ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024857
Parties:
| Complainant | Respondent |
Anonymised Parties | Fast Food Restaurant Manager | Fast Food outlet owner |
Representatives | Joan O'Donoghue , O'Donohoe Solicitors | Director |
Complaint(s):
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-00031581-001 | 15/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00031715-001 | 21/10/2019 |
Date of Adjudication Hearing: 19/02/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 23rd of November 2018) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
The Employee’s employment with the Respondent company was terminated within four months of the employment having been subject to a Transfer of undertaking. The Complainant had been working in this workplace for nearly three years. 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 involves a substantial deterioration in the working conditions of the employee, the employer concerned is regarded as having been responsible for the termination. |
Summary of Complainant’s Case:
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. |
Summary of Respondent’s Case:
The Respondent was represented in the person of it’s Director MS. He gave evidence of how this termination of employment came to happen. |
Findings and Conclusions:
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 impose 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 2016 and had worked his way into a Management position. The Complainant seemingly worked well under the previous owner. 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 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 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 had other work and study commitments. The uncertainty created by interfering with rosters gave rise to confusion and delay. 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 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 staff for an extra half hour after the shop had closed - to clean up and get things in order 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. 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 had an accident and was out of work for a month from the middle of July to the middle of August (excepting one day when he briefly returned). When the Complainant’s health allowed him to return, he notified his Employer who put the Plaintiff off by suggesting that the next week would be better. The Complainant decided to use the 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. Out of the blue in August of 2019 the Complainant received a letter from MS on behalf of the Respondent company stating that the Complainant was being let go for “various reasons”. It is fully accepted by me that the said reasons were never made known to the Complainant and that in the course of the employment nothing was ever said to the Employee to suggest that his employment was in jeopardy. He was not criticised or disciplined or taken to task over the performance of his duties. There were no procedures adopted or followed although the Contract of Employment does provide for same. The Complainant was fired without preamble or ceremony while out on Annual Leave. In his evidence, the Respondent admitted that he did not necessarily know that the Complainant had more than a year’s service with the Respondent company and therefore was simply taking advantage of the fact that he owed no obligation to the Complainant (pursuant to Statute) and no repercussion would come his way. The Complainant maintains that MS simply wanted rid of all existing staff so that MS could fill the positions with his own selected staff. The Respondent readily conceded that he had never suggested that the Complainant’s work was below standard in the course of the employment though attempted to make unsubstantiated claims of mala fides on the part of the Complainant in the course of the hearing. I do not accept the veracity of any of these allegations. In consideration of the foregoing it is clear to me that the termination of this employment amounted to an Unfair Dismissal.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00031581-001 I find that the Complainant was Unfairly Dismissed and I award compensation in the sum of €15,000.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00031715-001 I find that this complaint is in the exact same terms as the foregoing and I make no finding as to compensation.
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Dated: 16 September 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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