Complainant

Respondent

Parties

Florin Racoti

David Cullen, trading as The Baths

Representatives

Hatstone Solicitors

 Not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00036416-001

29/05/2020

The complainant is from Romania and he commenced working as a supervisor in the respondent’s restaurant on February 26th 2019.  He earned €585 gross per week.  During a busy lunch service on Sunday, February 23rd 2020, an argument took place between him and a chef.  Following the argument, he was instructed by the restaurant manager to take the rest of the day off.  The general manager said that the complainant resigned in a temper when he was told to go home.  He was paid one week’s notice and his employment ended on March 1st 2020.  The complainant’s case is that he did not resign and that he was dismissed.

Having commenced working for the respondent on February 26th 2019, as he was entitled to one week’s notice of the termination of his employment, and, in accordance with the definition of the date of the dismissal at section 1 of the Unfair Dismissals Act 1977, I am satisfied that the complainant has adequate service to pursue a complaint under the Act.

In preparation for the hearing on April 26th 2021, the owner of the respondent company, Mr David Cullen, sent a written submission setting out their position that the complainant was not dismissed.  The restaurant manager, Mr Richard McDermott, also sent a written submission and both gentlemen gave evidence at the hearing.

In his submission, Mr Cullen said that, on the weekend of February 22nd and 23rd 2020, there were “interpersonal difficulties” between the complainant and another employee, a chef.  He claims that the complainant “became volatile as he lost his temper.”  On Sunday, February 23rd, Mr McDermott intervened in the argument between the complainant and the other employee, attempting to diffuse the situation by talking to the complainant.  He said that this caused the complainant to “explode” and Mr McDermott told him to go home and that they would discuss the issue the following week.    

Evidence of the Restaurant Manager, Mr Richard McDermott

On Sunday, February 23rd 2020, 300 guests were booked for lunch in the restaurant.  Mr McDermott said that he was on a break when got a phone call from a chef who told him that there had been an altercation between him and the complainant.  The chef alleged that the complainant had put his hands on him.  Mr McDermott said that when he arrived in the restaurant, the complainant was in an agitated state and he told him to wait in an outside terrace while he spoke to the chef.  He told the chef that they would have a meeting the following week and get the HR manager involved to sort things out.  He then approached the complainant on the terrace.  He said that he was angry, loud and aggressive and, although he asked him to calm down, Mr McDermott said that it was impossible to speak to him.  Mr McDermott described the complainant as “my right-hand man” and he said that these “flare ups” were a frequent event and that normally, he could “get through to him.”  On this occasion, Mr McDermott said that there was no reasoning with the complainant and he decided to tell him to “take some time out.”  At this instruction, Mr McDermott said that the complainant “exploded” and screamed in his face, “I quit!  I’m going to get a lawyer and sue you.”  He then left the restaurant.

Mr McDermott described the complainant as “a key member of the restaurant team” and, despite his temperament, he said that he “always looked out for him.” 

On Monday, February 24th, Mr McDermott said that the complainant sent him a text message, “as if nothing had happened.”  A copy of the text message was submitted in evidence.  At 9.19am on Monday, February 24th, the complainant wrote:

“Good morning.  So this week will be my last week or you need me next week too?  I’m really sorry for what happened and you know I didn’t mean it.”

Mr McDermott said that he was surprised by this, as the complainant had “quit the previous day in such a shocking manner.”  He said that he was confused by the message, as the complainant had stated clearly that he had “quit.”  He said, “I had to accept this on the spot, as totally final in that moment.”  Unlike previous occurrences, Mr McDermott said that there was no mention of talking about it and he replied to the complainant’s text message as follows:

“You quit yesterday.”

Mr McDermott said that he had a conversation with the complainant some time afterwards in which the complainant said that he was concerned that he wouldn’t get paid for a back week and his tips for his last week at work that he “would sign anything to say he resigned.”

On Wednesday, Februay 26th 2020, Mr McDermott arranged to meet the complainant to get the keys of the restaurant from him and to give him his share of the tips from the previous week.  They arranged to meet in a catering supplier in Dublin city centre.  When they met, Mr McDermott said that the complainant denied that he had quit, saying, “there was only the two of us there.”   

