ADJUDICATION OFFICER DECISION and Recommendation

Adjudication Reference: ADJ-00021483

Parties:

Complaint:

Date of Adjudication Hearing: 30/08/2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act , Section 7 of the Terms of Employment( Information) Act, 1994, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000, Section 13 of the Industrial Relations Acts 1969, Section 11 of the Minimum Notice and Terms of Employment Act , 1973 and Section 16 of the Protection of Employees ( Part Time Work) Act, 2001 ,following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.

Background:

Summary of Complainant’s Case:

The Complainant worked as a Part Time Chef at the Respondent business from 9 May 2018 to 14 March 2019. His Gross pay was €234 per week. The Complainant prepared a written statement in outlining his case and I asked him to read this into the record at hearing. I accepted clarifications on several statements.

In summary, the complainant raised the issue that his hours of work had been “jumped “an extra 10 hours on two occasions between 18 January and 5 February 2019.This caused him to feel ill and he sought medical attention. He sought to raise the issue with Chef but believed that he was not heard by him as he just said “what did you do them so for? “He felt ignored and taken advantage of. The Complainant outlined that he had Attention Deficit Disorder.

On 14 March 2019, the complainant was due to work 9 am to 3 pm. Chef was in the building for a meeting and asked him if he wanted to have coffee. He agreed. He managed the morning rush inclusive of a pre-booked table. He did not need to have his ear piece in place that morning. This was something he normally wore to communicate with bar staff. The Floor Manageress became irritated with him, shouting and told him that there were delays with the food.

This culminated in the Chef making a complaint to the owner as the manageress had to comp some breakfasts. The Complainant saw no evidence of the docket which might indicate a comp had been given.

The Chef then arrived in the kitchen and told the complainant that the owner wanted him gone. The Complainant asked for clarification and was told that he was losing the owner money and he was to “leave now “The Complainant was not impressed by the Chefs approach to him but went home shortly after 11.30 am. He understood that he had been fired.

On 21 March, he called the owner directly and requested his P45, reference and holiday pay. The owner seemed nervous and seemed keen that he leave amicably. They spoke again on the 27 March and again, the complainant understood that the owner wanted him to leave amicably. He undertook to furnish a reference. The Reference was dated 14 March 2019.

The Complainant submitted that he had shown the Respondent loyalty and felt that he had been cruelly discarded. He added that he was” a disabled man, trying to make it in life “The Head Chef called him a week later offering a working slot at a BBQ. This caused him anguish.

The Complainant confirmed that the business was short a Chef.

The Complainant welcome the opportunity to be heard.

In answer to the Respondents questions, he confirmed that he had considered leaving earlier in the employment relationship. In January 2019, he had intimated that he would have to hand in his notice but had not acted on this. He was working Agency Chef shifts and had joined the casual system with social welfare.

He confirmed that money was never an issue during his employment. He had not been left short. He confirmed that he had not complained to the owner during his employment. He disputed the Respondent account of 14 March.

The Complainant described that he was autistic and had omitted to take his tablet on the morning of 14 March, this had unsettled him.

He did not see any point in revisiting his dismissal after the event.

1. CA -00027223-001       Organisation of Working Time Act (withdrawn)
2. CA-00027723-004         Terms of Employment Act.

The Complainant submitted that he had not been notified of a change in his terms of employment. He expressed a grave difficulty with being expected to increase his hours on two occasions. He did not accept that he had a veto on this request.

3 .CA -000027723-005   Unfair Dismissal under the Industrial Relations Act

The Complainant submitted that he was summarily dismissed on the morning of 14 March 2019. He was sent home at 11.30 am, some hours before his anticipated finish time of 3 pm and believed that he had been wronged and thrown out of his job. He took advice from his friends and challenged this. He carried a lot of anger against the chef who communicated the message to him.

