Complainant

Respondent

Anonymised Parties

A Chef

A Restaurant

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-00030398-001

21/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030398-002

21/08/2019

The Complainant’s claims fall under:

1.            Unfair Dismissal - CA-00030398-001

2.            Organisation of Working Time Act - CA-00030398-002

The Respondent disputed the dismissal was in dispute and therefore, the burden of proof rests with the Complainant.

In relation to the Organisation of Working Time Act the burden rests with the Respondent.

The Complainant alleges he was unfairly dismissed on 6 August 2019 and submitted the claim under s. 27 of the Organisation of Working Time Act 1997 on 21 August 2019. I heard the complaints on 26 November 2019. The cognisable period for this claim dates from 20 February 2019 and ends on the date of submission of the claim to the Workplace Relations Commission on 21 August 2019.

Unfair Dismissal - CA-00030398-001

The Complainant commenced employment as a Chef with the Respondent on 26 February 2018 and signed a contract of employment on 5 April 2018.

In or around March 2019, the Complainant took time off work following an accident where he slipped in the shower. He returned to work for a period of approximately one week.

In or around April 2019 the Complainant submitted that he suffered an injury to his foot and was certified on sick leave. On 15 April 2019, the Complainant met with the owner of the Respondent and explained that he required time off work due to his injury and presented a copy of the medical certificate. The Complainant gave evidence that he suggested to the Respondent that he hire another chef to cover his sick leave. It was the Complainant’s evidence that the Respondent asked him how he knew he was going to out sick for a lengthy period and told him that he had hired another chef and asked the Complainant to leave. The Complainant stated that the Respondent told him to leave the premises and followed him out of the restaurant to return his sandwich.

The Complainant stated he continued to submit medical certificates from his GP to the Respondent.

By letter dated 29 July 2019 the Respondent requested that the Complainant attend a meeting with him on 1 August 2019. The Complainant advised the Respondent that he remained unfit for work and it would be approximately 4-6 weeks before he could return to work. The Respondent told him he was a vital member of staff and another chef was not working out. The Complainant advised that he would “put the word out” to find a replacement chef as the French chef had not worked out. It was the Complainant’s evidence at this time he was not suggesting that he would find a replacement to cover his sick leave. The Complainant stated that he agreed with the Respondent that he would continue to submit medical certificates and keep him up to date with his progress to which the Respondent replied “grand”.

On 6 August 2019, the Complainant obtained a medical certificate and sent it by posted it to the Respondent. By registered letter dated 7 August 2019 but received on 13 August 2019, due to the Complainant house move, the Respondent advised him that he had issued his P45 with a final date being 6 August 2019 “as agreed”. The Respondent further stated that he had included an additional sum of €200 as an ex gratia payment. The Complainant stated that he was very surprised to receive such a letter and disputed that he “agreed” to terminate his employment. The Complainant attended his solicitor who wrote to the Respondent by letter dated 20 August 2019. There was no response to the letter of the 20 August 2019 by the Respondent.

The Complainant claims that he did not resign but was dismissed from his position with the Respondent.

Financial Loss

The Complainant’s contract of employment states that he was paid €14.10 per hour “to take account of additional hours worked in excess of normal hours” and the working hours were a minimum of 39 hours per week.

While it is not provided for in the contract of employment, the Respondent stated the Complainant received a daily meal allowance of €4.60per day which equals €23 per week. This was not disputed by the Complainant.

The payslips provided by the Complainant show a consistent weekly gross wage of €600. The Respondent confirmed this.

The Complainant gave evidence that he continued to seek medical attention from both his physiotherapist and his GP. He was deemed fit to return to work on 20 October 2019 by his GP. For the duration of his illness the Complainant received Illness Benefit and on 1 November 2019 he was transferred to Job Seekers Allowance.

The Complainant gave evidence of his intends to find alternative employment as a chef along with documentary evidence and his engagement with the Intreo Services. As of the date of the hearing the Complainant had not found alternative work but remained hopeful.

Organisation of Working Time Act - CA-00030398-002

The Complainant gave evidence that he worked from 12pm to 9pm / 9.15pm, 5 days a week. He stated that he would get between 10 – 30 minutes break depending on the time of year and how busy the restaurant was. The Complainant stated that he had less chance of getting more than a 10-minute break during the high season of April – October. The Complainant stated that he would be given a meal which he would prepare and would either eat it on the step outside the kitchen door or in his car.

In response to the timesheets presented by the Respondent, the Complainant accepted that he did sign the sheets. He stated in his evidence that he was asked to sign them on Tuesday or Wednesday when his payslip was given to him. He stated he did question it once but was dismissed.

