Complainant

Respondent

Anonymised Parties

A Barman

A Public House

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-00011886-001

14/06/2017

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

CA-00011886-002

14/06/2017

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

CA-00011886-003

14/06/2017

The Dispute (Unfair Dismissal, Notice and Public Holiday pay) concerns a Barman and a Public House.

1:1     CA-00011886-001 - Unfair Dismissals Act claim

The Complainant commenced employment in January 2013. Matters proceeded without incident until December 2016. On 6th December 2016, there was a dispute between the Complainant and the Manager (Ms. XA.) The outcome was that the Complainant was sent home. Later in December (17/12/16) the Complainant called in sick. On the 21st December, the Complainant met with the Owner/Manager (Mr. XB). The Respondent allegedly warned the employee and told him he was off the Roster until January. The Respondent returned in January and worked without incident until the 22nd February 20176. There was a Poker Tournament taking place that night and a dispute ensued between the Complainant and the Owner /Manager regarding the level of service that the Complainant was providing to the Poker Players. On the 24th February, the Owner /Manager rang the Complainant and asked him to submit a letter of resignation as “things were not working out”. The Complainant refused. A Disciplinary meeting was arranged for the 27th February. At this meeting the Complainant was dismissed because he was according to the Respondent “not capable of carrying out his duties” despite being employer for over four years without incident. No appeal to the decision was offered.

1:2       CA-00011886-002 - Payment of Wages Act ,1991 claim.

The Respondent failed to pay the due statutory notice (2 weeks’ pay) to the Complainant.

1:3     CA-00011886-003   - Organisation of working Act ,1997 claim.

The Complainant is due 3 day pay in lieu of Public Holidays.

In relation to offers of “full and final settlement” cash lump sums by the Respondent the Complainant declined to accept these as they fell short of this proper legal entitlement.

2:1     CA-00011886-001 - Unfair Dismissals Act claim

The Disciplinary meeting of the 27th February 2017 was because of the culmination of a series of problems that the Respondent had been having with the Complainant. In December, he had a verbal altercation with the Manager. Ms.Xa. This had resulted in a warning letter “First and Final Written Warning” of the 4th January 2017. The incidents in the pub on the night of the 22nd February 2017 were completely unacceptable. Following the incidents in December 2016 and the Disciplinary warning in early January 17 significant improvements in the Complainant’s work performance were expected. These clearly had not happened and the Complainant had now a very negative “complacency and attitude” problem which no reasonable employer could tolerate any further.

Accordingly, the employment was ended on that day – the 27th February 2017

2:2     CA-00011886-002 - Payment of Wages Act ,1991 claim and

2:3     CA-00011886-003 -Organisation of Working Time Act,1997 Claim

The Respondent had offered to pay by cheque a sum of €420 as a full and final settlement of these claims. The Complainant had refused to accept this payment. A higher cash figure was offered at the oral hearing on the same “full and final settlement basis”.

3:1     CA-00011886-001 - Unfair Dismissals Act claim

3:1:1 The Applicable Law

A claim of Unfair Dismissal is covered by the Unfair Dismissals Act,1977 and S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.

Without enumerating the many Legal Precedents involved the basis of the Unfair Dismissal situation is that Natural Justice must apply.

An employee is entitled by law to a fair hearing, the allegations against him have to be clearly stated preferably in advance, he has to be allowed time to respond and if needs be call witnesses and cross examine any witness the employer seeks to rely on. The right of Representation has to be available to the Employee. The Employer must make a considered decision (allowing time for reflection) and then allow, in so far as possible, an Independent review of the Dismissals decision. The decision maker in an Unfair Dismissal decision has to be clearly separate from any parties involved in the case – you cannot be a judge in your own case is the legal principle.

3:1:2       Review of the Evidence.

In the case in hand the evidence pointed to many of the above principles being breached, albeit often unintentionally and reflected the difficulties of a small employer in a tight margin business.

However, none the less, the Dismissal was clearly unfair on Procedural grounds.

3:1:3       Redress awarded.

Section 7 (1) (C)(i) of the unfair Dismissal Act allows for a financial award in cases where the employee suffers financial loss. In this case the loss was minimal - two week pay as the employee mover to a higher paid position in another city centre Public House two week’s post the dismissal.

However, from the evidence it was clear that after the December 2016 incidents with the Manager the Complainant had become a challenging employee and it was noteworthy that the Respondent in his dismissal letter had referred to the Complainant’s “attitude” problem as a key issue. Oral evidence was given by the Manager Ms. XA and the Owner /Manager Mr XB of the difficulties that had developed with the complainant. While the degree of the difficulties was contested, the Complainant had agreed that he had reacted negatively to what he perceived as being “Picked on” continuously. Strong language had been used by both parties on a few occasions. Post December 2016 the working relationship between the parties was not good.

Accordingly, I award two weeks’ pay € 390 X 2 = €780 as Redress for the Unfair Dismissal but reduce it to one week’s pay (€ 390) in lieu of the Complainant’s contribution to the dismissal.

3:2     CA-00011886-002 - Payment of Wages Act ,1991 claim and

3:3     CA-00011886-003 - Organisation of Working Time Act,1997 Claim

Having reviewed the evidence Minimum notice of 2 weeks’ pay € 390 X 2 = €780 is due to the Complainant as is the value of three days’ public holidays €390/5 = 78 X 3 = €234.

3:4     In summary therefore the awards are as follows

Unfair Dismissal         € 390

Notice Pay                 € 780

Holiday Pay                 € 234

Total                       € 1,404

3:5       Taxation of Awards

The advice of the Revenue Commissioners should be sought in this regard

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section 3 above for detailed reasoning.

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

CA-00011886-001

An Unfair Dismissal has taken place. Award of one weeks pay = € 390 is made

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

CA-00011886-002

Two weeks’ notice pay €780 is Awarded.

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

CA-00011886-003

3 days’ holiday pay is awarded.

€234 is awarded.