ADJ-00013076

Complainant

Respondent

Anonymised Parties

A Hotel Worker

A Hotel

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-00017242-001

02/02/2018

The Complainant claims that he had an altercation with one of the Respondent’s managers, where he was verbally abused and he was told to go home. He said when he checked the work roster the following day his name was removed from it and he presumed from that that he was dismissed.

The Respondent said that after approaching the Complainant and confronting him of the poor state of the floor area he had responsibility for, he was told to either do his work or go home. The Respondent said that the Complainant left and decided not to return.

The following is a brief summary of the Complainant’s evidence.

The Complainant claims that he was employed with the Respondent from 10 June 2015 until 16 December 2017 working in the lounge area of the hotel collecting glasses. He said that he was paid in excess of €70 per week, he worked every Saturday night, for approx. 8 hours work.

He claims on the night of 16 December 2017 while working in the outside area collecting glasses he came across one of the managers, Mr. A, shouting at another member of staff about broken glass on the floor. He said that the manager then turned and started shouting at him. The Complainant said that he asked the manager to stop shouting at him, as he was embarrassed in front of customers and staff, Mr. A got more aggressive and said, “you’re walking around with your head up your arse”. He said that he asked Mr. A again to stop shouting at him, eventually Mr. A told him to go home. He said that he took his apron off, handed it to another manager Mr. B, clocked out and went home.

The Complainant said that the next day he checked the ‘group chat app’, which was his communication link to his employer, it was used by Mr. B who sets the weekly roster, and noted that his name was left off the roster for the following week. He said that he went in to the Respondent and met with Mr. B and said that he noted that he had been removed from the roster, he said that he asked for his P45, a reference and a letter explaining why he was dismissed. He said that Mr. B said that he should come in and discuss the issue with Mr. A.

The Complainant said that he was not due to work on the Sunday 17 December, as was suggested by the Respondent.

Following cross examination, the Complainant was invited to present evidence including copies of rosters to show that he was not down to work on 17 December and where his name was completely removed from the list of staff.

The following is a brief summary of the Respondent’s evidence.

The Respondent said that the Complainant had been working Saturday evenings with it for some time. It said that there were no problems with him prior to the evening of 16 December 2017. Mr. A was in attendance at the hearing and said that when he happened to come across the area that the Complainant was responsible for, he noted that it was a mess and there was broken glass all over the floor. He said that the night in question was not particularly busy. He approached the Complainant and told him to do his job when, in return, the Complainant said he would do it when he was ready, to which Mr. A said, “either do your job or go home”. The Respondent said that the Complainant took off his apron and left and they had taken that he had quit of his own volition.

The Respondent said that the Complainant was due to work the following day on the Sunday evening of the Bank Holiday weekend and he never turned up to work. The Respondent said that Mr. B met with him and asked him to come back in to have a chat to which he said that he would come back in to work with Mr. A.

One of the Respondent’s directors also attended the hearing and said that Mr. B has since left the business and was not available to explain why the Complainant’s name was removed from the staff roster. He also said that he too met with the Complainant and sought to get a resolution but the Complainant was not willing to look for a solution.

Following cross examination, the Respondent was invited to send in copies of rosters for that period, which it claims shows that the Complainant was down to work on the Sunday, 17 December 2017.

The Relevant Law

Section 1 of the Unfair Dismissals Act 1977 provides that:  

"dismissal", in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind   which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…..

(6)  In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

Conclusions

It appears to me there are a number of aspects that I must consider in coming to a decision on this case. Firstly, I must determine whether there was a dismissal or not, and finally, should I find that there was a dismissal, was this unfair in the context of Section 6 the Unfair Dismissals Act 1977.

The fact of the dismissal was very much in dispute between the parties in the present case. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent.

The Complainant was an employee with the Respondent for approximately two and a half years. From the evidence adduced, he worked every Saturday evening, and it would appear there were no major issues in that time until the night in question when the Complainant and Mr. A had an altercation. The alternation is not disputed but the parties’ perspective differs significantly. The simple consequence of the situation is that the Complainant has not returned to his employment with the Respondent following that night.

The Complainant’s evidence is that his connection with his employer was via the ‘group chat app’, he was not due to work the following day and he noted that his name was completely removed from the roster going into the future. He also said that no one from the Respondent made contact with him to explain. The Respondent claims that the Complainant left the night in question, failed to return for duty the following evening, and it had taken from this that he had left by his own volition.

I am satisfied that there was an altercation at work and there is a breakdown in communication. However, I am satisfied that the onus is with the Respondent to ensure that its employees are fully aware of what is happening as regards their work requirements. I note the only employment interaction that the Complainant has with his employers is via a ‘group chat app’, which shows a roster with his name removed from the list of employees working there. That roster appears to be the catalysis for the case before me for consideration.

I note that it was the Complainant who approached the Respondent wondering why he had been removed from the roster and dismissed and he met with Mr. B, who is responsible for setting staffing arrangements for the Respondent. Mr. B was not present at the hearing to give evidence. A hand-written note was handed in to me at the hearing signed by Mr. B, but it does not address many of the key points that require examination in this case. The evidence at the hearing is that the Complainant walked out and did not come back for his shift the following day and therefore he was not put on the roster the following day for the following week. I asked for evidence of the Sunday night roster to support this from the Respondent at the hearing and none was presented. However, I was presented with copies of rosters captured from the Complainant from the ‘group chat app’, which support his oral evidence that he was not down to work the following evening Sunday 17 December and that his name was removed for the list completely after that, having worked there for the past two and a half years without change.

I find that the sequence of events holds all the ingredients of a dismissal. I note that it is the Complainant who seeks clarification after the evening of 16 December, it was he who went into the Respondent the following week and met with Mr. B to seek answers. The Complainant presented in evidence an exchange of correspondence he had with the Respondent stating quite clearly that “he did not leave that he was not rostered to work”. He has sought the reasons why he was dismissed. He was the one who instigated all the contact with the Respondent from that initial stage. I note the Respondent said that it looked to resolve matters some months later, but it appears all too late. The Complainant’s evidence has remained consistent throughout and I prefer it over the Respondent’s evidence. I deem that the facts in this case suggest to factors that amounts to a dismissal that was unfair in the circumstances.

I find that re-instatement is not appropriate given the breakdown in the relationship that has occurred and the Complainant has moved on with his life and has chosen a new career path, where he is earning more now than he was when employed with the Respondent. Accordingly, I find that compensation is the more appropriate remedy.

I note that the Complainant said that he took up an apprenticeship at the start of the summer and his overall loss is equivalent to approximately 20 weeks work in all. I am satisfied that he is entitled to this. The Complainant’s evidence that he was paid over €70 weekly, whereas the Respondent said it was somewhere between €75 and €85 per week. Based on the higher amount of €85, multiplied by the 20 weeks, I deem that the Complainant is due €1,700 for that period and I am satisfied that this is the amount of compensation that is appropriate in this case.

Pursuant to the Unfair Dismissals Act, I find that the complaint of unfair dismissal is well-founded and the Respondent shall pay to the Complainant €1,700 (one thousand seven hundred euro) as redress for the unfair dismissal within 42 days of the date of this Decision.

Unfair Dismissal – Altercation – roster – well-founded – compensation.