Complainant

Respondent

Anonymised Parties

A Chef

A Café Bar

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-00031916-001

31/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031916-002

31/10/2019

The respondent says that the complainant gave him oral notice of his intention to leave the company in September and November 2018 and repeated this in March 2019, but that the date of the notice changed.

He sent a text message to the complainant inviting him to a meeting on June 30th and he told the complainant of his intention to terminate the employment as the complainant had made himself unavailable for work

Following this he wrote to the complainant on July 7th, 2019 terminating the employment. He was aware that the complainant had taken on other work in May, but this was not raised with him.

Regarding the Minimum Notice complaint this was not paid because the complainant had said he was leaving.

In the course of his annual leave the complainant received a text message from the respondent asking him to call in for ‘a chat’.

He was told in the course of that meeting that his job was gone due to his unavailability for work.

The complainant strongly disputes this and was often available for work when he was not required.

He denies that at any time he told the respondent that he was going to resign. The reason he was dismissed was because the respondent wished to employ someone at a lower rate of pay than he enjoyed.

The complainant says that he was unfairly dismissed.

In the course of the hearing the respondent was able to confirm that the complainant had never failed to attend for any shift for which he had been rostered.

With this admission the main thrust of his justification for terminating the complainant’s employment collapsed.

He had told the complainant at the meeting on June 30th that he was being let go because he was unavailable for work, an allegation denied by the complainant and confirmed by the respondent.

The other point on which the respondent relied was even less credible; the fact that the complainant had told him that he intended to resign; in one case as long ago as nine months earlier and more recently three months before the employment was terminated.

If the respondent actually believed that he was justified in terminating the complainant’s employment on such a flimsy basis; a statement (denied as it happens) made months earlier and that this entitled him to do so without anything resembling a fair process he is quite wrong and he would be most unwise to do so again.

His submission on this point is not credible, and even if it were true, his failure to seek confirmation of it before acting is fatal to his case, as is his failure to follow any degree of fair procedure in giving effect to the termination.

At the very least the complainant was entitled to a clear notice in writing as to the purpose of the June 30th meeting (and preferably not sent when the complainant was on annual leave).

He had the right to see any evidence of the alleged unavailability for work and be given the opportunity to respond, and he was entitled to be accompanied at the meeting.

None of these rights were accorded to the complainant.

The respondent is an experienced employer and it is not credible that he believed he could lawfully terminate the complainant’s employment in the manner he did.

I have no hesitation in finding it to be a breach of the Unfair Dismissals Act 1977 of a serious nature and an unfair dismissal.

As to his losses the complainant placed these at €1500 but accepted that he had not been applying for jobs and so has made little effort to mitigate his losses as required by both the legislation and the jurisprudence of the Labour Court.

I take this into account in making my award.

The complainant also succeeds under the Minimum Notice and Terms of Employment Act. He has just under four years’ service and is entitled to two weeks’ pay.

I find complaint CA-00031916-001 to be well founded and award the complainant €500.00.

I find complaint CA-00031916-002 to be well founded and award the complainant two weeks wages in the amount of €764.00

Unfair Dismissal