Complainant

Respondent

Parties

Mukesh Kumar  Salyan

Kivaway Limited The Odeon Group

Representatives

Kamal Vaid Abbott Solicitors LLP.

Peter Ryan RA Consulting

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-00048803-001

22/02/2022

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

CA-00048803-002

22/02/2022

The Complainant was employed by the Respondent from 01/06/2016 until 18/10/2021.

The Complainant was employed as a bar Manager in one of the Respondent’s Pubs / Restaurants. The Complainant was paid a gross weekly wage of €961.54 per45 hour week.

This complaint was received by the Workplace Relations Commission on 22nd February 2022.

It is noted that there are two complaint numbers however on careful reading it would appear that there is only one complaint.

Background & Context

1.1 The claimant has referred a claim of unfair dismissal to the WRC but has provided no details (whatsoever) either to outline the circumstances surrounding any ‘dismissal’, nor to support such a claim. His submission consists solely of a copy of a pay statement.

1.2 Employed with the company for a period of approximately 10 years (initially on a part-time basis and subsequently full-time), Mukesh’s most recent position was as Bar Manager at the Odeon (bar and restaurant) establishment in Harcourt Street.

1.3 All licenced trade operations ceased in March 2020 as the Government introduced COVID related restrictions and closures. Mukesh was advised (along with his colleagues) that:

 (i) a layoff situation had commenced and

 (ii) his employment would resume as the situation improved

1.4 As the pandemic continued, the company again advised Mukesh (in September 2020) that a resurgence in COVID cases meant that a planned reopening had been delayed due to Government restrictions

1.5 The company’s Financial Controller met with the Operations Manager in November 2020 to develop a re-opening plan for the three operational units, (i.e., Dakota, The Odeon and Dame Lane) and to roster personnel to return to work. The company had intended to roster Mukesh to return to work in Dakota (i.e., rather than in The Odeon which would be opening sometime later).

1.6 Mukesh advised the Operations Manager (on successive occasions) that he wished to delay his return to work as he (Mukesh) had opened a take-away business which was proving to be successful. Eventually, Mukesh advised that he would not be returning to work with the company as he had chosen to concentrate on his own take-away venture.

1.7 More than a year after the company had first sought to roster his return, Mukesh wrote to the company to seek a redundancy severance payment (December 17th, 2021). In this correspondence he stated:

 ▪ That there had been no attempt to contact him since the pandemic commenced

▪ That he was not offered employment in Dakota or Dame Lane

▪ That his colleagues were offered alternative employment

▪ That new people were hired ‘in his place’

▪ That he was not told/warned that the Odeon would not be re-opening

That when an opening date for the Odeon was set, he and others were never contacted.

▪ That his job was advertised and that a new person was hired to replace him

1.8 Importantly, new public health measures were announced on Friday, December 17th 2021 which mandated that ‘all restaurants, bars and cafes will close at 8pm’ with effect from December 20th, 2021. In response to the introduction of these mandatory measures, the company elected to close until the situation improved in late January/early February 2021.

1.9 Mukesh wrote to the company again on February 9th, 2022, advising that he had not received a response to his email of December 17th and asked why he was not offered employment. He also advised that someone had been hired in his place.

1.10 The company’s Director sent a reply text to Mukesh on February 9th (12:50hrs) suggesting a meeting on Wednesday or Thursday of the following week. Both parties met on Tuesday, February 15th, 2022, and Mukesh was advised that the Odeon had only been open for a total of eight days since the COVID-related shutdowns commenced in March 2020. The Director advised Mukesh that he would be pleased to roster him to work in Dakota and requested that he (Mukesh) revert by February 17th, to confirm availability to recommence work.

1.11 During a subsequent meeting with the Director on February 17th, 2022, Mukesh confirmed that he was interested in the role in Dakota and some discussion took place in respect of his salary, more favourable hours and an additional ‘coming back’ payment of €5,000. Mukesh also indicated that he had already booked a holiday to Morocco at the end of March 2022 and the Director advised that this would be facilitated.

1.12 Mukesh was asked to provide confirmation of his decision to return by the morning of Monday, February 21st and when no communication was received, the Director sent him a text enquiring whether he wished to accept the offer. When no response was forthcoming, the Director telephoned Mukesh (on February 22nd) who advised that he had decided not to accept the offer.

 1.13 Subsequent to this, Mukesh wrote to the company (on February 28th, 2022) to request a copy of his contract which was forwarded to him.

Respondent’s Case

2.1 No dismissal took place and though Government (COVID-related) restrictions resulted in the extended and repeated closure of the sector, Mukesh was offered re-employment (on more favourable terms) at the appropriate time.

