Complainant

Respondent

Anonymised Parties

A Head Chef

A Bar and Restaurant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030158-001

11/08/2019

The following is a summary of the Complainant’s case.

The Complainant said she commenced work on 18 April 2018. She said that there was a temporary layoff between 21 January 2019 to 13th April 2019 for kitchen renovation.

The Complainant said that she sent an email to the owners of the business on 23 June 2019 over a number of issues that she had with the business. She said that she was dismissed on 24 June 2019 verbally by Mr A, and given 2 weeks’ notice, which she claims was a reaction to issues that she raised in her email to the owners of the Respondent.

The Complainant said that she had salary issues, she said that when she went for interview, she was given the impression that the position she would be filling would be one of second chef as there was already a head chef employed. However, when she commenced work it turned out that the position, she was filling was that of head chef and she had all the responsibilities that this entailed. She said that she had agreed to work for 13/14 euro per hour as second chef and she was paid €13 an hour. She said when she discovered that she was going to be fulfilling the role of head chef she approached the manager/owner Mr A and asked him for an increase in her salary as the work she was doing was that of head chef not as second chef. She said that Mr A said he had to discuss it with his two brothers also owners of the business. She said that he came back and told her that there will be no raise as they could not afford it, that they were not doing enough food, despite the fact that on average it was producing anything from 90 to over 200 covers daily with just 1 fulltime chef, 1 fulltime kitchen assistant, and a part-time washup/kitchen porter rostered daily. The Complainant said that she was still performing her job correctly, keeping kitchen costs down, keeping the kitchen compliant with HSE regulations, creating menus, producing food, rostering and ordering, keeping the kitchen clean and all that the job of head chef entails. She said that she was averaging from 42.5 to 47 hours per week at this time.

The Complainant said that the reason for the temporary layoff was that the kitchen was being moved from its upstairs location to a downstairs location. This had to be done as the fire officer would not pass the upstairs location as being safe. While she was laid off temporarily, she signed up

with an agency and picked up temporary work in the local hospital catering section. When she returned to work on 13 April 2019, she immediately addressed the issue of her salary once again with Mr A and he said he would discuss it with his two brothers again. This carried on for a number of weeks; the excuse being he had not met with them to discuss it. She said she asked why he could not phone them and was told he needed to get the two of them in the same room to discuss.

The Complainant said that the Respondent had moved downstairs to the new kitchen at this stage and conditions at work had dis-improved rather than improved. The Complainant raised a number of other issues she had with the Respondent at the time. She said that she spoke to Mr. A on almost a weekly basis – but he kept giving excuses to fob her off for another few days. On 21 June 2019 there was an error with the payment of staff, and she was really angry and spoke her mind. She said that she put her issues down on paper and sent it to all three owners on 23 June 2019, and she said that their response was her dismissal.

The Complainant gave a detailed insight into the conditions that she claims she had to work under at the Respondent. She said that she was raising this on a regular basis she said that there were health and safety issues with the continued building work and trying to do this in parallel to the open kitchen. She said that she feels that she was penalised for voicing what she would consider legitimate concerns over health and safety conditions of both staff and customers and for looking for a proper salary for the work that she was doing.

The following is a summary of the Respondent’s case.

The Respondent said that on 8 April 2018 the Respondent’s existing head chef resigned without notice to take up alternative employment and as such creating a backfill requirement. The Respondent said that knowing the Complainant personally, Mr. A made contact and following a meeting on Wednesday 11 April 2018, she agreed to take up the vacant role as head chef. The Respondent said that the hourly rates of pay were discussed and Mr. A agreed to pay marginally over the existing rate as paid to the departed head chef i.e. €13 per hour.

The Respondent said that the Complainant gave notice to her existing employer and commenced employment with it on 18 April 2018.

The Respondent said that its business in the provision of food is seasonal based and each year since first introducing bar food as a sales channel in 2013, its kitchen has closed for the winter period which can extend from pre-Christmas to May annually.

The Respondent said that in line with its usual policy the kitchen closed on 20 January 2019. As no work existed for the Complainant her employment was terminated. The Respondent said that it understands that she sought and obtained new employment with her former employer. The Respondent said that in light of that new employment she transferred her tax credits in full, from the Respondent to her new employer. The Respondent presented a copy of a letter as requested it sent to the Complainant dated 7 March 2019 which confirms the cessation of her employment and the reason for same.

The Respondent said that the kitchen reopened for the 2019 summer season, and the Complainant was invited back to take up the position of head chef and following a required notice period as provided to her then employer, she commenced employment on 13 April 2019.

