Complainant

Respondent

Anonymised Parties

Barman

Public House Proprietor

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-00029315-001

26/06/2019

The respondent presented the following written submission:

“The case regarding the claimant – hereafter referred to as Mr. F Vs The Respondent under adjudication file number ADJ – 00022587 complaint reference number CA – 00029315-001.

By way of background, the business is a is family run bar and restaurant offering hospitality and

luxury accommodation. The claimant commenced his employment with the Bar on 25th

September 2017, and he was hired as a Barman/Waiter (in reality a trainee). The claimant had no experience of bar work whatsoever. He approached the respondent prior to commencing his employment asking for a job as a Barman and to be trained appropriately. We agreed to do so as he convinced Mr. B he wanted to change his career. A copy of his contract of employment is attached. This contract is not signed. However, we have made several attempts requesting the claimant to do so but he chose not to.

By way of a more detailed background, the claimant contacted Mr. B in July 2017 requesting a

job in the bar trade. The claimant at this point did not have any experience, nor had he ever worked in the bar trade before commencing his employment with the respondent’s bar. The claimant was a Care Assistant prior to his employment with the Bar and, it is to our understanding that he has returned to this industry since leaving. Upon his first request to work for the bar, Mr. B could not give the claimant a job as he had no prior experience, however he asked if Mr. B would be willing to train him to the required industry standards. Mr. B agreed to train the claimant and to give him a job.

The claimant never attended a formal bar tending training programme. His training was all on the job and was regularly and primarily delivered by Mr. B. It takes a considerable amount of time to become a competent Barman covering all aspects of the job, especially in a bar of our size and location in a remote area. Mr. B was never fully convinced the claimant was happy to be a Barman working in the bar trade. In hindsight, Mr.B knows he only took up the role to be closer to his girlfriend and relocated to town X as a result.

This is borne out by the fact he lodged a claim in June 2018 regarding his hours of work. This matter was resolved locally between the claimant and Mr. B. At the time, the claimant complained that he was working too many hours and did not have enough time to see his girlfriend. This came to light when the claimant complained to the WRC. Mr. B had no idea the claimant was feeling this way and arranged to meet him to discuss same. As we were able to resolve this issue locally, the claimant did revoke his claim to the WRC. At no point did Mr. B say to Mr. Fleming the claimant he would lose his job if he did not revoke his claim. Mr. B denies he ever threatened the claimant’s job if he did not drop the case.

When the claimant - initially joined the team, he was told he would be required to work extra hours from time to time. This is normal in the bar trade. Particularly as it is a seasonal business and Mr F agreed to this and knew this was normal. The arrangement arrived at between Mr. F and Mr. B was agreed by both parties and Mr. B continued providing the ongoing training and Mr. F continued to work as normal. Everything appeared to be content.

So much so that in addition, Mr. F was granted time off at his requests, even in some instances at short notice. A timesheet was provided.

The incident that occurred on Sunday 10th March 2019, where Mr. F suggests he was fired from his job. At no point was Mr. F ever terminated. Mr. F in his claim states that he was asked at approximately 11:20pm to serve customers of the business. Mr. F did decline to serve the customers and it was perceived he was right to do so, as serving drink after 11:00pm on a Sunday evening is prohibited under the licencing laws. Mr. B however knew Mr. F was wrong to refuse to serve these particular customers as they were residents of the hotel. As such, they are entitled to be served. This caused Mr. B to enter the premises whilst observing this on CCTV. Mr. F should have been aware of this from his training but instead he was anxious to get home and therefore refused to serve these residents whom were entitled to be served. I am enclosing a copy of the booking receipt. In the subsequent interaction, Mr. F became very animated and aggressive towards Mr. B was he was very anxious to get home with immediate effect. Mr. B believed he was under pressure from his girlfriend to be home as early as possible.

If indeed the customers had left, Mr. F was not in a position to leave early as he would have

still been required to complete the usual duties associated with closing the bar on the night in

question, as the doors were still open; blinds had not been pulled; tables and bar counters were still untidy. The normal practice in the business is when employees are rostered until close, that these duties would be completed as part and parcel of the daily routine before staff can leave for the night.

Despite the extensive training Mr. F had received, Mr. B was disappointed that he had left

the business and business premises in breach of its licensing conditions. Had a member of the Garda Síochana passed, they would have observed the pub was still open for business even though he knew not to serve customers after 11:00pm. His applications of the licencing law were contradictory.

Mr. F claims that Mr. B was aggressive towards him and that he felt embarrassed and

humiliated. Mr. B can confirm he was assertive towards Mr. F regarding the declining to

serve the residents drinks at 11:20pm. However, at no point did Mr. B make any suggestion he

was going to attack him. Indeed, why would he in front of customers? Mr. B was annoyed at how the residents had been treated and he did send Mr. F home as he knew that is where he wanted to be. Mr. B took over his duties at that point, served the residents, and duly shut down the pub for the night which took at least 1 hour.