The complainant was paid a week’s pay in lieu of his notice and his outstanding holiday pay and his employment was effectively terminated on March 1st 2020.

Cross-examining of the Restaurant Manager

Ms Canavan questioned Mr McDermott on behalf of the complainant.  She referred to the meeting on Wednesday, February 26th and the complainant’s assertion that he didn’t resign.  She asked Mr McDermott if the complainant was such a key member of staff, why he didn’t simply take him back.  Mr Cullen interjected and said that “the real problem is that Florin was aggressive, not for the first time.”  He said, “we decided to accept his resignation and pay him in lieu.  It was dangerous to have him on the site.”

Mr McDermott said, “when you quit, you quit.”  He said that he had felt threatened by the complainant.  He said “he (the complainant) wanted compo, I think it was a money scam.”

Mr McDermott was asked why he didn’t talk to the complainant the following day, when he had said that he didn’t resign.  Mr McDermott said that the complainant had been “violent in his aggression towards me and, I had to make a quick decision and accept that it was over.”  He said that there had been two incidents previously and he had been able to talk things through. 

Ms Canavan reminded Mr McDermott that, following the incident on Sunday, he instructed the complainant to go home.  She asked him if he intended to discuss the incident with him later in the week.  The complainant sent Mr McDermott a text message that evening saying that he didn’t resign.  Mr McDermott replied, “I had to accept his resignation” and “if someone is violent, there’s no cooling procedures.”  He said, “when someone quits in a violent, aggressive manner, there’s no turning back.”

Evidence of the Owner, Mr David Cullen

Mr Cullen’s version of events supports that of Mr McDermott.  On Monday, February 23rd, the complainant sent a text message to Mr Cullen asking him for a meeting.  In his message he indicated why he wanted to talk. Mr Cullen provided copies of the text messages in which, concerning the incident the previous day, the complainant said,

“Is all about this problems that build up coming especially from arguments / fights with Craig and regarding my work and commitment to the place.  Is not the first time I had in mind to have a chat about all this, but yesterday things blow up and I really want to have a chat with you to see your opinion (sic).”

When Mr Cullen told the complainant that it would be more usual for him to speak to the restaurant manager, the complainant replied,

“Richard doesn’t want me in this week, he said to stay home and will be better to not get back in cause things will blow up.  I didn’t quit, I’m on the roster for this week and I don’t know what to do about it.  I’m not accusing Richard of anything.  I know he always supported me and he is looking for the good of the business.  I understand if you don’t want to meet me and talk about it.  We fixed to meet to give him the keys on Wednesday.”

From these messages, Mr Cullen said that it is clear that the complainant “changed his mind following his exit from the premises and it suited him to portray that he didn’t quit as it would mean we would take him back or he could pursue unfair dismissal if we did not.”

Cross-examining of Mr Cullen

Ms Canavan asked Mr Cullen why, if he felt that the complainant’s behaviour was so unacceptable, he didn’t invoke the disciplinary procedures.  Mr Cullen replied, “he quit on the spot.” 

Ms Canavan referred to the company’s handbook which provides that employees must give two weeks’ notice of their intention to leave and also a provision that, in the event of termination of employment, an employee may be paid in lieu of notice.  She asked why, if the complainant resigned, he was paid in lieu of notice.  Mr McDermott replied that the complainant had put in an effort in the restaurant and that they paid him his notice out of a sense of fairness.

In Ms Canavan’s submission on behalf of the complainant, she said that, on Saturday, February 22nd (the day before Mr McDermott sent him home), the complainant had an argument with a chef when he was asked by the chef to get a refill of paper for the menu order machine in the kitchen.  The complainant was dealing with a party of eight diners and he didn’t get the paper.  The chef came out of the kitchen and approached the complainant in the restaurant.  Ms Canavan said that the complainant put his hand on the chef’s shoulder to placate him.  The chef asked the complainant to remove his hand.

Later that evening, the restaurant manager, Mr McDermott told the complainant that the chef alleged that the complainant had assaulted him.  He advised the complainant that he would speak to him about the incident later.

