Complainant

Respondent

Parties

Darren Foley

McLeary's Restaurant Limited

Representatives

The Complainant attended the Hearing in person and was not represented

The Respondent did not attend and was not represented at the Hearing

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00040399-001

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040399-003

14/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040399-004

14/10/2020

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

CA-00040399-005

14/10/2020

The Complainant was employed by the Respondent as a Chef from May, 2017 until 17 September, 2020 when his employment was terminated. The Complainant normally worked 40 hours per week and was paid €560.00 per week.

The Complainant referred a number of complaints to the Director General of the Workplace Relations Commission arising from his employment namely, that (i) he was penalised contrary to the Safety, Health and Welfare at Work Act, 2005, (ii) that he was not given a Statement of Terms and Conditions of Employment contrary to the Terms of Employment (Information) Act, 1994, (iii) that he did not receive his annual leave entitlement contrary to the Organisation of Working Time Act, 1997 and (iv) that he was unfairly dismissed contrary to the Unfair Dismissals Act, 1977.

CA-00040399-001 – Complaint under the Safety, Health and Welfare at Work Act, 2005

The Complainant stated that he was subjected to constant harassment in the workplace by the Respondent and that one of the Director’s (Mr. A) would constantly use foul language and aggressive behaviour towards him. The Complainant stated that Mr. A would shout and raise his voice at him whenever he raised the issue of his outstanding holiday pay and that on one occasion Mr. A pulled him into a bathroom in a threatening manner.

The Complainant confirmed that he had not raised any concerns about health and safety matters during his employment and that the alleged inappropriate behaviour he was subjected to occurred after he had queried his holiday pay and other money which he believed was owed to him.

CA-00040399-003 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that he did not receive a written statement of his terms and conditions of employment at any point during his period of employment with the Respondent.

CA-00040399-004 – Complaint under the Organisation of Working Time Act, 1997

The Complainant stated that he was entitled to payment in respect of 19 days annual leave on the termination of his employment which consisted of 6 days untaken annual leave from 2019 and 13 days annual leave accrued during 2020. The Complainant stated that he did not take any annual leave during 2020 up until the date of his dismissal on 17 September, 2020.

The Complainant claims that he was never clear on the amount of leave he had accrued or had remaining and payment for same. The Complainant stated that records of leave taken were recorded in pencil on rosters and subsequently erased and when he challenged the Respondent on the number of days he believed he had remaining and/or payment for same, the Respondent became annoyed and stated that the Complainant was incorrect. The Complainant stated that this happened on a number of occasions.

The Complainant stated that he queried with the Respondent the amount of outstanding holiday pay that he was due on the termination of his employment. The Complainant stated that he was advised by the Respondent that he would receive that detail in a pay slip; however, he was not provided with the PIN number required to access this information. The Complainant stated that he requested this information again in October, 2020 when he called to the Respondent’s premises but was informed by Mr. A (Director) that he had got everything he was owed and that this information was all on file.

The Complainant confirmed at the oral hearing that he subsequently received payment in respect of 30 hours annual leave from the Respondent following the termination of his employment.

CA-00040399-005 – Complaint under the Unfair Dismissals Act, 1977

The Complainant submitted that he had a good working relationship with the Respondent when he started employment in 2017 but subsequently felt that he was being bullied by one of the co-owners, Mr. A. The behaviours complained of included being giving “crap” hours, being rostered weekends, being asked to do jobs that the other chefs were not required to do and being picked on and belittled. The Complainant stated that this treatment impacted on his sleep and ordinary enjoyment of life outside of work. The Complainant stated that he complained to another co-owner, Mr. B, who promised to have a word with Mr. A. The Complainant stated that he didn’t raise a formal grievance in relation to this matter as the Respondent didn’t have any policies or procedures like that in operation in the business. The Complainant stated that he had complained at least four times to the co-owner about what he felt was bullying behaviour.

The Complainant stated that he was unfairly dismissed from his employment on 17 September 2020 following a verbal altercation with Mr. A, after being accused by him of taking a cigarette break when he was supposed to be attending his workstation. The Complainant stated that he asked again about his holiday entitlements which caused Mr. A to “explode” and say that if the Claimant didn’t like working there, “F*** out home then” and not to bother coming back. The Complainant stated that he left the premises after this altercation and informed Mr. A that he would collect the money owed to him on the following Friday, and to which Mr. A replied “don’t bother coming back”. The Complainant stated that his partner returned the keys of the premises to Mr. A later that morning.  The Complainant stated that he went to Respondent’s premises on 7 October, 2020 to request a letter of termination of employment for Social Welfare. The Respondent would not allow him into the premises.

Evidence of Ms. C (Complainant’s Partner)

Ms. C stated that she is the Complainant’s partner and that she was present at their residence on 17 September, 2020 when the Complainant returned home in a distressed state and informed her that he was after being dismissed from his employment. Ms. C stated that she visited the Respondent’s premises later that day on the request of the Complainant in order to return a set of keys that he possessed for the premises. Ms. C stated that she returned the keys to the Respondent’s co-owner, Mr. A, on this date and sought clarification from him as to the reason why the Complainant had been dismissed from his employment. Ms. C stated that she was informed by Mr. A that the Complainant was not doing his work and that he did not make any attempt to retract the dismissal. Ms. C stated that she requested Mr. A to provide a letter of termination of employment for the Complainant and she left the premises after returning the set of keys.

