Complainant

Respondent

Fast Food Shop Manager

Liquidator

Representatives

  Ms. Sandra Daly – Lay Representative

Jim Stafford of Friel Stafford Accountants (Liquidators) at 44 Fitzwilliam Place , Dublin 2

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042680-001

23/02/2021

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

CA-00042680-002

23/02/2021

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

CA-00042680-003

23/02/2021

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

CA-00042680-005

23/02/2021

The issues in contention concern the alleged Unfair Dismissal of a Fast-Food Shop Manager with related Minimum Notice and Employment Information complaints.

The Employment began on the 26th January 2020 and ended on the 18th February 2021 (this date was disputed by the Respondent -stating instead the 25th February 2021)

The rate of pay was stated to be €600 for a 39-hour week.

At the date of the Hearing the Employer was in Liquidation and was represented by the Liquidator’s Office.

The Complainant submitted a written statement and gave an Oral Testimony. She was represented by Ms. S. Daly.

There are four (4) complaints involved. However, as all evidence given Orally and in writing encompassed all complaints simultaneously the summary of the Complainant’s case will do likewise.

1:1         Section 7 of the Terms of Employment (Information) Act, 1994; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 (2 references) andSection 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00042680-001 to CA-00042680-004 respectively.

The Employment had commenced by invitation from Mr. C, then Owner of the Business in January 2020. She was employed to manage the shop in all aspects, staff, ordering supplies, financial management and all general managerial duties. All had gone well but the advent of Covid in March had made things more challenging. The opening hours of the Shop had by necessity to vary from the norm and Government/HSE Guidelines had to be followed. However, the Shop had traded well up to the end of Year 2020. The Owner/Director Mr. C had paid occasional visits as was his form as he had numerous outlets in the Country and Dublin. Nothing seriously amiss was ever suggested to the Complainant.

In September 2020 Mr. C, Director, had hired Ms TC as a Part Time “Assistant” Manager although her exact role was never made completely clear. However, she, Ms.TC, immediately began to assume Managerial duties and there was an unpleasant atmosphere between the two Ladies. It became clear to the Complainant that Mr.C and Ms.TC had an agenda towards her and that they were effectively “ganging up on her”.

Mr. C made a surprise visit to the Shop on the 27th of December and had taken a very unilateral view of the situation. A staff party had taken place the night before on the Premises and naturally there was a degree of untidiness but nothing serious. The Complainant was called to a meeting with Mr. C and Ms TC on the 14th January 2021. She was effectively given a “dressing down” by Mr C and a range of new routines /responsibilities between herself and Ms TC had been imposed by Mr.C.

Matters had progressed and the Shop was trading normally. However, on the 25th January she was told to take two weeks holidays with a proposed return date of the 19th February 2021. She had felt that this was odd, and her suspicions were further confirmed when remote Manager access to the Shop CCTV and computer was deleted from her Phone on or about the 28th January.

On the 13th February 2021 the Complainant had been at home as it was her proper agreed holidays. Out of the blue Mr.C had arrived at her home and told her she was dismissed. He had stated that the Business was trading very badly, and he could not afford her wages anymore. She was Not to Return from holidays.

There were a number of witnesses present in the House who gave written statements to corroborate the Complainant’s version of events. They were not available as Direct Witnesses to the Hearing.

The Complainant was questioned, by Mr Stafford for the Liquidator, on a lot of details regarding her time as Manager. These issues included alleged loose Time Keeping, Staff Supervision, Erratic Opening/Closing hours, Unexplained Absences and allowing staff to make and participate herself in TikToc videos/dances. In addition and more worryingly to the Respondent there were lapses in Food Hygiene routines and allowing food to be properly prepared (Pasta Dough) and inadequate storage at the end of the day’s business. He maintained that much of these issues were selective and completely blow out of context particularly in the middle of a Covid epidemic. A lot of these accusations had been brought forward long after she had left and were for the purposes of simply damaging her at the WRC Hearing. She had never been accused of them while in employment.

A side issue had arisen. The Complainant had been made a Director of the Business in late 2020. Being appointed a Director in 2020 obviously reflected well on her then status in the Business. She had immediately resigned in 2021 when relationships had deteriorated with Mr.C

Her Representative, Ms. Daly , summed up her case as one of absolute and blatant Unfairness. The Complainant had been denied all employment procedures, warnings ,appeals , right of representation , opportunity to cross examine her accusers to name a few. In her cross examination of the Employer, she referenced Si 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures as the accepted standard. It had been comprehensively ignored.

For an Employer to call to an employee’s private residence to dismiss them beggared belief.

A substantial Compensation award was the only proper redress.

There are four (4) complaints involved. However all evidence given Orally and in writing encompassed all complaints simultaneously the summary of the Respondent’s case will do likewise.

