ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008419

 ComplainantRespondentAnonymised PartiesA Manager A Fast Food Outlet   Representatives  Independent Workers Union

Complaint:

ActComplaint Reference No.     Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011438-001

Date Of Receipt:                            19/05/2017  

Date of Adjudication Hearing:    03/11/2017

Workplace Relations Commission Adjudication Officer:    Patsy Doyle

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 in this case worked as a manager in a Fast Food Outlet for just over a year before he stated that he was unilaterally removed from the roster and his employment terminated. The Respondent rejects the claim and submitted that the complainant presented several management challenges to the business which served as sufficient grounds to terminate his employment on 3 April, 2017.

Summary of Respondent’s Case:

The Respondent operates a Fast Food Business and relied on an oral submission for the hearing. He confirmed that the Complainant in the case had worked for him on two occasions, the latter episode from 23 March 2016 until 3 April, 2017. He submitted that the Complainant had walked out on the business several Christmases ago. He disputed that the Complainant worked a 43-hour week as stated. He outlined that the complainant worked as a Manager, was hard working and ambitious. He was supported by the Company. He submitted that in the October 2016-April 2017, 7-8 of the staff members had begun to complain about the complainant and he had tried to appease the situation Some of the staff were ganging up against him and the situation became pressurised. the Respondent named the staff who had expressed difficulties with the complainant. The Respondent stated that he had delegated rosters to the Complainant and he had to become personally involved in rostering at the shop. He also had cause to address the complainant on getting “too close” with staff following a Christmas Night out. He contended that he had over exercised his power at the business. On one Sunday night in March, 2017, the Respondent received a call from the Assistant Manager to report that the Complainant had reported that he wasn’t coming to work that night. The business was one person down during a very busy shift. He found this to be “disrespectful”. The Claimant was on holidays after that. Informed by the dissatisfaction of the Assistant Manager, he prepared two rosters covering the following week. One of which incorporated the complainant and one which omitted him. The Respondent was in the shop when the complainant called in and he informed him that he was letting him go from employment. The Respondent confirmed that he had received a letter from the Complainants Union dated 10 April, 2017. This letter sought clarification of the complainant’s employment status. The Respondent outlined that he did not want to respond to the authority of the Union and would have preferred the complainant to call him directly. He was unwilling to rehire the complainant until he addressed his issues. The Respondent outlined that he was justified in ending the Complainants employments as things hadn’t worked out.  

Summary of Complainant’s Case:

The Complainant was represented by his Union and chose to rely on an oral submission at the hearing. The Complainant is a Polish National and worked as a Fast Food Store Manager with the Respondent from 27 March 2016 to 3 April 2017. He worked a 43-hour week and received €2816.67 in gross pay per month. The Complainant had been trying to address a significant issue of annual leave for staff, where he had contended there was a shortfall. He believed that he was punished for raising this issue. The Union submitted that the Complainant had returned from a week’s holiday to find that his employment was terminated by the Respondent. He was not rostered for the week of 3-9 April, 2017. He approached the Union for representation as he did not understand being let go. The Union wrote to the Respondent on April 10,2017 and requested clarification on the complainant’s employment status. “I therefore ask what is X status with regards to his employment with the company: was he laid off, was he made redundant, was he dismissed?” There was no response to this letter. The Union disputed that staff had made complaints and there were no records of these complaints. The Union also disputed that the complainant had been over zealous, aggressive or had abused his power.

Complainants evidence: the Complainant described himself as a hard worker, where he was appreciated by staff. he confirmed that he had previously left employment but was invited back. He outlined that the Assistant Manager had wanted time off to attend a Festival and he supported her. She then chose to leave the store and subsequently left the Respondent employment. The complainant described several Family member’s presence in the business as a pressure point. On one occasion, the Respondents brother was angry and sent him home when he was feeling sick. The following Tuesday, the holidays issue was discussed but not resolved Prior to his holidays, at the end of March, the complainant stated that he had called to say he was unable to get to work. He came to the shop on Sunday the 2nd of April 2017 to find that he had been removed from the roster. He asked the Respondent for a reason and was informed that he should submit his keys. He approached the Union for representation as he had not understood what happened. The Union submitted that efforts made to contact by the Respondent by phone had been fruitless. The Union submitted that the Dismissal was unfair. The Complainant gave evidence of loss where he was without work until May 26, 2017, after which he secured part time work. He submitted a P45 when requested.  

