ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029595
Parties:
| Complainant | Respondent |
Parties | Padraic Casserly | Tribal Restaurant Limited Tribeton |
Representatives | Berwick Solicitors | MacSweeney & Company Solicitors |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040175-001 | 30/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040175-002 | 30/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040175-003 | 30/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040175-004 | 30/09/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040175-005 | 30/09/2020 |
Date of Adjudication Hearing: 07/07/2021 & 31/01/2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The respondent and complainant with their representatives attended the hearing held on 7th July 2021 which was adjourned pending the legislation to allow for evidence to be taken under oath or affirmation.
On the 21st December 2021 the respondent’s solicitor wrote to the WRC confirming receipt of date of hearing for 31st January 2022 and advising that they would be in contact if there were difficulties with the date. Neither the respondent nor the representative attended the hearing on 31st January 2022 and did not contact the WRC to explain their absence nor seek an adjournment. The complainant’s solicitor advised that he had been in contact with the respondent’s solicitor who advised that they would not be attending. The complainant’s representative advised that the respondent’s representative had come off record. The WRC were not advised that the respondent’s representative had come off record and on 27th April 2022 the respondent representative advised that they remained on record.
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same.
Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and that cross examination is permitted. Evidence was taken under affirmation from the complainant. |
Summary of Complainant’s Case: CA-00040175-001
The complainant submits that he commenced employment as an Executive Chef with the respondent on 18 May 2015. On 15th March 2020 the complainant was advised that the restaurant would close temporarily because of Covid. The complainant was shocked to see on 29th May 2020 that planning permission was being sought to change the restaurant to office space. On 20th June 2020 the complainant received an email stating that the restaurant would stay closed as it was not viable to open owing to the public health advice and restrictions that remained in place and that the Directors would review the position in August 2020. No reference was made by the respondent in this email that they had sought planning permission.
On 25th August 2020 the complainant contacted the respondent regarding outstanding monies owed but received no response. Planning permission was granted to the respondent on 1st September 2020. On his complaint form, the complainant had submitted that employment had ceased on 29th May 2020. At the hearing, the complainant gave evidence that employment had in effect ended on 1st September 2020 when planning permission was granted, the respondent had failed to advise him of the status of his employment as promised by the end of August 2020 and the respondent had failed to respond to queries of 25th August 2020 regarding the status of his employment.
The complainant’s representative wrote to the respondent on 17th September 2020 but the respondent failed to reply.
The complainant gave evidence that he was upset at the manner in which the respondent sought planning permission to change the purpose of the premises from restaurant to offices without engaging with him and the respondent’s refusal to answer his questions and his failure to revert to him as promised in August 2020. It was submitted that the complainant’s gross weekly pay was €865.41.
The complainant withdrew a complaint regarding annual leave but submitted that he was owed public holidays from the period that the restaurant temporarily closed in March 2020 until his employment ended in September 2020. |
Summary of Respondent’s Case: CA-00040175-001
The respondent did not attend the second date of the hearing and did not provide an explanation for his non-attendance. I am satisfied that the respondent was on notice of the date, time and place at which the hearing to investigate the complaint would be held.
In a submission sent in advance of the hearing, the respondent denied the allegations, advised that employees had been on lay off from March 15th 2020, that it would have been uneconomic and financially reckless to have reopened when restrictions remained and that the claims were premature and ill-conceived. |
Findings and Conclusions: CA-00040175-001
The respondent did not attend the hearing, I am satisfied that the respondent was on proper notice of the hearing and I find that their failure to attend unexplained.
The only sworn evidence that I have to rely on is that from the complainant and the complainant gave evidence that he was properly owed monies for public holidays that occurred from the time he was on lay off until his employment ceased. The respondent’s submission would appear to acknowledge a right to public holidays during the lay-off period.
Section 21 of the Organisation Working Time Act 1997 as amended as detailed at Schedule 3 of the Act provides for entitlement to Public Holidays for the first 13 weeks of layoff.
Based on the evidence and submissions I am satisfied that layoff occurred on the 15th March 2020 and that 4 public holidays fall during the 13-week period thereafter (17th March 2020, April 13th 2020, 4th May 2020 and 1st June 2020).
