Complainant

Respondent

Anonymised Parties

A bartender

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-00021823-001

12/09/2018

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

CA-00021823-002

12/09/2018

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

CA-00021823-003

12/09/2018

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

CA-00021823-004

12/09/2018

The complainant commenced employment with the Respondent on 26th September 2005 and this employment ended on 20th July 2018. The Complainant was employed by the Respondent as a bartender. The Complainant worked 28 hours per week plus some additional hours for which he was paid in cash.

This complaint was received by the Workplace Relations Commission on 12th September 2019.

The complaint comes in four parts:

CA – 00021823 – 001 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

CA – 00021823 – 002 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

CA – 00021823 – 003 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

CA – 00021823 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

The Complaint alleges that the Respondent is guilty of the following breaches of employment legislation:

1.       He was dismissed without cause and in breach of the rules of natural justice.

2.       The Respondent failed to give him the statutory period of notice prior to dismissal.

3.       The Respondent failed to pay the Complainant for public holidays.

4.       The Respondent filed to give adequate annual leave in accordance with the law.

The Complainant alleges that he had ongoing difficulties with the Respondent in relation to payment for annual leave and public holidays although he did point out that he had a very good relationship with his employer.

The Complainant alleges that he worked 37.75 hours per week, he was paid 28 hours as per payslips and received payment for the remaining hours in cash, this had been the case since some time in 2014.

The Complainant has stated that he decided to stop taking bets from customers because at times there was not enough money to pay customers winnings. On the night in question he simply stopped accepting bets and informed the Respondent to this effect.

The Complainant alleges that he received a telephone call from the Respondent informing him that he was fired. On 8th August the Complainant wrote to the Respondent informing him that it was his intention to pursue the matter in accordance with his legal rights. The Complainant also stated that he would make himself available to discuss the matter if the Respondent so wished.

The Respondent operates a public house and informed the hearing that he had known the Complainant for many years, the two of them had gone to school together, the Respondent also commented on the relationship enjoyed between them and stated that he knew the Complainant well and had often helped him out.

The Respondent informed the hearing that the bar business is difficult and in relation to customer care one would have to do a bit extra in order to satisfy and retain a clientele, this could include the provision of sandwiches to customers and arranging taxis for them and also accepting bets over the counter from them.

The Respondent claimed that everything was in relation to money.

The fact of dismissal was not being disputed, the Complainant was dismissed by the Respondent who had phoned him to tell him that he was dismissed. No right of appeal was offered.

The fact that the Complainant was dismissed by the Respondent is not in dispute.

When deciding to dismiss an employee, an employer will normally be expected to follow the rules of natural justice. It must observe ‘industrial due process’. Observance of the employer’s disciplinary procedures, if any, will be relevant. Findings of unfair dismissal have been made entirely on the grounds that an employer failed to live up to the rules of natural justice.

The onus of proof on an employer seeking to justify, having dispensed with or disregarded fair procedures, will off course be considerable. Achieving a balance between procedural and substantive justice is difficult. The functional importance of manifest justice in industrial relations cannot be underestimated: good industrial relations depends upon management not only acting fairly but being seen to do so. (Dr Mary Redmond; Dismissal Law in Ireland; Second Edition, page 251).

In this instant case there would appear to have be no procedure or process used at all. It is for this reason That I find the Complaint under section 8 of the Unfair Dismissals Act, 1977 to be well founded.

In relation to the other complaints submitted by the Complainant, they are as follows:

CA – 00021823 – 002 – complaint referred under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

CA – 00021823 – 003 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

CA – 00021823 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

These complaints all refer to the issuing and payment in lieu of notice and also entitlements under the Organisation of Working Time Act, 1997 i.e. annual leave and public holidays.

By letter dated 16th January 2019 and sent to the Workplace Relations Commission the Respondent’s accountant has supplied information in relation to these topics. The information contained in this document shows that the following amounts have been calculated by the Accountants:

1 weeks’ pay €285.60

Holiday Pay 2018 €652.80

Holiday Pay 2017 €1142.40

Holiday Pay 2016 € 1142.40

6 weeks’ notice period €1713.60

Public Holiday 2017 €57.12

Public Holiday 2016 €57.12

Total €5051.04. (gross amount)

The letter clearly states that this is a calculation of unpaid wages for unpaid public holidays and annual leave days previously omitted and payment for the six weeks required notice.

I am satisfied that these amounts are correct and should now be paid (if not previously paid) to the Complainant.

At the date of hearing the Complainant had not taken up other employment and produced no documentation that would show what efforts he has made to secure employment thus mitigating his loss of income.

In AG Bracey Ltd V Iles [1973] IRLR 210, Sir John Donaldson explained the duty on mitigation as:

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay…’

In this instant case I have considered the efforts, or lack of them, to mitigate the loss.

I now order the Respondent to pay compensation to the Complainant of 26 weeks pay i.e. €7,425.60, (26 weeks x €285.60). I have deemed the Complainant’s legitimate employment as being 28 hours per week.

This compensation should be paid within 42 days from the date of this decision.

As outlined above.

Unfair Dismissal. Mitigation of Loss. Fair Procedures.