Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Gastro Pub

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-00030819-001

10/09/2019

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

CA-00030819-002

10/09/2019

The respondent decided to terminate the complainant’s employment by way of a ‘settlement agreement’. The complainant was not afforded proper procedures.

The complainant commenced work with the respondent on 4th December 2017 and was dismissed on 10th June 2019. On 1st May 2019, at an appraisal conducted by the Managing Director (Mr A), the complainant requested a more structured position from 9.00 a.m. to 5.00 p.m. as she had been working excessive hours since she had commenced employment. She also expressed the view that she was finding certain customers difficult and that, combined with the long hours, was causing her to feel pressure.

On 10th June after she completed her shift, Mr A called the complainant into the office.   He stated that following the complainant’s comments at the appraisal that he felt that the work was the wrong environment for her and that a decision had been made to let her go. He stated that she could go immediately or at the end of the week and that they would pay her three weeks’ pay.

The complainant was shocked at the dismissal as at no stage had she ever stated that she wished to resign or leave her post with immediate effect.

The complainant emailed Mr A on 17th June requesting a copy of the minutes of the appraisal meeting on 1st May, and a statement of the reasons for her dismissal. Mr A responded the same day asking the complainant to attend the office to sign a Settlement Form. By email on 25th June Mr A contacted the complainant stating that

“Our discussion was not a disciplinary nor were you dismissed.   The meeting was to highlight that we wished to cease your employment with the business and to make you an offer of 3 weeks pay as form of a settlement agreement.”

The complainant alleges that she was summarily dismissed without due procedures.

In addition, the complainant alleges that she did not receive any payment in lieu of notice.

The complainant worked for the respondent from 4th December 2017 as an Assistant Manager with the business from its opening. She was a reliable employee during this time although the respondent started to receive comments from regular local customers that the complainant was displaying a negative attitude which impacted on their experience. Upon investigation by the General Manager it appeared that this negative attitude was also displayed towards other employees and creating unrest within the team. After Mr A’s own observation of some negativity from the complainant a brief discussion was held between Mr A and the complainant on Wednesday 24th April following a Weekly Management Meeting. Mr A asked the complainant how she was feeling as he could see that she appeared negative and he was concerned how this would impact the business, other employees and herself. The complainant informed Mr A that she was becoming frustrated but this was not work related and more personal in that she hated the town and overall feeling within the county.

On Wednesday 1st May Mr held an Appraisal with the complainant and Mr B, the General Manager, present as a witness. As a business the respondent’s appraisal, named ‘Checking-in’, is focussed on the employee providing answers to key questions that encourage open dialogue and engagement. The complainant, in general, provided good response to the questions and raised concerns where applicable. During the appraisal there were certain comments that caught Mr A’s attention. When asking the question “What is your least favourite aspect of the job?” the complaint replied that she hated the region and hated guests. She also commented that she was looking to take extended time away from the business in November and would look for a career move away from hospitality ideally. These key points concerned Mr A because the respondent ran a Gastro Pub in a small town that has a very strong community and if there was a senior member of the Management Team saying that she hated the town and community this would not reflect well and could cause issues within the community and impact the success of the business.

Regarding the comment that the complaint made regarding her taking extended time away this was not recorded directly on the appraisal as it was a general discussion but the concern was that there was a senior management member of the team that not fully committed to the long term business.

Following the appraisal Mr A continued to review performance and attitude as well as comments from regular guests. There was no clear difference in the complainant’s performance but further general comment was made by a regular customer to the effect that the Pub was losing customers’ long term loyalty due to the complainant. Given this and the comments made by the complainant the respondent came to the conclusion that this environment might not be suitable for the complainant and that her role would be made redundant.

On Monday 10th June Mr A held a meeting with the complainant to raise his concerns on her comments in her appraisal and also comments from some regular guests. He advised the complainant that this was not a dismissal but a settlement for her to exit the business and that following this her position would be made redundant. The settlement offer was 3 weeks’ pay above and beyond any due pay up to 10th June and accrued holiday pay.

On Tuesday 25th June Mr A sent the complainant an email to advise that the meeting they had had was to discuss settlement and not termination of employment and that for any settlement the respondent needed to conduct a meeting to agree on the settlement. There was no reply.

On 25th July the complainant received final payment of all outstanding holiday accrued.

Unfair Dismissal

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6 (6) of the Act states;

(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 other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;

• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

In evidence the respondent confirmed that he had already decided in advance of the meeting held on 10th June 2019 that the complainant would have to leave. He confirmed the evidence of the complainant that he had told her at the meeting on 10th June ‘ that he felt that the work was the wrong environment for her and that a decision had been made to let her go’.

It is clear that the respondent failed to afford the complainant proper procedures in dismissing her.   She was not advised before the phone call with of her of the purpose of the meeting nor of her right to be represented in a properly convened disciplinary hearing, and therefore was not in a position to respond properly to the allegations. The respondent seemed to be of the belief that, if he gave compensation in excess of what the complainant would have received in statutory redundancy, that he was within his rights to terminate her employment without using disciplinary procedures. The complaint of unfair dismissal is therefore well founded, and the complainant was unfairly dismissed.

The complainant confirmed that she had received three weeks’ pay from the respondent in July and that she was out of work from 10th June for 11 weeks. I have therefore calculated this part of the award based on 8 weeks at €447 per week. She earned €171 p.w. less in her new job than she had in her employment with the respondent. I have therefore included this loss and am awarding a total amount of compensation in the sum of €10,000.

Minimum Notice

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states;

”An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

The complainant confirmed that the respondent paid her for three weeks after her employment was terminated and therefore she received in excess of the statutory amount due under the Act and therefore the Act was not contravened.

1         Unfair Dismissal. I find that the complainant was unfairly dismissed, and I order the respondent to pay the complainant €10,000 in compensation.

2         Minimum Notice. I find that the Act was not contravened.

Unfair Procedures