ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021604

Parties:

	Complainant	Respondent
Anonymised Parties	Manager	Entertainment Venue

Complaint:

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-00028402-001	14/05/2019

Date of Adjudication Hearing: 12/11/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Manager from 19th February 2018 to 19th March 2019. He was paid €769.23 per week. He has claimed that he was unfairly dismissed and has sought compensation. The Respondent has denied this complaint.

Summary of Respondent’s Case:

The Respondent has accepted that there was a dismissal. They stated that the Complainant was employed as Assistant Manager, not Manager as alleged. In January 2019 a new General Manager was appointed. The Complainant had taken on the role of Manager during the previous Manager’s absence. It was clear Mr McD was taken on as the new General Manager. The Complainant was his Assistant Manager. There was no animosity between them. When the previous General Manager left the Director deemed that the Complainant was not fit to take over. They had a number of issues with the Complainant on a regular basis, such as: he was wearing red runners at work, he wore ear phones at work, he put special needs children in yellow jackets. These issues were dealt with directly by his manager. On 6th and 7th March the Complainant was not at work. The Director spotted him leaving a local hotel car park. The Complainant saw him and texted to advise that he was on two days jury duty. He had not told the Director about this. The HR person confirmed that he had notified her about this jury duty. The Director spoke to him then and it was dealt with. On 12th March the Complainant was rostered for work but was not present. He told them he was on jury duty. He had not informed the Director. On Wed 13th March 2019 the General Manger rostered a management meeting for Thursday 14th. The Complainant didn’t attend. He was rostered off that day, but this was only a half hour meeting and he could have easily popped in for that meeting. On 18th March the Director decided that the Complainant should be spoken to. The purpose of the meeting was to see if matters could be addressed, if not then a decision had to be made. The General Manager was accompanied by an HR person. They decided to terminate the employment as he had missed days at work and had not notified them. Missing work is a very serious problem for the company. It was deemed that the Complainant had lost interest in the business. The dismissal was warranted. He had lost interest in the business and he had been absent from work without informing the Company. This dismissal was not unfair.

Summary of Complainant’s Case:

He stated that he was employed as Manager reporting to the Directors. His contract of employment confirmed this. His position involved working with another manager K McG at the same level of management. Both Managers were responsible the day to day running of the business and they had equal standing. On 19th November 2018 the other Manager resigned. The Directors complimented the Complainant on his work and asked him to run the business in the absence of the other Manager, which he agreed to do. At that meeting he told the Directors that his wife was expecting a baby in January. Following that announcement, the relationship changed. He was advised that a new manager had been recruited and that the roles would be split. Despite seeking clarification on what the roles would be, it was never given it. During the period before the appointment of the new Manager he had to run the business on his own over the busy Christmas period. This impacted negatively on his home life. The new Manager started on 14th January and they met on 15th and the Complainant was shocked to learn that the new Manager appeared to believe the Complainant was his Assistant. On 16th January he advised the new Manager that his position and title was Manager. On 17th January he put forward a grievance to the Director about the fact that he had been demoted and he wanted to discuss this matter. This never took place. He then had to speak to the other Director about this matter. Around this time, he started to experience bullying and harassment, such as not being informed of supplier issues, a major change had taken place without discussion, exclusion from decision making relating to staff and payroll. This weakened his position; an important meeting was scheduled for his day off. Despite speaking to his co-manager, the other manager sent an email to a supplier referring to the Complainant as his Assistant Manager. On 21st February the fellow Manager chastised him about operational matters such as time keeping. This led him to feel marginalised and being edged out. On 19th March his fellow Manager told him to take a seat in the public area, HR was also present. Staff were in close proximity to this area. He had no prior notice of this meeting, nor was he given any information about the meeting. He was not given the right to representation. He was not given the right to defend himself. The Manager informed him that his position was being terminated. No reason was given. He asked for a reason to be given in writing and he was told that the Respondent didn’t have to give one. He was not given the right of appeal. He was then told to leave the building immediately. Where the meeting took place was highly inappropriate and he can only assume that it was done to humiliate him further. He phoned the Directors before he left the building, but they did not answer or return his call. He then texted the Directors seeking a meeting. He received no response. After he lodged a complaint with the Workplace Relations Commission (WRC) the Respondent suggested mediation, but this did not happen.

It is his position that his dismissal was unfair. The Respondent failed to apply any of its own policies and procedures contained in the Employee Handbook. They failed to advise him of the purpose of the meeting and to invite him to the meeting on 19th properly, no fair investigation took place, no right of representation was given, he was denied the right of reply, he was dismissed without any warnings on his file, he was not given the right to defend himself, he was denied being given the right to have the reasons for dismissal explained to him, he was not given the right of appeal despite requesting this. He also stated that he was not afforded the right to apply for the manager’s role. He has sought compensation.

He was devasted after being dismissed. He has three young children and the youngest only two- months old. He couldn’t understand why he was dismissed. He had no warnings, he had covered the whole operation while they were recruiting a replacement manager. The manner of the dismissal was disgraceful, in full view of everyone while a board room was available but not used. The dismissal shocked him totally and despite this he made 32 applications for similar posts but was unsuccessful. He blames the negative impact that the dismissal had on him and his family as the reason why he was unsuccessful at getting a job. He eventually took up a job on 2nd September 2019 earning €12,000 per annum. By then this suited him as he had been so badly affected by the dismissal and its impact on his very young family. He has sought compensation.

