ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017541
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bar Manager | A Sports Club |
Complaint(s):
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-00022686-001 | 18/10/2018 |
Date of Adjudication Hearings: 17/12/2018 and21/01/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Two Adjudication hearings took palce on this case -an Initial Hearing on the 17th December 2018 which was adjourned to allow settlement talks and a final Hearing on the 21st January 2019 following the failure of the settlement talks.
Background:
The issues in contention concern the alleged Unfair Dismissal of a Bar Manager by a Sports Club. |
1: Summary of Complainant’s Case:
The Complainant was employed by the Sports Club from 18 November 2016 until his Dismissal on the 20th July 2018. On that date he was handed a letter of dismissal. It was alleged that this was for Gross Misconduct in relation to an incident had taken place on the 7th July 2018. No procedures were followed, the Club’s own Disciplinary/ Grievance policy was not followed. A Disciplinary meeting was alleged to have been held on the 13 of July 2018. The Complainant never received any notification of this meeting and was unaware that it had taken palce. This was most unusual as he could easily have been notified. In relation to the incident of the 7th July he had followed correct procedures in attempting to contact the Financial Controller, but to no avail. As a large function was scheduled for that night he had used his own initiative and had employed a former staff member (Mr. S) to help. While he was aware that the former staff member had been removed from the Clubs’ employment he was not aware of the specific details. The Complainant did not feel that the removal or Dismissal of Mr. S was an impediment to his being given a casual night’s work. Regarding the issue of seeking volunteers from the Executive Committee for the bar duty (an issue raised by the Respondent) these would be untrained bar staff and would be completely impractical in a busy Bar situation. Matters being raised in the Respondent’s Oral and Written Submissions regarding Stock Takes/Till float shortfalls etc are not relevant to the Unfair Dismissal case and were not mentioned in his Dismissal letter of the 20th July 2018. The Complainant appealed his Dismissal, but no Appeal hearing was ever heard. In summary his Legal Representative pointed out that the Complainant had been denied all his rights under Natural Justice and that the Dismissal was completely Unfair and unwarranted in all aspects. |
2: Summary of Respondent’s Case:
The Respondent’s Representative accepted that there were some procedural shortcomings in the defence. It was regretted that the Disciplinary meeting of the 13th July had proceed in the Complainant’s absence. However, the Respondent pointed, by way of mitigating context, to several difficulties that had arisen between the Club Executive and the Complainant in the early part of 2018. These issues focused largely on the question of Till /Stock Take shortcomings which were of great concern to the Club. The Complainant had a generally quite uncooperative stance on issue such as Rostering himself and generally not working as a bar man in the Function room as required. An issue had arisen over the refusal to allow a female staff member serve drinks at the Bar and in relation to the non-use of a Pizza oven. On the disputed night in question there were other options available to the Complainant -such as calling on volunteers from the Executive committee to help staff the bar but none of these seemed to have been pursued. The giving of casual Work to Mr. S was not an accidental omission and Mr. Ms’s status or non-status with the Executive Committee would have been well known to the Complainant. It was further evidence of his casual disregard for Club Management decisions that he did not personally like. This had undoubtedly influenced the Executive Committee in their decision. The Financial situation of the Club was precarious in the extreme and the actions /non-actions of the Complainant had never seemed to grasp this fact. The Dismissal decision taken by the Executive Committee had to be seen in that context and in the light of his generally uncooperative attitude. The Respondent pointed out that extensive discussions had taken place with the Trade Union Mandate post the Dismissal and to say that there had not been an Appeal was quite misleading. The issue had finally come to Adjudication largely due to the fact that the parties had been unable to reach a settlement on proposed financial figures. In conclusion the Respondents’ Advisor pointed to precedents where the former EAT had, from time to time, “Forgiven” procedural short comings in a Respondent case in the light of the overall context and relevant background factors. Taking this into account the Dismissal could not be seen as Unfair under the Unfair Dismissal Act,1977.
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3: Findings and Conclusions:
3:1 The Relevant Law The law is the Unfair Dismissals Act,1977, SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures and the rules of Natural Justice as set out in numerous legal precedents. However, all cases must be seen in the light of their own evidence. 3:2 Consideration of the Evidence, both Oral and Written, presented. There was no doubt that the Club’s Executive Management Committee and the Respondent had developed an uneasy relationship in 2018. The relationship between the Financial Controller and staff was alleged by the Complainant to have been difficult and lead to the Dismissal of Mr.S. This was a decision that the Complainant had not agreed with in any manner. In addition, the Club’s financial position is and was very challenging. None the less the Dismissal letter of the 2oth July 2018 was in breach of the Complainant’s rights under Natural Justice and Si 146 of 2000 - Statutory code of Practice on Grievance and Disciplinary Procedures. Adequate warnings were not given, no proper efforts were made to ensure that the Complainant was fully informed of the meeting of the 13th July or of its agenda and no efforts seem to have been made to ascertain his side of the story regarding the employment of Mr. S as a casual on the night of the 7th July. The nonattendance and an explanation for same of the Complainant at the meeting of the 13th July should have been better followed up prior to any Dismissal decision being taken. The argument regarding “prior EAT forgiveness” for some procedural shortcomings did not, I felt, stretch far enough to cover the circumstances in this case. Accordingly, the Dismissal in this case was Unfair under the terms of the Unfair Dismissals Act,1977 and SI 146 of 2000 as referenced above.
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4: Decision and Redress:
4:1 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.
The Dismissal is Unfair.
4:2 Redress.
Section 7 of the Unfair Dismissal Act,1977 allows an Adjudication Officer to make Financial Redress “ as is just and equitable having regard to all the circumstances”
In this case the other options of re engagement and or reinstatement were not appropriate.
The Complainant was out of work for some 9 weeks at a gross loss of € 6,120 and had an alleged future loss of earnings due to his taking up a new position in a different industry at a lesser rate of pay.
At the date of the Hearing in January this was estimated to be in the order of some €4,117.
In discussions at the Hearing on the losses issues the Complainant clearly maintained that he had not sought other Bar work as he had lost interest in Bar work generally due to Unsocial hours and related issues. This had had an impact on his being out of paid work for the nine weeks period and his now being employed in a lesser paid but more acceptable to him position.
Taking all these factors into account I order as Redress “being just and equaitable”, the sum of €8,000 to the Complainant but reduced by a factor of some 20% as I was not convinced that his actions regarding the casual shift to Mr. S on the night of the 7th July were quite as clear cut as was portrayed.
His efforts at redress/seeking replacement work , even other Bar work as a stop gap measure, were not, I felt, as energetic as might be required.
Accordingly, a final sum of €6,500 Gross Pay is awarded as Redress.
The Taxation of this award to be considered in conjunction with advice from the Revenue Commissioners.
Act | Complaint/Dispute Reference No. | Summary decision /Please refer to Section Three above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00022686-001 | Dismissal is deemed to be unfair. Redress of €6,500 is awarded |
Dated: 20/03/19
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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