The following day, Sunday, February 23rd, the complainant was at work and another altercation occurred with the chef.  This arose when the complainant refused to bring a meal to a customer because the chef had moved food from one plate to a plate that was intended for a customer who ordered a gluten-free meal.  The complainant was concerned that the chef’s actions were unhygienic.  Ms Canavan said that the complainant listened to the chef’s “monologue” and went on to serve the customers.

Following this incident, the complainant was approached by Mr McDermott and severely reprimanded for this second encounter with the chef.  The complainant felt that this was unfair and he became frustrated and said, “I’m sick of this place and I will talk to a lawyer about this situation.”  Mr McDermott advised the complainant to take the rest of the day off and advised him that he would speak to him during the week.

Later the same day, the complainant sent a text message to Mr McDermott in which he said,

“Hi Richard.  So what’s the story?  Why staff is asking me if I was fired? (sic)”

Mr McDermott replied:

“Well you quit today as you said you are getting a lawyer… and after your alleged assault of another staff member it very serious where they want the Garda called in  Talk to you tomorrow as what has happened as gone too far so no going back…will ring you then.”

The complainant replied,

“I didn’t quit.  You asked me to take off.  And I didn’t assault anyone.”

Mr McDermott replied:

“Yes u did with your verbal threat of a lawyer and of how your going to sue us we will see you in the fair court of arbitration as we have done nothing wrong except support you all the way but you have chosen to ignore all and treat other members of staff in a way that’s contrary to the codes of conduct we expect and you signed up for (sic).”

The complainant’s reply the next day, Monday, February 24th, has also been recorded in the previous section:

“Good morning.  So this week will be my last week or you need me next week too?  I’m really sorry for what happened and you know I didn’t mean it.”

Mr McDermott replied:

“It’s very sad it’s come to this and has upset me a lot, which shows you how much I think of you…It’s ok as when you left and you quit I had to make plans to make sure the business was ok as what’s happened is too much and it is obvious you weren’t in a good place so I will call you later in the week to meet up and get the keys.  If you need a reference etc you can  put me down as we have been through so much together I will always say what a great worker you are. R”

The complainant replied,

“But Richard, I didn’t quit…”

When they met in the catering suppliers on Wednesday, February 26th, the complainant repeated his position that he had not resigned.

The Complainant’s Case

Ms Canavan referred to section 6(1) of the Unfair Dismissals Act which provides that the burden of proof is on the respondent to show that the termination of the complainant’s employment was not unfair.  She referred to the High Court decision in the case of Frizelle v New Ross Credit Union Limited 1997, IEHC 137, in which Mr Justice Flood set out a list of conditions that must exist to support the dismissal of an employee on the grounds of misconduct. 

Ms Canavan also referred to the well-established test regarding the reasonableness of the employer’s decision to dismiss an employee which emerged from the case at the Employment Appeals Tribunal (“the Tribunal”) of Looney and Co. v Looney, UD 843/1984.  In respect of “last straw” dismissals, she referred to the decision of the Tribunal in Donnelly v Arklow Pottery Limited, UD 572/1990, which held that, for a last straw dismissal, there must be a blameworthy act on behalf of the employee established to the satisfaction of the employer which must be sustained by evidence on the balance of probabilities and followed by a fair investigation.

In relation to the objective standard which must be applied to any decision to dismiss an employee, Ms Canavan cited the case of Bunyan v United Dominion Trust [1982] IRLM 224, where the Tribunal held that the fairness of a decision to dismiss an employee is to be judged by the objective standard of how a reasonable employer in a particular industry would behave.  In the case at the High Court of The Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 241, Mr Justice Noonan set out the components of the “band of reasonable responses” test, which has the objective of determining if a decision to dismiss an employee is within the band of reasonable responses of a reasonable employer in a particular set of circumstance.

Ms Canavan said that the complainant does not deny that there was a heated encounter between him and Mr McDermott, but she said, there is no evidence that he reigned.  She said that the complainant’s wife was expecting a baby and that he was not in a position to resign.  He does not deny that there had been previous altercations in the restaurant.