4 CA -00027723-006 Unfair Dismissals Act

The Complainant submitted that he had to leave his job due to the conduct of his employer due to Trade Union Membership, Adoptive Leave, Force Majeure, National Minimum Wage Act rights, Protected Disclosure. This was the content on his complaint form. The Complainant clarified at this at hearing and confirmed that he accepted that he did not have 12 months service to ground a complaint under the Unfair Dismissals Act. He did not advance details of seeking any exemption under the Act.

5 CA -00027723-007 Industrial Relations

The Complainant outlined that he had received a disciplinary sanction up to and including his dismissal. He contended that he had been forced home prematurely and there was no way back for him. He carried a high level of injustice in respect of the actions of the Chef on 14 March 2019.

6 CA-00027723-008 Employment Equality

The Complainant made a very extensive complainant under the employment Equality Act, which incorporated a complainant of discrimination through disability, pension and collective agreement.

He confirmed that he had not placed the Respondent on notice of his condition of ADHD but understood that the Organisation was aware of his condition. He felt his expulsion on 14 March keenly and attributed this to his disability. He did not submit details on pension or collective agreement.

7 CA -00027723-009 Equal Status

The Complainant accepted that his complaint under Equal Status Acts was misconceived as he had not been provided with Goods and Services by the Respondent in the case.

8 CA -00027723-010   Minimum Notice

The Complainant was unclear of his intentions on making this complaint. He believed that he had received notice pay but was not sure.

9 CA -00027723-011

The Complainant was unclear of his intentions on making this complaint. He did not particularise it

10. CA -00027723 -012

The Complainant was unclear of his intentions on making this complaint. He did not particularise it

11 CA -00027723 -013

The Complainant outlined that he believed that he had been singled out as a part time employee and forced to take on additional hours of work on two occasions which made him ill. He did not furnish details of a Comparator.

Summary of Respondent’s Case:

The Respondent runs a group of 4 premises and is a long-term employer. The Respondent Solicitor outlined that the Respondent did not terminate the complainant’s employment and disputed all the claims raised. The Complainant had not at any time placed the respondent on notice of a disability. His employment papers signalled that he had the medical condition of asthma and nothing on ADHD or Autism.

The Respondent had no issues with the complainant during his employment. They acknowledged that he worked hard.

It was the respondent position that the complainant had “a meltdown “on the morning of 14 March 2019 and he was sent home to recover as customers had left the business in response to delays in servery. The Chef was charged by the owner to communicate this message to the complainant. The respondent did not terminate his position.

The Respondent was aware that the complainant found new work soon after leaving.

The Evidence of the Owner:

The owner recalled the 14 March 2019. He received a call from the front of house manager on his mobile. She described chaos on the floor. He couldn’t get there quick enough, but he contacted the head chef with an instruction to “settle things down”. He was not tasked to fire anyone.

He recalled meeting the complainant after the bank holiday. Things were amicable, and he was paid in full for his holidays. He was provided with a reference and the owner understood that he had found new work. The Respondent understood that he had acted on his previously stated intention of leaving.

The respondent confirmed that the complainant had not compiled a record of his resignation, but his voluntary resignation was implied through payments, P45 and provision of a reference.

1. CA-00027723-004         Terms of Employment Act.

The Respondent disputed the claim. The Respondent displayed a copy of a statement of terms of employment but denied that any changes had occurred. The business had been short, and the complainant had been reasonably asked to help.

3 .CA -00027723-005   Unfair Dismissal under the Industrial Relations Act

The Employer denied that the claimant was dismissed. Instead, he was informed that he ought to leave a chaotic environment to calm down. The Employer fully expected him to return to work and understood that when he approached the business seeking his P45, reference and holiday pay that he was initiating his own resignation and they honoured the request.

4 CA -00027723-006 Claim for Unfair Dismissal

The Respondent disputed dismissal and submitted that the complainant was not covered by 12 months service in his employment. He resigned his position and a reference followed.

