ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025411
Parties:
| Complainant | Respondent |
Anonymised Parties | Fast Food Restaurant Manager | Fast Food outlet |
Representatives | Joan O'Donoghue/O'Donoghoe Solicitors | Director |
Complaint:
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-00032097-001 | 11/11/2019 |
Date of Adjudication Hearing: 19/02/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment, or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
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 (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 21st of October 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
Background:
The Complainant commenced employment in and around December 2016. He was a member of the in-store team. He was involved in the food preparation and the taking of orders and the cleaning and anything else which might be associated with the operation of this Pizza parlour. The Complainant herein resigned his position with the Respondent entity in and around the 25th of August 2019. This resignation was tendered after nearly 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. |
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 its Director MS. He gave evidence of how this termination of employment came to happen. He denies that there was an Unfair Dismissal. |
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 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 2016 and had worked on a part time basis for in and around 20 hours a week. 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. 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 Complainant gave evidence that the old management was being pushed aside and the Respondent’s new recruits were doing the ordering and directing. The Complainant was asked to train up new staff which was difficult as there was a language barrier. The Complainant found that he was being asked to do tasks normally reserved for management such as cash counting and stock taking – these were jobs that the Complainant was not comfortable doing as he had not been formally trained and he was not in receipt of a management salary. The constant drive to save on money was a big factor in the drop-off in standards. The Respondent was using the Complainant to do jobs way above his pay grade. The Complainant said they went from a very efficient system to a system of chaos. There was also a constant battle to get the correct pay. In his evidence he said that If he billed for 19 hours, he would invariably be paid for 17 - with a long and protracted row ensuing to get the balance. It was frustrating and time consuming to be chasing wages all the time. MS resisted all requests to set things straight. 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. This issue was raised with the Employer in early July and the final correct payment was only made on the 24th of August. A day later 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. The Complainant says 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 now found another part time job in a bar though he does not get the same hours. The complainant had been on a wage of €198.00 per week. |
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-00032097-001 - the Complainant was unfairly dismissed, and I award him €3,000.00 compensation.
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Dated: September 11th 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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