The Respondent said that over the following 10 weeks of employment the Complainant made a number of requests to Mr. A regarding for her hourly rate of pay to be increased from the agreed level of €13 per hour. Mr. A said that having discussed it with the business accountant he informed her that the business could not sustain a higher rate of pay based on an already extremely low margin achieved within the food sales channel.

On 22 July 2019, the Complainant met with Mr. A and informed him that she could easily get paid more elsewhere and if a pay increase was not forthcoming, she was going to reduce her work to ‘cooking only’. The following day she sent an email and further confirmed this where she said, ‘I spoke to [Mr. A] yesterday and I will be reducing my duties to reflect the rate of pay I am currently getting’

The Respondent said that food safety compliance which includes daily temperature, food storage recordings and management is an established role of the head chef and was performed by the Complainant on a daily basis throughout her employment. The Complainant’s threat to now not complete same provided a significant and unacceptable food safety compliance concern to the business.

The Respondent said that on 24 July 2019, Mr. A requested a meeting with the Complainant where she was provided with notice of her employment termination. The Respondent said that her period of employment was 10 weeks and 2 days, a notice period of 1 week plus an additional week was provided with the last day of employment recorded as 7 July 2019.

The Respondent said that the business considers the Complainant’s termination to be fully within its rights as an employer due to the unacceptable food safety concerns raised by a threat of reduced duties and does not see this falling with the terms of the unfair dismissals act.

Length of Service

Before I can address the matter of the Complainant’s dismissal, I must first investigate whether she has sufficient service to come within the scope of the Unfair Dismissals Act.

Section 2(1)(a) of the Unfair Dismissal Act, 1977 provides that:

“Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,”

Therefore, I have to determine whether the Complainant has at least one year’s service with the Respondent.

In relation to this I note Section (2)(4) of the Unfair Dismissals Act which relies on the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 for a definition of “a period of service of an employee and whether that service has been continuous”.

The First Schedule to the Minimum Notice and Terms of Employment Act, 1973 provides as follows:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.”

There is a difference of opinion between the parties as to why the Complainant was not working in the Respondent’s kitchen. No matter the reason, I have not been presented with evidence that the Complainant was dismissed or voluntarily left her employment. On the balance of probabilities, I prefer the Complainant’s version of events, she was put on lay off until the kitchen was fit to reopen, and she expected to return to her job. I accept the documentation from the Complainant’s stating that she was in the Respondent’s employment from 18 April 2018 to 7 July 2019 and therefore, I find that the Complainant has sufficient service to enable her to avail of the provisions of the Unfair Dismissal Act.

I will now consider whether the Complainant’s dismissal by the Respondent was unfair or not.

The dismissal

Section 6 of the Unfair Dismissal Act 1977 provides that

(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.

[…]

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

[…]

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

I note in the case of Bank of Ireland v Reilly, [2015] IEHC 241 Noonan J. stated that:

“…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. 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 [...]”

First and foremost, the issue in relation to justification of a dismissal needs to be addressed by the Respondent in such cases before the issue of fair procedures is considered and evaluated. It is well established that an employer must be reasonable in regard to how it deals with such cases. The constitutional right to fair procedures and indeed natural justice must be applied in such circumstances and in particular to prevent a dismissal where there has been an alleged breach of fair procedures.

It is clear there is a presumption under the Unfair Dismissal that all dismissals are deemed unfair, except proven otherwise. I note in the within complaint that the Respondent has claimed that because it did not re-engage the complainant until 13 April 2019 that was her “start date” for the purpose of the act and therefore it was well within its right to dismiss her.

As I have found above, I deem that her commencement date was 18 April 2018. Therefore, I find that the Respondent’s primary reason for dismissal, namely, that she had made unreasonable demands and as she had not one years’ service, it could terminate her contract without repercussions, is not valid as a defence under the Acts.

Redress

I deem compensation as the most suitable remedy and that can only be in respect to her financial loss. Therefore, I need to look to the redress provision at section 7 of the Act.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where —

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Therefore, in this case I note that the Complainant walks straight into a new position and was paid better than she was paid by the Respondent. I deem therefore that she was at no financial loss.

Accordingly, the only remedy available is under section 7(1)(c)(ii) of the Unfair Dismissals Act 1977 which states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

Therefore, the maximum compensation that may be awarded is four weeks as per Section 7(1)(c)(ii) above.

I find that the complaint is well founded. I order the Respondent to pay the Complainant compensation in the sum of €1,200, which is equivalent to two weeks wages, which I deem is just and equitable having regard to all the circumstances.

I find that the complaint is well founded. I order the Respondent to pay the Complainant compensation in the sum of €1,200 (one thousand two hundred euro), which is equivalent to two weeks wages, which I deem is just and equitable having regard to all the circumstances.