5 CA -00027723-007 Industrial Relations Act

The Employer had not applied any sanction on the claimant. He left his employment of his own accord.

6 CA-00027723-008 Employment Equality Act

The Respondent denied that the complainant had ever disclosed his Attention Deficit Disorder or any disability during his employment. The Respondent denied discrimination.

7 CA -00027723-009 Equal Status Acts

The Respondent was the complainants Employer and had not provided him with any Goods or Services. There was no ES1 form in existence.

8 CA-00027723 -010 Minimum Notice

The Respondent disputed payment of a notice period

9 CA -00027723-011 Minimum Notice

The Respondent disputed that the complainant had identified a notice period

10 CA -00027723-012 Minimum Notice

The Respondent was not making a claim of the complainant in relation to notice.

11 CA -00027723-013 Part Time Employment

The Respondent disputed that the complainant had been treated less favourably than a full-time employee.

• Findings and Conclusions:

1. CA-00027723-004         Terms of Employment Act.

I have listened to both parties and have considered their responses. I find that there were no material changes to the complainants’ terms of employment. The two requests to work further hours were poorly managed by the respondent, yet the complainant did not advance a grievance on the topic. We spent some time at hearing discussing the parameters of a grievance and it was clear to me that the complainant was unfamiliar with this means of conflict resolution. Nothing in this finding takes away from the complainant’s distress at being asked to work extra. However, I have not identified a breach of Section 5 of the Act, the claim Is not well founded.

3 .CA -000027723-005   Unfair Dismissal under the Industrial Relations Act

I investigated the dispute raised by the claimant. I was immediately struck by the overly casual approach exhibited by both parties to the employment relationship. The claimant did not have a readily identified access to a contract of employment or a staff handbook, both important tools and road maps to address the situation that evolved for the parties on 14 March 2019. I appreciate that the Employer presented a statement of terms of employment at hearing.

I was assured by the Employer that a Grievance procedure was in place, but I have not seen a copy. As I reviewed the events as described by the parties, I was mindful that collateral information from the chef may have helped to clarify this issue. The claimant believed that he was fired, yet no paper work followed to back this up. The claimant did not make any effort to re-open the dialogue with the Employer once the dust settled. Instead, he described feeling shocked and dejected at his treatment. He clearly believed that he had been wronged.

From the employer’s perspective, they believed that the measure adopted to de-escalate the events of 14 March were a once off and not a termination of employment.

For my part, I found that the claimant held a genuine belief that he was fired. He shared details of the omission to take his medication that morning and attributed this as a potential root cause for the upset, which he contended was exaggerated by the employer. For my part, I can understand that, as everyone can have an off day. However, I found that the claimant did not revisit this matter by seeking to return to work at any time. He had a valuable opportunity during his 1:1 conversation with his former employer within a week of the incident to put this “wrong “on the table for discussion and targeted resolution. The Claimant told me that he believed that there was no point. Equally, I found that the employer had not taken the opportunity to reflect on the events of March 14 and reach out to the claimant.

In addition, the employer did not manage his exit by asking him to sign a letter of resignation. This has allowed the lack of clarity to crystallise into this high level of perpetual confusion, where I have not had the benefit of either a letter of resignation or a letter of dismissal.

Taking all that I have heard and read in the case, I have identified that the claimant was sent home at 11.30 am on 14 March 2019. He was due to finish at 3 pm. This was poorly managed by the employer as nobody followed up with a request on his welfare. Instead, the employer allowed the claimant to have the next word in the case, where he sought items reflecting termination one week later. These were acceded to forthwith.

I must conclude that while the final days of the employment were poorly managed by the employer, the employer did not terminate the claimant’s employment on 14 March 2019. I have not found merit in the dispute.

CA-00027723-006 Unfair Dismissals Act

I have listened carefully to both parties in this case. It was not disputed that the complainant had less than the statutory requirement of 12-month service to ground a complaint under the Unfair Dismissals Act. He did not provide any evidence of seeking an exemption to those grounds. I must find that I lack the jurisdiction to hear the complaint. The complaint is not well founded.

