Complainant

Respondent

Anonymised Parties

Commis chef

Hotel

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-00011316-001

15/May/2017

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

CA-00011316-002

15/May/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011316-003

15/May/2017

The Complainant’s case is that he worked in the hotel as a commis chef on the sandwich section progressing to the bar food grill.

Over a year in employment, the hotel hired a new chef (“the new chef”) whom the Complainant believed took an instant dislike to him and started making false complaints about him. The new chef was abusive to him in the kitchen and making offensive remarks and swearing at him constantly.

Following a series of incidents in the workplace, the new chef made a complaint against the Complainant. A disciplinary process commenced ending in the termination of the Complainant’s employment.

The Complainant set out in his complaint form to the WRC that he was unfairly sacked for having a private conversation on his unpaid break with another colleague. He felt that they were having a good laugh making comments to each other. The new chef overheard the comments and made a formal complaint. The Complainant’s issue was that he alone was selected for disciplinary action and that his colleague that he was joking with was not. In his evidence at the hearing the Complainant explained that the “banter” between himself and his colleague was not during a break.

The Complainant had several complaints regarding the investigation process. One complaint was in relation to the date on which he was invited to an investigation meeting. He was given less than twenty-four hours to attend this meeting and he was given this notice when he was still on sick leave.

Another complaint was that there did not appear to be any investigation into what was alleged to have happened. There were no terms of reference for the investigation.   He submitted that the witnesses only gave their statements to the investigators. The witnesses were not questioned by the investigators.

A further complaint was that the statements taken from the witnesses as part of the investigation were not provided in writing to the Complainant. They were only read aloud to him at the investigation meeting.

He also complained that copies of all the written notes were not provided to him.

The witnesses on which the decision to terminate his employment was made were not made available to the disciplinary hearing for the purposes of cross examination.

The Complainant’s case was that there was no proper and fair hearing carried out into the allegations made against him.   No witnesses were interviewed that would have been positive towards the Complainant such as the executive head chef. The Complainant had been an employee of the Respondent for over sixteen months and he had no issues before the new chef was hired.

The Complaint brought a grievance against the new chef and he was never asked for a statement to follow up on this grievance.   He heard nothing back from the Respondent in this regard.

His further claim was that the sanction given to him was excessive. The allegations led immediately to an investigation and disciplinary hearing.

He felt that within a three week period the new chef had arranged for the Complainant to be fired.

The Complainant agreed that he didn’t appeal the decision to terminate his employment. He said he didn’t want to be involved in the company anymore.

The Complainant further highlighted that the notes and dates of the investigation and disciplinary process were “all over the place” and the Respondent was changing dates and times to suit themselves.

He gave evidence of his financial losses as required.   He said that he had sent out sixty-five CV’s but had not been called for any interviews and had not received any emails in response.

He started work before the resumed hearing and submitted that he had been out of work for twenty-five weeks in total.   He had secured some temporary warehouse work with a vegetable company between August and September of 2017 and confirmed that his claim for loss of earnings was only in relation to the start of February to the start of August 2017.

The Complainant denied that he had made any of the statements through Snapchat. He denied that he was in any way intimidating towards his co-workers.

The Respondent’s submission in relation to the Claimant’s duty to mitigate his loss was that he had not made enough effort to do so.   It was put to the Complainant there was many jobs available for chefs and that making an application of just two per week was not good enough to minimise his loss and that he should have sought other jobs.

The Respondent’s case was that the Complainant proved difficult to manage in employment. He was sent home on the 3rd of January 2017 by the new chef for insubordination after refusing to follow an instruction in relation to the preparation of food. The new chef complained that the Complainant suffered with mood swings, aggressive behaviour and making foul mouthed sexual remarks. The Complainant received a written warning for that behaviour on the 16th of January 2017. This warning was not appealed.

The incident at the centre of the case occurred less than two weeks after the incident of the 3rd of January 2017 and two days after the Complainant was issued with the written warning.

