Complainant

Respondent

Anonymised Parties

A Barman

A Restaurant

Representatives

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-00027847-001

16/04/2019

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

CA-00027847-002

16/04/2019

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

CA-00027847-003

16/04/2019

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

CA-00027847-004

16/04/2019

The Complainant was employed as a barman in November 2017 and his employment ended on the 22nd of January 2019. He was paid €13.50 per hour and he worked between 20 and 40 hours per week. He is claiming that he was unfairly dismissed without his statutory notice entitlement.

The Complainant said that he walked out of the job on the 11th of January and went home during a very bust period in the restaurant. He said that on the night in question the bar was very short-staffed and there were difficulties in getting the job done. He said he felt very stressed about being overworked and he decided to go home. He returned to work the following day and he apologised to the Bar Manager and he was allowed back to work. The Assistant Manager spoke to him about what happened, and he signed a verbal warning letter. He said he was not put on probation and it was a continuation of his existing employment. He accepted he was late for work on a couple of occasions, but he was never warned about being late are about his work performance. On the 21st of January he had a meeting with the Bar Manager and he was notified that he was dismissed. He said he was given no reason for the dismissal.

The Assistant Manager said that the Complainant left his employment and he was not dismissed. On the 11th of January 2019, she said at around 9 p.m. the Complainant said that he did not want to work in the Respondent's bar any longer and he walked out. He came into work the next day at around 5 p.m. and asked to speak to the Bar Manager and asked to be taken back. The Assistant Manager said that she then spoke to him telling him that the decision he made to walk out leaving the rest of the staff to do the work wasn't fair and that she would like to see an improvement in his work on a trial basis. She told him that if she was to take him back to work it would be on a probationary period and the Complainant agreed to this. The Assistant Manager said that she then decided to issue the Complainant with a first verbal warning in relation to his conduct. The Complainant signed the first verbal warning on the 13th of January 2019.

The Complainant was then allowed to return to work and the following day he was late for his shift. He was also late for his shift on the 18th 19th and 20th of January. She said that the Bar Manager spoke to him every day about his behaviour. On the 21st of January a decision was taken to dismiss the Complainant. She said the Complainant was dismissed because he was on probation and he failed to abide by the terms of his probation and he really did not want to work for the Respondent.

The Bar Manager said he learnt the Complainant left employment on the 11th of January 2019. The following day the Complainant came into work and asked to speak with him. He agreed to meet him, and he asked him what had occurred the previous evening. The Complainant explained that he had lost his cool he apologised for his behaviour and asked to come back to work. The manager said he wanted him back at work and he spoke to the Assistant Manager and explained the situation and she agreed to meet the Complainant. The Assistant Manager told him that the Complainant was returning to work on a trial basis. The Complainant then returned to his work shift and the following three days he was late for his shifts and the standard of his work was not good enough.

He told the General Manager of the company that there were problems with the Complainant’s performance since he came back to work. The Bar Manager said that he told him about the Complainant being late and he told him that the standard of his work was not up to standard. He said the Complainant had started college about 6 months earlier and had transferred to part-time work and he believed since then that his work performance had deteriorated.

The Bar Manager said that he had a meeting with the general manager and the Assistant Manager and it was decided to let the Complainant to go. He said he believed that the Complainant was no longer interested in the job and he would have known that his job was in jeopardy. He informed the Complainant of the decision to dismiss him before a staff meeting on the 21st of January.

The General Manager said that the Complainant was put on a new contract of employment when he returned to work following him walking off the job. He said he was on a 6-month probationary period and he was in breach of his probation by being late on three occasions. He accepted that he was not issued with his p45, but he was treated as a new employee. He said the Complainant was not issued with any further warnings following the lateness because he was on probation and he did not need to give him a formal warning. He accepted the Complainant was given a pay rise following the verbal warning, but he said this had been agreed the previous December.