As the complaints referred to the Workplace Relations Commission included a complaint under Section 8 of the Unfair Dismissals Act, 1977, the Respondent was requested to submit a Written Statement in response to the Complaint. The Respondent provided a Written Statement to the WRC on 23 February 2020 and an additional Written Statement on 2 September 2021.

However, given that the Respondent failed to attend the hearing to adduce oral evidence in response to the complaints, I was not in a position to verify or test the details contained in these statements, and accordingly, I do not attach any weight to these submissions.

CA-00040399-001 – Complaint under the Safety, Health and Welfare at Work Act, 2005

The Law

Section 27 of the Safety, Health and Welfare at Work Act, 2005, states:

“(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for –

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent, and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

In the instant case, the Complainant claims that he was subjected to penalisation by the Respondent contrary to Section 27(2) of the Act on the basis that he was subjected to harassment and inappropriate conduct for having requested payment of his outstanding holiday entitlements.

The Labour Court has held in the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095that: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish that the detriment which he has complained of was imposed “for” having committed the aforementioned protected act. In considering this matter, I note that the Complainant adduced evidence that he did not raise any concerns or issues with the Respondent in relation to health and safety matters during the course of his employment. Having considered the evidence adduced on this matter, I find that the Complainant did not, in accordance the provisions of Section 27(3) of the Act, make a representation to his employer as regards matters relating to safety, health or welfare at work. Accordingly, I find that the Complainant has not satisfied the essential criteria to maintain a complaint under this Act.

CA-00040399-003 – Complaint under the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

The Complainant adduced evidence that he was not provided with a written statement of his terms and conditions of employment by the Respondent during his period of employment. I have found the Complainant to be a credible witness and I accept his evidence in relation to this complaint.

Based on the uncontested evidence of the Complainant, I find that the Complainant was not provided with a written statement of his terms and conditions of employment at any stage during his period of employment. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00040399-004 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that he was owed payment in respect of 19 days annual leave which he had accrued during the calendar years 2019 and 2020 on the termination of his employment on 17 September, 2020. The Complainant contends that he subsequently received payment in respect of 30 hours annual leave following the termination of his employment, but the remaining entitlement still remains outstanding.

The Complainant referred his complaint to the Workplace Relations Commission on 14 October, 2020. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act, 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 15 April, 2020 to 14 October, 2020.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(i) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2020/2021 (i.e. 1 April, 2020 to 31 March, 2021) is covered by this complaint.

I note that during the period from 1 April, 2020 until 17 September, 2020 the Complainant worked a total of 24 weeks and thereby accrued an annual leave entitlement of 76.8 hours annual leave on the termination of his employment (i.e. 8% of 24 weeks x 40 hours per week). The Complainant adduced evidence that he was paid a total of 30 hours in respect of accrued annual leave entitlements following the termination of his employment. The Complainant’s claim is for compensation in respect of annual leave pursuant to section 23 of the Act. Any such entitlement would have accrued on the cessor of his employment. In the circumstances, I find that the Complainant had an outstanding entitlement of 46.8 hours annual leave on the termination of his employment which equates to an amount of €655.20 (i.e. 46.8 x €14.00 per hour) by way of cessor pay on the termination of his employment. Based on the Complainant’s uncontested evidence, I find that he was not paid that amount in contravention of section 23 of the Act. Accordingly, I find that the complaint is well founded.

CA-00040399-005 – Complaint under the Unfair Dismissals Act, 1977

The Law

Section 1 of the Unfair Dismissals Act, 1997 provides 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.”

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

…

(6) In determining for the purposes of this Act, whether the 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 more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

In reaching my decision I have taken into consideration all of the written submissions of the parties, and I have had full regard to the evidence adduced in the course of the proceedings.

The definition of “dismissal” is set out in section 1 of the Act. Therefore, it must be established that the Complainant was dismissed in accordance with the provisions of section 1 of the Act before I can proceed to consider the unfairness or otherwise of the alleged dismissal.

In the instant case, the Complainant claims that he was summarily dismissed from his employment following an altercation with the Respondent on 17 September, 2020. The Complainant adduced evidence that he was told by the co-owner of the business to “F*** out home then” and not to bother coming back. Therefore, the question that I must decide is whether, on the balance of probability, the Respondent’s co-owner, Mr. A, used the words in question, and if so, whether the words amounted to a dismissal. Having regard to the Complainant’s uncontested evidence, I am satisfied that Mr. A did utter the words in question and the Complainant firmly believed that this utterance left him in no doubt that his employment had been terminated by way of dismissal.

