Complainant

Respondent

Anonymised Parties

Kitchen Manager

Bar/Catering

Representatives

Harry Carpendale of HG Carpendale Solicitors, 

Lorraine Lally BL,        

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-00020986-001

03/08/2018

The Complainant was employed as Kitchen Manager from, 1st January 2013 to 6th February 2018. He was paid €770.00 per week. He has claimed that he was unfairly dismissed and has sought compensation.

This is a small family run business. The Complainant engaged in misconduct on numerous occasions in the last 18 months. On 4th February 2018 the Complainant engaged in gross misconduct which involved unauthorised access to the business premises outside of normal hours. He was accompanied by two unknown adults. This placed the Respondent at risk as it was a breach of the insurance terms and conditions and also breach of statutory requirements in relation to the consumption of alcohol. He allowed the two accompanying adults to remove monies from the staff tip jar, therefore stealing from the employees of this business. This was deemed severe misconduct and the sanction was immediate dismissal.

On 23rd January 2018 an incident arose resulting from an HSE inspection. He was issued with clear instructions in an email dated 23rd January 2018. He failed to adhere to these instructions.

On 31st October 2017 there was the unauthorised removal of stock from the business premises which amounted to theft of stock. This was seen on CCTV. There was a warning issued.

The Respondent was legally justified in dismissing him. The Complainant was aware of the damage that his actions were causing.

Regarding the dismissal a meeting took place on 6th February 2018. He was given an opportunity to respond to the allegations and to provide an explanation for the inappropriate misconduct. The Respondent had complied with its policies and procedures and had provided previous warnings to the complainant to no avail or improvement. The Complainant has never raised formal grievances with his employer and he failed to utilise the mechanisms available under company policy. The decision to dismiss was fair and reasonable.

Summary of Complainant’s Case:

Originally the Complainant had a business arrangement with the Respondent company. In or about September 2014 this partnership was dissolved and a new arrangement was put in place. However, by January 2016 the Complainant was asked to sign a contract of employment and he became an employee of the Respondent’s company. However, this arrangement provided that the kitchen would provide profits that paid his salary of €770 per week and the balance was shared between them. The operation ran events and functions throughout the year. There was never an issue with the Complainant and staff having drinks after the completion of business. The Complainant is a qualified carpenter and he carried out a lot of work free of charge in the Bar renovation. On 4th February 2018, he attended work with two of his cousins to carryout work in the kitchen. When they had completed the work he made them a pizza and they consumed two pints of alcohol and they played a game of pool. This was a custom and practice approved by the Respondent. Any drinks would have to be paid for at the time or some time later. While he was told that he was dismissed for unauthorised entry to the premises he has been attending the premises almost every week-end since 2009. He had an understanding with the Respondent that he could bring others in to give him a hand with maintenance matters. There was nothing hidden about the Complainant attending the business with people. He did not steal products from the business. He was still in partnership and they shared the profits. He stated that it was the practice that all employees remained on the premises after closing and consumed alcohol. On the night of 4th February 2018 employees stayed on the premises until 4.00am or 5.00am and one slept there. On 6th February he as called to the office with a Security Guard present. The Respondent told him that he was dismissing him for drinking on the premises on 4th February 2018. He was handed his P45 and two weeks wages. He was also told that he was barred from the campus. He found the meeting to be aggressive, belligerent and intimidating and he could not say anything in response. He was not told beforehand of the purpose of the meeting, what he was accused of, not given the grievance and disciplinary procedure. The whole dismissal was completely in breach of all fair procedure and natural justice. On 23rd February 2018 the Respondent wrote to the Complainant and made reference to his mental health and his relationship with alcohol. As a result of losing his job and his profit share he suffered from depression and was un fit to work for a long period of time. . He rejects totally that he wasn’t able to perform his duties.

