ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029391

Parties:

	Complainant	Respondent
Parties	Andrew Kelly	Jenpen Ltd trading as Sinnotts On The Strand

	Complainant	Respondent
Anonymised Parties	Assistant Bar Manager	Gastro Pub Operator

Representatives

Dorothy Donovan BL

Complaint:

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-00039190-001	15/08/2020

Date of Adjudication Hearing: 12/10/2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6) of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.

In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee’s position (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 The Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade or proposes trading with fewer employees or that the work is to be done differently and the Employee has not the requisite training or qualification to continue.

Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).

In the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment wherein he had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the15th day of August 2020) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.

Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).

Background:

This is a claim for Unfair Dismissal. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.

I am satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. The parties herein made their Affirmations in the ordinary way.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. The Respondent’s representative cross examined the Complainant on his evidence. The Complainant says he was Unfairly dismissed out of his job as Assistant Bar Manager in July of 2020.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The Respondent provided me with two written submissions - one dated 24th of October 2020 and the other dated the 6th of October 2021. I have additionally heard from a witness for the Respondent, namely a Company Director. The Respondent witness was asked questions by the Complainant as well as by the Adjudicator.

The Respondent rejects that there has been an Unfair Dismissal and does not accept that the Complainant is entitled to compensation for losses as alleged. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced in the course of this hearing. The Complainant had been engaged by the previous owner of the Respondent’s current enterprise back in May of 2019. He says that he and the then owner managed all aspects of the establishment – the bar, the food, the bands, the social media and the cash. To his mind there was no aspect of the running of a pub (gastro or otherwise) that he did not know or understand.

I heard from the Respondent’s Operations manager SL. He has worked in pubs and bars for 35 years. He and his Co-Director saw an opportunity to purchase and take over a popular Gastropub in the summer of 2020. It is noted that at this time, as a result of Government imposed Covid restrictions, all public houses, bars and Gastro pubs had been closed since in and around March of 2020. Despite this the premises wherein the Complainant was working was sold by it’s previous owner to the Respondent company which transfer of undertaking came into effect on the 3rd of June 2020. The Directors of the new owner of the Pub were aware that the premises came with a workforce all of whom were on temporary layoff in line with compliance with Government restrictions. SL confirmed that he took receipt of all the staff Contracts of Employment (of which there were about 8) and he was aware that the complainant was an Assistant Bar Manager on a salary of circa €600.00 per 39 hour week. It is common case that when the transfer was completed the Complainant was on the €350.00 weekly covid payment.

The new owners set about engaging in a programme of upgrade and renovation works. This delayed the proposed opening date (as sanctioned by Government) from the 29th of June to the 12th of July. Before the 12th of July, and having reviewed his staffing needs and requirements, the Respondent Director SL, confirmed in evidence that he and a Mr. S had a conversation with the Complainant wherein they explained that they would no longer have a need for an Assistant bar Manager. SL instead offered the Complainant a seemingly more casual arrangement of Bar work. This would be on part time basis with a lower hourly rate. This conversation took place on or about the 7th of July. The Complainant said in his evidence that the conversation was primarily led by Mr. S who had also stated that the Complainant’s position was being made Redundant and that the hours that could be offered into the future were very uncertain and could range between 7 and 40 hours per week.

The Complainant gave evidence that he was shocked at this turn of events. The alternative arrangement was unacceptable to him as he had moved on from the part time market with utility bills and a mortgage to pay. He says when he had heard about the change in ownership (by letter on the 5th of May 2020 confirming the TUPE arrangements) he had opted to communicate with his soon to be new boss SL and to say that he looked forward to working with him. Nothing in the exchanges they had led him to believe his job was on the line. When he was told he was being made Redundant he was clear that MR. S was, in fact, being moved more or less into his position in the workplace.

SL says that the Complainant never made it clear to him that he would have had the skill set to Manage food service as well as the Bar trade and that the Company requirements post renovation was on primarily generating profit from the food and restaurant side of the business. Mr. S it seems had the relevant experience and had worked before with the Respondent in a previous enterprise.

The Complainant says that even before the meeting held on the 7th of July 2020, he had got wind of the fact that a new Manager was being brought in to run the newly minted premises. In a telephone conversation he says he had with SL (while renovations were ongoing) he had been advised that the new owner may not be able to afford the salary paid to the complainant. The complainant did not know if this engagement (of Mr. S) would jeopardise his position until events unfolded on the July 7th meeting. The Complainant does not know what Mr. S’s skillset is, but is adamant that he can match them. In any event, it seems clear that no comparative study was made by the Respondent Directors when they engaged Mr. S and terminated the Complainant. The Complainant pointed to the ignominious situation to be let go by the person hired to replace him.

The Redundancy was confirmed by a letter on the 14th of July. It is noted that an enhanced Notice package of two weeks’ Notice was paid (the Complainant only being entitled to one week).

I note that the Respondent tried to reverse its position in September of 2021, but this seems to have been solely in response to the fact that the Complainant had issued a Complaint through the workplace relations Commission.

On balance I am satisfied that the complainant was Unfairly Dismissed. The Respondent has not shown that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. No attempt was made to determine if the Complainant had the requisite training, skillset or qualification to continue in the workplace (instead of being swopped out for Mr. S). The Respondent’s conduct was unreasonable in all the circumstances.

In assessing loss, I am mindful of the fact that the Complainant was ultimately able to obtain full time work as a warehouse Manager further away from his home by January of 2021.

Decision:

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.

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

CA-00039190-001 - The Complainant was Unfairly Dismissed, and I award compensation for the any financial loss attributable to the dismissal in €15,000.00.

Dated: 23rd November 2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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