ADJ-00020376

Complainant

Respondent

Anonymised Parties

Kitchen Porter

Restaurant

Representatives

Citizens Information Service

Act

Complaint Reference No.

Date of Receipt

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

CA-00026774-001

05/03/2019

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

CA-00026774-002

05/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00026774-003

05/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00026774-004

05/03/2019

The Complainant worked as a Kitchen Porter with the Respondent since June 2016.  He has submitted a number of complaints in respect of his employment including a complaint under the Unfair Dismissals Acts. 

The Complainant submits that he had a meeting on 13^th December 2018 with GF, a Director of the Respondent organisation and BT, a chef who acted as an interpreter.  At that meeting, it was agreed that the Complainant would report for work on Saturday 15^th December 2018.

The Complainant submits that he reported for work on the 15^th December 2018 at 8.30am.  He says that he forgot to sign in for work that morning. The Complainant submits that the General Manager came in about 9.00am and told him that he no longer worked there and that he had to leave the building.

The Complainant submits that the General Manager told him that TB, one of the Directors instructed her to tell him this.

The Complainant submits that he left the Respondent’s premises on 15^th December 2018 and that this was his last day there.

The Complainant submits that he was unfairly dismissed by the Respondent.

The Complainant maintains that, with the exception of a written warning of 20^th March 2018, he received no verbal or written warning from his employer.

The Complainant submitted a number of medical certs to the hearing covering the period from 1^st December 2018 to 5^th February 2019.

He said that he turned up for work on the 15^th December 2019 because the Director, GF, did not accept his first medical cert. In response to a question from the Respondent, he said that this occurred on either 2^nd or 3^rd December 2019. 

In response to a question from his own representative, the Complainant confirmed that Chef GII phoned him on 15^th December 2018 to ask why he hadn’t turned up for work.  The Complainant said that he told him that he was on sick leave and would not be going to work. 

The Adjudication Officer asked him why he didn’t tell GII that he had been dismissed by the Respondent.  The Complainant replied that he did not want to discuss this problem.

The Respondent submits as follows:

The Complainant was not dismissed by the Respondent.

The Respondent submits that the Complainant started holidays on Wednesday 7^th November 2018 and that he was due to return to work on Thursday 22^nd November 2018 but that he never showed up.  He came to work on 23^rd November 2018 and there was no real explanation given as to his absence the previous day.

The Respondent submits that the Complainant was rostered to work on the 24^th and 25^th November 2018 but never showed up. The Respondent submits that they never received notice of his intention not to come to work.

One of the Directors, GF, and the Head Chef spoke to the Complainant on Mon 26^th November 2018 about his behaviour.  It was agreed that he could continue on the roster. The Respondent stressed the seriousness of his non-attendance on the previous occasions.

The Complainant worked his rostered shifts on Tues 27^th and Wednesday 28^th November 2018. However, he failed to show up on Friday 30^th, again without any notice.

The Complainant was due to work on Sat 1^st and Sun 2^nd December 2018.  Again, he did not show up for his shifts.

The Complainant was removed from the remaining shifts he was due to do that week as the Respondent felt that they had to give themselves and their covering staff some certainty.

On Monday 10^th December 2018, GF and the Head Chef met again with the Complainant.  This meeting was also attended by another member of staff who acted as interpreter.

It was agreed at the meeting that the Complainant would be given yet another chance. It was decided that he would be rostered for the beginning of the following pay week.

The Complainant was rostered for Saturday 15^th and Sunday 16^th December but yet again never showed up for work.

The Respondent submitted a copy of the sign-in sheet for Saturday 15^th December which showed that the Complainant did not sign in that day although he had signed in for all the other days he worked around that time.

The Respondent said that the Complainant arrived at the Director TB’s office on the following Monday with a sick cert but at that stage he had already been replaced as they were having an extremely busy week and they needed to have staff in place. 

Evidence of the General Manager

The General Manager maintains that she did not meet the Complainant on the morning of 15^th December 2018. 

The General Manager submits that she was rostered for the evening shift on 15^th December 2018 and that she came to work at 5pm on that day.  She submitted a copy of the roster for Saturday 15^th December 2018 which shows that she was rostered for the late shift. 

The General Manager mentioned that the Complainant did come into the restaurant some time after the 15^th December 2018 and that she asked him to leave on that date.

Evidence of the Head Chef

The Head Chef submitted that he came to work at 9am on Saturday 15^th December and that he did not see the Complainant that morning.  He said that the Complainant phoned him and he asked one of the chefs, who spoke the Complainant’s native language, to phone the Complainant back.  The Head Chef asserts that the Complainant told the other chef that he would not be coming back to work.

Evidence of Chef, GII

GII, who speaks the Complainant’s native language, submitted that the Head Chef asked him to phone the Complainant at 4pm on Saturday 15^th December 2019 to ask him why he had not come to work.  GII said that he phoned the Complainant who told him that he didn’t want to come back to work.

Evidence of Director, GF

GF said that the Complainant never gave him a medical cert. GF informed the hearing that he had been employing staff for over 22 years and that he had never refused to accept a medical cert in that time.

Evidence of the Director, TB

TB submitted that the Complainant called into his office on Monday 17^th December 2018 with a Doctor’s note and said that he had been sick over the weekend.  The Director said that the Complainant did not give him the medical cert.

The Director told the Complainant that he understood from the Head Chef that the Complainant had resigned and that he was accepting the Complainant’s resignation and that the Doctor’s note was irrelevant. 