He was eventually able to find work as an apprentice Plumber on 21st January 2019 earning a gross pay of €245.70. He is seeking two years compensation less the period of his illness amounting to €28,312.20 and period of 54 weeks claimed.

I note that it is accepted by both parties that this was an employer / employee relationship and so I have jurisdiction to adjudicate on this matter.

I find that there was almost a complete conflict of evidence on all matters regarding this hearing which has rendered consideration of this case most difficult.

Substantive matter

I note that the Respondent has referred to a number of acts of misconduct which rendered the working relationship fundamentally breached. This has been fundamentally rejected by the Complainant.

I find that there were no warnings on file, except for one allegedly given on 31st October 2017 which the Complainant states he never saw.

I find that there was a total conflict of evidence regarding the practice of drinking on the premises after hours.

I note the evidence of the witnesses on behalf of the Respondent who stated that it is not permitted and the contradictory evidence of the witness for the Complainant who stated that it was a common practice in this business.

I note that there was no evidence of work being done on CCTV footage regarding the 4th February 2018 incident.

I note that the Complainant stated that the work was done outside the scope of the CCTV coverage, but the Security Manager for the Respondent gave evidence that there was no maintenance activity at all.

On the balance of probability, I find that this was a business relationship that went badly wrong.

I note that in January 2016 the Complainant signed a contract of employment with the Respondent company.

I find that both parties failed to properly clarify their respective positions and to abide by them.

I conclude that this lack of clarity and border setting has led to this current dispute.

I find that there is a total lack of consistency in the management of this business.

On the balance of probability, I conclude that the Complainant continued to operate as if he was in an equal partnership and he conducted his business accordingly.

However, this was not a typical employment relationship as the Complainant continued to have a profit share arrangement.

I note that the Respondent referred to a number of issues that he had concerns about regarding the performance of the Complainant however there was no evidence of how the Respondent addressed these matters.

I find that under this Act, the Unfair Dismissals Act, the responsibility rests with the Respondent to discharge the burden of proof and to demonstrate that the dismissal was not unfair.

I find that the Respondent has failed to discharge that burden of proof.

I find that all that was presented were allegations of wrongdoing which were countered by the Complainant and his witness.

I conclude that the Respondent failed to set out the operational standards that was to be expected from the Complainant as a direct employee of his.

I also find that the Complainant having been a partner in the business failed to agree the operational standards and to agree the boundaries within which he was expected to operate within.

I find that under the heading of substantive matter the Respondent has failed to convince me of the operational standards that he believes were there when the evidence was to the contrary.

I find that the dismissal was substantively unfair, but I find that the Complainant has contributed to his dismissal.

However, I find that the ultimate responsibility rests with the Respondent, but he has failed to discharge this burden of proof.

Procedural Matter

I find that the Complainant was called to a meeting on the premises on 6th February 2018 and was summarily dismissed.

I find that he was unaware of this meeting beforehand and he did not know that going to work that day that he would be summarily dismissed.

I find that the Respondent had prepared the P45 and two weeks wages in advance and so the decision was pre-determined.

I find that the Complainant was not made aware in advance of the allegations against him.

I find that he was not afforded the right to defend himself.

I find that he was not given the right to representation.

I find that he was not given the right of appeal of the sanction of dismissal.

I find that the procedures applied were hopelessly flawed.

I find that the Respondent has fundamentally breached all aspect of fair procedure and natural justice.

I find that the dismissal was procedurally unfair.

Overall, I find that the dismissal was unfair.

I note that the Complainant was unfit for work for a considerable period of time after the dismissal.

I note that he found work on 21st January 2019, almost a year after his dismissal.

I note that he found work as an apprentice plumber earning just €245.70 per week despite the fact that he was a qualified carpenter at a time when there appears to be a shortage of craftsmen in the country.

I find that compensation is the appropriate redress.

I find that the Complainant’s contribution to his dismissal and his lengthy unavailability for work must be taken into account when arriving at the quantum of the award.

Unfair dismissal