Complainant

Respondent

Anonymised Parties

A Barman

A Public House

Representatives

Ian FitzHarris BL

Fergus O'Regan Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016289-001

12/12/2017

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

CA-00016289-002

12/12/2017

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

CA-00016289-003

12/12/2017

The respondent has a public house in west Dublin and a hotel in Dublin city centre and the complainant worked as a barman in the pub. He commenced employment on June 13th 2016 and he earned €575 per week. He complains that he was dismissed without notice, without cause and without any explanation. He also complains that he never received a copy of his terms and conditions of employment and that he didn’t get notice of his dismissal.

The respondent’s position is that the complainant was not dismissed and that he resigned when he was requested to move from the pub where he worked to the hotel in town.

Before setting out the positions of the parties, a review of the facts of the case may be useful.

Chronology

It is evident that on Tuesday, July 18th 2017, the complainant had an altercation with an elderly customer in the bar. The complainant said that he went on his break after a customer was aggressive towards him. When he was on his break, sitting in his car, he saw the customer leaving the premises. The customer didn’t come back to the pub, although up to then, he had frequented the place every day.

The owner of the pub gave evidence that he tried to contact the customer the next day, and eventually he went to his house to apologise and persuade him to return.

The complainant was on holidays from July 19th and he returned to work on Wednesday, July 26th. The evidence of the owner is that when he complainant came back to work, he brought him into a snug in the bar and asked him what happened with the customer.   He said that the complainant was upset and said that he didn’t want to lose his job. The owner said that the complainant apologised and said that he preferred the customers in the lounge rather than the bar area, where the altercation had occurred. The owner said that he told the complainant to “stay at home for a few days” and he paid him while he was out. The complainant said that he was instructed to come back the following Monday, although Monday was his day off.

When he went to the pub on Monday, July 31st, he had his small child with him, because he normally minded his child on his day off. The owner said that he didn’t want to talk to him with his child. The complainant said that the manager met him and said, “I don’t know what’s going on, I’ll ring you later.” He said that the manager phoned him at 9.07pm that evening and said, “I’m the bearer bad news, you no longer work in (the pub). He will offer you a job in the hotel.”

The next day, August 1st, the complainant went to the pub again, but the owner said that he was at a meeting between 10.00am and 1.00pm and he told the manager to speak to the complainant. The complainant said that on the advice of the manager, he wrote out a list of questions for the owner and he left the page with the questions with the manager.   He said that he shook hands with the manager who wished him “all the best.” He never got any answers to his questions. The owner said that he has no recollection of this list of questions, although Mr FitzHarris said that the complainant sent it to him by registered post.

When he was asked by Mr FitzHarris why he didn’t return to work, the complainant said that, as far as he was concerned, he was dismissed when the manager phoned him on the evening of July 31st and said that he no longer worked in the pub, but that there was an offer of a job in the hotel.

On August 4th, the complainant wrote to the respondent asking him why he refused to meet him and why he was not allowed to continue to work in the pub. In his letter, he said, “I would appreciate if we could have a meeting to discuss what I have outlined above and would also be open to continuing my employment in (the pub) if you’re happy to reconsider.” He got no answer to this letter.

The complainant’s case is that he got no notice of the termination of his employment, and that he did not receive pay in lieu of notice.

The respondent’s case is that the employee resigned from his employment and was not entitled to notice. The respondent also pointed out that the complainant was paid for more than one week while he was suspended, from July 26th until August 2nd 2017.

Under the heading of CA-00016289-003 below, I have concluded that he complainant was in fact dismissed.   As he had worked for 13 months for the respondent, I find also that he was entitled to one week’s pay in lieu of notice, which he did not receive.

I have decided that this complaint is upheld and the respondent is to pay the complainant €575, equivalent to one week’s pay in lieu of notice of the termination of his employment on August 2nd 2017.

The complainant said that he did not receive a statement setting out his terms and conditions of employment. No evidence was given that he ever asked for such a statement.

No evidence was presented at the hearing that the complainant was issued with a statement of his terms and conditions of employment.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, their employer shall give them a statement in writing setting out their terms and conditions of employment.   Generally written up in the form of a contract, this statement is to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employee commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, although he did not state that he ever asked for such a statement. From his evidence, I am satisfied that he did not receive such a statement and I uphold his complaint in this respect.

I have decided that the respondent is to pay the complainant €575, equivalent to one week’s pay, as compensation for the failure to issue him with a statement of his terms and conditions of employment.

Around May 2016, the complainant said he worked in a well-known hotel in the area where he worked for the respondent and he was approached by the bar manager who asked him to come and work for the respondent. In June, he left his job in the hotel and went to work in the pub.   The complainant’s case is that he was employed by the respondent in the pub in west Dublin.

The complainant gave evidence about the altercation with a customer on July 18th 2017.   A customer was verbally abusive and he said that as a trained barman, he knows that in these circumstances, the only thing to do is to move away. He said that he didn’t react to the customer’s aggression and that he went on his break immediately after the incident.

