2017   Date of Adjudication Hearing: 17/11/2017 Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint  

Background:

The complainant was employed by the respondent as a chef on August 14th 2015 and his employment terminated on February 17th 2017. He was employed on a salary of €865.39 per week.

Summary of Respondent’s Case:

The complainant was described by the respondent as an ‘excellent chef’ who was recruited to run their restaurant in 2015. However, difficulties arose with his general conduct. In January 2016, he had to be spoken to about shouting at staff and telling them to take no further orders when the kitchen was falling behind with service. There were other issues also related to the booking of leave and delays in the grill. A note of the meeting shows that he was advised that while the quality of his food was great, he needed to improve management of the kitchen. The meeting concluded that there would be continuing meetings to ‘review work’. There was a major performance review on August 10th, 2016 in the course of which the respondent says that the complainant offered to resign. A report of the meeting showed a number of weaknesses relating to food presentation, stock taking, delays in service, wage costs, food safety and his relationship with staff. There was further correspondence on August 18th which included extending his probation for a further six months. This was attributed to his having discussed the content of his performance review meeting insofar as it related to his co-workers with them after the meeting. This was a breach of confidentiality and he had done so in an aggressive manner. There were a series of other informal meetings in September and October 2016. An email issued to the complainant on October 20th addressing staff performance and timekeeping, cleanliness in the kitchen and the need for the complainant to ‘stamp your authority’ on it. There were serious complaints about the complainant in an email on December 20th (related to issues which had been the subject of earlier discussions) and again on January 1st 2017. This led to a formal meeting with the complainant on January 13th. The respondent says that at this meeting the complainant agreed to leave as soon as he could find alternative employment. The notes of the meeting state; ‘last review meeting you said you would leave if we were not happy that time has come’. The meeting note states that the complainant agreed with this. It goes on to record agreement that the complainant would finish at the end of February plus time owed ‘within reason and holidays’. It goes on to note the complainant response as ‘’Agrees and says you will have no trouble from me’. There was a substantial claim from the complainant for overtime hours owed which, despite its reservations, was paid by the respondent. The letter claiming this overtime from the complainant contains the following; ‘Now I did say ‘if you no happy [sic] and want me to move on I will move on’ and I will do so but I need to find a new job first’.  

Summary of Complainant’s Case:

The complainant describes the August 13th 2016 meeting as a ‘disciplinary’ meeting and says he was not given prior notice of this fact, or provided with an agenda. The complainant disputes the right of the respondent to extend the probation period as it is not provided for in his contract of employment. The complainant says he disputed the issues raised at the January 13th 2017 meeting. He also denies that he agreed with the view that he would leave if things were not working out, and that he made similar comments at the meeting the previous August. He says that everything was going well until January 2017. In May 2016 the restaurant had won an award. He says that the respondent dismissed him and that the issues that were arising with the complainant did not justify this sanction. Further, the respondent had the option to invoke its disciplinary procedures against the complainant but it failed to do so. Also, the respondent failed to follow the procedures in its own handbook. In conclusion the complainant denies that he agreed to leave his position voluntarily and that he was unfairly dismissed.  

Findings and Conclusions:

There was a very significant conflict in the evidence on the central issue as to whether the complainant agreed that he would leave his employment in certain circumstances and then, whether he did in fact do so. It is a central, but, on the facts in this particular case, not necessarily a decisive issue. The complainant made some issue out of the extension of the probation and the respondent’s right to do so. It is doubtful that an employer needs specific contractual authority to extend a probationary period. However, what is not in doubt is that once it is extended beyond one year the employee comes within the jurisdiction of the Unfair Dismissal Act 1977, so it is, to that extent, academic. The employment may not be ended simply by invoking the termination of the probationary period. In any event, the respondent did not rely on termination of the probationary period as its defence; it said there was some sort of mutual agreement that the respondent would leave. That said, the probation does provide context for the respondent’s approach to the difficulties with the complainant. The complainant had submitted that the alleged deficits in his performance should have triggered the disciplinary procedure. It is somewhat to its credit that this was not the approach taken. The respondent’s various interactions with the complainant were aimed at achieving some improvement in his performance. The complainant’s submission that ’everything was going well’ until January 2017 is transparently not the case. Criticism of the complainant’s performance emerged as early as January 2016, and again on February 8th and 19th, and in April. And indeed the same criticisms were to form part of the performance review in August. There were further interactions in September and October also. The meeting in August 2016, which in no way resembled a disciplinary meeting as is clear from the note of the meeting. Nonetheless, it resulted in his probation being extended. The performance assessment falls much more heavily on the side of weaknesses than strengths and most text on the assessment form is devoted to ‘Action Required’. So his claim that everything was ‘going well’ until January 2017 is simply not credible and transparently untrue. As to the alleged voluntariness of the termination both those who had attended the August meeting on behalf of the respondent gave evidence. They confirmed that the complainant offered to leave at that meeting (although the precise terms were unclear). They also gave evidence that he repeated this in January. His own evidence on this point was evasive, equivocal and not persuasive. Also, his own correspondence to the respondent of February 2nd contains the sentence; ‘Now I did say ‘if you no happy [sic] and want me to move on I will move on’ and I will do so but I need to find a new job first’. On balance, I am forced to conclude as a matter of fact that there was indeed an understanding between the parties that the complainant would leave the employment of his own volition. However, the circumstances of the termination when it came are another matter. The onus under the Unfair Dismissals Act falls on an employer to show that a dismissal was fair. The note of the meeting of January 1st 2017 indicates that the degree of voluntariness alleged by the respondent had shifted somewhat as is evidenced by the following; ‘Last review meeting you said you would leave if we were not happy that time has come’. (Punctuation as original; underlining added) ‘That time has come’ undermines the complainant’s case. This elevates what may have been a voluntary agreement (and I find that there had been such an agreement or understanding) into something a good deal less so. This was the act of termination. At the very least, if the respondent was of the view that the ‘voluntary’ agreement was still in force it should have taken steps to document it in the form of an agreement, or resignation letter. But on the basis of the evidence, when the time came, so to speak, the respondent applied pressure to the complainant to ‘leave’ in circumstances that it represents a breach of the Act and constitutes an unfair dismissal. In making my award I take account of the background to the case. As noted above I fully accept and find that there was an understanding of sorts between the parties to the effect that the complainant would leave. I find the complainant’s submission that everything was fine up to January 2017 to be completely contradicted by the evidence. Nonetheless, the respondent fell down in the execution of that agreement. There is sufficient doubt that the final act in the matter was consensual, and more importantly the respondent was unable to discharge the burden of proof that it was consensual, to render it an unfair dismissal. In that context, in making my award I factor in the complainant’s evidence to the hearing; some key aspects of which were demonstrably untrue and lacking in credibility and the contribution of his well-documented conduct to the situation as mitigating factors.    

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.   For the reasons set out above I uphold complaint CA00011862-001 and award the complainant €1500.00.  

Dated:   15/02/2018

Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words: Unfair dismissal, resignation