Complainant

Respondent

Anonymised Parties

A Chef

A Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00010374-001

23/03/2017

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

CA-00010374-002

23/03/2017

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

CA-00010374-003

23/03/2017

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

CA-00010374-004

23/03/2017

The Complainant was employed as a Chef in the Respondent Company from 1st October 2010 until the employment was terminated on 27th December 2016. The Complainant was paid €650.00 gross per week and he worked full-time. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred complaints to the Workplace Relations Commission on 23rd March 2017 alleging he had been unfairly dismissed by the Respondent under the Unfair Dismissals Act, 1977 – 2015 – he had not been Paid his redundancy entitlements under the Redundancy Payments Act, 1969 – and a complaint under the Organisation of Working Time Act, 1997 – 2015 that the Respondent had breached Section 15 of the Act in relation to maximum working hours.

THE COMPLAINT CA-00010374-002 UNDER THE UNFAIR DISMISSALS ACT, 1977 – 2015 WAS WITHDRAWN AT THE HEARING.

Redundancy Payments Act, 1969 – 2015. In December 2016, the Restaurant was under a Compulsory Purchase Order and was going to close at some stage. There was an exchange of emails between the Complainant and the Respondent in September 2016 following a discussion between the Parties. The Respondent emailed the Complainant on 15th September 2016 in relation to this discussion in which in summary she alluded to the intention of the Complainant to leave the Respondent’s employment and to set up his own business. She requested a time frame in relation to this. She then raised an issue in relation to both Parties going into business together and the Respondent set out her interests in any such project. The Complainant responded by email dated 16th September 2016 in which he confirmed his intention to set up his own business in the new year and expressed an interest in going into partnership with the Respondent but committed to staying until after Christmas 2016.

The Complainant stated that the Head Chef left in November 2016 and the Respondent had difficulty in recruiting staff because of the CPO.

However, on 5th December 2016 the Complainant was requested to attend a Disciplinary Hearing on 7th December 2016 in relation to three specified reasons. Following this the Complainant was issued with a Final Written Warning to remain on his file for a period of 12 months. He was requested to attend a further Disciplinary Meeting on 15th December 2016 in relation to one specified issue. He attended and the outcome was the Complainant was dismissed by letter dated27th December 2016.

However, in the interim between the Hearing and the decision being communicated to him he was notified by letter dated 19th December 2016 that he was being placed on Lay-off effective from 14th December 2016. The Restaurant did close on 14th December 2016.

The Complainant argued that the Disciplinary Hearings were a smokescreen to deny him his entitlement to payment of his statutory redundancy. He is claiming payment of his statutory redundancy entitlement.

Organisation of Working Time Act, 1997 – 2015.

The Complainant stated that for the last three weeks of the employment he worked from 11am to 11pm. He stated that he normally worked 5 days a week – 3 days from 11am to 11pm and 2 days from 11am to 5pm/6pm. He stated that he did receive half an hour to an hour for his breaks. He confirmed there were two chefs on duty for the morning shift and three Chefs on duty for the evening shift but he received no breaks on the run up to Christmas.

The Complainant commenced employment in October 2010. He was a very reliable and competent employee. In September 2016, the Complainant suggested he would resign and enter a partnership with the Respondent. There was an exchange of emails in September 2016 in relation to this discussion. Copies provided. Thereafter there was a noted decline in the Complainant’s performance. This resulted in the Complainant receiving a letter of concern in relation to his performance on 24th October 2016. – copy provided. On 25th November 2016, the Respondent’s premises underwent an assessment by the HSE in relation to food safety standards and the HSE issued a report on 2nd December 2016 where they identified a number of serious issues regarding the completion of the HACCP documentation – copy provided. On 3rd December, the Complainant was involved in an altercation at work and he threw various implements on the floor. The Respondent attempted to speak to him and he threatened to resign. He was scheduled to work on 4th December 2016 but he failed to properly prepare the restaurant for opening. Following a brief discussion between the Parties the Complainant left the premises even though he was rostered to work.