The complainant said that when he returned from his holidays on July 26th, around 10.30am or 11.00am, the owner asked him for a word in the bar. The owner asked him what had happened with the customer and he said that he explained what happened. He said that the owner’s response was, “we’ll send you home for the rest of the week.” He said, “I was taken aback by this but,he’s the owner.”

On the evening of July 31st, the pub manager phoned him and told him that he was no longer employed in the pub. He went to the pub the next day to speak with the owner, but the owner was at a meeting all that morning and he didn’t get a chance to speak with him. The manager advised him to write out the questions he wanted to ask, which he did. The questions were about why he was being let go. He said he gave the manager the note. When he had no contact from anyone in response, he sent a registered letter on August 4th.

As he had accepted an offer of a job in the pub, the complainant said he had no desire to work in the inner city in Dublin. He said that this would have involved coming home from town late at night and this didn’t appeal to him. He said that he got no explanation for letting him go from the pub, and his understanding is that he has been dismissed.

At the hearing of this complaint, the customer of the pub said that the complainant was rude in response to a customer’s irritability. He gave evidence of precisely what he recalled was said by both on the afternoon of July 18th 2017. The customer decided to take his business elsewhere.

The owner’s evidence is that when he returned from his holidays on July 26th, the complainant apologised. The owner said that he had an issue with the fact that it was reported to him that, after the incident with the customer, the complainant left the bar unattended and went on a break. He decided that it would be best if he moved him to the hotel in town. He said that he spoke to his brother, who is his business partner and has responsibility for the hotel, and that his brother said that he would give him a job there.

He said that when the complainant came to the pub on July 31st, he told the manager to tell him he was being transferred to the hotel. In his evidence, the owner said that he understood that this proposal was not well received. When he didn’t accept the move to the hotel, the owner said he arranged to send the complainant his P45. On the P45, the complainant’s last day of employment is stated to be August 2nd 2017.

Having considered the evidence of the parties about the incident that led to the complainant’s termination of employment, it is my view that there is no merit in an exploration of the rights and wrongs of the protagonists. The incident that occurred in the pub on July 18th 2017 led to the complainant being suspended when he returned from his holidays on July 26th. A few days later, on July 31st, the manager told him that he was no longer employed by the pub and that the owner was offering him a job in his hotel in town. From the perspective of the pub owner, it seems that he wanted to avoid a recurrence of what happened and keep the customer. As far as he was concerned, this necessitated the removal of the complainant from his job in the pub. In any event, the “offer” of the job in town was rejected.

There are two ways of interpreting the respondent’s decision on this matter. The first is that the complainant was dismissed for upsetting the customer. The second interpretation is that he was transferred to the hotel as a sanction short of dismissal. Either way, from a procedural perspective, there are serious deficiencies in the way this matter was handled. There was no reference to a disciplinary procedure, no investigation was carried out, no allegations were put to the complainant and no warning was issued.   It appears that the respondent used the convenience of an offer of a job in his hotel as an alternative to dismissal, to be taken up or rejected by the complainant. There was evidently no concern that he didn’t take up to offer.

This transfer to another location as an alternative to dismissal was arbitrary and laden with potential risks, mainly for the employee. As a punishment, it was meted out without a proper investigation and, without any findings, placed the blame for the incident on the complainant. If he had a problem with his attitude to the customer, he was not given an opportunity to sort it out. A more appropriate sanction would have been a verbal or a written warning.

When the complainant didn’t receive written confirmation of his dismissal or the offer of a job in the hotel, on August 4th, he wrote to the owner:

“I am writing to you following a phone call I received … on Monday the 31/7/17 at 9.10pm to say unfortunately I am not longer employed by (the pub). When I questioned why, he was unable to give me an answer…I would appreciate if we could have a meeting to discuss what I have outlined above. I would also be open to continuing my employment in (the pub) if you’re happy to reconsider.”

It is my view that this letter is effectively an appeal of the decision to dismiss the complainant, but the letter went unanswered.

It is my view that the complainant is correct to conclude that he was dismissed. He didn’t get a contract of employment, so there was no written provision that he could be transferred to another location. The transfer to the hotel was in the form of an “offer” and not a transfer, and when he didn’t accept the offer, the respondent sent him his P45 without any further discussion.

Whatever the cause of the dismissal of an employee, it is now settled law and firmly established practice that an employee who is at risk of dismissal is entitled to the benefit of fair procedures based on the principles of natural justice. Where a workplace has no written procedures, the Oireachtas has enacted a statutory instrument, SI 146 2000, as a Code of Practice on Grievance and Disciplinary Procedures which can be adopted in any workplace. The respondent failed to follow any standard procedures and the effect therefore is to render this dismissal unfair.

On the basis that I have found that his dismissal was unfair, I decide that the respondent is to pay the complainant compensation of €5,750, equivalent to 10 weeks’ pay.