Complainant

Respondent

Anonymised Parties

A Chef

A Restaurant

Representatives

None

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

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

CA-00010965-001

25/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00010965-002

25/04/2017

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

CA-00010965-004

25/04/2017

The complainant worked for the respondent from the 21st April 2015 to the 24th March 2017. He earned €615.38 per week and held the role of head chef. He claims unfair dismissal, his statutory notice period and that he was not given a statement of the terms of his employment. The respondent denies the claims.

The complainant started working for the respondent on the 21st April 2015 and worked as a chef. On the 24th October 2016, the complainant was appointed head chef. He stated that he was never given a contract of employment in this role. In respect of the events of the 19th March 2017, the director asked the complainant to send the kitchen porter home because the respondent director thought he was intoxicated. The complainant said that there were no signs of kitchen porter’s intoxication and he could afford to not send him home. The director had said that he saw the kitchen porter drinking until 3am, but the kitchen porter had only started at work at midday. The complainant said that he needed the kitchen porter as it was an “Irish night”, where they put on food for a show. The complainant had no one to cover the kitchen porter. He said that the director had it in for the kitchen porter.

The complainant informed the director that he would not send the kitchen porter home. The director replied that the complainant would then have to go home. The manager said that he would ring the director to smooth things over, but later came in to escort both the complainant and the kitchen porter off the premises. The next day, the complainant came to work and met the director in a room. The complainant was attending work as normal. The director accused the complainant of walking out the previous day, which he denied. The director told the kitchen porter to “get lost”, but the complainant said he needed him there as a witness. The director insisted that the kitchen porter leave and another colleague came to witness the meeting. On the 20th March 2017, the director informed the complainant that on the previous day, he had told the colleague to get the complainant to ring him back, but this did not take place. The complainant said that the director had wanted him out of there on the 19th March 2017, but the complainant had been looking out for the business.

The secretary came down to the meeting. The director informed the complainant that he was no longer working in the business and the kitchen porter was gone too. Both the complainant and the kitchen porter left the premises. That day or the next day, the director rang the complainant’s girlfriend to arrange a meeting with the complainant. His girlfriend also worked for the respondent. The complainant was asked to meet the three directors on the 22nd March 2017. The complainant said that he felt ambushed at the meeting. He started by reading out his statement and the director brought up that he had tried to get the colleague to leave with him. The complainant said that this was ludicrous as she was the last person he would ask as she was not a nice person. He described her as rude, a bully and a liar. The colleague then came into the meeting and said “lies” that he had tried to get her to leave. This was false. The complainant was not told that she would be at the meeting.

The directors also brought up things that arose when the complainant first became head chef. This included a health inspection in November 2016 where closure was threatened. The complainant said that he rectified the issues and the director was happy. They brought up the issue of the kitchen porter and they said that they did not want him cheffing. He was a KP who the complainant was being trained up to be a chef. They said that they did not want him as a chef. The director had had a word with him, but the complainant outlined that they were training him in. The director had not been clear that he did not want him to chef and the complainant had talked him through. The directors brought up an issue in February with a meat order was returned as there was confusion. The complainant said he had asked the supplier to take meat back as it had been delivered early for an event. The supplier, however, took one week to collect the meat.

The complainant said that the accountant was meant to be independent at the meeting but he had not been not impartial. They did not follow HR protocol. The complainant had not been briefed about the meeting and felt ambushed. He then received emails from the secretary and asked to come to the respondent place of business on the 24th March 2017, where he was handed a letter. The complainant said that he never resigned. He then emailed the respondent to say that he did not accept what they said. He received no reply.

The complainant did not accept that he was on probation when he commenced the head chef role. His salary was only increased in January 2017. The complainant outlined that the director had tried to get him a job in a place in town. The complainant said that he started in another pub on 29th May 2017. He was hired as a chef and was now a sous chef. The complainant said that he is now paid €12.50 per hour. When working for the respondent, the complainant’s salary was €32,000 per year and he worked a 42-hour week.

