ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019259
Parties:
| Complainant | Respondent |
Anonymised Parties | A Kitchen Porter | A Hotel |
Complaint:
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-00024876-001 | 08/01/2019 |
Date of Adjudication Hearing: 13/06/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on January 8th 2019 and, in accordance with Section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assignedto me by the Director General. I conducted a hearing on June 13th 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant represented himself. The respondent was represented by Mr Eamonn Gibney of the HR Department and the human resources consultant and the manager of the respondent’s hotel attended and gave evidence.
Background:
The complainant commenced employment in the hotel on August 13th 2017. He worked as a kitchen porter and his hourly rate was €10.20. He worked Monday to Friday for 36.75 hours each week, and he reported to the head chef. The complainant went on holidays on December 6th 2018 and he was due back at work on Monday, December 24th at 7.30am. He didn’t show up for work. When he didn’t respond to a Facebook message at 7.56am, the head chef sent him a second Facebook message at 8.36am in which he said, “…if you don’t come in today, I’m sorry, but that’s the end.” On Wednesday, December 26th, the complainant replied to this message and explained that he couldn’t come to work on the 24th because he had a tooth ache. He apologised to the head chef “for any inconvenience this may have caused.” The following day, December 27th, the head chef replied and said, “Don’t care you know u should of worked one text that’s all you are nearly always late for work not my decision anymore sorry (sic). The complainant’s case is that his dismissal was unfair. He said that since he was dismissed on December 24th 2018, he has worked intermittently as a translator and as a master of ceremonies for events in his community. |
Summary of Respondent’s Case:
Mr Gibney presented the respondent’s case and he said that December 24th was one of the busiest days in the hotel restaurant. The complainant’s absence caused inconvenience to his employer and to other staff who had to cover for him. The management’s view is that the complainant did not come in on December 24th and that he extended his holidays over the Christmas period when the hotel was closed. It was apparent that there was no dispute of any material consequence about the facts that led to the complainant’s departure from his employment. On December 24th at 7.56am, when the head chef sent the complainant a Facebook message asking him where he was, the chef could see that the message was read. The complainant said that someone else opened his computer and this automatically opened his Facebook page and the messages appeared to the sender as “read.”. When the complainant didn’t reply to the message, the head chef sent another message at 8.36am to let him know that, if he didn’t come to work, “that’s the end.” Mr Gibney conceded that the procedures followed by the head chef “were far from perfect” but he said that the complainant should have returned to the hotel after Christmas and he should have contacted someone more senior than the head chef to discuss his absence and the text messages from the head chef. Mr Gibney said that the complainant’s contract of employment provides that an employee who is dismissed “will be notified in writing with the approval of the Hotel Manager or in his absence, a designated nominee.” As the complainant was given no notice in writing, and no letter of dismissal, the respondent’s position is that he was not dismissed. If he had considered himself to be dismissed, the complainant’s contract provides for an appeal through the company’s grievance procedure. He did not appeal against what he thought was a dismissal. On this basis, the respondent’s case is that the complainant was not dismissed, but that he did not return to work on December 24th, that he took the Facebook message from the head chef at face value and that he did not present himself for work after that date. Finally, he did not ask for re-consideration of the decision to dismiss him through the company’s appeal mechanism. |
Summary of Complainant’s Case:
At the hearing, the complainant said that, while he was on his holidays, he expected to hear from the head chef about whether he was needed at work on December 24th. In previous years, he said that the hotel closed from December 24th and that, when he went on his holidays on December 6th, there was no certainty that he would be needed on Monday 24th. The complainant said that he had a very bad tooth ache on December 23rd and that he didn’t get to sleep until 5.00am on the 24th. He said that he didn’t read the text messages from the head chef until it was too late and this is the reason he didn’t respond. Although the messages were recorded as “read,” he didn’t read them himself. The complainant said that, on December 24th, he had access to the kitchen staff Whatsapp group where he could find out if he was rostered. After he received the “that’s the end” Facebook message at 8.36am, he was deleted from the Whatsapp group and he assumed then that he was not rostered for any more shifts and that he was in fact, dismissed. As he had a bad tooth ache, the complainant said that he couldn’t reply to any messages and he was waiting until December 26th or 27th to go to a dentist. |
Findings and Conclusions:
Was the Complainant Dismissed? I have considered the evidence of the respondent and the complainant in respect of this matter. I have reached the conclusion that the complainant was in fact, dismissed because, in the Facebook message of December 24th from his line manager, he was clearly told, “that’s the end” if he didn’t come to work. When he didn’t turn up, he checked the Whatsapp page for the kitchen staff and his name had been removed from the roster. On December 26th, when he sent a message to apologise, he was informed, “Don’t care…. Not my decision anymore sorry.” I understand from the hotel manager’s evidence that the head chef had the authority to dismiss the complainant and that it was in fact, his decision. While the complainant could have contacted a manager more senior than the head chef to challenge his dismissal, for whatever reason, he decided against this course of action. The hotel’s management also had the opportunity to contact the complainant and to ask him if he wanted to discuss what occurred on December 24th, but it appears that no one got in touch with him and he was simply removed from the payroll. All of this points to a decision by the respondent not to have the complainant working in their premises any longer, which is effectively, a dismissal. The Legal Framework Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that: “Subject to the provisions of this section, 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.