It was submitted in evidence the complainant’s gross weekly pay was €865.41, and the Public Holiday entitlement at one fifth amounts to €173.08 per public holiday. The complaint for Public Holiday entitlement is well founded and the complainant is awarded €692.33. |
Summary of Complainant’s Case: CA-00040175-002
The complainant submits that he commenced employment as an Executive Chef with the respondent on 18 May 2015. On 15th March 2020 the complainant was advised that the restaurant would close temporarily because of Covid. The complainant was shocked to see on 29th May 2020 that planning permission was being sought to change the restaurant to office space. On 20th June 2020 the complainant received an email stating that the restaurant would stay closed as it was not viable to open owing to the public health advice and restrictions that remained in place and that the Directors would review the position in August 2020. No reference was made by the respondent in this email that they had sought planning permission.
On 25th August 2020 the complainant contacted the respondent regarding outstanding monies owed but received no response. Planning permission was granted to the respondent on 1st September 2020. On his complaint form, the complainant had submitted that employment had ceased on 29th May 2020. At the hearing, the complainant gave evidence that employment had in effect ended on 1st September 2020 when planning permission was granted, the respondent had failed to advise him of the status of his employment as promised by the end of August 2020 and the respondent had failed to respond to queries of 25th August 2020 regarding the status of his employment.
The complainant’s representative wrote to the respondent on 17th September 2020 but the respondent failed to reply.
The complainant gave evidence that he was upset at the manner in which the respondent sought planning permission to change the purpose of the premises from restaurant to offices without engaging with him and the respondent’s refusal to answer his questions and his failure to revert to him as promised in August 2020. It was submitted that the complainant’s gross weekly pay was €865.41.
The complainant submitted that he was not paid his minimum notice following his dismissal. |
Summary of Respondent’s Case: CA-00040175-002
The respondent did not attend the second date of the hearing and did not provide an explanation for his non-attendance. I am satisfied that the respondent was on notice of the date, time and place at which the hearing to investigate the complaint would be held.
In a submission sent in advance of the hearing the respondent denied the allegations, advised that employees had been on lay off from March 15th 2020, that it would have been uneconomic and financially reckless to have reopened when restrictions remained and that the claims were premature and ill-conceived.
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Findings and Conclusions: CA-00040175-002
The respondent did not attend the hearing, I am satisfied that the respondent was on proper notice of the hearing and I find that their failure to attend unexplained.
The only sworn evidence that I have to rely on is that from the complainant and the complainant submits that he was dismissed and therefore has an entitlement to his minimum notice which is monies properly payable.
The Payment of Wages Act 1991 allows for complaints regarding monies properly payable including upon termination by the employer of the contract of employment. The Minimum Notice and Terms of Employment Act details entitlements for employees as follows: 4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— ( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
I have found in complainant CA-00040175-005 that the complainant was unfairly dismissed and I therefore, find that the complainant’s complaint of four weeks’ notice is monies properly payable to him. The complainant’s gross weekly was €865.41 and I therefore, award the complainant €3,461.64. |
Summary of Complainant’s Case: CA-00040175-003
The complainant submits that he commenced employment as an Executive Chef with the respondent on 18 May 2015. On 15th March 2020 the complainant was advised that the restaurant would close temporarily because of Covid. The complainant was shocked to see on 29th May 2020 that planning permission was being sought to change the restaurant to office space. On 20th June 2020 the complainant received an email stating that the restaurant would stay closed as it was not viable to open owing to the public health advice and restrictions that remained in place and that the Directors would review the position in August 2020. No reference was made by the respondent in this email that they had sought planning permission.
On 25th August 2020 the complainant contacted the respondent regarding outstanding monies owed but received no response. Planning permission was granted to the respondent on 1st September 2020. On his complaint form, the complainant had submitted that employment had ceased on 29th May 2020. At the hearing, the complainant gave evidence that employment had in effect ended on 1st September 2020 when planning permission was granted, the respondent had failed to advise him of the status of his employment as promised by the end of August 2020 and the respondent had failed to respond to queries of 25th August 2020 regarding the status of his employment.
The complainant’s representative wrote to the respondent on 17th September 2020 but the respondent failed to reply.
The complainant gave evidence that he was upset at the manner in which the respondent sought planning permission to change the purpose of the premises from restaurant to offices without engaging with him and the respondent’s refusal to answer his questions and his failure to revert to him as promised in August 2020. It was submitted that the complainant’s gross weekly pay was €865.41.
