Complainant

Respondent

Anonymised Parties

A Bar Tender /Assistant Manager

A Bar Business

Representatives

Carl O ‘Mahony & Co. Solicitors

No Appearance by or on behalf of the Respondent

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-00034509-001

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034509-002

07/02/2020

This claim for Unfair Dismissal and Minimum Notice was lodged on 7 February 2020 and refers to a period of the complainant’s full-time employment, in a Bar setting from 10 November 2017 to 25 November 2019, when he was suddenly dismissed.

The Complainant was represented by his Solicitor who prepared a comprehensive written submission in advance of the hearing, which was shared with the respondent. A signed statement of Main Terms of Employment and details of Staff Handbook accompanied this.

This case came for hearing following an earlier cancellation due to Covid 19 restrictions.

There was no appearance by or on behalf of the respondent at hearing. The Respondent did not make a responding submission.

The Respondent has not engaged with this claim either by means of responding submission or by appearance at hearing.

The Respondent was notified of the claim on 11 February 2020.

I understand that the respondent made an application for postponement of hearing without furnishing any of the requisite detail to support this application. I have rechecked the file and noted that the Respondent confirmed that he would forward supporting reasons for his request for postponement but did not follow through on this.

I delayed the commencement of the hearing to allow for any delays on the respondent side. I then commenced the hearing as it became clear that the respondent was not making an appearance.

I have not received any further responding submission to the claims in hand.

CA-00034509-001 Claim for Unfair Dismissal

There was no appearance by or on behalf of the respondent at hearing and no defence lodged in the case.

CA-00034509-002 Claim for Minimum Notice

There was no appearance by or on behalf of the respondent at hearing and no response filed to the claim.

CA-00034509-001 Claim for Unfair Dismissal

The Complainant worked as a Bar Man from 10 November 2017 to the date of his dismissal without notice on 25 November 2019. He worked on a full-time basis with episodic overtime payments. Gross Pay was €12.00 per hour. The employment was uneventful until the evening of 25 November 2019.

At approximately 6pm, the Bar Manager told the complainant that he was not required to return to work again. When approached for an explanation, the Bar Manager told him that he had been the subject of an unspecified complaint in the recent past. A period of monitoring of performance had been conducted by a Mr A, another Manager and a decision made to dismiss the complainant.

The Complainant vacated the premises. the Complainants representative outline that this constituted an unfair dismissal.

On 3 December 2019, the complainant messaged Mr A seeking the reasons for his dismissal but was informed that no further information would be communicated outside a loose offer of a meeting. The complainant saw no point in engaging in such a meeting.

Complainant Evidence:

The Complainant told the hearing that he was reaching the end of his shift at the Bar, on 25 November, when the Manager approached him out of the blue and told him that he was being fired.

The Complainant was surprised and asked for an explanation, only to be told that he had been monitored by Mr A for the past six weeks, arising from a complaint. He was informed that dismissal was to be the outcome of that process. He was unable to answer any further questions and the complainant left the Bar and did not return to work. He found new work on 6 January 2020, on less favourable terms and his future was uncertain.

The complainant outlined that he had been humiliated by his treatment as he believed that he had worked hard and did not deserve to be summarily dismissed. He spent an unhappy Christmas as a result and endured financial hardship as a result.

The Complainant did not participate in any known performance management process and he had not received any feedback on his performance prior to the sudden notice of dismissal on 25 November. He told the hearing that he had not been notified of any Disciplinary process.

Following the conclusion of employment, he contacted Mr A via Facebook to explore any reason for his dismissal. He did not secure any reason.

The Complainant submitted that he had received outstanding holiday pay at the end of his employment, but no recognition for his notice period.

The Complainants representative submitted that the complainant had been unfairly dismissed as the Company had failed to follow its own policies and procedures as set in the complainant’s contract of employment. She submitted that the Disciplinary procedure was clearly laid out in the staff handbook and had not been followed.

Historically, the complainant had been subject of an admonishment for not providing cover for his absence to attend a funeral, but this had not been formalised.

The Complainant had not been notified of any complaints prior to his dismissal, yet dismissal was attributed to these complaints. The Complainant was denied any right of appeal, fair procedures and natural justice, which rendered his dismissal automatically unfair.

The Complainants Solicitor relied on the jurisprudence in Caulfield v Verbatim ltd UD 1993/938, Mooney V an Post [1998] 4 R 288, Tower brook ltd T/A Castle Durrow Country House Hotel v Eugene Young [ 2018} IEHC 425 and the Labour Court Decision of Ibrahim Salah v RCI Call Centre (Irl) ltd

The Complainants representative confirmed that he had mitigated his loss by finding new work relatively quickly but there was some disparity in the new work in terms of earnings and anticipated tenure.