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(b) of the Act provides that; “…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.” Was the Decision to Dismiss Reasonable and in Proportion to the Conduct? The failure of the complainant to turn up for work at the end of his holidays on what was the busiest day of the year for the hotel is a serious matter. This was compounded by the fact that he did not get in touch to say he wouldn’t be in and he didn’t respond to messages from his manager. In his favour, the complainant said that he never received a warning about any matter and that this was his first offence that could have merited a disciplinary sanction. It is my view that the decision to dismiss the complainant was taken too quickly by the head chef and was too severe a sanction. A final written warning would have been more appropriate. Was the Process Fair For the respondent, Mr Gibney conceded that, if I conclude that the complainant was dismissed, no proper procedure was followed. This was apparent from the facts set out in evidence at the hearing. Conclusion We learned at the hearing that the complainant was often late for work, but it seems that his failure to show up on December 24th was the first occasion that the head chef decided warranted a sanction. On this occasion, on the busiest day of the year, he didn’t come to work, he didn’t notify his employer in advance that he wouldn’t be in and he didn’t respond to a request to come in. The complainant produced no evidence that he had to attend a dentist on December 26th or 27th and I am not convinced that his explanation for his non-attendance was genuine. It is my view that it was reasonable for the respondent to issue the complainant with a disciplinary sanction, but he should have been given a final written warning instead of being dismissed. I find that the sanction of dismissal was too severe and therefore unfair. The process by which this dismissal was carried out was also unfair. I find also that, by his conduct, the complainant contributed significantly to the cause of his dismissal. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Following the termination of his employment, the complainant said that he did a little bit of work as an interpreter, about twice a month. He said that he occasionally works as a master of ceremonies. He submitted no evidence to show how much or how little of this work he did. He said that after his dismissal, he was “at home,” but he produced no evidence to indicate that he was unemployed. He said that he is taking a course at the Institute of Public Administration and he was not available for work during March and April 2019 because he was studying for exams. He got a new job as a kitchen porter at the beginning of June. Having listened to his evidence, it is my view that the complainant made no real effort to mitigate his loss of earnings arising from his dismissal. I decide that the respondent is to pay the complainant compensation of €700, equivalent to approximately two weeks’ pay. |
Dated: 24/07/19
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Unfair dismissal, disproportionate sanction |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019259
Parties:
| Complainant | Respondent |
Parties | Henry Phiri | Cassidy’s Hotel Limited |
| Complainant | Respondent |
Anonymised Parties | A Kitchen Porter | A Hotel |
Representatives |
| Mr Eamonn Gibney |
Complaint:
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-00024876-001 | 08/01/2019 |
Date of Adjudication Hearing: 13/06/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on January 8th 2019 and, in accordance with Section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assignedto me by the Director General. I conducted a hearing on June 13th 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant represented himself. The respondent was represented by Mr Eamonn Gibney of the HR Department and the human resources consultant and the manager of the respondent’s hotel attended and gave evidence.
Background:
The complainant commenced employment in the hotel on August 13th 2017. He worked as a kitchen porter and his hourly rate was €10.20. He worked Monday to Friday for 36.75 hours each week, and he reported to the head chef. The complainant went on holidays on December 6th 2018 and he was due back at work on Monday, December 24th at 7.30am. He didn’t show up for work. When he didn’t respond to a Facebook message at 7.56am, the head chef sent him a second Facebook message at 8.36am in which he said, “…if you don’t come in today, I’m sorry, but that’s the end.” On Wednesday, December 26th, the complainant replied to this message and explained that he couldn’t come to work on the 24th because he had a tooth ache. He apologised to the head chef “for any inconvenience this may have caused.” The following day, December 27th, the head chef replied and said, “Don’t care you know u should of worked one text that’s all you are nearly always late for work not my decision anymore sorry (sic). The complainant’s case is that his dismissal was unfair. He said that since he was dismissed on December 24th 2018, he has worked intermittently as a translator and as a master of ceremonies for events in his community. |
Summary of Respondent’s Case:
Mr Gibney presented the respondent’s case and he said that December 24th was one of the busiest days in the hotel restaurant. The complainant’s absence caused inconvenience to his employer and to other staff who had to cover for him. The management’s view is that the complainant did not come in on December 24th and that he extended his holidays over the Christmas period when the hotel was closed. It was apparent that there was no dispute of any material consequence about the facts that led to the complainant’s departure from his employment. On December 24th at 7.56am, when the head chef sent the complainant a Facebook message asking him where he was, the chef could see that the message was read. The complainant said that someone else opened his computer and this automatically opened his Facebook page and the messages appeared to the sender as “read.”. When the complainant didn’t reply to the message, the head chef sent another message at 8.36am to let him know that, if he didn’t come to work, “that’s the end.” Mr Gibney conceded that the procedures followed by the head chef “were far from perfect” but he said that the complainant should have returned to the hotel after Christmas and he should have contacted someone more senior than the head chef to discuss his absence and the text messages from the head chef. Mr Gibney said that the complainant’s contract of employment provides that an employee who is dismissed “will be notified in writing with the approval of the Hotel Manager or in his absence, a designated nominee.” As the complainant was given no notice in writing, and no letter of dismissal, the respondent’s position is that he was not dismissed. If he had considered himself to be dismissed, the complainant’s contract provides for an appeal through the company’s grievance procedure. He did not appeal against what he thought was a dismissal. On this basis, the respondent’s case is that the complainant was not dismissed, but that he did not return to work on December 24th, that he took the Facebook message from the head chef at face value and that he did not present himself for work after that date. Finally, he did not ask for re-consideration of the decision to dismiss him through the company’s appeal mechanism. |