It was submitted that, without prejudice to the complaint that the complainant had been dismissed (CA-00040175-005) , the complainant gave evidence that if he was not unfairly dismissed then, in the alternative, his position had been made redundant. |
Summary of Respondent’s Case: CA-00040175-003
The respondent did not attend the second date of the hearing and did not provide an explanation for his non-attendance. I am satisfied that the respondent was on notice of the date, time and place at which the hearing to investigate the complaint would be held.
In a submission sent in advance of the hearing the respondent denied the allegations, advised that employees had been on lay off from March 15th 2020, that it would have been uneconomic and financially reckless to have reopened when restrictions remained and that the claims were premature and ill-conceived. |
Findings and Conclusions: CA-00040175-003
The respondent did not attend the hearing, I am satisfied that the respondent was on proper notice of the hearing and I find that their failure to attend unexplained.
The only sworn evidence that I have to rely on is that from the complainant and the complainant gave evidence that he believed he was dismissed but if not dismissed then he was entitled to redundancy payment. I note that there was nothing specific by way of evidence submitted by the complainant to support his complaint that his position had been made redundant.
I have determined in CA-00040175-005 that the complainant was unfairly dismissed. I therefore, do not allow the complainant’s appeal of redundancy and find his complaint unfounded. |
Summary of Complainant’s Case: CA-00040175-004
The complainant submits that he commenced employment as an Executive Chef with the respondent on 18 May 2015. On 15th March 2020 the complainant was advised that the restaurant would close temporarily because of Covid. The complainant was shocked to see on 29th May 2020 that planning permission was being sought to change the restaurant to office space. On 20th June 2020 the complainant received an email stating that the restaurant would stay closed as it was not viable to open owing to the public health advice and restrictions that remained in place and that the Directors would review the position in August 2020. No reference was made by the respondent in this email that they had sought planning permission.
On 25th August 2020 the complainant contacted the respondent regarding outstanding monies owed but received no response. Planning permission was granted to the respondent on 1st September 2020. On his complaint form, the complainant had submitted that employment had ceased on 29th May 2020. At the hearing, the complainant gave evidence that employment had in effect ended on 1st September 2020 when planning permission was granted, the respondent had failed to advise him of the status of his employment as promised by the end of August 2020 and the respondent had failed to respond to queries of 25th August 2020 regarding the status of his employment.
The complainant’s representative wrote to the respondent on 17th September 2020 but the respondent failed to reply.
The complainant gave evidence that he was upset at the manner in which the respondent sought planning permission to change the purpose of the premises from restaurant to offices without engaging with him and the respondent’s refusal to answer his questions and his failure to revert to him as promised in August 2020. It was submitted that the complainant’s gross weekly pay was €865.41 and that should the complainant’s redundancy payment complaint succeed; the respondent had failed to provide evidence of the respondent’s inability to pay redundancy. |
Summary of Respondent’s Case: CA-00040175-004
The respondent did not attend the second date of the hearing and did not provide an explanation for his non-attendance. I am satisfied that the respondent was on notice of the date, time and place at which the hearing to investigate the complaint would be held.
In a submission sent in advance of the hearing the respondent denied the allegations, advised that employees had been on lay off from March 15th 2020, that it would have been uneconomic and financially reckless to have reopened when restrictions remained and that the claims were premature and ill-conceived. |
Findings and Conclusions: CA-00040175-004
The respondent did not attend the hearing and the complainant gave evidence that should his complaint of redundancy payment succeed, the respondent had failed to provide evidence of their inability to pay.
The only sworn evidence that I have to rely on is that from the complainant and the complainant gave evidence that should the complainant’s redundancy payment complaint succeed; the respondent had failed to provide evidence of the respondent’s inability to pay redundancy.
I have determined in CA-00040175-005 that the complainant was unfairly dismissed and in CA-00040175-003 I have determined that I do not allow the complaint’s appeal of redundancy.
At this time I have no jurisdiction to consider the instant complaint CA-00040175-004 and deem it not well-founded. |
Summary of Complainant’s Case: CA-00040175-005
The complainant submits that he commenced employment as an Executive Chef with the respondent on 18 May 2015. On 15th March 2020 the complainant was advised that the restaurant would close temporarily because of Covid. The complainant was shocked to see on 29th May 2020 that planning permission was being sought to change the restaurant to office space. On 20th June 2020 the complainant received an email stating that the restaurant would stay closed as it was not viable to open owing to the public health advice and restrictions that remained in place and that the Directors would review the position in August 2020. No reference was made by the respondent in this email that they had sought planning permission.
