Complainant

Respondent

Parties

Representatives

Represented

Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00017068-001

25/01/2018

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

CA-00017068-002

25/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017068-003

25/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017068-004

25/01/2018

The complainant had been employed initially as a chef de partie on May 26th, 2017 before being promoted on July 17th to the position of Sous Chef on an annual salary of €30,000.

His employment was terminated on January 15th, 2018 following an incident when a plastic sauce bottle was thrown against a wall. His complaint of unfair dismissal is brought under the Industrial Relations Act.

(Complaint CA-00017608-004 under the Employment Equality Act was withdrawn at the hearing).

The complainant attributes the start of his problems to the arrival of new managers; a General Manager and an Operations Manager, and specifically to continuing provocation by a co-worker.

He says that he had been the subject of continuing bullying by a co-worker and that management did nothing to address it.

He accepts that he threw the bottle but says that no damage resulted, and no-one was hurt.

The bottle involved was a plastic five hundred gramme bottle and the sanction of dismissal was harsh. The actions do not fit within the definition of gross misconduct which covers acts such as striking or actual violence.

In respect of his other complaints he says that he does not get breaks due to the pressure of work in the kitchen and of service.

Also, his hours regularly exceed the thirty-nine hours provided for in his contract and he is entitled to an overtime payment.

The respondent says that it took a very serious view of the bottle throwing incident, which was not disputed at any stage by the complainant.

It had received a complaint from the complainant’s supervisor that the incident followed a request made to the complainant to assist with the preparation of sandwiches. When the complainant viewed the CCTV footage at the time he accepted that he had thrown the bottle and that he had been wrong to do so.

The respondent provided details of the disciplinary process which, it submits, fully respected the rights of the complainant to fair procedure at all stages.

The incident had been properly investigated, full notice of the steps in the disciplinary process were provided, he was facilitated with a translator, and given the right to an appeal.

The respondent viewed the incident as falling within its Health and Safety policy and its obligations to other members of its staff.

The complainant’s allegations regarding his treatment by a co-worker had been addressed separately; they were not being ignored. Nonetheless, he had not instigated any grievance although he was fully familiar of the right to do so and had done so in the past.

The respondent had not been made aware of any allegation of bullying.

Some of the complainant’s evidence was confused. He alleged that the Operations Manager had been responsible for a matter which pre-dated his arrival, for example.

Regarding the complainant’s assertion that he was entitled to an overtime payment his contract of employment makes it clear that he is on an all-inclusive salary of €30,000 and also states that some degree of flexibility is required from him to take account of business needs requiring extra working hours.

There has been no breach of the Payment of Wages Act, 1991.

Finally, the respondent also denies that the complainant did not get breaks and the digital recording system confirm this. For example, he was also facilitated with prayer breaks.

In addition, in his position as sous chef part of his responsibility was to schedule breaks for those reporting to him.

At no stage did the complainant lodge any grievance about this.

The incident giving rise to the dismissal is not disputed; only whether it represented a sufficient basis to terminate the complainant’s employment.

The general jurisprudence on this is well known, and while mainly associated with cases under the Unfair Dismissals Act it provides a reliable starting point in any case where a termination of employment takes place.

For a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct.

There clearly were in this case, although the parties disagree on the degree of gravity which should be attached to the incident.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee or other parties affected and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of the facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

In this case, I can see no flaw in the management of the process that could be regarded as damaging the complainant’s rights to a fair process. At all stages the respondent met its obligations in that regard and the complainant did not dispute this at the hearing. He was accorded all the rights that were due to him in the process and he made no complaint on that account.

This leads to the matter of sanction on which the complainant rested most of his case. He argued that it was disproportionate and too severe, and that the finding of ‘gross misconduct’ was excessive having regard to the nature of the incident.

A sanction must fall within what is described as ‘the range of reasonable responses’ by the employer. There is widespread authority on the principles and criteria to be applied here (again while noting that those cases fall under the Unfair Dismissals Act, the principles are nonetheless applicable).

There is the decision of the former Employment Appeals Tribunal in Looney and Co v Looney UD 843/1984 and the view of Dr Mary Redmond to the same effect that;

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

This has been further emphasised in the Superior Courts.

In Allied Irish Banks v. Purcell [2012] 23 ELR 189, the following was decided.

The correct test is; was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view. (British Leyland UK Ltd v. Swift [1981] IRLR 91, Lord Denning MR).

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken’.

Also, in Bank of Ireland v Reilly [2015] IEHC 228 the Court held;

‘Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned ‘.

In other words, while an Adjudicator has a clear obligation to supervise compliance with fair procedure (and any failure in this regard will generally be fatal), a somewhat different principle, that of the ‘range of reasonable responses’ applies to oversight of the sanction.

This does not, of course mean that there will never be circumstances when an Adjudicator will not find a sanction to have fallen outside the range of reasonable responses, but it is a quite different concept to an ordinary appeal.

The respondent is managing a medium to large sized hotel, by Irish standards and has to apply a range of criteria to its assessment of the gravity of the incident, having regard to the possible impact on its other employees and indeed on its customers.

It defines ‘Gross Misconduct’ in its policies as;

‘any deliberate act of negligence or failure to act by an employee that is detrimental to good conduct of the company’s business’.

This is very, even dangerously vague and it is not clear how such a definition can be distinguished from ‘serious misconduct’ in a general sense, which may also ground the termination of employment. To include ‘any failure to act’ which results in a detriment to the company’s business as potential gross misconduct is to create an extraordinarily wide power that the respondent would be well advised to review.

The respondent did argue that the incident in this case within the (non-exhaustive) list of examples in its policy of Gross Misconduct by reference to ‘wilful damage to company property’, ‘flagrant disregard for safety and hygiene precautions’, ‘inappropriate, indecent or offensive behaviour’, and ‘behaviour which affects the right of a fellow employee to dignity at work’.

There appears to be some element of desperation in this effort to shoehorn the incident within these headings which would be entirely unnecessary with a simple charge of serious misconduct. That said the complainant was on notice of that charge from the outset.

And ultimately, the question remains whether on the basis of the incident which gave rise to the disciplinary proceedings, did it expose the complainant to the range of responses which included dismissal and was this step justified.

In relation to both questions I find in the affirmative.

Regarding the other complaints, it is clear that he was paid an annual salary and that this was the basis of his contract.

Nonetheless there was considerable difficulty in establishing the factual position in relation to the related issues of the complainant’s access to breaks and the hours worked.

In the latter case while there were records they were difficult to interpret as it was not clear whether they were net of actual breaks taken, or whether (more likely) they were calculated on the basis most favourable to the hotel which is that ALL breaks were taken, which is most improbable.

The complainant’s own evidence was unconvincing to the effect that the demands of service were so unrelenting all day long that he could not take a break. There are clearly less busy periods in the course of the day in which he could have done so.

Nonetheless, under the legislation the onus lies on the respondent to ensure that he does and that it maintains intelligible records of having done so.

On balance I find that the complainant was not given sufficient access to rest breaks and I make my award accordingly.

For the reasons set out above I do not uphold complaints CA-00017068-001 or 003 and they are dismissed.

I uphold complaint CA-00017068-002 and award the complainant €1,500.

Complaint CA-00017068-004 was withdrawn.

Dismissal, Pay, Working Time.