CA-00034509-002 Claim for Minimum Notice

The Complainant submitted that his employment was terminated without notice on 25 November 2019.

I have considered both claims before me. I have taken all written and oral submissions into account. I have studied the Staff Handbook submitted by the complainant.

I was disappointed not to see the respondent in attendance. I am satisfied that the respondent was properly notified of the correct date and platform for hearing. The respondent undertook to engage in the postponement application procedures operated by the WRC but did not follow through.

I spent some time at the commencement of the hearing in clarifying the correct legal title for the respondent. The name inserted on the complainant form was reaffirmed by the complainant’s representative. This was the title that the respondent responded to prior to commencement of hearing. I also note that it is encrypted on the complainants submitted pay slip for November 2019.

During the hearing, I heard solely from the complainant and his representative. I have not received any correspondence from the respondent to this date.

CA-00034509-001 Claim for Unfair Dismissal

The law on Unfair Dismissal is set out in section 6(1) of the Unfair Dismissals Act, 1977. The burden of proof in the case of unfair dismissal rests with the respondent in the case.

Unfair dismissal.

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.

Section 6(4) (b) provides for an exception to this in the case where a respondent can establish that dismissal arose wholly or mainly from the conduct of the complainant.

Section 6(6) of the Act places a firm burden of proof on the respondent in that regard.

Section 6(7)(a) of the Act permits me to look at the reasonableness or otherwise of the conduct of the employer by act or omission.

I have not had the benefit of the respondent’s participation in the case and therefore cannot be satisfied that the burden of proof for a fair dismissal has been reached.

Suspicion of misconduct in the workplace was comprehensively addressed in the EAT decision of Francis Pacelli Irish Distillers ltd [2004]15 ELR, where the EAT considered the actions of the respondent and the complainant in relation to suspicion of misconduct. For me, it sets out a comprehensive floorplan on what is taken account of in just such a scenario.

“the right to work is a constitutional right and hence basic fairness of procedures is due”

“the test for fairness of procedure is objective and the Tribunals function is to determine what a reasonable, prudent and wise employer would have done having regard to the nature of the case and not whether the claimant on the evidence should be dismissed. Test Looney and Co ltd v Looney UD 843/1984”

“the claimant had been given every opportunity to explain the irregular events and goings on in the ware house and not to request adequate explanation of such was to defy logic “

I have found no tangible evidence of management of suspicion of misconduct in this case. The complainant had not been provided with any cause for concern by his employer either orally or in writing prior to the spontaneous announcement of concerns on 25 November 2019.

I have considered the complainants evidence at hearing. I found his testimony to be very clear and cogent. It reflected that dismissal in the circumstances in which arose had had a profound negative impact on him. I found that he was very courageous to bounce back onto the jobs market in the wake of very poor treatment by a previously unproblematic employment.

I accept his evidence, which was uncontested.

I find that the complainant was unfairly dismissed. The Respondent was not in attendance to satisfy the burden of proof in the case and there were no grounds submitted so as to justify this dismissal .

CA-00034509-002 Claim for Minimum Notice

I have given some consideration to this claim. The Statement of Terms of Employment confirms that the employment commenced on 10 November 2017 and I accept the complainant evidence, which was uncontested that his employment ended without notice on 25 November 2019.

I am satisfied that the complainant was entitled to receive notice in accordance with Section 4 of the Minimum Notice and Terms of Employment Act, 1973.

Minimum period of notice.

4.— (1) An employer shall, to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

I have established that the complainant was covered by section 4(2) (b) of the Act and the Respondent contravened this obligation to give the complainant notice of termination.

The claim is well founded.

CA-00034509-001 Claim for Unfair Dismissal

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.

I have found that the complainant was unfairly dismissed, and compensation is the only practical option open to me at this juncture.

I have some concerns regarding the security of the complainant’s current role which does not mirror the tenure of his former position. I find; therefore, I must factor in a consideration for prospective economic loss.

I order the respondent to pay the complainant €8,000 for the unfair dismissal. I would also urge the respondent to activate their company procedures in future in times of concern.

CA-00034509-002 Claim for Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have found that the Respondent has contravened Section 4 of the Act. I order the Respondent to pay the complainant €1,000 in compensation for this contravention.

Unfair Dismissal, Minimum Notice.