The Complainant was invited by letter dated 5th December 2016 to attend a Disciplinary Hearing on 7th December 2016 in relation to three specified performance issues. He did not deny any of the allegations but stated that recently he felt overworked and there were not enough staff in the kitchen. The Complainant was issued with a Final Written Warning on 9th December 2016 to remain on his File for 12 months. The Complainant was informed of his right to appeal but did not do so.

The Complainant was invited to attend a further Disciplinary Hearing on 13th December 2016 in relation to his failure to complete the HACCP Documentation as identified by the HSE. He confirmed that he had not completed this task. By letter dated 27th December 2016 the Complainant was notified of the outcome to dismiss with a right of appeal. The Complainant did not appeal the decision to dismiss.

The Complainant was placed on Lay-off effective from 14th December 2016 when the Restaurant closed. The Respondent accepted that the Complainant was dismissed while on Lay-Off but this lay-off did not constitute a redundancy within the meaning of the Act. The Respondent also stated that Form RP9 or any other correspondence was not served on the Respondent at any time.

The Respondent was requested at the Hearing to forward information in relation to Lay-off and Redundancy of all other Employees. This was forwarded to the Adjudication Officer on 17th November 2017. This shows that there were four employees working in the Factory that supplied food to the Restaurant and there were 10 employees working in the Restaurant. Of the four factory workers two were laid off in December 2016 and both were made redundant in 2017 and paid their statutory redundancy entitlements. One other factory employee resigned in February 2017 and the fourth employee resigned in March 2017.

Of the 10 employees in the Restaurant, one resigned on 8th December 2016 – 6 were made redundant but did not qualify for statutory redundancy payments and three employees, including the Complainant were placed on lay-off with the Complainant being dismissed while on lay-off and the other employees resigning in 2017.

Organisation of Working Time Act, 1997 – 2015. The Respondent stated they were relying on Section 15 (1)(b) of the Act as the Complainant’s employment involved peak periods at certain times and therefore the appropriate reference period is six months. The Respondent provided a record of hours worked for the six-month period week-ending 18th June 2016 to week-ending 15th December 2016 which shows the Complainant worked on average 40.73 hours per week.  

On the basis of the evidence and cross examination by the Adjudication Officer at the Hearing I find as follows –

Redundancy Payments Act, 1969 - 2015

-          It is clear from the evidence that the Complainant was the subject of Disciplinary sanction in October, November and December 2016. These were conducted in line with fair procedures. The Complainant was afforded a right of representation, he was informed in writing in advance of the issues to be addressed and he was afforded a right of appeal which he did not exercise.

-          There was no evidence presented by way of submission or at the Hearing to substantiate the Complainant’s contention that the Disciplinary processes were in reality a smokescreen to evade the Respondent’s liability to pay the Complainant his statutory redundancy.

-          I note that the Complainant did not serve a notice on the Respondent as per Section 12 of the Act, to claim his redundancy entitlement while he was on lay-off.

Organisation of Working Time Act, 1997 – 2015.

The Respondent argued that Section 15(1)(b) of the Act applies and that a period of 6 months should be the appropriate reference period. I find that the Complainant is not an employee that is covered by reference to paragraph 2, point 2.1 of Article 17 of the Council Directive. In the 4-month reference period from week-ending 20th August 2016 to week-ending 15th December 2016 the Complainant worked a total of 758.75 hours over 18 weeks giving an average working week of 42.15 hours per week. If we look at the total hours worked over a 16-week period from week-ending 3rd September 2016 to 15th December 2016 he worked a total of 697.25 hours or 43.58 hours on average.

The second element of the complaint relates to breaks while at work. The Complainant confirmed he received between 30 minutes and one hour while at work each day.

Organisation of Working Time Act, 1997 – 2015 CA-00010374-003 and CA-00010374 -004

On the basis of the evidence and my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare these complaints are not well founded.

Redundancy Payments Act, 1969 – 2015 – CA-00010374-001

On the basis of the evidence and my findings above and in accordance with Section 39 of the Act I declare this complaint is not well founded.

Redundancy – dismissal while on lay off