2:1         Section 7 of the Terms of Employment (Information) Act, 1994; Section 8 of the Unfair Dismissals Acts, 1977 – 2015 ( 2 references) andSection 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00042680-001 to CA-00042680-004 respectively.

The Respondent Principal, Mr C , was the principal witness assisted and guided by Mr. Stafford of the Liquidator’s Office. He ran a variety of Fast-Food business throughout the State. A vacancy had arisen for a Manager, and he had appointed the Complainant. She was from a well know Family in the fast-Food business and he had hoped she would quickly develop the site and eventually take over/ buy-out the business from him.

A picture was painted of the Fast Food business in Ireland enjoying a major Boom Period during the Covid emergency in 2020. There was little other competition with Pubs and Restaurant closed for most of the year.

However, he, Mr.C, had become very concerned with the very poor financial performance of the Shop in question during this period. They were barely paying their bills and often ran at a loss in comparison to similar outlets elsewhere enjoying a boom period.

He did not directly Manage outlets but had to take a special interest in this shop. He had discussed issues informally with the Complainant on a number of his regular visits. Nothing seemed to be improving. To assist the Complainant, he had appointed Ms TC as an Assistant in September 2020. The relationship had not been a happy one as Ms TC had attempted to address issue only to be frustrated by the Complainant. Effectively the Shop and the Staff were out of control.

He had made a surprise visit on the 27th December to find the Shop in a complete mess. Empty wine bottles were strewn about the shop and a very junior staff member was, it appeared, on her own. The Christmas period is major earner for Fast Food Shops but the Shop in question was losing money. On the day in question the Complainant was “in bed” when he had gone looking for her. He was shocked and after some reflection had a meeting with Ms Tc and the Complainant on the 22/23 of January to discuss issues. He had to protect the business and had instructed the Complainant to take time out -two weeks holidays. The business situation was now beyond critical. He had been forced to take drastic action and he had called to the Complainant’s House on the 13th February to tell her not to come back to work. If Employment Procedures were missed his absolute defence was that he was in a business emergency and radical steps had to be taken. The Complainant had been a major disappointment in the running of the Shop and had completely broken his trust in her. The job was, effectively, beyond her and all normal Fast Food business routines had been ignored or wilfully contravened. It was a very difficult situation for him personally as a lot of the Complainant’s family were in the Fast Food business and were trading partners with his various businesses.

In cross examination from Ms. Daly for the Complainant he admitted that he was unaware of SI 146 of 2000 Si 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures. He relied on an outsourced HR Company to keep him up to date on these types of issues.

As regards the Employment Information complaints the Complainant had received a proper Contract (copy displayed in evidence) and other information issues were without any foundation.

In final summary and assisted by Mr Stafford from the Liquidator’s Office he stated that he had acted as any prudent Employer or Business Owner would have done in a similar emergency situation. There was no time or opportunity to utilise procedures when the closure of the business was imminent.

3:1         Section 8 of the Unfair Dismissals Acts, 1977 – 2015 (CA 42680-002 & 003)

3:1:1       The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:1:2  The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295 :

        “The employer ,not the tribunal is the proper person to conduct the investigation into alleged  misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss ,in the light of the results of that investigation ,is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

Leagl issues and precedents aside all case rest on their own facts and circumstances. These will be examined next.

3:1:3     Review of the Evidence both written and Oral.

Extensive oral evidence was presented by the Parties. Full cross examination of the Respondent written materials and principal oral witnesses Mr.C took place by the Complainant’s representative.

Likewise, the evidence of the Complainant was examined by Mr Stafford for the Respondents.

As Adjudicator the inescapable fact was that the Respondent Principal, Mr. C, had called to the Complainant’s private house on the 13th February 2021 and had dismissed the Complainant in a brief conversation. This fact was never denied by the Respondent.

Procedurally there was no Investigation, presentation of Evidence, Disciplinary Hearing, Rights of Representation or Appeal Hearing.

Taking all Legal Precedent, Natural Justice, the Unfair Dismissals Act,1977 and SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures this action of dismissal as in total breach of all Legal rights of the Complainant. It was a complete Unfair Dismissal.

No Appeal of the decision was offered.

3:2       CA- 42680-001) section 7 of the Terms of Employment (Information) Act, 1994

This claim was that no contract of employment had ever been issued. The balance of probability lay with the Respondent Employer. A Written Contract was produced in evidence and the Complainant tacitly acknowledged that it had been mislaid.

The Complaint is Not Well Founded.

3:3       CA- 42680-005 Minimum Notice.

The sworn evidence of the Respondent Employer was that all due payments had been made by the end of February 2021. It appeared that these payments were holidays due. An identifiable payment for Statutory Minimum Notice was not obvious.

Accordingly, in view of the short service of the Complainant, a week’s pay in liew of Minimum Notice is directed to be paid.