ADJ-00015348

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015348

Parties:

Complaint:

Date of Adjudication Hearing: 25/10/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant worked as a Senior Chef de Partie for the respondent from May 2016 until May 2018.

In April 2018, the Complainant was notified at a staff meeting that the business may be taken over or on failure to find alternative business investors, the business may close down. The Complainant was given one months’ notice that his employment would cease on 14/05/18.

The Complainant sought clarification from the Respondent on the status of his employment as the business continued to operate as normal in the weeks after this staff meeting. The Respondent received no response and was paid all of his annual leave entitlement. On 13/05/15 the Complainant noted that he was rostered to work in the week after 15/05/18. The Complainant was advised by his solicitor to write to the Complainant seeking clarification on his employment status and was advised not to attend for work until this was clarified.

The Complainant took up employment on a part time basis with another company on 28/05/18.

Summary of Complainant’s Case:

The Complainant stated that he was notified on 14/04/18 at a staff meeting that his position as senior Chef De Partie would cease on the 14/05/18. The Complainant states that he was informed that he would have one month to find alternative employment and it was suggested that the business may be taken over or on failure to find alternative business investors, it may close down. In the month that followed the staff meeting, no changes to the nature of the business were made. The Complainant stated that he suffered a continual reduction in his working hours despite there being a need for staff. The Complainant stated that another chef was recruited within this time. The Complainant stated that the Company continued to post job advertisements seeking kitchen staff and held interviews. The Complaint made several attempts to get clarification on his position but was still told that his position would no longer exist after 14/05/18.

The Complainant stated that during the last two weeks leading up to his termination date, he was not notified in any way of any changes to the situation and there was no communication between him and the Respondent. During this time, the Complainant’s accrued annual leave was paid to him with no notification or consent. The Complainant queried this with his employer but was offered no explanation.

On the day before his employment was due to end, the Complainant was notified that he was rostered for the following week. At this point he contacted his solicitor who advised him not to attend for work as he had not been notified of any change to the termination of his employment. The Complainant felt there was no point returning to work at this point as there had been another chef employed to replace him. The Complainant met with the Respondent on 18/05/18 and gave him a letter requesting any outstanding normal pay and holiday pay.

The Complainant stated that due to the financial stress caused he felt he had no choice but to take up the first job offered to him and on the 28/05/18 he took up employment with a bookmaker on a part time basis and on a lower rate of pay at the minimum wage rate. He is still in this role and earns €9.79 per hour and works 25 hours per week. The Complainant stated that the emotional stress caused by the unprofessional behaviour towards him by the Respondent has resulted in a total lack of self-confidence, damaging his good name and reputation as a well-known chef in the local community and has led him to take a break from his chosen profession and career.

A witness at the hearing confirmed that all employees were given one months’ notice of the termination of their employment at a staff meeting.

Summary of Respondent’s Case:

The Respondent present at the hearing stated that he did not say any of this at the staff meeting. The Respondent stated that it is alleged that his business partner said this. The Respondent present at the hearing stated that he had tried to talk to his business partner. The Respondent stated that the lady employed was not a chef and was there as it was getting busy for the summer.

The Respondent acknowledged receipt of the letter on 18/05/18 from the Complainant and said that he passed this to his accountant and processed the Complainant’s payroll as requested and had received no communication since.

Findings and Conclusions:

CA-00019840-001: I find that the employee had legal advice yet did not exhaust the internal grievance procedure even though there was a fellow director / co-owner involved who he could have approached to hear his grievance. The Complainant decided not to attend work and requested his P45 as he felt his position had been replaced, even though he remained on the roster and was scheduled for shifts the following week. However, I find that the employer’s treatment of this employee was not just or fair and that the employee’s employment was terminated with no regard to the rules of natural justice. The role continued in the business and therefore an unfair dismissal occurred. I find that the employee did not fully mitigate his loss by sourcing a comparable job as a chef. This should have been possible given the current labour market and the shortage of trained and experienced chefs in the industry. The Complainant instead chose an alternative career path resulting in a lower rate of pay.

Decision:

Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions regarding the Complainants claim for unfair dismissal. Based on the evidence presented both orally and in written submissions I find the dismissal to be unfair. Taking into account all the evidence I find that €2,000 is a fair and just compensation for the unfair dismissal.

Dated:   April 16th 2019

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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