The Complaint was that the Complainant engaged in crude, intimidating, unhygienic and sexually orientated behaviour. This included serious sexual harassment of staff in the kitchen involving suggestions of sexual relations during work time in the kitchen area. He had his hands down the front of his trousers and indicated that he was suffering from itchiness in his groin area. He repeatedly refused to refrain from this behaviour. He also showed the new chef a picture of on his phone which mocked a child suffering from a disability. After about an hour the Complainant eventually quietened down and continued to work his shift.

A formal complaint was sent by the new chef to the HR manager about this behaviour that evening.

The Complainant submitted a sick cert covering the 23rd of January to the 31st of January 2017.

On the 31st of January 2017, the HR manager wrote to the Complainant advising that he was being suspended on pay pending an investigation to be conducted the HR manager and the financial controller into his alleged inappropriate behaviour. He was invited to attend an investigation meeting on the 1st of February 2017.

Ultimately the financial controller did not carry out the investigation and instead it was carried out by the operations manager with the HR Manager.

The investigation commenced and the investigators took statements from several staff in the kitchen. The statements confirmed the actions complained about.   Not all the staff regarded the Complainant’s behaviour as sexual harassment. However, it was generally regarded as unwelcome and inappropriate.  

The Complainant was invited to an outcome of investigation meeting. The outcome meeting was held on the 6th of February 2017. The HR manager and the financial controller conducted the meeting. The letter of the 3rd of February 2017 did state that depending on the facts established at the hearing, the outcome may result in no further action or disciplinary action up to and including final written warning or dismissal.

I understand that this outcome meeting was a disciplinary hearing. The disciplinary decision was made only by the financial controller.

There was a meeting held on the 3rd of February 2017. On the notes of the meeting it is stated to be a disciplinary meeting. In attendance was the Complainant, the HR manager and the financial controller. The notes of this meeting stated that it started at 16.34. The first note stated “following on investigation some questions”. The meeting seemed to have been a series of questions raised by the financial controller and were answered by the Complainant.

The Respondent provided minutes of a meeting dated the 6th of February 2017. Again, the parties in attendance were the Complainant, the financial controller and the HR manager. The notes stated that it was following the disciplinary hearing. It advised the Complainant that the outcome was dismissal effective from that day.

At that stage of the hearing the Complainant gave the HR manager a letter of complaint against the new chef. The Respondent acknowledged the letter and proceeded to advise the Complainant that the decision to terminate his employment still stood and that he had five days to appeal.

A letter issued to the Complainant dated the 6th of February 2017 confirming the outcome of the disciplinary hearing of the 3rd of February 2017. The decision to dismiss him from his position effective immediately on the grounds of gross misconduct due to offensive and inappropriate behaviour.   This was signed by the financial controller.

At the hearing the Respondent submitted that it had to take into account the fact that many people subjected to sexual harassment will not complain. It submitted that the severity of the sexual harassment was that it was essential to act to ensure that staff are not subjected to such action in the future.  

The Respondent further submitted that it had lodged with the WRC statements taken from staff as part of the investigation process and these statements were forwarded to the Complainant by the WRC. The Respondent advised me that the Complainant circulated these statements with abusive and threatening comments on social media to some of the co-workers who had signed them.

The Respondent further explained that there was no investigation report following the investigation. The investigation was a collation of written statements from the witnesses.

When questioned, the financial controller explained that the Complainant had admitted what the witnesses had said at the hearings.   She confirmed that because of the statements and behaviour complained of, she felt that the behaviour was not acceptable and alternative sanctions would not be appropriate.

The Respondent accepted that the procedures they carried out may not have been 100% correct. They submitted caselaw to justify their position.

CA/00011316/001

The fact of dismissal is not in dispute. The facts of what occurred between the Complainant and his work colleagues were in dispute.