Section 1 of the Unfair Dismissals Act 1997 provides the following definition for “dismissal”, in relation to an employee:

“( 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; “

The matter for me to decide is whether or not the Complainant was dismissed by the Respondent within the meaning of section 1 of the Unfair Dismissals Act, 1997 on 15^th December 2018. 

In this regard, I am guided by “Redmond on Dismissal Law” (Third Edition) [22.13] page 493 which states as follows:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended”.

I accept the Respondent’s submission that they met with the Complainant on 10^th December 2018 (not 13^th December 2018 as submitted by the Complainant) and agreed to give the Complainant another chance.  I also accept that this is why the Complainant was put on the roster on 15^th December 2018.  

I fail to see how, after making a commitment to the Complainant, and at a very busy time of the year, the General Manager would then dismiss the Complainant when he turned up for work on 15^th December 2018.

Furthermore, I accept the General Manager’s evidence that she was not in work on the morning of 15^th December 2019 and that, therefore, she could not have dismissed the Complainant in the manner which is alleged.

I also accept the Head Chef’s evidence that the Complainant did not come to work on the 15^th December 2018 as claimed  and that he asked a colleague, who spoke the Complainant’s native language, to contact the Complainant to find out why he was not at work.  This is supported, in part, by the Complainant’s own evidence that he received a phone call from his colleague GII on 15^th December 2019 seeking to find out why he was not at work.

Frankly, I am confused by the Complainant’s evidence in relation to the medical certs.  I do not understand why he would bring a medical cert to the Director a few days after he was allegedly dismissed.  After all, if he was in work on 15^th December 2018 as claimed, then there was no need for him to submit a medical cert to explain his absence.

Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, on the balance of probabilities, I am of the view that the Complainant was not dismissed by the Respondent on 15^th December 2018.

I find that this complaint is not well founded.

The Complainant submits that he was dismissed without notice or pay in lieu of notice.

The Respondent submits that the Complainant was not dismissed.

In light of my finding that the complaint under Unfair Dismissals Act is not well founded, I find that the complaint under the Minimum Notice Act has been disposed of.

I find that this complaint is not well founded.

The Complainant submits that he worked a 40-hour week and received a weekly salary of €335 gross which equates to €8.38 per hour.  The Complainant maintains that due to his poor knowledge of English, he was unaware that he was only paid 8.38 per hour.  He accepts that he received an average of €120 per week in tips.

The Complainant submits that the national minimum wage in 2018 was €9.55 per hour.

In accordance with section 23 of the National Minimum Wage Act, 2000, the Complainant sought a statement of his weekly wage for the pay reference period from 6^th October 2018 to 26^th October 2018.

The Respondent submits that the Complainant was in receipt of the national minimum wage during the reference period.

The Respondent submits that the Complainant worked a 7-hour shift for five days each week giving a total working week of 35 hours.

The Respondent submits that for the period from 6^th October 2018 to 26^th October 2018 (pay weeks 41 to 44) the Complainant received €335 per week for a 35-hour week which equates to €9.55 per hour.

The Respondent also submits that the Complainant received an average of €120 gratuities per week.  

A complaint under the National Minimum Wage Act can only relate to a reference period in which the Complainant requested a statement pursuant to section 23 of the Act.  Only one such request was made on behalf of the Complainant covering the period from 6^th October 2018 to 26^th October 2018.  Accordingly, I have confined the scope of my investigation to that three-week period.

Part 2 of Schedule 1 of the National Minimum Wage Act 2000 provides that “any amount distributed to the employee of tips or gratuities paid into a central fund managed by the employer and paid through the payroll” is not reckonable for the purpose of calculating the average hourly rate of an employee.  Therefore, I have not taken account of the gratuities paid to the Complainant in my investigation.

At the hearing the Respondent confirmed that the only record which was kept of the Complainant’s working hour were the sign in sheets.  In the absence of sign in sheets for the relevant period, I am unable to verify the Complainant’s attendance during that period.  Accordingly, I find that this complaint is well founded. 

I find that the Complainant was paid the minimum wage of €9.55 for a 35-hour week when he should have been paid the minimum wage for a forty-hour week resulting in a shortfall of 15 hours at the national minimum rate of €9.55 over a three week period.

I find that this complaint is well founded, and I direct the Respondent to pay the Complainant redress of €143.25 which equates to 15 hours at the relevant national minimum wage rate of €9.55 per hour.

The Complainant maintains that he did not receive his full entitlement to breaks during his working day.  He maintains that he never received a continuous break of 30 minutes.

The Respondent submits that the Complainant got his breaks and that all employees got a full meal during their shift. 

This complaint was submitted to the Workplace Relations Commission on 5^th March 2019. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 6^th September 2018 to 5^th March 2019.

However, the Complainant’s employment with the Respondent ended on 15^th December 2018 and therefore the cognisable period cannot extend beyond that date.

I find, therefore, that the cognisable period for this complaint is 6^th September 2018 to 15^th December 2018.

The Law

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The matter for me to decide is whether the Complainant received the breaks to which he is entitled under Section 12 of the Act. The Complainant alleges that he did not receive such breaks. 

To demonstrate that their employees get their breaks, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

The Respondent did not produce any such records in support of their position.  I find therefore that the complaint is well founded, and I direct the Respondent to pay the Complainant redress of €200.

I direct the Respondent to pay the Complainant redress of €200.

Fact of dismissal in dispute; minimum notice; national minimum wage; hours of work