FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES: SITTING TREE LIMITED T/A HARBOUR BAR - AND - JAVIER FERNANDEZ TORRES DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00035331 CA-00046495-003 This is an appeal by Mr Javier Fernandez Torres (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00035331/CA-00046495-003, dated 10 August 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received on 28 August 2022. The Court heard the appeal (along with two associated appeals – TE/22/44 and TE/22/45) in Dublin on 25 November 2022. Both Parties furnished the Court with comprehensive written submissions which the Court took as read. The Complainant was employed by Sitting Tree Limited T/A Harbour Bar (‘the Respondent’) as a bartender from 7 June 2021 until his employment terminated on 31 September 2021, the Respondent having determined that he had not successfully completed his probationary period and was not a good fit for the business. In the period immediately prior to his dismissal, the Complainant worked on average sixteen hours per week and was paid €12.00 per hour. The Complainant alleges that the Respondent penalised him within the meaning of section 6C of the Act in retaliation for the Complainant’s attempt to refer the issue of his working hours to conciliation at the Workplace Relations Commission. The Respondent submits that its decision to terminate the Complainant’s employment during his probationary period was due to his lack of flexibility with regard to his working hours and his unavailability to work on certain days of the week. Discussion and Decision It is well-established in the case law of this Court that the test which must be satisfied in any claim of penalisation is the ‘but for’ test: i.e. it must be established that the detriment which the Complainant alleges would not have occurred but for the protected act on his part. The uncontested evidence before the Court is that the Complainant was adamant that he would make himself available for work on a limited number of predetermined days of the week only and between certain hours on those days. The Respondent for its part took the view that the Complainant’s lack of flexibility in this regard rendered him unsuitable for ongoing employment in the hospitality sector where a reasonable degree of flexibility is required of employees in order to meet the inevitable fluctuations in demand. The Respondent, therefore, terminated the Complainant’s employment on one week’s notice during the currency of his probationary period. The Court finds that the circumstances of the Complainant’s termination do not constitute penalisation within the meaning of the Act and the appeal fails. The decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
