Complainant

Respondent

Anonymised Parties

A Barman

A Bar

Representatives

Laurence Steen James McCourt & Son Solicitors

none 

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-00036083-001

09/05/2020

The complainant was employed on a part-time basis as a barman by the respondent.  It was agreed that he was paid €10 per hour.  His average hours were in dispute.

No supporting documentation was submitted by either party in relation to this complaint.

The complainant submitted that he was employed by the respondent on a casual basis since 2012 and on a more regular basis since 2017. He submitted that the brother of the owner asked to speak to him on Friday 10 January 2020 in the storage container (out of shot of the CCTV cameras).  The complainant submitted that the owner’s brother raised the issue of a discrepancy with the money relating to the operation of the slot machines in the Bar, a shortfall of €300.

The complainant submitted that the owner’s brother then took him off his rostered shifts and said that he would have to get someone to review the CCTV footage from the bar to investigate these matters.

The complainant submitted that on 14 January 2020, the owner’s daughter (who deals with HR issues) had a conversation with him wherein she indicated that she investigated the matter and that although he did not take money, he did not follow procedures. He submitted that she indicated that if her father knew about this he would be very disappointed and that she suggested that the relationship had broken down and that she asked him to finish up.

The complainant submitted that he was not afforded fair procedures in relation to the investigation of these matters and that there was no procedural guideline he could follow to challenge the direction that the investigation was going in.  The complainant submitted that he was left with no option but to leave the employment.  The complainant submitted that he suffered financial loss amounting to €800. 

The respondent submitted that there was no dismissal in relation to the complainant but that he had simply left their employment.

The respondent agreed that there was a discrepancy relating to the operation of slot machines upon its premises.  The respondent submitted that the discrepancy was put to the complainant and that he was taken off the roster.  The respondent submitted that following a review of the CCTV footage it was established that the complainant did not take the money but that he had not followed the procedures in relation to the operation of slot machines on the premises or the operation of the float relating to the slot machines.

The respondent submitted that at the meeting that took place on 14 January 2020, the complainant indicated that he was told that the owner of the business would have to be involved he indicated that he did not want it to go that far and that he resigned rather than proceed with the investigation.

Having heard both parties’ version of events, I am satisfied that there were discrepancies in relation to the operation of the slot machines and that these discrepancies were put to the complainant.  I am satisfied that the complainant was removed from the roster for the weekend while the owner’s daughter investigated this matter and that during the meeting of 14 January 2020 it became obvious that the relationship of trust had broken down to the point where the complainant was left with no option but to leave his employment.

The Unfair Dismissals Act 1997 - 2015 states that

“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,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

I am satisfied that the circumstances of the end of the employment relationship fall into the definition of dismissal contained in paragraph (b) and accordingly I find that a dismissal occurred and am not satisfied that the respondent has rebutted the assumption of unfair dismissal contained in the Section 6 (1) of the Acts,

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.

Although the complainant’s rate of pay was agreed between the parties at €10 per hour, his average hours per week was in dispute.  The complainant submitted that he worked an average 16 to 20 hours per week, while the respondent indicated that he worked only 10 to 12 hours per week.  The respondent gave evidence that generally speaking the complainant worked from 6pm till close twice a week and undertook additional hours on a Saturday as needed.  Given that 6 pm to close (including cleaning up time) amounts to a minimum of 6 hours, on balance I prefer the complainant’s evidence that he worked 16 to 20 hours on average per week.  Accordingly, I find that he worked an average of 18 hours per week.  I am satisfied that the complainant tried to mitigate his loss by seeking alternative employment which he found some five weeks later.  Having considered the oral evidence of both parties, I find the complainant was at a financial loss of €800 due to his dismissal.

Having regard to the oral evidence presented to me and my findings above, my decision is that the complainant was unfairly dismissed.  Under Section 7 of the Unfair Dismissals Acts, 1977 – 2015, I award the complainant €800 by way of redress for his financial loss.

Unfair dismissal, redress under Section 7