UDD1914

This is an appeal by Brownes of Sandymount, against a decision of an Adjudicating Officer under the Unfair Dismissals Acts 1977 to 2015. For ease of reference, the former employee, Mr. Pollina, is referred to as at the adjudication as ‘the Complainant’ and his former employer is referred to as, ‘the Respondent’.

The Complainant worked as a waiter for the Respondent for a period of about 16 months until December 2017.

The circumstances of the termination of this employment relationship are a source of contention.

The Complainant states that he was advised by the Restaurant Manager in the days after Christmas 2017 that he was not going to be put on the waiters’ roster for January. He states that the reasons given were that there was a reduction in work, that the employer intended only to employ female staff and that the employee’s performance had been unsatisfactory on occasions in 2017.

The Respondent states that the Complainant was not dismissed. Rather, the Respondent states that he had indicated on many occasions his intention to leave the employment and that, specifically, he had advised the General Manager of his intention to do so at a meeting in mid December 2017. The Respondent states that this statement of the Complainant was treated with a certain sense of‘déj� vu’as the Complainant had stated this intention so often previously. However, the Respondent states that the Complainant failed to attend for his shift on 31 December and then failed to respond to calls, leading to the reasonable belief that he had left his employment. The casual nature of such a departure was said to be relatively common in that industry.

Both parties refer to a letter given to the Complainant dated 5 January 2018 for use by him in obtaining Jobseekers’ benefits. The letter states that ‘Due to the level of business and the lack of hours of work, Filippo last day with us was Saturday December 30^th2017’. The Complainant offered this as evidence of reason for dismissal. The Respondent argued that, in fact, this was evidence of goodwill to a former employee ,despite the fact that said former employee had just left the employment, as he needed the Respondent’s help with his claim for Jobseekers’ benefits.

The Complainant refers to a text sent to the Respondent on 9 January 2018 in which he seeks his last pay-slip and his notice payment and in which he asserts that ‘i got fired’. He notes that he never received any response to deny this assertion. The Respondent states that the Complainant was contacted by telephone and invited to come in to collect his tips by telephone.

The Complainant referred a claim under the Unfair Dismissals Acts 1977 to 2015 to the Workplace Relations Commission, (WRC). The Respondent did not attend at the WRC.

The Adjudication Officer found in favour of the Complainant and awarded compensation of €10,000 under the Acts.

The Respondent appealed this decision.

Respondent’s arguments

1 The Complainant left his employment because he wanted more working hours, although he worked the most hours of all waiters. The Respondent was not in a position to offer any Employee more hours because of the expected decrease in business in January.

2 In various discussions with the General Manager in December 2017, the Complainant indicated his intention to leave after 31 December 2017 and he reiterated this to his own manager in Christmas week 2017, in a discussion about the normal reduction in business in January.

3 The Complainant was a much liked and generally valued employee. The Respondent overlooked difficulties with the Complainant’s complaints about, and failure to do, cleaning because of his positive attributes. He regularly complained about his hours but that was not viewed by the Respondent as anything more than a minor problem. There had been some difficulties with the Complainant leading to several warnings but the Respondent liked the Complainant’s positive qualities.

4 The Complainant’s manager had been supportive of him, particularly during a period of illness in June and July 2017.

5 The Complainant had failed to show up for his shift on a busy night of 31 December 2017 and had not responded to telephone calls.

6 This led the Respondent to the reasonable assumption that the Complainant had simply left his employment in line with what he had indicated previously. However, if he had shown up subsequently he would have been put on the roster.

7 As evidence of the Respondent’s goodwill, the Respondent had provided the letter necessary to the Complainant to enable him to apply for Jobseekers’ benefits.

8 Contrary to what is claimed, the Respondent did not engage extra staff after the Complainant left. In fact another staff member resigned and the Respondent had a staff shortage which was eased by the return of a staff member from study leave.

9 The Respondent did not dismiss the Complainant. He simply left his employment. Indeed, because the Complainant had not submitted any formal resignation, a contract of employment was sent to him on 2 January 2018.

Complainant’s arguments

1 The Complainant was dismissed and was not permitted to return to work after 1 January 2018. He was given no written explanation.

2 Various reasons were given to the Complainant for his dismissal. He was told that there was no work for him due to a reduction in volume. He was told that his employer intended only to employ female staff. He was told that his performance was unsatisfactory at various times in 2017.

3 If the Respondent wished to dismiss the Complainant on these or any other grounds he should have been afforded a proper process that would have put the grounds to him and would have allowed him the opportunity to put his case, to be represented and to have a right to appeal.

4 There was no genuine redundancy and the Complainant was replaced.

5 The redundancy situation was concocted as the Complainant had challenged the Respondent’s failure to provide him with the working hours of a full working week, as he had been promised on his recruitment. He had also challenged the Respondent for not living up to promises regarding the provision of meals and regarding the distribution of tips. The Respondent became frustrated by the Complainant’s challenges.

