Complainant

Respondent

Parties

Daniel  Tanase

Gossm Investments Limited Twelfth Lock Hotel

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

James Evans James P Evans Solicitors

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-00040521-001

21/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040521-002

21/10/2020

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

CA-00040521-003

21/10/2020

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

CA-00040521-004

21/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040521-005

21/10/2020

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

CA-00040521-006

21/10/2020

The Complainant was employed with the Respondent as Restaurant Manager from 15th March 2017 until his dismissal on 25th September 2020.

On 19th July 2020, the owner accused the Respondent of taking money from the till and he was asked to account for this. The Complainant said the owner had taken €700 from the till and there was no money missing. The employer said he had watched him on CCTV and he was not satisfied, he implied there were other issues.

The Complainant was directed to attend the office where the owner was aggressive and breached covid-19 distance guidelines. He moved very close to the Complainant’s face and ripped off the Complainant’s mask. The owner was shouting and said the Complainant was part of a wider investigation but no details was given. This was the first time the Complainant was informed of any issues. He was told to go home and the owner would contact him. On 21st July 2020 the Complainant contacted the employer and was told to meet him the following day.

On 22nd July 2020 the Complainant met the owner and two managers and was requested to explain his position. He was badgered by the managers. He asked to see the CCTV and this was refused. He was told to give his keys to the owner and this was part of a much larger investigation.

The Complainant was not contacted by the owner following the meeting. On 25th September 2020 he received a letter dated 10th September 2020 terminating his employment. The letter makes a series of accusations which are all denied, alleges auditors and EPOS systems providers were involved in a review. There is an allegation of deliberate falsification of financial records against the Complainant. This was not put to the Complainant. No investigation was conducted to the Complainant’s knowledge and if it was it was without the Complainant’s involvement. The Complainant was not given any procedures or fair procedures. The Complainant was not given a contract of employment, handbook or disciplinary procedures.

There was no appearance by or on behalf of the Respondent at the hearing.

I have heard and considered the written and oral submissions of the Complainant’s representatives.

CA-00040521-001

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to 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 statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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 burden of proof lies on the Respondent to show there were substantial grounds justifying dismissal and fair procedures were used. There was no appearance by or on behalf of the Respondent at the Workplace Relations Commission to this claim.

The Complainant was employed since 15th March 2017 as a restaurant manager but had not received a written statement of terms of his employment. When an issue arose in July 2020 when he was accused of theft, the Complainant was not provided with any written details of the accusations against him and evidence relied upon, nor provided with a disciplinary procedure. He did not participate in any investigation, see any CCTV and was not aware of the outcome of any investigation. It is an extremely serious charge to be accused of theft. It is most surprising that the Complainant was not provided with written detail of the allegations against him and evidence. The Complainant was called to a meeting in relation to the incident on 22nd July 2020 which he attended without representation. He was subsequently dismissed on 25th September 2020 and furnished with a letter of dismissal.  

The disciplinary process carried out by the Respondent does not comply with basic fair procedures and S.I 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. Satisfactory evidence has been provided of mitigation of loss by the Complainant.

In all the circumstances, I find the Complainant was unfairly dismissed on substantive and procedural grounds. The Complainant was paid by the Respondent until 22nd August 2020 and received notice of dismissal on 25th September 2020. He subsequently found employment on a lower salary on 1st December 2020. He received the Pandemic Unemployment Payment from 25th December 2020 to 23rd May 2021, and his salary was €38,000 gross by end of July 2021 and he has ongoing financial loss. I direct payment of the Complainant’s financial loss of € 20,072.07 gross by the Respondent.

CA-00040521-002       

The Complainant claims he has not been paid wages from 23rd August 2020 to 25th September 2020 of €1,538.50, 2 week’s notice of €1,538.50, and ten days annual leave amounting to € 1,230.78  in breach of S 5 of the Payment of Wages Act 1991. The Complainant gave evidence in relation to what occurred and monies owed which I accept. I find the complaint is well founded. I direct payment of salary, notice period and annual leave claimed of € 4,307.78 gross together with two week’s compensation of net € 1,218.83 total €5,526.61 to the Complainant by the Respondent.

CA-00040521-003

The Complainant said he did not receive a Sunday premium in his employment. The Complainant has no employment contract detailing how if any compensation for payment of Sunday premium is paid as is required by S14 of the Organisation of Working Time Act 1997. Taking into account the hospitality industry, I find a Sunday premium of 30% uplift on hourly rate earned on a Sunday is an appropriate premium. I find the complaint is well founded and direct payment of €230.80 premium for five Sundays by the Respondent to the Complainant.

CA-00040521-004

This is a duplication of CA-00040521-002 and is not well founded.

CA-00040521-005

This is a duplication of CA-00040521-002 and is not well founded.

CA-00040521-006

The Complainant claims he was never provided with a written statement of his terms of employment in accordance with the Terms of Employment (Information) Act 1994 which I accept. This is a continuing breach of the legislation. The complaint is well founded. I award the Complainant two weeks salary compensation for the breach and direct payment of net €1,218.84 by the Respondent to the Complainant.

CA-00040521-001

The Complainant was unfairly dismissed on substantive and procedural grounds. I direct payment of the Complainant’s financial loss of € 20,072.07 gross by the Respondent.

CA-00040521-002       

The complaint is well founded. I direct payment of salary, notice period and annual leave claimed of € 4,307.78 gross together with two week’s compensation of net € 1,218.83 total €5,526.61 to the Complainant by the Respondent.

CA-00040521-003

The complaint is well founded and I direct payment of €230.80 premium for five Sundays by the Respondent to the Complainant.

CA-00040521-004

This is a duplication of CA-00040521-002 and is not well founded.

CA-00040521-005

This is a duplication of CA-00040521-002 and is not well founded.

CA-00040521-006

The complaint is well founded. I award the Complainant two weeks salary in compensation for the breach and direct payment of net €1,218.84 by the Respondent to the Complainant.