Ms Canavan said that, up to the date of his dismissal, the complainant had an unblemished disciplinary record and the seriousness of the sanction of dismissal was inconsistent with this record.  She concluded her submission by asking me to find that the dismissal of the complainant was unreasonable, not appropriate and not grounded on any disclosed breach of contract or law, but on circumstantial evidence.  Even if I find that the dismissal of the complainant was substantially fair, she said that there can be no doubt that it was procedurally unfair.

Evidence of the Complainant

The complainant said that he was joining the online hearing from Romania.  He had worked for the respondent for one year, which he said was very pressurised.  After two months, he moved from being hourly paid to being on an annual salary.  He said that it was difficult to find a sous chef and that he brought a sous chef with him from the place that he worked previously.  Because of problems with the head chef, he said that the sous chef didn’t stay.

On Saturday, February 22nd, the restaurant was four people short, with three being on holidays and one that called in sick.  There was a large party in at lunchtime and there was a problem with the electricity.  A chef shouted from the “pass” between the kitchen and the restaurant and asked the complainant to get paper for the order printer.  When he came out of the kitchen, the complainant said that he put his hand on him in a friendly gesture.  He said that “it is not nice for guests to hear our arguments.”  The next morning, Sunday, February 23rd, the complainant said “good morning” to the chef but he ignored him.

On the Sunday at lunchtime, one of a party of 26 people asked for gluten free bread and the chef took ordinary bread from a plate and replaced it with gluten free bread.  The complainant refused to serve the bread and as a result, he said that the chef “went mad.”  The manager, Mr McDermott arrived shortly afterwards and, after some altercation, he said that he told him that he was sick of the place and that he was getting a lawyer and that he was going to sue them.  Mr McDermott told him to take the rest of the day off.  Later that day, the complainant said that he got text messages from two employees who said that they heard he had been fired.

Denying that he resigned, the complainant said, “why would I quit after working so hard?  I had a good salary and good tips.  If I was quitting, I would write a letter.”

When I asked him why he went to meet Mr McDermott the following Wednesday in the catering supplies shop, the complainant said that his manager instructed him to go to the shop and he had told him not to come to the restaurant.

Was the Complainant Dismissed?

As there is a dispute between the parties concerning whether the complainant resigned or was dismissed, I must first examine the evidence and reach a conclusion on that matter.

There is no dispute about the fact that there was an altercation between the complainant and the restaurant manager, Mr McDermott on Sunday, February 23rd.  Both agree that Mr McDermott told the complainant to go home and that he said they would talk during the week.  The complainant said that, on being sent home, he told Mr McDermott that he was “sick of this place” and that he was going to consult a solicitor.  Later that evening, when he heard from some of his colleagues that he had been “fired,” he sent a text message to Mr McDermott to ask him what the situation was.  Mr McDermott replied,

“Well you quit today as you said you are getting a lawyer…”

The complainant replied that he hadn’t quit, and that he had been told to leave.  Mr McDermott then replied,

“Yes u did with your verbal threat of a lawyer and of how your (sic) going to sue us…”

It is clear to me from this exchange that the complainant did not say the words, “I quit,” and that Mr McDermott chose to interpret his threat to consult a solicitor as meaning that he resigned.  Any reasonable person would not make this link and would understand that words said in the heat of an argument do not carry the same meaning that they would carry if they were said by a person thinking with a cool head.  Knowing the complainant as he did, and that there had been what he described as “flare ups” in the past, Mr McDermott must have known that the complainant did not intend to leave his job. 

The following day, Monday, February 24th, the complainant sent Mr McDermott a text message in which he apologised for what happened and he repeated that he didn’t resign.  It seems that on Wednesday, February 26th, when he met Mr McDermott in the catering suppliers, he reiterated his position that he didn’t resign, and he certainly made it clear that, whatever he said, he did not intend to resign and that he wanted to come back to work. 

