Complainant

Respondent

Anonymised Parties

Assistant Chef

Coffee Shop

Representatives

 George Field  

 Mary Kirwan, Jonathan Barr

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-00039484-001

31/08/2020

The Complainant was employed as a Kitchen Assistant / Assistant Chef from 22nd November 2016 to 29th August or 4th September 2020. She was paid €12.00 per hour and worked an average of 32 hours per week. She has claimed that she was dismissed from her employment and has sought compensation.  The Respondent has stated that no dismissal took place and the Complainant left the employment.

Without prejudice to either side the Complainant presented her claim firstly.

The Complainant stated that on 29th August 2020 the Owner spoke to her in the car park as she was leaving work at the end of her shift. The Owner told her that her time was up with the job. He said that it has been a long time coming and that she had many chances. She became very upset and asked for reasons for the dismissal. She told him that she had no money and she asked what would she do? He told her that he would give her two week’s pay as a thank you. This all happened on the side of the road. She had no warning in advance of this dismissal. She contacted her mother to explain what happened. Her mother phoned the Owner then. He confirmed to her that she was let go, but he didn’t want to talk further to her about dismissal. She received emails from the Owner about not showing up at work. She had taken legal advice and she was told not to go back there. She lodged a complaint to the Workplace Relations Commission for unfair dismissal on 31st August 2020. She has not looked for work since as she wanted to get this claim out of the way.  She has sought compensation.

The Respondent stated that there was no dismissal. The Complainant joined the company as a Kitchen Assistant and was promoted to Assistant Chef.  The Owner spoke to her on 29th August 2020 about performance issues, standards of work and relationships at work. This meeting was conducted in the car park as there was no private space on the premises. He used to use the local Public House, but it is closed due to Covid. This was an informal meeting and not a disciplinary meeting. He pointed out that improvements would be necessary and reviews would take place in the future. He told her that this would be confirmed in writing. Shortly afterwards he received an abusive call from the Complainant’s mother threatening that this would cost him money. She told him that her daughter would not be returning to work. Following this, attempts were made to contact the Complainant by letter dated 1st September asking if she had left the employment as he had not heard from her. He gave her till 4th September to contact him. He then wrote to her on 5th September concluding that she had left the employment. Texts were exchanged between them on 30th and 31st August but without success. He believes that she decided to leave despite his pleadings not to. She did not return to work, so he took it that she had left the employment. He had a number of conversations prior to 29th August where he assured her of the future and her role in that. She failed to attend work despite two attempts to get her to return. There was no dismissal and if there was then it was fair.

I note the conflicting positions of both parties.

I note that both parties stated that the working relationship was good prior to 29th August 2020.

I find that both parties agree that a conversation took place in the car park, near work.

I note the Respondent’s reasoning for this.

I find that the two versions of what took place in that car park could not be more divergent, the Respondent stating that it was an informal chat that referred to the need for improvement in performance and attitude, while the Complainant understood that she was dismissed, there was reference to two week’s pay to help out.

I note that the Complainant contacted her mother and told her that she had been dismissed and her mother had a difficult conversation with the Respondent on the ‘phone.

I conclude that the Complainant’s reaction is more in keeping with her position of being dismissed.

I find that if there was a misunderstanding then you would expect the Respondent to immediately phone the Complainant and to try to explain what had happened and clear up any misunderstanding. This did not happen

I find that following the call with her mother he was in no doubt that the Complainant understood, that she had been dismissed.

I find that a ‘phone call might have had the desired effect, if that was what he wanted.

So, on the balance of probability, I conclude that the Respondent sought to terminate the employment in that conversation on 29th August and it didn’t go according to plan.

Therefore, I find that there was a dismissal.

I find on the balance of probability that the dismissal was both substantively and procedurally unfair.

I note that the redress sought was compensation.

I note that the Complainant has not sought to look for work and to mitigate her loss.

The Unfair Dismissals Act places an onus upon the dismissed person to mitigate their loss and to find work.

I note that the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

I note that Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977, “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,”

I find that the Complainant made no attempt to mitigate her loss whatsoever. Therefore, she has not suffered any financial loss.

Therefore, the maximum compensation that I may award as per Sec 7 (1) (c) (ii) is four weeks wages. (4 X 32 hours average X €12.00 = €1,536.00)

Unfair dismissal with no mitigation of loss