Complainant

Respondent

Anonymised Parties

A Restaurant Manager

A Bar and Restaurant

Representatives

Jamie Sherry, Miley & Miley Solicitors

Peter Ryan, HR Consultant

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-00020580-001

17/07/2018

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

CA-00020580-002

17/07/2018

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

CA-00020580-003

17/07/2018

The respondent company is a well-known bar and restaurant group with eight venues in Dublin, employing more than 600 staff. On February 14th 2016, the complainant commenced employment as a waiter in a bar and restaurant in north Dublin. In November, he was promoted to the position of restaurant manager in an Asian-type restaurant on the first floor of the premises. In January 2018, the company decided to close this restaurant and the complainant was offered an alternative job in another venue. He declined this offer and he was made redundant on January 28th 2018.

The complainant alleges that he was dismissed unfairly. He has also submitted complaints under the Organisation of Working Time Act 1997, claiming that he was required to work excessive hours, that his employer kept no record of his hours of work and that he was not permitted to take breaks.

In his submission at the hearing of this complaint, the respondent’s representative, Mr Ryan, said that the restaurant managed by the complainant was trading poorly and the management decided to close it down. The four chefs who were employed were transferred to other jobs in the company and the waiting staff were let go. With the closure of the restaurant, the job of manager also ceased to exist. The company’s area manager attended the hearing and he said that, on January 22nd or 23rd 2018, he met the complainant and told him of the decision to close the restaurant. He said that he understood that the complainant didn’t want to go back to being a waiter and he offered him a similar job in another venue on the same terms and conditions of employment. The complainant’s salary at the time was €33,800. In response, the complainant said that he wasn’t interested in being redeployed and that he would prefer to be given a redundancy payment.

A copy of a text message that the complainant sent to the area manager was submitted in evidence.   Outlining his request for a redundancy payment, he said.

“…I kind of have my mind set on redundancy and taking a few weeks off to relax. I was hoping to leave on good terms from the group because I feel I might have future opportunities going forward with …the group. But now this whole situation is putting me in a very awkward position, like, I don’t want to have to start playing games with hr on this.”

When he didn’t get a reply to this message, on January 27th, he sent another text message to the area manager:

“Any word on that redundancy? My dad is advising me to talk to the head of his legal team about the whole situation, I told him it’s not at that stage yet. To be honest, my stress levels are through the absolute roof at the moment and all I want at this stage is to be able to take a few weeks off and gather myself. Going back to being a waiter now just isn’t an option for me, it would be a massive step back for me when I should be moving forward.”

The respondent’s case is that, as the complainant had not completed two years of service, he was not entitled to a redundancy payment. On January 27th 2018, the area manager wrote to the complainant giving him one week’s notice of the termination of his employment because of the closure of the restaurant. The letter stated:

“I understand you had expressed an interest in receiving a redundancy payment. However, as you do not have the requisite service under the Redundancy Payments Act, you are not entitled to such a payment.

“Should you be interested in any alternative position of employment within the organisation, could you please write to me expressing your interest and I will seek to accommodate your request, should there be a suitable position available.”

The restaurant was due to close on Sunday, February 4th. On January 28th, the complainant informed the manager of the bar and restaurant by telephone that he would not be returning to work. At 8.50pm, the general manager sent the complainant an e-mail with his roster for the last week of business and asked him to confirm if he would work the shifts for which he was rostered. In the e-mail, the general manger asked the complaint to let him know if he would be coming in to work “as a matter of urgency.”   The complainant did not reply, but, at 2.00am, he sent an e-mail to the area manager, asking him to re-consider the decision not to give him a redundancy payment, “…as a bit of recognition for the work I’ve done for you over the past year, including all the overtime I have clocked up, the overnighters I’ve worked.” In this mail, the complainant explained why he thought he should get a redundancy payment:

“It would be nice to be able to tell the locals and my regulars when I meet them …that I was looked after well in the closing rather than focus on the potential negatives, especially since my customers saw how hard I always worked and I was well received around the town. I’d much rather tell people I was treated brilliantly and that we all came to a mutual agreement on the closure…”

For the respondent, Mr Ryan said that the closure of the restaurant is not in dispute, and neither is the fact of the redundancy of the job of restaurant manager, which was the complainant’s job. The complainant’s employment was terminated because the restaurant where he worked as a manager was closed down due to poor trading. He did not have to lose his job because of this closure, as alternative positions were available. He rejected the option of redeployment because he said that he wanted to take a few weeks off to relax and he left without working his notice.