6 The Complainant did not resign. He was left with an unequivocal message that there was no further work for him.

7 Following his dismissal, the Complainant requested, and was given, a letter from the Respondent dated 5 January 2018 confirming that he was dismissed for an alleged reason of lack of work.

8 On 9 January 2018, the Complainant texted the Respondent, in the course of which he reminded the Respondent that he had been ‘fired’. This was not denied by the Respondent.

The Evidence

Respondent’s witnesses

Mr. Oscar Navarro

Mr. Navarro became General Manager of the Respondent on 1 January 2018. For 6 weeks prior to that by arrangement with the owner he had monitored the business and he gave evidence that, as part of that process, he had met the Complainant in mid December 2017, who had told him of his intention to leave after December. He had advised the Complainant’s manager , Mr. Diciolla, of this but the manager was fairly unconcerned as he was told that the Complainant regularly said such things.

Mr. Navarro testified that the Complainant would have been rostered in January if it was clear that this was what he wished. He drew attention to the fact that a contract had been sent to the Complainant even after he had failed to turn up for his shift on 31 December 2017.He testified further that he had endeavoured to be helpful to the Complainant in providing him with a letter to help him to obtain Jobseekers’ benefits. He regarded the contents as an attempt to be of assistance. He testified also that, at no point, had a dismissal or redundancy of the Complainant been discussed or considered. Indeed, the shortage of staff had led to the necessity for him to ‘fill in’ on occasion.

Under cross examination, Mr. Navarro repeated that the Respondent was trying to be helpful in providing the letter to the Complainant regarding his application for Jobseekers’ benefits. In relation to the text received by him on 9 January 2018, in which the Complainant referred to having been ‘fired’, he stated that he had passed this to the Complainant’s manager, Mr. Diciolla, to follow up.

Mr. Alessandro Diciolla

Mr. Diciolla gave evidence that he knew the Complainant well and that the Complainant complained a lot and often spoke of leaving the restaurant. Specifically,in a conversation with the Complainant in Christmas week 2017 regarding the expected downturn in business in January, the Complainant had stated a clear intention to leave for alternative employment and he had expressed thoughts on the possibility of going to London. He went on to state that Mr. Pollina then failed to turn up for his shift on 31 December 2017 and had failed to respond to calls, leaving the restaurant short of staff.

Subsequently, he stated that the Complainant had contacted him to request a letter to help him to claim benefits which he had then passed on to Mr. Navarro, who had accommodated the request.

Mr. Diciolla stated under examination and again under cross examination that subsequent to a text received by Mr. Novarro from the Complainant, in which he had stated that he had been ‘fired’ and in which he sought a notice payment, he telephoned the Complainant and while he told him that, as he had not been fired, he was not entitled to a notice payment, he did indicate that there were tips available for collection by the Complainant and he invited him to come in to collect same but this did not happen as the Complainant never showed up.

Mr. Diciolla stressed his good relations with the Complainant despite some difficulties with him in his work such as an unwillingness to clean and some incidents with other staff.

Under cross examination as to why no formal response had been sent to the Complainant’s text of 9 January 2018, he re-stated that he had followed this up by telephone.

In reply to questioning as to why the Complainant’s name was not on the January roster if he had not been dismissed, the witness stated that this roster had been drawn up by the owner, Mr. Bark

Mr. Peter Bark

Mr. Bark testified that he was the owner of the restaurant. He had drawn up the roster for the first two weeks of January 2018. This did not contain the name of the Complainant as he had stated his intention to leave and had not shown for his shift on 31 December 2017.This roster was a fluid document subject to change to meet service requirements and if the Complainant had indicated a clear intention to turn up for work, he would have been accommodated.

Mr. Bark acknowledged that his business had handled this matter badly but stressed that the Complainant had not been dismissed or made redundant but had simply left, something that happened frequently in the industry. He stated under cross examination that although the Complainant could be a ‘pain’ he was good with customers and any difficulties were overlooked. He noted that Mr. Diciolla had suggested to him earlier in 2017 that he should consider dismissing the Complainant but he was not willing to do so.If he had wished to do so, he would have ensured that the Complainant would have been given a reason and would have been paid for any notice, as happened in any cases of dismissal in his business.

Complainant’s witness evidence

The Complainant offered as a witness a person who had no direct knowledge of the issues in dispute. When this became apparent, the Court determined that the evidence of this witness was not relevant and that. as he had started to give evidence, this evidence would form no part of the Court’s consideration.