On 25th August 2020 the complainant contacted the respondent regarding outstanding monies owed but received no response. Planning permission was granted to the respondent on 1st September 2020. On his complaint form, the complainant had submitted that employment had ceased on 29th May 2020. At the hearing, the complainant gave evidence that employment had in effect ended on 1st September 2020 when planning permission was granted, the respondent had failed to advise him of the status of his employment as promised by the end of August 2020 and the respondent had failed to respond to queries of 25th August 2020 regarding the status of his employment.
The complainant’s representative wrote to the respondent on 17th September 2020 but the respondent failed to reply.
The complainant gave evidence that he was upset at the manner in which the respondent sought planning permission to change the purpose of the premises from restaurant to offices without engaging with him and the respondent’s refusal to answer his questions and his failure to revert to him as promised in August 2020. It was submitted that the complainant’s gross weekly pay was €865.41. The respondent’s actions were in effect dismissal as the respondent refused to engage with any queries that the complainant had regarding his employment.
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Summary of Respondent’s Case: CA-00040175-005
The respondent did not attend the second date of the hearing and did not provide an explanation for his non-attendance. I am satisfied that the respondent was on notice of the date, time and place at which the hearing to investigate the complaint would be held.
In a submission sent in advance of the hearing the respondent denied the allegations, advised that employees had been on lay off from March 15th 2020, that it would have been uneconomic and financially reckless to have reopened when restrictions remained and that the claims were premature and ill-conceived. |
Findings and Conclusions: CA-00040175-005
The respondent did not attend the hearing, I am satisfied that the respondent was on proper notice of the hearing and I find that their failure to attend unexplained.
The only sworn evidence that I have to rely on is that from the complainant. Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, 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 are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent. 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”.
Section 4 details “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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, ( b) the conduct of the employee, ( c) the redundancy of the employee, and ( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “
Furthermore, (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 other 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.
The evidence of the complainant, who appeared as a credible witness was that the restaurant closed temporarily and this closure was then extended as covid restrictions remained in place. The complainant was shocked to see planning permission applied for and granted to change the restaurant to offices as the respondent had not engaged with the employee and continuously refused to engage with him. The complainant had submitted the date of dismissal as 29th May 2020, the date the respondent sought planning permission, but at the hearing gave evidence that he realised his employment was, in fact, most likely terminated when the respondent failed to engage with him after 30th August 2020, despite their commitment to do so. The complainant has written to the respondent on 25th August 2020 and planning permission was secured on 1st September 2020
I find it unreasonable that in the circumstances the respondent did not engage with the complainant regarding his queries and furthermore, if there had been a reasonable explanation for seeking planning permission to change the restaurant to offices, the respondent could easily have responded to the complainant queries regarding same but the respondent failed to do so. The respondent failed to revert to the complainant as promised by the end of August 2020 and did not respond to the complainant’s correspondence. In all of the circumstances including that the respondent did not attend the hearing, that the burden of proof rests with the respondent, I find that it was reasonable of the complainant to assume that his employment was terminated, that the complainant was dismissed and that the dismissal was unfair.
The complainant provided evidence of efforts to mitigate his loss and although I have taken into consideration that job opportunities may have been limited owing to covid, I find the complainant could have made more sufficient efforts to seek alternative employments, including outside of the hospitality sector and furthermore, he did not seek alternative employment until October 2020.
Taking into consideration the respondent’s gross weekly pay of €865.41, losses estimated at €22,418 and failings by the complainant to sufficiently mitigate his losses I award the complainant €17,308.20 which is an award of 20 weeks.
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Decision:
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.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
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.
CA-00040175-001 I find that the complaint for public holiday entitlement is well founded and the complainant is awarded €692.33. CA-00040175-002 I find the complainant’s complaint of four weeks’ notice is monies properly payable to the complainant and his complaint is well founded and I award the complainant €3,461.64. CA-00040175-003 I do not allow the complainant’s appeal of redundancy and find his complaint unfounded. CA-00040175-004 At this time I have no jurisdiction to consider this complaint and deem it not well-founded. CA-00040175-005 I find that the complainant was unfairly dismissed and I award the complainant €17,308.20 which is an award of 20 weeks. |
Dated: 04th May 2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Unfair dismissal, redundancy payment, annual leave, public holidays |