The new chef co-worker of the Respondent made the complaint and an investigation process was commenced. This led to a disciplinary process which resulted in the decision to dismiss the Complainant. The Complainant made no appeal to the outcome of the disciplinary process.

The Respondent submitted that this case fell within the range of reasonable responses of a reasonable employer about the conduct involved. It is correct that the 1977 Act does not permit a high degree of intrusion into managerial decisions, however the underlying law and case law requires that fair procedures be followed in the disciplinary process.

Having considered the evidence of the parties both orally and in writing I find that in the circumstances of this case that the dismissal of the Complainant was procedurally unfair.

It was clear at the first hearing date that the Respondent itself was confused as to what occurred between the investigation and the disciplinary process.

Compliance with the disciplinary procedure set out in the employee handbook and the Code of Practice on grievance and disciplinary procedures – SI 146 of 2000- was lacking. Statements were taken from co-workers at the investigation stage were only read to the Complainant. They were not given to him in written format.

At the disciplinary hearing these statements were relied upon by the Respondent in coming to its decision following the disciplinary hearing. During the hearing the Complainant made several comments in relation to the statements that disputed the context in which the incidents occurred and the involvement of the co-workers.

For the Complainant to have a fair and impartial determination of the issues concerned, he should have been allowed to confront or question these witnesses.

There was confusion as to what the meeting of the 6th of February 2017 was. A letter to the Complainant the 3rd of February stated that the purpose of that hearing was to discuss the outcome of the investigation held on the 1st of February 2017. There was no mention of the disciplinary hearing held on the 3rd of February 2017. While the Respondent has explained that these two meetings became merged, the reality was that the Respondent was running the process and needed to be in control of it.

Also, there was no evidence that the Respondent considered alternative sanctions such as a further final written warning, suspension etc.

As regards the Complainant’s loss arising from his dismissal and his efforts to mitigate that loss, I have taken into account the evidence from the Complainant and the submissions from the Respondent.

Section 7 (2) (b) of the Unfair Dismissals Act requires to take into the consideration the extent which the Complainant’s conduct has contributed to the loss he suffered.

I am satisfied that the Complainant by his conduct contributed to a significant degree to his dismissal and I have taken this into account in measuring the quantum of compensation to be awarded to him.

I also find that the Complainant did not take sufficient action to mitigate his loss as required under Section 7 (2) (c) of the Unfair Dismissals Act.

CA/00011316/002 – The Complainant submitted that he was only paid €10.50 an hour for a Sunday when he should have been paid €12.16 an hour.

The Respondent’s submission was that he was getting a premium of 10% for Sunday.

I have reviewed the payslip for the Complainant with a payment date of the 31st of December 2016. It clearly set out the basic pay, Sunday rate which included the premium and bank holiday pay.

Section 14 of the Organisation of Working Time Act applies. Section 14(1) of the Act states

·       14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The Complainant submitted that time and a third was custom and practice in the sector.

I find that while a premium of 33% for working on a Sunday in this sector may be fair and reasonable, it was not what was agreed between the parties. The parties agreed on the premium at the commencement of the employment relationship and the payslip clearly shows that a Sunday premium was paid.

CA/00011316/003 – This claim is in relation to minimum notice.

CA/00011316/001

I find that the complaint is well founded and that the dismissal was unfair. I further find that the Complainant through his conduct was 80% responsible for his dismissal.

The Respondent submitted a spreadsheet showing the hours worked for 2016 and the average hours were 41.3 for that year.

On a full value of the claim of twenty-five weeks the loss to the Complainant would be €9,500.00. I have reduced this to €2,000.00 for the actions of the Complainant and the failure by him to mitigate his loss. This is taxable under the Revenue rules.

CA/00011316/002

I determine that this complaint is not well founded and fails.

CA/00011316/003

As I have determined that the Complainant was unfairly dismissed he was entitled to notice of one week. I have calculated this at €382.00. This is taxable under the Revenue rules.

Unfair dismissal, fair procedures, mitigation of losses.