The complainant outlined that he did not receive a contract of employment. He commented that the security cameras are not there to monitor staff, but they are there for security. He said that he has a recording of the conversation on the 20th March 2017. He had been told to go home on the 19th March 2017 by the director and the manager. He commented that he always packed up his knives and uniform at the end of the day, so it cannot be said these actions constituted resignation. He accepted that he had burst out as he was informed he was getting no raise. He had been swatted off until January and obviously annoyed. He was working over 48 hours per week and trying to hire chefs. The director had refused to place an ad on a named website as it cost money.

The kitchen porter gave evidence. He said that they finished early on the 18th March 2017 and after 10pm, he and the colleague had a few pints in the pub. One staff member had to brought home in a taxi. The director rang to say that they had to leave. He left with a named staff member and went home. The next day, he came in to work at noon and was not drunk. He was told that he was intoxicated but was puzzled as this was not the case. He was standing in the kitchen when the manager came in to say that he would smooth things over. He later came back in to say that both he and the complainant had to go. The staff member had been allowed continue in work despite also leaving at 3am. He and complainant discussed what happened in a pub close-by and other staff joined them. The colleague came over to say hi.

The kitchen porter said that, on the 20th March 2017, the director told him to go home. The director had asked him what he was doing here and they went into the lounge. The kitchen porter waited in the kitchen as the complainant and director were talking. The complainant then came in to say that they had to go and they left. He was not due in work for a few days and received an email to come back in. The kitchen porter attended the meeting with the director and the secretary about his continuing employment. His job title was changed to KP and not chef. He changed back to his previous role. He continued to work for the respondent until August 2017, during which time the chefs asked him to help with prep and food orders. He had initially refused, but the chefs became annoyed. The kitchen porter said that he was back cooking food within a week. The kitchen porter said that he was now studying in college. It had been head chef before the complainant who had given him the okay to become a chef. He further commented that both the staff member and the colleague had been drinking until the early hours on the 18th March 2017. He had seen the New Employee Form but had not seen the contract at all.

In submissions, the respondent denied the claims. It submitted that the complainant was provided with a contract of employment, which he declined to sign. While the complainant moved to the Head Chef role in December 2016, the original contract provided the information required by section 3 of the Terms of Employment (Information) Act. It relied on Hall v Irish Water (TED161) to argue that no award would be just and equitable for not providing an amended contract following the complainant becoming the Head Chef. The respondent submits that the claim pursuant to the Minimum Notice and Terms of Employment Act is misconceived as the complainant refers in the complaint form to not receiving warnings.

In respect of the unfair dismissal claim, the respondent submits that the complainant resigned from his employment, having walked out and taking his equipment and possessions. The respondent denied that it sent the complainant home on the 19th March 2017 and had asked that the kitchen porter be sent home. The respondent states that the complainant was verbally abusive on the 20th March 2017 and was asked to leave the premises. The complainant attended a meeting of directors on the 22nd March 2017 to consider his re-instatement. Following the meeting, the respondent decided that the complainant would not be re-instated. The respondent submits that this is a case where the employee seeks to recant their resignation. It refers to performance issues in the running of the kitchen and the complainant’s behaviour. It relies on Looney & Co Ltd v Looney (UD843/1984) regarding the standard of the reasonable employer.

The director acknowledged contacting the complainant on the 19th March 2017. He believed that the kitchen porter should be sent home as there was a health and safety issue. The complainant lashed out at him and used expletives. The complainant was not sent home. The complainant had said that he would be leaving if the kitchen porter had to go. It was the complainant who said “we are all out of here”. After the phone call, the complainant packed up his knives and uniform and went home. This was a sign of resignation. When the complainant attended work the next day, the director met him and the complainant became quite irate. He was then asked to leave the building.

