Complainant

Respondent

Parties

Dumitru  Petrica

Pizzeria La Scala Ltd. Trading as Maximilian’s Bistro

Representatives

  Marius Marosan

 Michelle Cooney

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-00039995-001

22/09/2020

To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. I am satisfied that the hearing has not been prejudiced for having been heard remotely and transparency and principles of natural justice have been observed.

In line with 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) it is confirmed that this case may be attended by any member of the Public who may wish to attend (including where such attendance is at a remote hearing).

In accordance with the Workplace Relations (miscellaneous Provisions) Act 2021 any person giving evidence in the course of this hearing was invited to make an affirmation solemnly declaring to tell the truth on the understanding that not to do so is a criminal offence punishable by operation of the Law. The option to swear an Oath (in lieu of Affirmation) was also provided where parties were in possession of such Holy Book as might be relevant to their own belief. As appropriate the Interpreter should also make an affirmation.

The Complainant worked as a chef with the Respondent company for nearly 5 years. It is alleged that tensions arose when the complainant took some annual leave at short notice in the summer of 2020. On his return the Complainant had to self-isolate in line with the Government Covid policy. Not sure that he was welcome back into the workplace, the Complainant sought and obtained work elsewhere.

The parties were sworn in by way of affirmation and the significance of this exercise was explained to the parties.

A translator was made available to the Complainant by the WRC. The Complainant was fully represented and afforded every opportunity to make his case. In addition, the Complainant’s representative was allowed to test the evidence put forward by the Respondent. The Complainant sent in some wage slips post hearing as I had requested these in the course of the hearing for the purpose of assessing mitigation and loss.

The Respondent was represented by an in-house member of the Administration staff performing the HR function. The primary evidence was given by MM the restaurant General Manager. I was provided with a timeline of events from the Respondent’s perspective. It should be noted that the Respondent sent in some wage slips in the aftermath of the hearing as had been requested in the course of the hearing.

MM indicated that the Complainant was an excellent chef who had worked with the Respondent company since 2016. The Complainant worked full time at a rate of €12.00 per hour. MM agreed that very often the Complainant would work over the Contracted number of hours stated in the Contract. The Complainant never complained about this and was rewarded financially.

The Restaurant industry ground to a halt in March 2020 in response to the Covid pandemic. By early summer the takeout and collection parts of the business were up and running and by later June the Restaurants were re-opened albeit under strict Government guidelines.

It is commonly understood by the parties that the Employee Handbook states that employees wishing to avail of Annual Leave will need to obtain the permission of their line Manager and are expected to give at least four weeks’ notice of any proposed annual Leave. I fully accept that this is necessary policy to operate in this industry where team members cannot rotate as easily as in other industries. I accept, for example, that all the chefs cannot go on holiday at once as the floor and/or bar staff cannot cover their absences. For the avoidance of doubt, I accept that this is a reasonable policy that it is (or should be) well known to be in operation in this restaurant. I do not accept the argument put forward on behalf of the Complainant that absent employees can somehow be covered by an alternative source of employees. At the very least this would put an Employer in a situation where not only does the absent employee get paid his or her Statutory entitlement to Holiday pay (in his or her absence) but a substitute employee – rotated in to cover the employee on holidays - must get paid too.

In early July 2020 the Complainant flagged with members of the Management team that he wanted to take Annual leave from the 14th of July 2020. The Complainant was anxious to go back to Romania and see family there. The Respondent witness MM stated that he categorically refused this request for this time. In his evidence to me, he stated that the Complainant was proposing taking a break at the same time as at least two other key members of staff. MM is adamant that the Complainant did not refer to any urgency which necessitated the Complainant making a trip abroad. MM says he asked the Complainant to push out his dates so as not to overlap with those members of staff whose annual leave had already been sanctioned for this time.