2.2 Rather than returning to work with the company, Mukesh chose to focus on the operation of his own business.

1.      The Complainant first started to work full-time for the Respondent in 2003. He started a second business which was a restaurant and takeaway in approximately 2009. He then ceased working for the Respondent in 2010 but kept in touch with the Respondent. On 4th January 2015, he was asked to work part-time due to refurbishment. His Part A Redundancy form gave his date of commencement of employment as 9th December 2011. He then was asked to come back to work in 2014 and did so initially on a part-time basis. From approximately 2015, he was full-time. The Complainant had always worked in Dakota Bar. From 2018, he was asked to be a manager in the Odeon Bar went there to build a team. The previous managers had left and the Complainant was requested by the management to build a team there which he did.

2.      He was then asked to return to Dakota in January 2020 to build a further team when management there left and did so. On 2nd January 2020, he received an email from stating that his permissions had changed and that he was active as a manager in The Odeon and Dakota.

3.      The Complainant acknowledges receipt of the letter from Mary Lacey dated 14th March 2020 and the email also sent by Mary Lacey at 14:57 on 16th September 2020 advising that the bars were closed due to Covid.

4.      On 24th September 2021, Dakota Bar advertised on their Facebook page that they were hiring for, a Senior Bartender, a Food & Beverage Server, a Bar Back and a Kitchen Porter.

5.      On 16th December 2021, the Complainant wrote to Ms Mary Lacey of the Respondent. He pointed out that he had not been contacted by the Respondent and also pointed out that two other bars owned by the Respondent, Dakota and the Odeon, had opened in June 2021 and pointed out that he was not offered any role anywhere. He also pointed out this his work email was closed. He further pointed out that new employees were hired for various roles in the company. He then pointed out that once an opening date had been set for the company, he was not contacted in this regard. He also pointed out that his job role had been advertised.

6.      On 9th February 2022, the Complainant emailed Mr Paul Keaveney of the Respondent to point out that he had no reply to his enquiries above his role and that someone else had been hired in his role. He further pointed out that it appeared that he had been fired without any notice and without giving a reason.

7.      The Complainant requested that he meet with someone from the Respondent to discuss the situation. On 15th February 2022, the Complainant met with Paul Keaveny from the Respondent. The Complainant will say that Mr Keaveney simply spoke about how much the business lost during Covid. There was no offer to the Complainant of his previous role back. The Complainant notes the letter from Paul Keaveney sent to the WRC on 20th April 2022 and completely denies that he was offered any other role in Dakota. The Complainant further denies that there was any offer a 4-day week at €50,000 with a ‘coming back’ payment of €5,000 made to him at this meeting.

8.      The Respondent states in their submissions at paragraph 1.12 that a phone call took place between the Director, Mr Paul Keaveney and the Complainant on 22nd February 2022 at which the Complainant stated that he would “not accept the offer”. The Complainant categorically denies that this phone call took place and puts the Respondent on full proof of this.

9.      As of the time of writing these submissions, the legal representatives for the Complainant have written to the legal representatives for the Respondent to enquire whether they have removed the Complainant as an employee. The Complainant therefore assumes that this has taken place and that the Respondent has therefore dismissed the Complainant.

10.   On 9th March 2022 the Complainant then emailed Ms Mary Lacey to point out that he had no formal offer of his job back and sought proof of any email to that effect. The Complainant received an email with his contract and a short letter from Paul Keaveney stating that he was disappointed that the Complainant had not accepted his offer to return to his position within the group.

11.   Later that day, on 9th March 2022, the Complainant emailed Ms Lacey and pointed out that he had never received any offer of his role back from Mr Keaveney or from any person from the Respondent. He sought proof from the Respondent of any formal offer of his role back.

Legal Submissions

1.      The Complainant will rely on the case of ADJ-00037364 Amy Meredith v Bolway Investments Limited T/A The Odeon Group. However, the Complainant wishes to point out that he first started working for the Respondent, or other former entities of the Respondent, in 2003. The Complainant also would submit that he had a contract of employment with the Respondent. The Complainant did receive the letter from Ms Lacey on 14th March 2020 as outlined in paragraph 3 above.

2.      In a similar manner to the Complainant in “Meredith” the Complainant in the within matter sought clarity towards the end of 2021 as to when he could be expected to return to his role as the bars had reopened. He was also given no indication of his return. The Complainant in the within matter also saw several roles being advertised online.

12.   It is submitted that the Complainant’s employment was dismissed with no prior notice from the Respondent and that this was done contrary to paragraph 10 of the Complainants Contract of Employment which is contrary to the Minimum Notice of Terms of Employment Acts.