CA -00027723-007   Industrial Relations Act

The Claimant submitted that he had received a disciplinary sanction during his employment. He contended that being sent home mid-morning on 14 March 2019 was an unfair action. This had caused him a high level of upset and prompted a period of withdrawal and anger at how he was treated at work.

He believed that he had not acted outside his usual behaviour and believed that he was wronged. The Claimant was highly complementary at the positive relationship he had sustained with his employer and saved his ire to direct towards the Chef who sent him home.

I understood that it was important for me to listen to the claimant and permit him to ventilate his concerns at his exclusion. I then listened to the Employer and could identify a breakdown in communication. Of course, the Employer ought to have followed up the claimant once he was sent home. That would have demonstrated a kind and compassionate approach. However, I must find that it was open to the claimant to clear his lines of communication also between 14 and when he spoke to the Employer on 21 March.

A complaint to the WRC must be prefaced by some attempt to resolve matters at the workplace. I am satisfied that neither party addressed the fall out of March 14 at any time in its wake. This was a certain missed opportunity. However, I must accept that the Employer has not applied a disciplinary sanction on the claimant on 14 March 2019. The situation was one of de-escalation which was not followed up by either party. The matter remained in an employment limbo until the claimant affected his termination of employment some 7 days later.

I have not found merit in this Dispute.

CA -00027723-008 Employment Equality

The Complainant submitted that he had been discriminated against on grounds of disability by way of a collective agreement containing discriminatory provisions. He also complained that he had been discriminated against by way of an Occupational Pension.

The Respondent disputed any knowledge of the complainant’s disability. The Respondent was not aware of a collective agreement between the parties. The Complainant did not provide any details on either a collective agreement or pension. He confirmed that he had not disclosed details of his Attention Deficit Disorder prior to or during his employment. He managed his condition.

Having reflected that the Complainants complainant of Discriminatory Dismissal had been ruled out on duplication reasons. I considered his claim for discrimination on grounds of disability. I have not been satisfied that the complainant has satisfied the Burden of Proof provided for in Section 85 A of the Act. I have not identified facts from which I can infer discrimination. The claim has not satisfied the prima facie test and is not well founded.

CA -00027723-009

I have dismissed this claim in accordance with Section 22 of the Equal Status Act as misconceived. The Respondent did not provide any Goods or Services to the Complainant. He had not exchanged the ES1 form or its equivalent with the Respondent.

CA -00027723 -010

I asked the complainant to particularise this claim. He stated that he was unsure what the claim meant. the Respondent disputed that they had terminated the employment.

During this case, I realised that the claimant had a strong instinct to ventilate his perceived unfair treatment at work. I listened carefully to his presentation. He was largely unfamiliar with a Grievance Procedure. He denied that he resigned his employment.

Based on the facts as presented, I find that Section 7(1) of the Minimum Notice and Terms of Employment Act 1973 applies to these facts. The Complainant waived his right to notice when he did not discuss this request during the “winding up “discussions on 21 March with the Respondent. I note that the Reference was dated 14 March 2019.

CA 00027723-011

This complaint is not well founded as I have identified that the complainant waived his right to notice.  

CA -00027723-012

This complaint is not well founded as this claim is meant to originate from an employer. The Employer in this case did not raise an issue of notice.

CA -00027723-013

I have listened carefully to both parties in this case. I note that the complainant was aggrieved following his being requested to work extra hours over two weeks early in 2019. I noted that he developed a respiratory tract infection during the first week of February and was feeling vulnerable.

He did not raise a grievance in response to this period of dissatisfaction . He did not name a comparator in his claim in terms of less favourable treatment than a full time employee . I find that I have insufficient information on which to make a decision in this case . I find that the claim is not well founded .

Dated:   15th October 2019

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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