The respondent submitted that the purpose of the meeting of the 22nd March 2017 was to see whether the complainant could be re-instated. The accountant chaired the meeting. The director said he had already raised with the complainant the issues discussed at the meeting. It was the respondent’s view that the complainant had wrongly communicated the meat order. The complainant had threatened to walk out on numerous occasions and he had a temper. He admitted at the meeting that he lashes out.

The respondent referred to page 18 of the minutes, where the complainant said that he walked out. It was clear he had resigned. The kitchen porter returned to work until the end of August. The respondent supplied a letter to the complainant on the 29th March 2017, in the presence of the director and the secretary. The respondent did not receive an email from the complainant to challenge his resignation. In respect of the contract of employment, a contract was issued by the accountant in May 2016 and not returned by the complainant. He had signed the new employee form.

The director gave evidence. Following the complainant’s resignation, the director sent another chef to work in the venue. The complainant went drinking in a named public house. The complainant and the kitchen porter confronted the colleague later that day. When the director met the complainant on the Monday, it was not in the respondent’s interest to let complainant go as there is a shortage of chefs. He never had an issue with the complainant’s food but there were issues with his food ordering as well as his confrontational style and language. The director said that he could not allow the complainant continue and would not re-instate him. At the meeting on the 22nd March 2017, the director asked the complainant whether he was happy to continue with the meeting and the complainant replied that he was. The respondent had never sacked anyone since they took over in 2010. The director said that he operates several places here and in the UK and they don’t have any issues.

The director outlined that the complainant and the kitchen porter were friends for a long time. The kitchen porter was not a chef. While KPs can be asked to dish out food, they would not cook food. The director said he raised this with the complainant on more than three occasions as the kitchen porter did not have qualifications. The Food Safety Authority of Ireland had threatened closure and the complainant, then head chef, said he would attend to the issues. They related to the storage of food in ice cream containers and in chicken boxes as well as with cleanliness under units. The rotation of food was not in order and there were no proper records. The director said that he was also unhappy that the HACCP book was filled in retrospectively. He stated that no disciplinary action had been initiated prior to the 22nd March 2017 and he raised things informally as they occurred.

The director stated that the meeting of the 22nd March 2017 was about whether to re-instate the complainant. In respect of the events of the 19th March 2017, he said that the manager does lots of jobs, including security on a Saturday night. The director had phoned the respondent venue on the 19th March 2017 and the manager answered. He later spoke with the colleague. On the CCTV, the director could see complainant packing up his knives. There were to be 100 patrons for lunch and 80 that night. The director said that he only spoke with the manager and the colleague. He said that he would bring a named chef from another restaurant premises to replace the complainant.

The director said that he had found chefs to work in the venue but the complainant had turned them down. The complainant said he refused to hire these chefs as he was holding the position open for someone. This was recorded in the notes. The director said that the kitchen porter had not been the only staff member bumped up to €10 per hour on his return. He said that no one can just be a chef, they must have qualifications. KPs often help with the salads, but they did not cook food. On the 19th March 2017, the director said that he did not want the kitchen porter cooking food. He made numerous phone calls on the night of the 18th March to get the kitchen porter to go home. The kitchen porter arrived at 12.15 on the 19th March 2017 and he was often late. The respondent business had a licence to serve alcohol until 2.30 am and the kitchen porter and the staff member were the only off duty members of staff in the venue.

The secretary gave evidence. She said that the complainant had been aggressive on the 20th March 2017. The accountant gave evidence. He said that he was a retired inspector of taxes and an accountant. He had been involved in issuing contracts and printed off drafts from the NERA website. He distributed them to staff and he was positive that he had given one to the complainant. He recalled asking the complainant whether his preference was for a contract in the Irish language. He further commented that the complainant was an excellent chef and better than Gordon Ramsey. He was certain that he gave a contract to the complainant on the 18th May 2016. It was for the employee to sign the contract if they were happy. In respect of the meeting of the 22nd March 2017, there had been ten occasions when he showed his impartiality.