The Complainant stated that he always started at 12pm and only on one occasion that he can remember did he start at 1p.m. in November 2018 when he had to attend a funeral of an industry colleague. He stated that the time sheets were inaccurate and never received a one-hour break for lunch.

Unfair Dismissal - CA-00030398-001

The Respondent read through his statement, which was dated 16 September 2019 and submitted, to the Workplace Relations Commission. The Respondent stated that he assist the Complainant in providing him with a reference and filling out the necessary application forms to assist him get a mortgage. It was the Respondent’s evidence that it was around the time the Complainant got the keys of the house that he obtained his first medical certificate in March 2019. He stated the Complainant told him he needed time off to move to a new house.

The Respondent submitted that in April 2019 the Complainant came to him and suggested he hire another chef as he would be taking 2 months off to renovate his house and advised him that he would get a payment from the Department of Social Welfare while he was off. The Respondent stated he did not agree to this and told him if he was genuinely sick that he should not be at work.

The Respondent noted that a medical certificate arrived for a period of four weeks with no reason for his absence. The Respondent stated in his oral evidence that he had an issue with the length of the medical certificate and the lack of information on it. He also accepted that he never raised this issue with the Complainant directly.

The Respondent accepted that he received text messages from the Complainant advising of his progress. The Respondent complained that these messages did not give him enough information and requested on 8 July 2019 to let him know “in advance”. The Respondent gave evidence that he required notice to allow for the preparation of the rosters.

The Respondent gave evidence of the letter he sent on 29 July 2019, which requested that the Complainant attend a meeting on 1 August 2019 as he had been out of work since April 2019. The Respondent stated he was “hoping he would be ready to come back work after being out for 5 months.” The Respondent gave evidence that during the meeting the Complainant stated he “won’t be coming back” and to “do whatever was best for the business” but to wait until after the August bank holiday weekend. The Respondent stated that he assume the Complainant asked him to wait until after the bank holiday, so he would get an additional payment for the public holiday.

By registered letter, sent at 2.30pm on 7 August 2019 the Respondent confirmed he sent a letter to the Complainant as had been agreed along with an ex-gratia payment of €200 to “show the tone of the meeting as being friendly”. The Respondent stated that on or around 9 August 2019 he received a medical certificate from the Complainant.

The Respondent questioned the Complainant’s motivation for taking the time off as he was of the view he took the time to renovate his house but also accepted he was not a medical doctor to look behind the medical certificates. He accepted in cross-examination that he did not have the Complainant medically examined as provided for in the contract of employment. When questioned as to why the Complainant told he is would be back to work in 4-8 weeks and expected to return to work, the Respondent responded that he had “no explanation” for this. The Complainant’s Solicitor pointed to the time frame in which the Complainant was deemed medically fit to return to work, which was just over the 8-week period. When asked why the Complainant would went to the Doctor for a medical certificate and submitted it to the Respondent, if he had resigned, the Respondent stated that he only sent it in after he got paid on the 9 August 2019. This was strongly disputed.

Organisation of Working Time Act - CA-00030398-002

The Respondent stated the Complainant never worked more than 39 hours per week and received €600 gross per week and a meal allowance of €4.60 per day.

He stated that the Complainant worked from 12pm – 9pm with one hour for lunch between 5-6pm or 1pm – 10pm with one hour for lunch between 5pm – 6pm.

The Respondent provided two examples of time sheets with other the first-time sheet showing a start time of 12pm and the second a start time of 1pm. The Respondent explained that he filled out the time sheets and the employee signed it.

He stated that the Complainant received €600 gross per week or €31,300 per annum and he was “not a minimum wage employee”

The Complainant’s solicitor put it to Respondent that the hours of work as documented on the time sheet and payslip were not a true reflection of the hours work. It was put to the Respondent that the hours recorded on the payslip were simply inserted to add up to a consistent total sum of €600 gross per week. The Respondent responded by stating that chefs only wanted to know how much they would get per week.

Unfair Dismissal - CA-00030398-001

The Respondent provided the Complainant with a one-year fixed term contract of employment on 26 February 2018, which had expired on the date of the alleged dismissal. However, both parties accepted that this contract was reflective of the terms and conditions of employment. The Complainant signed it on 5 April 2018 with the Respondent signing it on 5 November 2018.

The following clauses are of particular relevance in this case:

• The Illness Clause requires that medical certificates must be submitted “after the third day of a continuous absence and on a weekly basis thereafter.”

• The Medical Examination clause allows or the Company to require an employee “to attend a medical examination by a doctor chosen by the Company to determine your fitness to work in general or in relation to specific duties.”

• The Notice of Termination Clause requires “All notice must be in writing on a company Cessation form to the Manager”

It is also noted the Company has an extensive Disciplinary Procedure outlined in the Contract of Employment.

