Complainant

Respondent

Anonymised Parties

Fast Food Restaurant Manager

Fast Food outlet

Representatives

Joan O'Donoghue / O'Donoghoe Solicitors

Respondent Director

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-00031583-001

15/10/2019

The Complainant commenced employment in July of2016. He was a kitchen porter and was also the social media officer.

The Complainant herein resigned his position with the Respondent entity in and around the 25th of August 2019. This resignation was tendered after more than three years of service with the company and within four months of the employment having been subjected 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 July 2016. Originally, the Complainant herein only ever worked about 15 hours per week in the kitchen at a rate of €10.00 per hour. The Complainant was also engaged as the Social Media officer at a fixed weekly rate of €150.00. The Complainant was also in college at this time. The rosters were well-established and set by the time of the Transfer. 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, though later returned. The taking of stock and the rostering of staff were taken away from the usual Manager and instead carried out by persons placed into the business by the Respondent. The incumbent staff, including the Complainant, who had previously worked well 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 those who did.

One of the first things that the MS did was remove the Social Media campaign from the Complainant who was told a family member would be doing that moving forward. There was never any discussion and the €150.00 weekly remuneration on which he had relied was stopped.

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 hygiene standards were deteriorating and the Complainant (as the kitchen porter) was getting blamed but was not being given the extra hours needed to deep clean. His standard of work was being criticised and he felt anxious and uncomfortable.

There were no payslips provided and no security of hours being rostered. Very often the Respondent Director would simply open his wallet and pay directly from the cash he carried around with him. There were always difficulties about the amount due and owing and the final issue was the refusal by the Employer to accept that he was liable to pay for Annual Leave entitlements accrued in the Leave year.

There was no grievance procedure and complaints were not listened to. Eventually the Complainant fell out with the Respondent over the issue of Annual Leave which the Respondent was refusing to recognise was due and owing. In August 2019 the Complainant tendered his resignation. 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. In particular, the Complainant had a guaranteed lump sum taken away without any discussion.

The Complainant case is that he felt compelled to resign his position and that there was an inevitability to the decision. The workplace had been taken over by an entity which sought to break down and side line a pre-existing staff in which the Respondent had no vested interest.

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 has continued to develop his personal training business in conjunction with looking for a replacement part time position. The complainant had been on a wage of €300.00 per week.

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

CA-00031583-001   - the Complainant was unfairly dismissed, and I award him €4,220.00 compensation.