FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : THE BLUE DOOR - AND - MR KARL FITZGERALD (REPRESENTED BY DUNDON CALLANAN SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00023753 CA-00030398-001 This is an appeal by Mr. Fitzgerald, ‘the Complainant’, of the Decision of an Adjudication Officer, ‘AO’, regarding his claim of unfair dismissal against The Blue Door restaurant, ‘the Respondent’, under the Unfair Dismissals Act, ‘the Act’. The Complainant was employed as a Chef by the Respondent from February 2018 to August 2019. The Complainant was on certified sick leave from April 2019. The parties met on 1 August 2019 to discuss the on-going situation. What took place at that meeting is disputed. The Complainant sent a further medical certificate to the Respondent dated 6 August 2019. The Respondent issued the Complainant with his P45 and payment for holiday pay on 7 August 2019. A small ‘ex gratia’ payment was included. The covering letter referred to the termination ‘as agreed’. The Complainant’s representative wrote to the Respondent on 20 August 2019 with notice of proceedings under the Act. The Respondent did not reply. The Complainant lodged a claim with the Workplace Relations Commission, ‘WRC’, under the Act. The AO found that the Complainant had been unfairly dismissed and awarded a sum in compensation, said to be equivalent to 4 weeks’ pay, of €2492. The Complainant appealed to this Court on grounds that the quantum was an insufficient recognition of the losses incurred by the Complainant. Summary of Respondent Arguments There was no dismissal. The Complainant resigned. The Complainant was paid €600 a week gross. Four weeks’ pay, therefore, equals €2400. The meal allowance of €23 per week is an estimated figure related to the average cost of meals provided to the Complainant free of charge, which were not provided as remuneration. On 27 March 2019, the Complainant took one week’s sick leave just after he got the keys of his new house On 15 March 2019,( it would appear that the date was actually 15 April 2019), the Complainant advised Mr. Brian Hayes, owner of the Respondent, that he would need to find a new Chef as in 4 weeks’ time he would be taking at least 2 months off to renovate his new house. He advised that he would be claiming social welfare. Mr. Hayes told him that he did not agree with this and if he was sick, he should not be in work. A sick note arrived for 4 weeks with no reason given for absence. The Complainant then submitted medical certificates every four weeks. After 5 months, the Respondent arranged a meeting with the Complainant. The meeting took place on 1 August 2019. At the meeting, the Complainant said that he would be unavailable for work in the near or long term. The Respondent advised of the difficulties that this caused. The Complainant replied that the Respondent should do what was best for the business but he asked the Respondent to wait until after the bank holiday as this would be an extra day for him. The Respondent took this to mean that the Complainant no longer required his job to be held open and, after the bank holiday on 6 August 2019, the Complainant was sent his holiday and bank holiday pay plus an ex gratia payment gesture of goodwill of €200. The Respondent was shocked and surprised to receive a complaint of unfair dismissal as he had not received one in 24 years of business. The Respondent believes that the Complainant manipulated the circumstances and that, when offered an opportunity to resolve the matter at the WRC, he refused to engage in a meaningful way. The Complainant was deemed fit to return to work on 30 October 2019. Despite hundreds of Chef positions being available, he failed to find employment before the lock down in March 2020. Summary of Complainant Arguments The Complainant was paid €600 per week gross. In addition, he received meals, estimated at a value of €23 per week and approximately 100 per week in ‘tips’. In April 2019, the Complainant was suffering from injuries to his Achilles Tendons and was advised to take time off work. The Respondent told him that if he was sick, he should not be on the premises. He was instructed to leave and to submit a doctor’s certificate. During the following months, the Complainant stayed in contact with the Respondent by text and submitted medical certificates. At the meeting on 1 August 2019, the Complainant advised the Respondent that he needed another 4 to 8 weeks for recovery. He said that he would continue to send in certificates and said that he would send one the following Tuesday. The Respondent replied ‘grand’. On Tuesday, 6 August 2019 the Complainant submitted a further certificate. The Complainant received a letter from the Respondent dated 7 August 2019 stating ‘as agreed, given the current circumstances I have issued your P45’. He was shocked. The only agreement was that he would continue to send in medical certificates. This amounted to unfair dismissal with no substantive grounds and no procedure. The Complainant continued to receive Illness Benefit until he was cleared to return to work from 30 October 2019. He sought work from then and made numerous applications. He secured a job in October 2020 but has yet to take it up. Accepting the realities of the pandemic lockdown, the Complainant’s losses were €623 per week from 30 October 2019 to 24 March 2020, a period of 21 weeks, totalling €13,038. The AO seems to have applied s.7(1)(c)(ii) of the Act in awarding only four weeks’ compensation but this applies only where the employee suffered no financial loss. The correct section of the Act applicable to this case is s. 7(1)(c)(i) where the employee ‘incurred any financial loss attributable to the dismissal’. Witness Evidence Mr. Brian Hayes Mr. Hayes is the owner of the Respondent. The witness confirmed the contents of his submission. In particular, the witness re-stated his version of the meeting on 1 August 2019, as set out above, at which the Complainant said he would not be able to return to work in the short or long term. He said that the Complainant had told him to do what was best for the business. He took that to mean that he did not want his job to be held. The witness said that he wanted the Complainant to return. When asked why , when it was evident that the Complainant did wish to return, he had not contacted him, the witness said that he felt it best to allow the matter to be resolved by the WRC. Under cross examination, the witness accepted that he had sent the Complainant home on 15 April 2019 as he felt that if he was sick, he ought not to be on the premises. He also accepted that he had received monthly texts and medical certificates subsequent to this from the Complainant. The witness