Mr. Filippo Pollina

Mr. Pollina is the Complainant. He gave evidence that he had articulated difficulties with the Respondent from early in his employment as the Respondent had failed to live up to promises made when he was recruited, in particular regarding the guarantee of full time hours but also regarding the provision of meals, the distribution of tips and the requirement to engage in cleaning duties. He denied, however, that he had constantly threatened to resign.

He denied the evidence of Mr. Navarro that he had advised of his intention to resign. He gave an entirely different account of the conversation with Mr. Diciolla in Christmas week 2017, stating that he had not stated an intention to leave, he had never expressed a wish to go to London but, rather, Mr. Diciolla had told him that he would not be on the roster in January. For this reason, he had not turned up for his shift on 31 December 2017. It was why he had requested a letter to help him claim Jobseekers’ benefits, a letter which made clear why he had been dismissed and it was why he had sent a text referring to having been ‘fired’.

He also denied receiving a contract of employment on 2 January 2018.

Under questioning, he stated that he had since done a training course for security work, having taken a month to relax and had secured employment in that industry in July 2018. He denied under cross examination that he had simply left the Respondent’s employment in order to secure a career change.

The Law

Dismissal under the Acts is defined as follows;

“ 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;

“ employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee

Also of relevance is s.6(1) of the Act which states

‘…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’

Deliberation

Ordinarily in dismissal cases the fact of dismissal is not in dispute. Where dismissals occur, the Act is clear that the dismissal is unfair unless it is justified on substantial grounds. Therefore, the onus is on the employer to establish that any dismissal is justified. In the instant case no grounds at all are offered for dismissal on the basis that the Respondent denies that any dismissal occurred.

Therefore, in the instant case, the preliminary point as to whether or not there was a dismissal determines whether or not any dismissal, if it is established that a dismissal occurred, is fair. There is no dispute between the parties that there was no process to determine substantial grounds nor, indeed, any allegations that could give rise to such a process. The only issue for the Court, therefore, is to determine if a dismissal occurred. If the Court so determines then the dismissal was unfair. If no dismissal occurred, it is axiomatic that it could not have been unfair.

In cases, such as the instant case, where the evidence given by the parties is directly contradictory, it is necessary for the Court to look to any other evidence that is available in order to determine if either version of events is supported by verifiable facts.

In this case, there are four sources of evidence worthy of consideration.

Firstly, there is the fact that the Complainant was not included on the roster for January after he says that he was dismissed. The Respondent has explained that this was due to his non attendance on 31 December, combined with his stated intention to leave but that he would have been put on the roster if he had made clear his intention to remain in the employment.

The second fact of interest is that the Respondent issued the Complainant with a contract on 2 January 2018. This is curious. On the one hand the Respondent states that the Complainant had removed himself from the employment but on the other hand this suggests that he was still regarded as an employee. The Respondent states that this reflects the fact that his job was still available to the Complainant, if he chose to turn up.

By contrast, on 5 January 2018, the Respondent gave a letter to the Complainant that stated he was no longer in employment ‘Due to the level of business and lack of hours of work’. No clear explanation was offered by the Respondent for the use of this phraseology. It was suggested that a letter was needed by the Complainant in order that he could claim Jobseekers’ benefits and that this wording was what was required. However, it seems to the Court that, combined with the non inclusion of the Complainant on the January roster, the balance of probabilities is tipped in favour of the Complainant’s version of events by this letter.

The final ,and decisive, fact is that the Complainant wrote to the Respondent on 9 January 2018 and referred to when'I got fired’. It seems to the Court that if the Respondent had any confusion about the position of the Complainant or, indeed, if they believed that he had simply left the employment, this was the opportunity to make clear to him that he was welcome to return and that his job was still available. The failure to do so is, in the view of the Court, telling.

Therefore, the Court finds that the evidence points to a determination that a dismissal occurred. Having so determined, the Court finds that, in the absence of any substantial grounds to justify the dismissal, the only conclusion to be reached is that the dismissal was unfair.

In the circumstances, the Court does not consider that re-instatement or re-engagement would be appropriate remedies. In determining compensation, the Court notes that the Complainant produced no evidence as to loss of earnings and produced no evidence of seeking work to the Court either in advance or at the hearing. According to the Complainant, he took a month off to relax, then did a part-time course and did some part-time work as a waiter before changing career and taking up new employment on a full time basis in July 2018.

The Court is permitted only to award compensation for actual income losses up to a maximum of two years’ losses. The onus of proof as to losses and proof that work was actively sought lies with the Complainant. The absence of such proof has to be taken into account by the Court in determining a figure for losses incurred. Material received after the hearing is not open to the other party to question and is, therefore, of no value.

Taking all factors into account, the Court awards compensation of €3,000.

Determination

The decision of the Adjudication Officer is varied.

Signed on behalf of the Labour Court



Tom Geraghty
MK______________________
01 April 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.