Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A refugee centre

Representatives

Kenneth McDonnell Solicitor

Unrepresented

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-00029881-001

25/07/2019

The complainant was employed by the respondent from 2nd August 2017 until his dismissal on 29th January 2019.

The complainant was employed as a kitchen porter with the respondent and, in addition, from time to time was encouraged to assist in cooking. He was dismissed from his position on 29th January for cooking chicken for one of the residents. The complainant denies cooking the chicken, and, at the Appeal Hearing under the disciplinary process, a witness confirmed that he had not done the cooking. The complainant also believes that the respondent did not follow correct procedures in handling the case.

The complainant had received a written warning on 3rd January 2019 for placing untraceable meat in the freezer and also in relation to his general appearance. On 28th January he was informed verbally that the manager wanted to see him the following day. At that meeting he was accused of cooking chicken for the residents. He was not given an opportunity to cross examine and was told at the outset of the meeting that the purpose was to terminate his employment. He was not given a copy of the statement by the Head Chef relating to the cooking of the chicken.

The complainant was then dismissed and informed the respondent that he wished to appeal. The appeal took place on 26th February 2019 and the complainant informed the respondent again that the cooking had been carried out by the chef.   The respondent introduced a new allegation that he was too friendly with the residents.

The complainant believes that the action of the respondent in dismissing him was disproportionate.   It was common place for staff not to wear uniforms and also it was common place to store the meat in the way he did. These were the initial two allegations at the earlier hearing. He was not advised of the purpose of the second disciplinary hearing in advance of the hearing. He had provided evidence that the cooking of the chicken was carried out by someone else. The earlier allegations were again raised despite the fact that there had been no reoccurrence of either issue. A new allegation was introduced at the Appeal.

The respondent did not attend, and was not represented, at the hearing. I am satisfied that the respondent was on notice of the hearing and the non-attendance has not been explained to my satisfaction.

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 respondent was not represented at the hearing and therefore did not discharge the burden of proof.

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.

From the evidence presented at the hearing it is clear that the respondent did not follow these procedures in so far as; issues previously dealt with at an earlier hearing were again raised; no proper notice was given for the disciplinary hearing and not details of the allegations were given in advance; no cognisance was taken of the evidence given on behalf of the complainant that he did not carry out the cooking complained of and; the decision to dismiss was disproportionate.

The dismissal was therefore unfair.

The complainant was dismissed on 29th January 2019 and secured other employment on 5th June 2019. In evidence he was unclear as to his previous and current earnings and therefore, the loss he accrued. I have decided on the compensation due based on €11 per hour and an average of 30 hours per week.

I find that the complainant was unfairly dismissed and, in accordance with s.7 of the Act, I order the Respondent pay the Complainant the sum of € 6,000 in compensation

Unfair dismissal, lack of procedures, non-attendance by respondent