denied that the Complainant had told him at the meeting on 1 August 2019 that he hoped to be back to work in 4 to 8 weeks and said that he would have accepted that time-frame. The witness said that he asked the Complainant, ’What should I do? I am trying to run a business;’, and the Complainant had told him to do what was best for the business. When it was put to him that he had jumped to a presumption, the witness said that, in going to a solicitor, the Complainant had also done so. The witness said that he could not recall the Complainant saying that he would continue to submit medical certificates. He accepted that he had complained about one of the Chefs to the Complainant. The witness said that he received the last medical certificate after he had written to the Complainant to enclose his P45. Under questioning from the Court, the witness accepted that his letter of 7 August 2019 amounted to the termination of the employment relationship and that there had been no procedure prior to this. He stated that he had advised the Complainant at the meeting that he would send him his P45 but he had not responded. Mr. Karl Fitzgerald Mr. Fitzgerald is the Complainant. The witness concurred largely with Mr. Hayes’ account of the April meeting. The witness said that at the meeting on 1 August 2019, the Respondent had told him that he was a valued member of staff and went on to complain about a French Chef. The Respondent was having difficulties in finding Chefs and the witness offered to help. The witness said that the parties discussed how long the witness was likely to be out and that he had stated that this was about 4 to 8 weeks more and that he would continue to send in medical certificates, to which the Respondent replied ‘grand’. The witness posted his last certificate on 6 August 2019 by regular post. With reference to the note ‘as agreed’ in the Respondent’s letter of 7 August 2019, the witness said that the only thing agreed was that he would continue to send in his medical certificates. Because he had changed address, the witness said that he did not receive the Respondent’s registered letter until 13 August 2019. The witness gave evidence of his attempts to find work following his dismissal. It was put to him by the Court that the evidence suggested that he had applied for approximately one job per month between November 2019 and March 2020 and this was accepted by the witness who said that he had been somewhat choosy. He noted that work in a deli or a nursing home could affect his standing as a Chef for restaurant work. The witness gave evidence of three short training courses that he had undertaken. When asked by the Court why, when he received notice of his dismissal, the witness had not contacted the Respondent, he said that he felt the Respondent had pulled a ‘fast one’ and that he needed somebody to argue for him. The witness noted that he had been open to mediation when the matter was before the WRC. The applicable Law Unfair Dismissals Act. 1. “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 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Redress for unfair dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. ] (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee — (a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded. (2B) Where — (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay. Deliberation It is not in dispute that the letter from the Respondent to the Complainant dated 7 August 2019 amounted to a termination in the employment relationship. Equally, it is not disputed that there is no documentary evidence to support a suggestion that the Complainant resigned from his post. It may well be that the Respondent left the meeting on 1 August 2019 believing that the Complainant was willing to terminate the employment. If so, it seems extraordinary that, when he received notice of unfair dismissal proceedings by letter dated 20 August 2019, he made no attempt to have the situation clarified and to have the matter resolved amicably. The only documentary evidence is that the Respondent effected a dismissal in the letter of 7 August 2019 and that he never sought to disabuse the Complainant of the view, understandable in the circumstances, that the Complainant had been dismissed. By this failure, whatever doubt there may have been was removed as the employment relationship was not put back together by the Respondent following his letter to the Complainant. Indeed, even prior to notice of potential proceedings, the Respondent had received a medical certificate from the Complainant that post-dated their meeting, which should have, at the very least, have signalled a misunderstanding, which, if it was a misunderstanding, could have been clarified quite easily by the Respondent. The Court can accept that the letter of 7 August 2019 from the Respondent and the medical certificate from the Complainant dated 6 August 2019 crossed in the post but they both preceded the notice of proceedings and there was an opportunity for the Respondent to bring clarity to the exchange without it going further. This leads the Court to the inevitable conclusion that the letter of 7 August 2019 was a letter of dismissal. There was no process in which the Complainant’s rights under natural justice could have been exercised prior to this dismissal. This fact alone makes the dismissal unfair. The requirement of s. 6(1) of the Act that there be substantial grounds for a dismissal to be considered fair has not been met. It is clear to the Court that the remedies of re-engagement and re-instatement are not viable in this case as the relationship between the parties is not capable of repair. The Court then has to determine the level of compensation that is warranted. The Complainant’s representative put the losses of the Complainant at €13,083 based on the period up to the lockdown from 30 October 2019 to 25 March 2020. The Respondent disputes the base figure of €623 per week used in those calculations, as the Complainant’s gross wage was €600 per week. He also notes that the restaurant actually closed on 11 March 2020. As noted in the summary of his evidence above, the Complainant accepted that his job application rate in that period was, roughly, one per month. This falls well short of the standard requirement that a dismissed employee should devote part of every single normal working day to finding alternative employment in order to mitigate their losses. Taking all factors into account, the Court determines that a payment of compensation for unfair dismissal in the amount of €8,000 should be made by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is varied as set out above.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
