ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00026838

Parties:

Complaint:

Date of Adjudication Hearing: 16/12/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Industrial Relations Acts 1969

CA-00034092-001

Background

The complainant commenced employment on 29 April 2019 dismissed on 29th November 2019.

He was paid €500 per week plus €50 in cash.

Summary of Claimant’s position

The claimant submitted that he was approached by the respondent and offered a management position in his restaurant, after many years running a successful establishment in the city. Respondent wanted him to come and improve his business.

The claimant decided to take up his offer and face a new challenge.

Throughout his time working there, the claimant successfully increased takings and customer service and restaurant tripled its sittings on the weekends. It was submitted that he did put pressure on staff to improve standards.

The claimant submitted on 29 November2019 he was called to a meeting by the respondent and the Head Chef was also present.

The respondent informed him that as that day, he been given an ultimatum by some of the kitchen staff, that either he would leave him(claimant) go or they would.

The claimant submitted the respondent was very apologetic and explained he could not run a restaurant with no chefs, and he will have to let him (the Claimant) go with immediate effect.

The claimant stated that this was 3 weeks before Christmas, busy season for any restaurant and that he had bookings right up to Christmas Eve.

The claimant asked the respondent for a letter for the Social Welfare to say that he had not left his employment instead he received a letter that the reason for his dismissal was gross misconduct.

The claimant submitted that he requested the respondent on a number of occasions for details any incidents of gross misconduct and for a copy of any warnings he received. The claimant submitted that he had appealed the decision to dismiss him, but the respondent had not replied to his request.

Summary of Respondents position

The respondent submitted that the claimant had worked for him. The Respondent further submitted that he had not given the claimant a contract of employment, but he had been advised by HR company to provide a letter of gross misconduct to the claimant.

Findings

The complaint was received by the WRC on the 30th January 2020

I find there is no dispute between the claimant and respondent between the start and finish dates of employment.

I find the respondent did not dispute the rate of pay and the respondent also confirmed that he had not provided the claimant with a contract of employment.

I find the respondent further confirmed he had issued no warnings to the claimant.

I find that the claimant did appeal the decision to dismiss him and that he received no response from the respondent.

I also find that the complainant was not afforded the right to appeal the decision to dismiss him.

I find that in arriving at my recommendation I am taking account of the Beechside Company Ltd T/A Park Hotel Kenmare -and -A Worker where the Labour Court States.

Where an employee is considered unsuitable for a permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

The Labour Court further ruled in the Irish Postmasters Union-and -Worker.

I find that the claimant was denied fair procedures and natural justice.

I find in all circumstances based on the evidence I am making the following recommendation.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find the claimant was unfairly dismissed and I award him €3500 in compensation.

Dated:   12th January 2021

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Industrial Relations Act 1969