Summary of Complainant’s Case:
At the hearing, the complainant said that, while he was on his holidays, he expected to hear from the head chef about whether he was needed at work on December 24th. In previous years, he said that the hotel closed from December 24th and that, when he went on his holidays on December 6th, there was no certainty that he would be needed on Monday 24th. The complainant said that he had a very bad tooth ache on December 23rd and that he didn’t get to sleep until 5.00am on the 24th. He said that he didn’t read the text messages from the head chef until it was too late and this is the reason he didn’t respond. Although the messages were recorded as “read,” he didn’t read them himself. The complainant said that, on December 24th, he had access to the kitchen staff Whatsapp group where he could find out if he was rostered. After he received the “that’s the end” Facebook message at 8.36am, he was deleted from the Whatsapp group and he assumed then that he was not rostered for any more shifts and that he was in fact, dismissed. As he had a bad tooth ache, the complainant said that he couldn’t reply to any messages and he was waiting until December 26th or 27th to go to a dentist. |
Findings and Conclusions:
Was the Complainant Dismissed? I have considered the evidence of the respondent and the complainant in respect of this matter. I have reached the conclusion that the complainant was in fact, dismissed because, in the Facebook message of December 24th from his line manager, he was clearly told, “that’s the end” if he didn’t come to work. When he didn’t turn up, he checked the Whatsapp page for the kitchen staff and his name had been removed from the roster. On December 26th, when he sent a message to apologise, he was informed, “Don’t care…. Not my decision anymore sorry.” I understand from the hotel manager’s evidence that the head chef had the authority to dismiss the complainant and that it was in fact, his decision. While the complainant could have contacted a manager more senior than the head chef to challenge his dismissal, for whatever reason, he decided against this course of action. The hotel’s management also had the opportunity to contact the complainant and to ask him if he wanted to discuss what occurred on December 24th, but it appears that no one got in touch with him and he was simply removed from the payroll. All of this points to a decision by the respondent not to have the complainant working in their premises any longer, which is effectively, a dismissal. The Legal Framework Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that: “Subject to the provisions of this section, 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.” The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(b) of the Act provides that; “…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.” Was the Decision to Dismiss Reasonable and in Proportion to the Conduct? The failure of the complainant to turn up for work at the end of his holidays on what was the busiest day of the year for the hotel is a serious matter. This was compounded by the fact that he did not get in touch to say he wouldn’t be in and he didn’t respond to messages from his manager. In his favour, the complainant said that he never received a warning about any matter and that this was his first offence that could have merited a disciplinary sanction. It is my view that the decision to dismiss the complainant was taken too quickly by the head chef and was too severe a sanction. A final written warning would have been more appropriate. Was the Process Fair For the respondent, Mr Gibney conceded that, if I conclude that the complainant was dismissed, no proper procedure was followed. This was apparent from the facts set out in evidence at the hearing. Conclusion We learned at the hearing that the complainant was often late for work, but it seems that his failure to show up on December 24th was the first occasion that the head chef decided warranted a sanction. On this occasion, on the busiest day of the year, he didn’t come to work, he didn’t notify his employer in advance that he wouldn’t be in and he didn’t respond to a request to come in. The complainant produced no evidence that he had to attend a dentist on December 26th or 27th and I am not convinced that his explanation for his non-attendance was genuine. It is my view that it was reasonable for the respondent to issue the complainant with a disciplinary sanction, but he should have been given a final written warning instead of being dismissed. I find that the sanction of dismissal was too severe and therefore unfair. The process by which this dismissal was carried out was also unfair. I find also that, by his conduct, the complainant contributed significantly to the cause of his dismissal. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Following the termination of his employment, the complainant said that he did a little bit of work as an interpreter, about twice a month. He said that he occasionally works as a master of ceremonies. He submitted no evidence to show how much or how little of this work he did. He said that after his dismissal, he was “at home,” but he produced no evidence to indicate that he was unemployed. He said that he is taking a course at the Institute of Public Administration and he was not available for work during March and April 2019 because he was studying for exams. He got a new job as a kitchen porter at the beginning of June. Having listened to his evidence, it is my view that the complainant made no real effort to mitigate his loss of earnings arising from his dismissal. I decide that the respondent is to pay the complainant compensation of €700, equivalent to approximately two weeks’ pay. |
Dated: 24/07/19
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Unfair dismissal, disproportionate sanction |