Complainant

Respondent

Anonymised Parties

A Waiter

A Restaurant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022772-001

22/10/2018

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

CA-00022772-002

22/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022772-003

22/10/2018

Response to Respondent’s preliminary Application.

The complainant commenced working for the respondent in October 2016. He denies that he left his employment in 2017. The only time he took off in 2017 was two weeks in May, when he was doing his college exams. The complainants p60 for 2017 shows that he worked for 51 weeks. Furthermore, there is a letter from the respondent dated the 22 May, 2017 indicating that the complainant worked from 2016 as a part time staff and from 21 May, 2017 as full time staff, 40 hours per week at €10.50 per hour.

The complainant’s submissions.  

On the evening of 6th of October a friend of the complainants was in the restaurant. He knew him from secondary school. The complainant’s friend did ask him if there was any pork in the aromatic duck dish. For religious reasons his friend is precluded from eating pork. The complainant did not know, so he asked several other staff members if they knew but unfortunately none of them could shed any light on the issue. The following day the complainant was asked to attend at a meeting. He was given no notice whatsoever what the meeting was about. He was asked to explain what happened with the gentleman the evening before. He explained that he knew this man from secondary school and that he had asked was there any pork in the aromatic duck dish. The complainant explained that he had asked several staff members but unfortunately nobody knew the answer. He did say to his friend “sorry mate, I don't know, I'm not the chef'. The floor manager then handed him his letter of dismissal. The letter did not state that the complainant had a right to appeal.

The complainant denied that he had appealed the decision to dismiss him in February. The only letter he received in February was the one dated 8th of February notifying him of a formal written warning. Until he made a freedom of information request, he had never seen the letter dated the 7th of February, dismissing him. He did not know he had a right to appeal the October decision to dismiss him. He went to the citizens information and they told him that he should appeal the matter to the WRC. He was not paid his minimum notice payment.

The complainant did sign a contract in October, 2017. He was not given a copy of the contract. The document he was given was blank generic contract.

The complainant secured a new job in November 2018. He is earning €10 per hour and works an average of 30 hours per week.

Preliminary application

The complainant started working at the respondent restaurant in October 2016. His father was the manager of the restaurant. Shortly after that, his father became a director of the respondent company. The complainant left for several months in May 2017 and didn't return until October 2017. He was given a new contract with employment which has a start date 9th October 2017. The complainant was dismissed from his employment on the 7th of October 2018. He does not have the required service under the unfair dismissals act to bring this claim.

Respondents submissions.

The respondent had to reprimand the complainant on a daily basis for mistakes that he was making in the restaurant. On 7th February 2018 he was dismissed from his employment. He appealed that decision and by letter dated the 8th of February his dismissal was downgraded to a verbal warning.

There was an incident in the restaurant on the 6th of October,2018. The complainant was overheard by the General Manager being rude to a client. Specifically, he was heard saying 'I am not the chef, I don't know". The following day, 7th of October, the complainant was called into a meeting with the Floor Manager and the General Manager. The Floor Manager asked him to explain what happened. The complainant stated that a customer asked him was there any pork in the aromatic duck dish. The complainant responded by saying that he didn't know, he wasn't the chef. The complainant told the Floor Manager that he had asked several of the waitress if they knew if there was pork in the dish but they too did not know. After the meeting the complainant was given his letter of dismissal. The respondent accepts that they didn't speak to the customer in question nor did they interview any of the other staff members that were working that night. They did speak to one staff member but that was not in relation to the specific complaint, it was to do with the complainant’s general performance. A formal statement was not taken from the staff member nor was the complainant told what the staff member had said about him.

The respondent did not issue any formal written warnings to the complainant in relation to his daily poor performance because their written English is very poor. However, under cross-examination did admit to writing both letters in February 2017.

Preliminary Decision.

I am satisfied based on the documentary evidence submitted by the complainant that he does have the requisite service to bring a claim pursuant to the Unfair Dismissal Act. The Revenue documentation together with the respondent’s letter dated 22nd May, 2017 both demonstrate that the complainant did not, as is alleged, leave his employment from May to October, 2017.

CA 22772-002

Having carefully considered the evidence of the respondents and the complainant, I am satisfied that the respondent dismissed the claimant in the absence of any disciplinary procedures whatsoever. No formal investigation was carried out, the customer in question was not interviewed, no staff members were interviewed, the complainant was not told what the staff member who assessed his over all performance had said, he was given no prior notice of the disciplinary meeting and he was not given an opportunity to appeal the decision. Furthermore, I find that the decision to dismiss him was made prior to the disciplinary meeting and in the absence of any input from the complainant.

The complainant found work in November,2018. He is earning € 10.00 per hour and works and average of 30 hour per week. He is at a loss of € 120 per week.

In all of the circumstances, I find that the claim is well founded. The complainant’s claim succeeds. I award the complainant € 6,240.00

CA 22772 -001

The complainant commenced his employment with the respondent on the 2nd October,2016 and his employment was terminated on the 7th October, 2018.

Section 4 ”An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks”

The complainant was earning €420.00 per week. He is entitled to two weeks’ notice. I award the complainant € 840.00.

CA 22772 -003

S3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment.

Whilst the complainant did sign a contract of employment he was not given a copy of it. He was given a blank generic contract. That does not meet the requirements under the Act. Accordingly , I award the complainant € 840.00.

CA 22772 -002 The claim succeeds. I award the complainant € 6,240.00 compensation.

CA 22772 -001 The claim succeeds. I award the complainant €840.00

CA 22772 -003 The claim succeeds. I award the complainant €840.00.