Complainant

Respondent

Anonymised Parties

Fast Food Restaurant Manager

Fast Food outlet

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-00031707-001

21/10/2019

The Complainant herein resigned his position with the Respondent entity in and around the 22nd of August 2019. This resignation was tendered after five years of service with the company and within four months of the employment having been subject to a Transfer of undertaking.

A transfer of undertaking occurs when a business or part thereof is taken over by another employer as a result of a merger or transfer. When a transfer takes place there is a legal obligation on the new employer to take on the existing staff of the business concerned. The Employee’s accrued service with his or her original employer is deemed to have transferred.

The European communities (Protection of Employees on Transfer of Undertaking) Regulations 2003 (SI No 131 of 2003) apply to any transfer of an undertaking, business or part thereof from one Employer to another employer as a result of a legal transfer or merger.

All the rights and obligations of an employer under a Contract of Employment (including terms inserted by collective agreement) other than pension rights and which existed on the date of transfer are transferred to the new employer on the transfer of the business. The new employer must continue to observe terms and conditions. An employee may not be dismissed solely by reason of the transfer. However, dismissals may take place for economic, technical or organisational reasons involving changes in the workforce.

If an employment is terminated because of a transfer involving a substantial deterioration in the working conditions of the employee, the employer concerned is regarded as having been responsible for the termination.

 The Complainant attended with representation and I was provided with a comprehensive written submission which was shared with the other side. I heard from the Complainant himself and the Respondent witness was given an opportunity to challenge same.

The Respondent was represented in the person of its Director MS. He gave evidence of how this termination of employment came to happen. He denies that there was an Unfair Dismissal.

I have carefully listened to the evidence adduced herein. The Respondent company was represented by Mr. MS who is a Director of the Respondent company. It is common case that this Pizza company had previously been in the ownership of a Mr. PMK and that by a transfer of undertaking MS took over this business in and around May of 2019. MS was no stranger to the ownership and operation of a food outlet of this sort, and therefore is presumed to have entered into this process with a fair and comprehensive understanding of the obligations imposed on him as the Transferee.

It is also noted that the outlet is part of a large franchise chain and that MS was calling on the head office for advices on the detail.

The Complainant had been with the outlet since 2009 and had worked his way into the position of Assistant Manager. The Complainant seemingly worked well under the previous owner, as evidenced by the longevity of his employment. The Complainant and the new owner appear never to have established a rapport.

Very quickly after he had taken over this enterprise, MS started to install his own friends and members of his own family into key positions. MS himself headed abroad to take care of family business in the first month. The taking of stock and the rostering of staff were taken away from the Complainant as Manager and instead carried out by persons placed into the business by the Respondent. The staff, who had previously worked well under the Complainant became agitated and upset that they were starting to lose hours and have their customary hours interfered with. Most of the staff worked part-time as they each had other work and study commitments. The uncertainty created by interfering with rosters gave rise to confusion and delay. The interference with the roster by MS and his acolytes meant that people weren’t turning up resulting in increased pressure on the Complainant who had to fill slots at short notice. The Complainant described being rung at home on his days off and being asked to find replacement staff.

The evidence adduced was that the new Employer was driven by the need to increase hours and sales whilst at the same time reduce costs and wages. There was a gradual erosion of standards of cleanliness and quality with stock constantly running out and then having to be hustled from sister stores. There was no surplus. No extra foods, no extra cleaning material and no extra hygiene gloves. The Complainant was aware that the standards in this food outlet were deteriorating. The constant drive to save on money was a big factor in the drop-off in standards. For example, unlike the previous owner, MS was no longer prepared to pay his staff for an extra half hour after the shop had closed - to clean up and get things ready for the next day. This gave rise to the cumulative effect of the shop never getting a deep cleaning. Ultimately the shop failed cleanliness inspections conducted separately by both the HSE and the franchise owner. 

As the Manger, the Complainant gave evidence that the numbers of complaints from the public escalated in this period.

The Complainant tried to work with MS in the preparation of the Rosters but was told he couldn’t do it and then when things went wrong (staff not turning up etc.), he was getting the blame. The Complainant found that he was under increased pressure from MS to sort things out but as he was only in the store about 20 hours a week (he was serving an apprenticeship elsewhere) he could not take on the workload now expected of him. In addition, the Complainant felt his work was being closely scrutinised by MS’ cousin who was imposed on the workplace although was apparently not drawing down a salary. The Complainant found the overseeing of his cash reconciliations to be demeaning and insulting. Gradually, all his tasks were removed form this Employee. Whilst he raised complaints his complaints were not heeded and there was no obvious Grievance procedure in place.

There was a general unease amongst staff that they were being asked to train up new employees into positions that would reduce their own hours in the workplace. This was made particularly difficult as the new staff were not fluent in English.

The Complainant decided to use holiday time due to him. This gave rise to a row with the Respondent who did not apparently understand that the Annual Leave owed to employees accrued from the 1st of January and not the date in May when he (MS) had taken over on the Transfer.

Ultimately the Complainant resigned his position. The job that he recognised, and had been engaged to perform, and had enjoyed before this Transfer of Undertaking - had been taken from him. He felt he was forced to resign his position.

I have listened to the Complainant and his colleagues describe the gradual diminishment of their roles within this particular workplace, by this particular Employer. I fully accept that the Complainant had good reason to resign his position by reason of the unreasonable conduct on the part of the Respondent. I am satisfied that the employment terminated because this transfer involved a substantial deterioration in the working conditions of the employee, and the employer concerned is therefore regarded as having been responsible for the termination.

In assessing financial loss I am mindful of the fact that the Complainant had always been working this position to supplement his Apprenticeship salary with CIE. The salary in the apprenticeship has increased in the intervening time.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031707-001 – the Complainant was unfairly dismissed, and I award him €6,240.00 compensation.