The complainant commenced working for the respondenton21st April 2015 and in late 2016, he took over as Head Chef. Much else in this case is in dispute, in particular the events surrounding the ending of the complainant’s employment.

CA-00010965-001 Unfair Dismissals Act

In respect of the unfair dismissal claim, the complainant states he was dismissed on the 24th March 2017. The respondent submits that the complainant walked out of the workplace and resigned on the 19th March 2017. It states that the meeting of the 22nd March 2017 considered the possible re-instatement of the complainant, a step the respondent declined to take. The respondent wrote to the complainant to this effect on the 24th March 2017.

There was complete conflict between the parties regarding whether the complainant resigned or whether he was summarily dismissed. There was conflict over the tenor of conversations and interactions between the complainant and the director, although the complainant apologised for acting unprofessionally on the phone. There was further conflict of evidence regarding the complainant’s interactions with the colleague, both in the workplace and in a near-by public house.

Having considered the written and oral evidence, I resolve the above conflicts in favour of the complainant. I find that the events took place as described by the complainant. I reach these findings finding for the following reasons. The respondent placed great weight on the minutes of the meeting of the 22nd March 2017. I am struck by the minutes and the absence of any reference to re-instatement, except for in the title of the document. The respondent submits that this was the purpose of the meeting, yet no one uses this term or makes any other reference to the complainant coming back. It is striking that the complainant never refers to re-instatement. Instead, the meeting focuses on performance issues from the time the complainant became head chef. I also note that the minutes deal obtusely with whether the complainant had resigned his employment. He is asked about packing up his knives and whether his uniform was his own property. It is never put to the complainant that his actions amounted to resignation. It is clear from the complainant’s contribution to the meeting that he did not consider that he had resigned. The comment at page 18 of the minutes is made in the context of his difficulties in managing the kitchen with insufficient staff. It goes too far to conclude that this is an admission by the complainant that he resigned.

Resignation requires an unequivocal act that communicates the employee’s intention to terminate the employment relationship. The acts attributed to the complainant on the 19th March 2017 do not meet this standard. Even if there was any doubt regarding this, I note that the complainant arrived for the work the following day.

It follows from these findings that the complaint of unfair dismissal is well founded. The respondent terminated the complainant’s employment on the 24th March 2017 and it is a substantively and procedurally unfair dismissal. The respondent did not rely on grounds of performance, following reasonable instructions or conduct, although alluded to these issues in its evidence. The meeting of the 22nd March 2017 was not procedurally fair.

In assessing redress, I note that the complainant obtained other employment on the 29th May 2017, nine weeks after his dismissal. This new employment was not as a head chef and the complainant gave evidence of progressing in the kitchen. The complainant is now in receipt of €12.50 per hour. He had received a salary of €32,000 for a 42-hour week while working for the respondent. I note that this is an industry with a shortage of skilled staff. This featured in the evidence of this case where there was controversy over whether the kitchen porter should be trained up or could take on cooking duties.

Taking these factors into account, I award the complainant €6,500 for his actual and future losses, taking account his likely progression in his new workplace or elsewhere.

CA-00010965-002 Minimum notice

I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well founded. I have found that the respondent summarily ended the complainant’s employment and that the complainant did not resign. The respondent has not established any act of serious misconduct by the complainant so that it might disentitle him to notice pay. I award the complainant his statutory entitlement to notice, i.e. two weeks’ pay. This amounts to €1,230.

CA-00010965-003 Terms of Employment

I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded. I am satisfied from the evidence presented at the adjudication that a contract or statement was provided to the complainant. While it was not updated to read ‘Head Chef’, I do not find that the extent of this issue amounts to a breach of the Act.

CA-00010965-001

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 find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €6,500.

CA-00010965-002

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above, I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well founded and the respondent shall pay to the complainant redress of €1,230.

CA-00010965-003

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above, I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

Unfair Dismissals Act

Resignation

Constructive dismissal

Minimum Notice and Terms of Employment Act

Terms of Employment (Information) Act