The incident that Mr. F refers to in his claim form that took place on the 11th March 2019. Mr. F arrived for his shift as normal. In the interest of continuing the training and providing good customer service, Mr. B wished to use the incident that occurred on the Sunday. Mr. B wished to explain to Mr. F that it is Company policy to be polite to customers at all times and that he should be aware of the difference between residents and non residents. It would be quite common in this industry to be attentive to customers that are residents of the business during their stay. No such interaction took place on the 11th March as Mr. F stated from the very outset that he had a life outside of work, and that he had enough, and he would not be staying all night just to serve someone, to which he then proceeded to leave the building. Mr. B called after him ‘can I have your keys please?’ at which Mr. F turned around and threw the keys on the table. Mr. F left of his own accord. Mr. B sincerely believes Mr. F knew bar work was not for him and he found it more difficult than he expected it to be and he has since returned to his old profession.

Finally, it is alleged on the 24th June 2019 that Mr. B allegedly shook his fist at Mr. F and

his fiancé. Mr. B has absolutely no recollection of this. Mr. B travels that road several times

a day to and from work; bringing his children to and from school; going to the wholesalers, and Mr. B has absolutely no recollection of seeing Mr. F on any of these trips. Mr. B may well

have passed Mr. F on one of these trips but has no recollection of seeing him. It is not unusual

for Mr. B to be animated when on the phone in his car.

In conclusion, it was Mr. F who resigned from his position and Mr. B did not request to

terminate his employment. Mr. B had been working with Mr. F as a mentor and to provide

him with the required training of a Barman, and to provide him with the knowledge required to

succeed in the role. The Company attempted to enter into mediation to try and resolve this issue for Mr. F, however he declined to take this offer up”.

In his direct evidence Mr. B stated that he did not think the claimant knew the customers were residents – the customers were unable to start their car and booked in as residents – he asserted that if the claimant had interacted with the customers he would have known this. He further asserted that if the claimant had looked at the guest list at 9.00p.m. that evening, the claimant would have known that the customers were residents. Mr.B was adamant that the claimant did not want the job and had not been looking for additional hours.

The claimant made the following written submission in his complaint to the WRC:

“First of all i had a case against the respondent last year over hours and i got a date for a hearing but didn't turn up. The reason i didn't turn up was because i was told by my boss that if i showed up to the hearing that there would be one outcome from this that i would be sacked. He said he would sort out my hours and pay if i didn't go so i did what he said cause i didn't want to lose my job. but i really regret not going now. I got fired

from my job. I work as a bar man. It was March 10th Sunday night when it happened. Last orders on a Sunday is 11pm there was four people still at the premises and at approximately 11:20pm they asked for another drink and I told them I have stopped serving. Approximately five minutes later my boss had come in who was checking the

cameras on his phone seen I refused them. He became very aggressive towards me and told me to get out repeatedly. I left very embarrassed and humiliated. I really thought he was going to attack me seeing how aggressive he had become. Monday the 11th March I was due in at 3pm. I came in and again he started giving out to me over the situation, I explained to him it was after serving hours he said the four people that were there spend a lot of money over the weekend and that I should of served them. He said "thats one month your wage boy" I explained to him that I have a life outside of work. He said that is my problem. He said it better not happen again I said it to him that I won’t be staying all night after hours just to serve someone he said well give me your keys and get out.

Then on the 24th of June my fiancée and I were in the car and my old boss drove pass

and started to shake his fist at us. My fiancée became scared by him trying to intimidate us. I wanted to forget about the bar   and ive moved on and settled in a much better job but When this happened i decided

to make this complaint I didn't want to be bullied by that bully anymore. “

In his direct evidence the claimant asserted that on the 10th March, he had the bar tidied, the blinds down and the door shut when he was asked by a group of 4 customers for a drink at 11.20. He asserted that he said he had stopped serving – 11.p.m.was closing time. The claimant contended that Mr. B got very angry and asked him how dare he not serve these customers and told him to get out. The claimant asserted that he returned to the bar on Monday the 11th March and Mr. B was still annoyed and questioned how dare he not serve them and told him that’s 2 month’s of wages boy .The claimant stated that he responded that he had a life outside of work and that he would not be staying to serve after hours. The claimant asserted that Mr. B said get out and he left the keys on the counter as he walked out.

The claimant was adamant that he was unaware the customers were residents and he had never been told they were residents.

The claimant set out his attempts to secure alternative employment – he worked initially a 39 hour week, lost hours and was on half wages for a further 6 weeks and was now on 24 hours per week.

I have reviewed the evidence presented at the hearing and noted the conflicting accounts of the parties. I have considered Mr. B’s evidence with respect to the matter of whether it was accepted that the claimant was unaware of the fact that the people who had asked for drink after hours were residents and he confirmed that he did not think the claimant was aware of this. No evidence was presented to demonstrate that the respondent had a clear policy on serving residents after hours or that the staff are required to check the register to determine the residency status of customers requesting alcohol after hours. The practise in place appears to be casual and unclear.

In such circumstances, I consider the actions of the respondent on the Sunday night (10th March 2019) at issue in blaming the claimant were unreasonable. It was accepted that the respondent was annoyed and that he sent the claimant home. While the respondent’s representative sought to present the interaction between the claimant and the respondent the following day (11th March) as a learning opportunity, it is clear that whatever was said, rather than diffuse the conflict, the row escalated. I have concluded that the conduct of the respondent on the Monday, in failing to diffuse the conflict triggered the termination of the claimant’s employment – I find on the balance of probability that the claimant’s account of the final exchanges between the parties on the Monday are the more credible and accordingly I am upholding the complaint of unfair dismissal. I require the respondent to pay the claimant €3,500 compensation for his unfair dismissal.