The respondent’s view is that the claim for a redundancy payment is “an attempt to extract compensation” and has no basis in fact.”

Opening his case for he complainant, Mr Sherry said that the restaurant where the complainant worked was a brand name business. Although he could have taken up the option of work in another restaurant, the location where he was offered a job, in Dublin west, did not suit him. He was concerned that if the restaurant was quiet, he could have been sent home. He also felt that the job he was offered was a lower-level job of assistant manager. When he was offered this job first, he was informed that the pay was €12 per hour, and only later, he was told that he would be paid the salary he was on of €33,800. The complainant said that he got no formal offer of an alternative job.

Mr Sherry said that, in deciding to close the restaurant, the management did not consult with the complainant, and the letter of February 27th 2018 was issued after the decision to make him redundant. For this reason, he had no opportunity to have an input into the decision or to suggest ways to avoid redundancy.

Mr Sherry said that there is again a restaurant on the first floor of the premises where the complainant worked, and a manager is doing the job that the complainant used to do.

The Relevant Law

The Unfair Dismissals Act 1977 – 2015

It is the complainant’s case that, in terminating his employment, the respondent breached sections 6(1), 6(3) and 6(7) of the Unfair Dismissals Acts 1977 – 2015, (“the Act”). Section 6(1) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof therefore rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

Section 6(3) of the Act states:

Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

In the case under consideration, “the circumstances constituting the redundancy” was the closure of the restaurant on February 4th 2018. Mr Sherry suggested that another restaurant has been opened in place of the one that closed. From the evidence of the managers who attended the hearing, I am satisfied that this is not the case, and that the area is being used as an extension of the existing bar.

When the restaurant closed, three chefs who worked there were transferred to other locations and all the waiting staff were made redundant. The complainant’s job was not singled out for redundancy and I am satisfied that the main provision of section 6(3) does not apply to his circumstances. It follows therefore that sub-sections (a) and (b) of this section are not applicable.

Section 6(7) provides that, in considering a complaint of unfair dismissal I, as the adjudicator, may have regard,

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.]”

Essentially, this section provides that I can consider the employer’s adherence or failure to adhere to a procedure that the employee has been notified of that will be used in the event of a decision to terminate his employment. The complainant’s contract of employment which was produced in evidence provides that he could be required to relocate on a temporary or permanent basis. The contract also provides for notice of termination to be given in accordance with the Minimum Notice and Terms of Employment Act 1973.

The Redundancy Payments Acts 1967 – 2012

The complainant did not have the requisite two years’ service to give him an entitlement to a payment under the Redundancy Payments Acts 1967 – 2012. However, the definition of redundancy, as set out at section 7 of these Acts is the starting point for a consideration of the respondent’s position. Section 7(2) sets out five definitions of redundancy.   For our purpose here, we need to concern ourselves with the definition at subsection 7(2)(a):

“…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to—  

(a)…the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed.”

Was the Complainant’s Job Redundant?

In St Ledger v Frontline Distributors Ireland Limited, UD 56/1994, the chairman of the Employment Appeals Tribunal (EAT), Mr Dermot McCarthy remarked that redundancy “has two important characteristics, namely, impersonality and change.” In 2003, the view of the EAT in this and other cases led to the amendment of section 7(2) of the Redundancy Payments Act and the insertion of the statement underlined above which emphasises that redundancy is impersonal, and “not related to the employee.” The focus of redundancy must, in the first instance, be on a job. Its purpose is to eliminate a job or to effect change on a job and not a person.

From the evidence submitted by both sides, it is apparent that the complainant’s job of restaurant manager became redundant when the restaurant where he worked closed on February 4th 2018. The respondent’s witnesses said that the managing director of the company thought very highly of the complainant, and wanted to keep him on, and this is the reason he was offered an alternative job. It is clear therefore, that the decision to make the complainant’s job redundant was not personal but was entirely related to the closure of the restaurant.   The complainant could have taken a job in another location, on the same terms and conditions, but the location of the alternative job was not suitable. He also had concerns that that restaurant would not be busy enough and that he would be sent home.