It is apparent that, at lunchtime on Sunday, February 23rd, the complainant lost his temper and said that he was getting a lawyer.  The evidence shows that, the same evening, he told his manager in a text message that he didn’t want to resign.  The manager must have known on Sunday evening that the complainant had not resigned, but he persisted to interpret the words, “I’m sick of this place” and “I’m going to sue you” as “I quit.”  In cross-examination, when the manager was asked why he didn’t allow the complainant to come back to work, the owner, Mr Cullen said that the “real reason” was because of his aggression.  While it may be reasonable to dismiss an employee for aggressive conduct, it is not reasonable to interpret words said in aggression as a resignation.

In his evidence, the restaurant manager referred to the complainant as “my right-hand man.”  It seems to me that his bad behaviour was tolerated, because he worked hard and was competent in a hectic working environment.  In a text message to the complainant on Monday, February 24th, the manager said that he would give the complainant a good reference “as we have been through so much together.”  It’s evident therefore, that the complainant made a contribution to the business and was a valued employee.  It’s also evident that his “Achilles heel” was his short temper, which was on display previously, and which the restaurant manager had been able to deal with.  On this occasion, the manager had had enough.  When the complainant responded to his efforts to placate him with, “I’m sick of this place” and “I’m going to sue you,” he took this as a way of avoiding having to take any action himself.  I am satisfied that, if there was any doubt at lunchtime on Sunday, February 23rd, that the complainant might have been considering leaving, by that evening, the manager was fully aware that he had not resigned.  It is clear to me from the evidence that the complainant did not resign and that he was dismissed because of his aggressive outbursts.

Findings

From the evidence of the complainant and the manager, the altercation that occurred on February 23rd 2020 was not the first time that the complainant lost his temper.  Unfortunately, no previous action was taken by the manager to address the problem, with the result that the complainant didn’t address it either.  If the manager had treated the complainant’s “flare ups” with more seriousness, and, if he had invoked the disciplinary procedure at an earlier stage, the complainant may have had an opportunity to modify his behaviour, the incident of February 23rd might not have occurred and he might not have been dismissed.  While this may seem simplistic, the purpose of the disciplinary procedure is to act as a deterrent, and to warn an employee that, if they do not pay attention to problematic behaviour, they will be dismissed.  By failing to give the complainant a chance to address his behaviour, he was treated unfairly.

The complainant’s behaviour on Sunday, February 23rd may have been such that dismissal was a reasonable response.  It is my view however, that if the respondent’s disciplinary procedures had been followed, it is unlikely that he would have been dismissed and that, as a first “on the record” offence, a reasonable employer would have issued a written warning or perhaps a final written warning.

The responsibility to manage the employment relationship falls squarely on the employer and, regardless of the fractious nature of the relationship between them, an employee at risk of dismissal is entitled to the benefit of fair procedures.  I am certain that the restaurant manager, and the restaurant owner were aware of the requirement to deal with the complainant’s conduct in accordance with their own disciplinary procedures, but they decided to take what they considered to be a more expedient route to end the employment relationship.  The only conclusion I can arrive at is to find that the dismissal of the complainant was substantively and procedurally unfair.

I decide that this complaint under the Unfair Dismissals Act is well-founded and that the complainant is entitled to redress.  To determine the amount of redress, I must consider the complainant’s losses and his efforts to mitigate his losses.

One week after he was dismissed, the complainant got a job as a waiter, earning €11.00 per hour, equivalent to €440.00 per week; €145.00 per week less than what he earned with the respondent.  When restaurants in Ireland closed in the middle of March 2020 due to the Covid 19 pandemic, the complainant applied for and was paid the pandemic unemployment payment of €350.00 per week, which he would have received if he had not been dismissed.  Restaurants opened again at the end of June 2020 and closed on October 21st.  They opened again in mid-December and closed at the end of the year.  I estimate that, from the date of his dismissal on March 1st 2020 until the end of the year, the complainant worked for 18 weeks with his new employer.  I have decided to disregard any possibility of employment during 2021, as the complainant said that he returned to Romania.  I calculate the complainant’s loss of earnings be approximately €3,200 and I therefore direct the respondent to pay him compensation of that amount.  As this award is compensation for loss of income, it is subject to the normal statutory deductions.  

Resignation, dismissal in dispute