Findings and Conclusions:

Substantive matter

I note that the Respondent referred to the Complainant missing time at work. However, it was established at the hearing that the time in question was when the Complainant was on jury duty and he had notified HR in writing, who obviously failed to notify the Directors.

I accept that it would have been appropriate for the Complainant to have, out of courtesy, informed the Directors himself. However, I find that he was not missing from work.

I note that the Respondent referred to the Complainant wearing red runners at work which did not comply with dress standards. I note that the Respondent confirmed that they spoke to him and the matter was dealt with and there was no evidence of a repeat of this matter.

I note that the Respondent referred to the Complainant wearing ear phones at work. The Complainant stated that this was before the store opened. I note that the Respondent confirmed that they spoke to him and the matter was dealt with and there was no evidence of a repeat of this matter.

I note that the Respondent referred to the Complainant failing to attend a management meeting. I find that this meeting was arranged for the Complainant’s rostered day off. I find it unfair that the Respondent should then take the view that the Complainant absented himself from that meeting.

I find that the Respondent failed to address the Complainant’s grievance about his alleged demotion.

I note that in the decision O’Brien v Professional Contract Cleaners Ltd UD 184/1990 it stated, “An employer before dismissal should first tell the employee of the respects in which he or she is failing to do the job adequately, warn the employee of the possibility of dismissal on this ground and give the employee an opportunity of improving performance”.

I note that the Tribunal has ruled that there is an obligation on the employer, where the competence of an employee is in question, to update itself on that employee’s performance before taking the decision to dismiss.

I note that the Respondent stated that they believed that the Complainant was not “up to the job” when considering a replacement to the co-manager who left the business.

Yet I note that the Respondent left the Complainant in complete charge while filling the vacancy, which was over the very busy Christmas time.

I find that if the Respondent had concerns about his managerial ability then they should have spoken to him.

I note that there were no warnings on his personal file.

I find that the Respondent failed to give the Complainant reasons for the dismissal, despite him requesting them and also it is his legal right under this Act.

I find that the Respondent did not set out the reasons why they decided to dismiss him.

I find that the dismissal was unfair on substantive grounds.

Procedural matter

I find that there were no warnings on his file.

I find that the Respondent mismanaged the Complainant’s title at work. I note that his contract of employment refers to his title as Manager. Yet the Respondent referred to him as Assistant Manager, despite the Complainant’s protestations.

I find that if there was a change in his title then the Respondent should have notified him within one month after the change according to Sec 5 of the Terms of Employment (Information) Act.

I find that the Respondent accused the Complainant of missing time at work, yet the Complainant was on jury duty and had notified HR in writing of this.

I find that HR had failed to inform the Directors.

I find that the Respondent had relied upon allegations of breach of dress code by wearing red runners at work and also using ear phones at work.

I note that these items were dealt with by the Directors at that time and there was no evidence of a repeat, so these matters were effectively closed.

I find that the Complainant had no expectation of being dismissed when he attended a meeting on 19th March.

I find that he was not informed of the purpose of the meeting.

He was not told in advance of that meeting what he was being accused of.

He was not advised that this meeting could lead to his dismissal.

He was not given the right to defend himself.

He was not given the right to reply.

He was not given the right to representation.

He was not given the right to appeal the outcome despite requests to do so.

I find that the location of the meeting was in a public area, despite a boardroom being available.

I find that there was a predetermined outcome to that meeting, which was dismissal.

I find that this dismissal was hopelessly unfair from a procedural point of view.

I find that the dismissal lacked any form of fair procedure whatsoever despite the presence of a HR person.

I find that the Complainant was treated in a most disgraceful manner.

Mitigation of loss

I note that the Complainant stated that he was devastated by the sudden loss of his job, no reason was given and he was required to exit the building with immediate effect.

I find that he had suddenly lost his job and he had the responsibility of a young family of three children, the youngest being two months old.

He stated that this impacted upon him in a considerable way.

I accept his evidence that this impacted on his ability to look for another job.

I note that he made 32 applications for a similar type of job, but he was unsuccessful.

I note that by September he accepted a part time coaching job at a salary of €12,000 per annum. He stated that suited his lifestyle by then.

I note the Respondent’s position is that he has failed to mitigate his loss and that he has accepted a position earning €12,000 per annuum, because it suited him, despite the fact that there are plenty of job opportunities in the field of his qualification. They stated that this must be reflected in the final decision.

I find that the Respondent has failed to take on board the impact that their gross mishandling of his dismissal has had on him, his confidence and his ability to move on.

Under those circumstances I find that the Complainant has made reasonable efforts to mitigate his loss.

I find that he has suffered an annual loss of €28,000 approximately as a result of this unfair dismissal.

Decision:

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.

For the above stated reasons, I find that the dismissal was unfair both substantively and procedurally.

I have decided that this complaint is well founded.

I have decided that the Respondent should pay the Complainant compensation of €35,000 within six weeks of the date below.

Dated: 5th February 2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Unfair dismissal both substantively and procedurally