It appears that, around 10 days before the restaurant where he worked was due to close, the complainant’s manager met him to give him this news and to suggest that he move to another restaurant. While the complainant had no input into the decision to close the restaurant, I am satisfied that he was consulted about the implications for him and that an alternative to redundancy was proposed. I am also satisfied that, in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1983, and the terms of his contract of employment, he was given the appropriate notice of the termination of his employment due to redundancy.

Having concluded that the complainant’s job was redundant, and, as he did not accept an offer of an alternative job, it follows that his employment was terminated because of redundancy. I find therefore that the dismissal of the complainant was not unfair.

I have concluded that the complainant’s employment was terminated due to redundancy and that it was not an unfair dismissal. I decide therefore that his complaint under the Unfair Dismissals Act is not upheld.

Under this heading, the complainant alleges that he regularly worked overtime and that his employer did not keep records of his hours of work. In his complaint form, the complainant stated that he worked 45 hours per week. He alleges that he often worked a night shift followed by an early shift the next day.

The respondent’s case is that records of the complainant’s hours of work were kept because he clocked in and out each day, using the company’s “Time Point” attendance recording system. He was responsible for ensuring that the staff who reported to him clocked in and out also. Details of the hours worked by the complainant between April 1st 2017 and January 27th 2018 were submitted in evidence. The attendance records for the 26 weeks before the complainant finished working with the respondent show that he worked on average 33.015 hours each week.

The evidence of the respondent is that records were kept of the complainant’s hours of work and that he did not work excessive hours. For the complainant, Mr Sherry disputed the accuracy of the respondent’s records and suggested that there may have been a “manual intervention” in the time and attendance system.

The opening hours of the restaurant managed by the complainant were as follows:

Monday – Friday:   5.00pm to close

Saturday and Sunday:   1.00pm to close

In his submission for the respondent, Mr Ryan said that the complainant took his daily breaks without exception and that he was not required to commence work within 11 hours of finishing a previous shift. As the restaurant never opened before 1.00pm, it would be unusual for the complainant not to be able to get a break of 11 hours between daily shifts.

The evidence produced by the respondent of attendance from April 1st 2017 until January 27th 2018 shows that on Friday, December 14th, the complainant finished work at 1.40am and he started the next day at 12.14pm, resulting in a break of 10 hours and 34 minutes. This is the only occasion in that period of 10 months when the complainant did not get 11 hours of a break between shifts.  

It is apparent from the evidence, that the respondent keeps a record of the hours worked by their employees. I find that his complaint that he worked excessive hours has not been substantiated.

The evidence presented at the hearing showed that the respondent kept an accurate record of the hours worked by the complainant and that he did not work excessive hours.   On this basis, I decide that this complaint is not upheld.

The complainant alleged that he worked through his shifts and that he was not given the opportunity to take his breaks.

The respondent’s case is that, as a manager, the complainant had authority to schedule his breaks and to ensure that he got his legal entitlement to breaks. In his submission, he stated that he was not allowed to take his breaks, but he does not say who it was who prevented him from taking breaks. He presented no evidence of the times that he alleges that he was not permitted to take breaks.

At the hearing, the managers said that the restaurant was often quiet and that the complainant had the opportunity to take his breaks at a quiet time during his shift. They argued that the complainant’s allegation that he was not permitted to take breaks is false.

From the evidence submitted at the hearing, it appears that, as the restaurant manager, the complainant had autonomy to ensure that he got his breaks. The company’s time and attendance system shows that the complainant got breaks on a daily basis, in accordance with the provisions of the Organisation of Working Time Act.    

As the complainant was responsible for ensuring that he got his breaks, and, as no evidence was submitted which showed that any person or circumstance prevented him from getting his breaks, I find that there is no substance to this complaint.

From the evidence submitted by the respondent, I am satisfied that, while he was employed by the respondent, the complainant was permitted to take the daily rest breaks to which he was entitled. I decide therefore, that this complaint is not upheld.

Redundancy, alternative job, rest breaks, hours of work