I would accept that MM knew that the Complainant was planning a trip to his native Romania, but I cannot be sure that the Complainant said anything about his Mother being sick and needing him. Certainly, there is no proof that this was ever said nor is there any evidence of that fact such as a Doctor’s letter or a family request. MM did say that as Romania was in the Red List at that time, a two-week vacation would have to be followed up by two weeks of self-isolation

It is worth noting that the Complainant even filled out an Annual Leave request form after the conversation already had. This was turned down by MM.

MM gave evidence that the Complainant left work on the 13th and did not come in to work on the 14th. In making floor enquiries in the workplace MM was told (by staff members who did not give evidence) that the Complainant had gone to his Mother who was sick. MM did not contact the Complainant after his departure. He said in evidence that he would not normally contact any individual on their Annual Leave. The restaurant it seems struggled on without the complainant.

MM next saw the Complainant the day after he was supposed to have returned from his trip abroad – in and around the 28th of July 2020. The Manager was very annoyed that the complainant came into the workplace when he was obliged to be in quarantine at home (expected to last two weeks). The complainant was looking for a letter or form (from the department of Employment Affairs and Social Protection) that he had handed into the office for completion on a date unknown but before his departure in mid-July. MM says that he asked the Complainant to leave the premises as he was not social distancing and that he would have to email or text him about obtaining any information or documentation about his employment. That interaction between the parties whilst brief did not, as I understand it, create a misunderstanding about where the parties stood. This is evidenced by the fact that on the 7th of August 2020 the complainant wrote to the Employer stating that he was available for work from the 11th of August as his quarantine was due to expire on the 10th. When asked why he chose to email the accounts department and not his manager directly (as would be the normal practise), the Complainant appeared to say that he was embarrassed.

I accept that the Manager MM was not made aware of this communication for a few days and in fact it was the 13th of August (some 6 days later) by the time he got back in touch with the Complainant stating that the Complainant had been rostered in for the weekend starting on the 14th of August. I confirm that I find the tone and content of that message delivered on Whats App, to be cordial and appropriate. MM confirms he has read the email, confirms the roster times and asks the Complainant to confirm he’s received the message. Three hours later another message goes out asking him to confirm his interest in working with his Employer.

The next day the Complainant replies to the messages stating that arising out of the delay (from the 7th to the 13th) he has gone ahead and accepted another job which commenced on the day that he was first available to work post-quarantine i.e., the 11th of August. It is significant to note that the complainant confirmed that the opportunity was too good to turn down. Again, the tone of the messages back and forth at this time do not suggest animosity or confusion. MM wishes the Complainant well and asks him to confirm resignation so that his P45 might issue.

Ms. C gave additional evidence on behalf of the Respondent. She was adamant that everyone in the company would know and understand what the policy is regarding the giving of Notice for annual leave. Given there are up to 35 staff members this is very important. In the course of her evidence, she indicated that the form for the Department of Social Protection had been filled out and that the last date of employment was referenced as the 13th of July 2020. However, it is not clear when that from was filled out and by whom. When asked the Complainant stated he no longer knew where that form was though he had received it. The Complainant stated he got the form on the 20th of August 2020.

On balance I find that not much turns on the form filled out for the Department of Social Protection and when it was filled out, and with what information. As far as I am concerned the relevant dates and information lie between the 7th and 13th of August. On the 7th of August the complainant clearly believes he will be returning to this workplace. On the 13th of August the Respondent clearly states that the Complainant was expected back. Between those two dates the Complainant conceded in evidence that he had sought and found alternative employment which he himself felt was “.. too good to be turned down”. I understand this employment might have started on or about the 11th of August.

It was therefore the Complainant who, I find as a matter of fact, terminated this employment. The Employment ended therefore by text message on the 14th of August 2020. Whilst I understand that this new job ultimately may not have worked out, I am satisfied that the decision to leave this employment was the Complainant’s own decision. In the circumstances there was no Unfair Dismissal perpetrated on the Complainant.

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

CA-00039995-001 The Complaint fails in circumstances where there was no Unfair Dismissal