The first matter I must consider is whether there was a break in the Complainant’s employment when he walked out of the job on the 11th of January and was taken back to work the following day. The Respondent said that the Complainant employed on a new contract and on probation following his return to work. I note that the Complainant was issued with a verbal warning in relation to his conduct on his return to work, but he was not given any letter to say he was on a new contract or that he was on probation. Having considered the matter, I am satisfied from the evidence that there was no break in the contract of employment and the Complainant’s employment was continuous. Therefore, the Complainant has one year’s service for the purposes of pursuing a complaint under the Unfair Dismissals Act. 1977.

The Respondent submitted that the Complainant was dismissed because he was on probation and despite having a verbal warning, he was late for work on a number of occasions and the Respondent believed he was no longer interested in the job

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(1) 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.”

Subsection (4)(b) provides that: “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”.

Section 6(7) provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 section7 (2) of this Act.”

Therefore, the burden of proof rests with the Respondent to demonstrate that the dismissal was neither substantially nor procedurally unfair.

I note the Respondent has a Grievance and Disciplinary Policy which provides for a range of disciplinary measures from a first verbal warning to a final written warning and dismissal depending on the nature of the conduct of the employee. The Complainant received a first verbal warning on the 13th January 2019 for walking off the job on the 11th January 2019 without notice, and he received no further warnings before his dismissal, despite the warning providing that if his conduct gave rise to a further complaint, he was liable to receive a first written warning. The Respondent therefore failed to follow the company procedures in terminating the Complainant’s employment.   There is an obligation on employers to follow fair procedures and natural justice in accordance with S.I. 146/2000 –Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In relation to applying fair procedures, The Labour Court in the case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

Having regard to S. 6(7)(a) cited above and the reasonableness of the Respondent’s conduct, I am satisfied that it was not reasonable in the circumstances to dismiss the Complainant without warning for reasons relating to his conduct. I am satisfied that the Respondent has failed to show that there were substantial grounds justifying the dismissal. Furthermore, the Respondent failed to comply with the company’s disciplinary procedures and consequently failed to comply with fair procedures and natural justice. For these reasons, I find that the dismissal was both substantially and procedurally unfair. The complainant mitigated his financial loss and got a new job 4 weeks later. But he was paid €100 less per week. I award the complainant compensation in respect of his financial loss in the amount of €3,900 that is 4 weeks’ pay amounting at €1,300 and 26 weeks at €100.

CA 27847-002 Minimum Notice

The Complainant claims that he was dismissed without notice and that he is entitled to one week’s pay in lieu of notice.

Section 4 ”An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

I am satisfied that the Complainant is entitled to one week’s minimum notice payment pursuant to Section 4 (2) (a) of the Act, amounting to €346.15.

CA 27847-003 - Minimum Notice Act.

This complaint is a duplicate of the above-mentioned Minimum Notice complaint number CA27847-002.

CA 27847-004 - Minimum Notice Act.

This complaint is a duplicate of the above-mentioned Minimum Notice complaint number CA27847-002.

CA 27847-001 Unfair Dismissals Act

I find that the Complainant was unfairly dismissed, and I order the Respondent to pay the Complainant redress pursuant to the Act in the amount of €3,900.

CA 27847-002 - Minimum Notice Act

The complaint is well founded. I award the Complainant one week’s minimum notice payment pursuant to Section 4 (2) (a) of the Act, in the amount of €346.15. This figure is subject to any lawful deductions.

CA 27847-003 - Minimum Notice Act.

This complaint is a duplicate of the above-mentioned Minimum Notice complaint number CA27847-002 and I find that the complaint is not well founded.

CA 27847-004 - Minimum Notice Act

This complaint is a duplicate of the above-mentioned Minimum Notice complaint number CA27847-002 and I find that the complaint is not well founded.

Unfair Dismissals Act, 1997-2015, Section 6, Failure to follow procedures, no substantial grounds, Minimum Notice Act, failure to give notice of dismissal.