As a general rule in cases where an employer has given an oral notice of dismissal to an employee, if it is expressed in unambiguous and unconditional terms, it results in the termination of the contract of employment. However, I note that there is a significant body of authority for the proposition that there are exceptions to this rule and that an employer may withdraw a notice of dismissal where “special circumstances” exist relating to the context in which the notice of dismissal was given.

In this regard, I have taken cognisance of the case of Martin v. Yeomen Aggregates Ltd [1983] IRLR 49 where it was held by the UK Employment Appeals Tribunal that: “ … It has obviously been contemplated in this Appeal Tribunal and has been contemplated for years that in the heat of the moment words which clear enough standing alone would indicate a dismissal can lose that effect if one looks at the surrounding circumstances. Of course, it must be a question of degree. Of course, you may get a situation in which the change of mind is so late that it is impossible to recover from the dimissory words expressed in the first place.”

It was held by the UK Court of Appeal in the case of Willoughby -v- CF Capital Plc [2011] IRLR 985 at paragraph 27 that: “the 'special circumstances' exception to which I have referred is one that finds its expression and application in several reported authorities. They are cases in which either the employee has given an oral notice of resignation or (less commonly) in which the employer has given an oral notice of dismissal. The words of the notice so given may, on the face of it, be clear and unambiguous and may take effect according to their apparent terms. Indeed, the general rule is that they will do so. The authorities recognise, however, an exception to that general rule: namely, that the circumstances in which the notice is purportedly given are sufficiently special that it will or may not take such effect. For example, the words of notice may be the outcome of an acrimonious exchange between employer and employee and may be uttered in the heat of the moment such that there may be a real question as to whether they were really intended to mean what they appeared to say. In such circumstances it will or may be appropriate for the recipient of such a notice to take time before accepting it in order to ascertain whether the notice was in fact intended to terminate the employment”.

It was held at paragraph 37 that: “It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be”.

It was held atparagraph 38 that: “In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place – that, in effect, his mind was not in tune with his words”.

While I note that these cases are not binding in this jurisdiction, they are persuasive authorities on the law applicable to cases such as this. It is clear from the relevant authorities that the special circumstances in which a notice of dismissal can be revoked include situations where the words indicating the dismissal have been uttered in the heat of the moment. Therefore, in order to establish if the special circumstances exception can be invoked in the circumstances of the instant case, it must be established that Mr. A had used the words in question in the heat of the moment and that he did not intend to dismiss the Complainant in the first instance and that all reasonable efforts were made to inform him of this fact within a reasonable timeframe following the incident that occurred on 17 September, 2020.

I have found the Complainant’s uncontested evidence on this matter to be very credible and compelling and I accept his evidence that the Respondent did not make any attempts to withdraw the words used during the incident on 17 September, 2020 or that Mr. A did not intend these words to result in his dismissal. I also heard sworn evidence from the Complainant’s partner (Ms. C) in relation to a conversation that she had with Mr. A on the date of the incident on 17 September, 2020 when she visited the Respondent’s premises to return a set of keys on behalf of the Complainant. I have found Ms. C to be a reliable and credible witness and I accept her evidence that Mr. A did not make any attempt to inform her that the Complainant’s dismissal was being retracted or that it had been invoked in the heat of the moment on 17 September, 2020. 

I also find that there was a manifest failure by the Respondent to adhere to the basic requirements of procedural fairness in relation to the manner in which the Complainant’s dismissal was effected and that his employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000).

In the circumstances, I find that the Complainant’s dismissal was both substantively and procedurally unfair within the meaning of Section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

CA-00040399-001 – Complaint under the Safety, Health and Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having regard to the evidence adduced, I find that the Complainant has not established that he was subjected to penalisation within the meaning of Section 27 of the Act in relation to this matter. Accordingly, I find that the complaint is not well founded.

CA-00040399-003 – Complaint under the Terms of Employment (Information) Act, 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €2,240.00 being the equivalent of four weeks’ pay in respect of the contravention.

CA-00040399-004 – Complaint under the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded, and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €655.20, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2019/20, and

-          €300.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00040399-005 – Complaint under the Unfair Dismissals Act, 1977

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.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was being paid a weekly wage of €560.00 by the Respondent at the material time of his dismissal. The Complainant adduced evidence that he secured alternative employment immediately after his dismissal on a higher rate of pay of €600 per week. The Complainant stated that he was put on temporary lay after a period of three weeks in this new position due to the implementation of Covid 19 lockdown measures and that he has been in receipt of the Pandemic Unemployment Payment since that time. The Complainant stated that he has been available for work since (except for a short period during which he was hospitalised) and understands that he will be called back by his current employer when business resumes at full capacity post COVID restrictions.  Having regard to the foregoing, I deem that an award of €7,500.00 to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from his dismissal. 

Safety, Health and Welfare at Work Act, 2005 – Section 27 – Penalisation – Terms of Employment (Information) Act, 1994 – Section 3 – Written Statement of Terms and Conditions – Organisation of Working Time Act, 1997 – Section 19 – Annual Leave – Section 23 – Cessor Pay - Unfair Dismissals Act, 1977 – Section 6 - Compensation