Findings and Conclusions:

I have carefully considered both submissions in this case. The Respondent has outlined a highly Paternalistic employment environment, where he and his family were said to take a personal interest in the wellbeing of employees. The Complainant confirmed this to an extent but outlined a defined shock at the way his employment ended. In considering this case, I was immediately struck by the vacuum in corresponding documents signifying employment. Both parties confirmed that the Complainant was not provided with a contract of employment. It also became clear that the Respondent had not provided a Grievance/Disciplinary procedure. Neither party relied on the Guidance Code Of practice SI146/2000 on Grievance/Disciplinary procedures. I had requested a copy of the P45 in the case .while I accept it is not of itself determinative of dismissal , I was struck by the variances between the pay slips furnished by the Respondent and this document .The pay slips indicated that the complainant had earned €8450.01 over the course of three months in 2017 .While, the P45 signalled a gross earning of €2,243.00 for a period of 12 weeks The date of cessation was recorded as 11 August 2017 rather than the mutually agreed 3 April, 2017. These observations have culminated in a finding of an extremely poor employment foundation, which I found surprising, given the complainants past service with the Respondent. The employment, while continuous was overly casual in practice. The Complainant has submitted that his employment was terminated without notice. He expected to be placed on a roster for the week of April 3, 2017. This was denied to him and he was told the employment relationship had ended. He was requested to return the keys to the property and was unable to secure any reason for the approach adopted. The Respondent declared several irritants which he attributed to the Complainant. It was clear that the Complainant had caused him some dissatisfaction in relation to work performance, management of holidays and his attendance. These were not harnessed onto a platform of discussion or debate to elicit a response from the Complainant. I am satisfied that these were the reasons which operated in the Respondents mind at the moment of Dismissal, however, these could only be considered as constituting “bare assertions of belief” as no supporting evidence was adduced at the time of dismissal or subsequently. The Employer did not investigate any of the issues, nor did he alert the complainant that his continued employment was under active consideration or threat. I found this to be a defined departure from a Paternalistic approach. In Carvill v Irish Industrial Bank [1968]IR 325, Kenny J in the Supreme Court (in the case of a Wrongful Dismissal) emphasised that the Omissions/actions attributed to an employee must be deemed inconsistent with the performance of the contract of employment and underpinned by a judgement by reasonable standards. I found that the circumstances of this case were not judged by reasonable standards prior to the decision taken to summarily dismiss the complainant on his return to work post annual leave. In Hennessy v Read and Write Shop ltd UD192/1978, the EAT set out a test for a reasonableness, where the nature and extent of Employer Inquiry prior to a decision taken to dismiss comes into sharp focus. In the instant case, the Respondent adopted a reported Paternalistic approach to the Complainants continued employment which was void in Inquiry and while I accept that the Respondent prepared two rosters for the week of 3 April, 2017. I could not establish any significant reason why he chose to action the roster without the complainant’s name, given that the Complainant was acknowledged as hard working , the Manager of the shop and had merely gone on a weeks holidays . It was also inconsistent with his evidence on concerns on staffing at the shop. Section 6(1) of the Unfair Dismissals Act 1977-2015 outlines the parameters for an Unfair Dismissal . 6.— (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. In considering the Respondent evidence and the complainant’s response, I have not been able to identify any substantial grounds justifying dismissal. Instead, I found several undeclared irritants on behalf of the Respondent which were not formalised. I found the way the dismissal was affected fell far short of what I would expect from a reasonable employer. I have found that the consequences for the complainant were not considered. He was left without a job, earnings and security a very unenviable position to be in. In addition, arising from the stark procedural deficits in the case, the complainant was denied any fair procedures or the right to be heard in the summary dismissal. I understood that the Respondent cared deeply about his business and he honestly believed that he was looking out for staff . It wasn’t lost on me that the Respondent demonstrated some generosity towards the complainant during the course of his employment, however, my role is to consider the circumstances surrounding the Dismissal . I found the Respondents failure to engage with the Union on the simple clarification sought to add insult to injury. While, I cannot penalise this omission, I find that it was unreasonable not to try and clarify matters by direct engagement. The Respondent had a clear duty of care towards the Complainant which should have guided this process. I have found that the Complainant adopted a very reasonable position in seeking to find some explanation for what happened prior to raising the claim before the WRC. In all the circumstances, I have found the Dismissal to be both substantively and procedurally unfair.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found the Dismissal to be unfair. I have considered the Complainants evidence on loss and mitigation and the respondents stated reluctance to re-instate the Complainant. I have found the options of re-instatement/ re-engagement to be impractical now. I note that the Complainant has had part time employment since May 2017. I have found that the complainant was placed in a zero earnings capacity in a most harsh and unexpected fashion and he has been unable to secure a comparable pay . I believe that compensation to be the most effective remedy. Given the complete dearth of employment documents, I would strongly encourage the Respondent to reflect on the role played in this case by the vacuum in both contract and Policies and Procedures and to implement immediate changes in this regard. I order the Respondent to pay the complainant €16,000 in compensation to include an element for prospective loss. 

    Dated:   30.01.2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Claim for Unfair Dismissal