The first question is to ascertain whether the Complainant resigned from his employment or if the Respondent dismissed him from his employment. There is a clear conflict of evidence in the case.

In the circumstances where the Complainant did not provide a letter of resignation or most notably did the Respondent seek the completion the company cessation form as stated in its own procedures, on the balance of probabilities, I find that the Complainant did not resign from his position. Consequently, it can be concluded that the Respondent dismissed him from his employment.

Where an employee is found to have been dismissed from his employment there is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by s. 6 of the Unfair Dismissal Acts 1977- 2015:

“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.”

Noonan J. in  Bank of Ireland –v- O’Reilly[2015] 26 E.L.R. 229 held: “…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 …. “.

I do not accept the Respondent’s argument that the Complainant only obtained the medical certificate after the final payment was made. The medical certificate is signed and dated by the Complainant’s GP on 6 August 2019, the Tuesday after the August Bank Holiday. The Respondent himself gave evidence that payment was not made until 9 August 2019.

The Respondent wrote the letter to the Complainant noting the P45 had issued on 7 August 2019 with a final date being 6 August 2019 and sent it by registered post on the same afternoon. The letter notes that there was an agreement at the parties meeting on 1 August 2019 to issue the Complainant’s P45. This is strongly disputed by the Complainant. There are no meeting notes of the meeting on 1 August 2019. The Complainant compiled a note of the meeting in or around 13 or 14 August 2019 albeit not signed or agreed by the Respondent.

Consequently, I find that the letter of 7 August 2019 was a letter dismissing the Complainant.

The Respondent’s actions are entirely void of fair procedures.

Furthermore, I find that there is no reasonable or justifiable reason for dismissing the Complainant nor were any of the principles of natural justice or the procedure laid out in the contract of employment followed.

It is unclear what the purpose of ex gratia payment of €200 made by the Respondent. It is noted that it was returned to the Respondent by the Complainant in a letter dated 7 October 2019.

Financial Loss

Financial loss, is defined in s.7(3) of the Unfair Dismissals Act 1977 as:

“… 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 Act 1967-1991 or in relation to superannuation.

S.7 of the Unfair Dismissals Act 1977 as amended by s. 6 of the Unfair Dismissals (Amendment) Act 1993 places a limit on financial loss:

(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,

I find that the appropriate redress in this case is compensation. It is noted that the Complainant was in receipt of Illness Benefit at the time of this dismissal and continued to receive it until he was deemed fit to return to work on 30 October 2019. Accordingly, during the period from 7 August 2019 to 30 October 2019 the Complainant did not incur any financial loss and thereby any compensation is limited by virtue of s. 7 of the Unfair Dismissal (Amendment) Act 1993.

Organisation of Working Time Act - CA-00030398-002

S.12 of the Organisation of Working Time Act 1997 provides:

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to insubsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee undersubsection (2)shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained insubsection (1)or(2).

The cognisable period for this claim dates from 20 February 2019 and ends on the date of submission of the claim to the Workplace Relations Commission on 21 August 2019. The Complainant was on sick leave from 15 April 2019 until 6 August 2019.

It is noted that both parties agreed the period from November to March is considered the low season. The Complainant accepted that he received a longer break during the low season.

The payslips provided by the Complainant show a consistent weekly gross wage of €600. The Respondent, in his written and oral submission confirmed that Complainant was paid €600 gross per week.  

The contract of employment states that the normal working week was 39 hours per week and daily and weekly rest breaks would be given in accordance with Organisation of Working Time Act 1997.

There is a contradiction of evidence between what is provided for in the contract of employment, the amount stated on the payslips and the time sheets presented by the Respondent together with the Respondent’s own statement that chefs only wanted to know how much they would get per week.

Having examined the evidence and having regard to the totality of the evidence presented, I am satisfied on the balance of probabilities that the Complainant did not get the breaks prescribed by the 1997 Act in the relevant reference period. Accordingly, I find the claim well founded.

Unfair Dismissal - CA-00030398-001

I find the Complainant was unfairly dismissed by the Respondent within the meaning of s. 6 of the Unfair Dismissal Acts 1977- 2015.

Accordingly, I find his complaint is well founded and make an award in the sum of €2,492 being 4 weeks remuneration (wages plus meal allowance) limited by virtue of s. 7 of the Unfair Dismissal (Amendment) 1993.

Organisation of Working Time Act - CA-00030398-002

I find that the Complainant’s claim is well founded.

Accordingly, I make an award of compensation in the sum of €2,400 to be appropriate for this breach.

Unfair Dismissal – Disputed Dismissal– Resignation – Failure to adhere to Company – Organisation of Working Time Act – Breaks – Medical Examination