13.   Section 1 of the Act defines dismissal in the following manner.

1.      “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)   …

Section 6(1) states

“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.”

14.   While the Respondent has said at paragraph 2.1 that “No dismissal took place”, the Complainant will rely on the contents of paragraph 22.16 of Redmond on Dismissal Law, 3rd Edition (Bloombury) where it states;

Much of the hearing time at the Workplace Relations Commission or the Labour Court may be engaged in determining a dispute as to dismissal. As the EAT put it in Devaney v DNT Distribution Company Ltd: (Devaney v DNT Distribution Company Ltd UD 412/1993).

‘... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that [the director of the respondent company] often expressed his feelings in very strong language, that the words uttered by [him] in an angry mood, did not amount to a dismissal and were never intended as such.’

The test, therefore, is objective. 

The Complainant’s contract of employment at section 1 reads as follows:

Place of Work.

Your usual place of work will be The Odeon Bar, 57 Old Harcourt Street Railway Station, Harcourt Street, Dublin 2 though you may be required to work at other company / associated company premises from time to time. You will be given as much notice of changes in your place of work as is reasonably practicable. Similarly you may be required to permanently transfer to another location within the Company as required by the operational efficiency of the business. The Company will endeavour to give you as much notice as possible if this need arises.

Section 19 of the contract relates to Lay Off & Short Time Working and reads as follows:

The Company reserves the right to lay you off or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such action. You will not be paid during the lay-off period. You will be paid for hours actually worked during periods of short time working. Selection for lay-off or short time working will be based on the operational requirements of the business exclusively.

The Complainant signed his acceptance of this contract on 17th October 2019.

Like many other workers the Complainant was placed on a temporary lay-off on 14th March 2020 due to the Covid – 19 pandemic. The Complainant received a letter dated 14th March 2020 which included the following:

“This is a short term lay off and we expect to rehire at some point in the future when things improve. I will be in contact with you when we have further clarity on this situation. If you have any questions, please do not hesitate to contact me”.

At this point no one knew how long this period of lay-off would last.

No further correspondence issued until 16th September 2020 when the Financial Controller sent an email to all staff stating:

“I’m sure you are all aware, the Government delayed the planned re-opening of all pubs in Dublin following a surge in Covid – 19 cases in the capital. I wanted to reach out to let you know we have been watching developments very closely over the last couple months and will continue to do so on a week-by-week basis before a decision is made to reopen our bars. Our main priority is to ensure the safety and wellbeing of our staff and to operate a safe environment for staff and our customers. I will be in touch over the next couple of weeks with an update on developments”.

There then appears to be a significant gap i.e., from 16th September 2020 to 24th September 2021 when the Respondent advertised for staff on Facebook on 24th September 2021.

The Complainant sent an email to the Respondent on 16th December 2021 in which he says –

I hope this email finds you well. My name is Mukesh Kumar and I was working as a general manager for more than 10 years with Odeon Group until I was put on temporary lay off due to Covid pandemic.

I am writing to you in regard to the absence of communication from my employer and the unfair treatment that I have received from your company.

Since the beginning of the pandemic, and since I was placed on temporary lay off, there has been no attempt to contact me.

My contract clearly states that I am employed by Odeon Group and that I could be moved to any bar or restaurant owned by the company, which brings me to my first point. Dakota Bar and 4 Dame Lane opened in June and, even though I didn’t have a job elsewhere, I was not offered my position back, while some of my colleagues were and on top of that my official work email was closed without even an attempt or explanation.

New people were hired in my place instead, Secondly, I was never warned or told that Odeon will not be opening, even though it met all the requirements to do so. I was not informed there would be a refurbishment until, at that time, unknown date. Thirdly, when an opening date was finally set, a few of us were still left out and were never contacted. After all the work and dedication that we gave to this company, my job was advertised and new person was hired to replace me. I have been jobless for the past year and 8 months. I understand there is no job for me that’s ok but can you guys pay my dues. Thanks.

The Complainant received no response to this email.

On 9th February 2022 the Complainant wrote to the Respondent MD via email, this email read asfollows:

“Hello Paul, I sent you a few emails and phone calls regarding my unfair dismissal. But you never replied to me. Can you let me know what are the reasons you did not give my job back to me at least I should know the reason. On 15th March 2020 you put me on temporary leave but after that never got back to me, I was keep waiting for a phone call that I had my job back but instead you hired other person on my job. Even did not have the courtesy to tell me the reason why you didn’t give me my job back. I need my dues Paul you cannot just fire someone without even given them the reason. Hope you reply to me soon. Thanks. Mukesh Kumar”.

This email was received by the Respondent who forwarded same to the Financial Controller.

The MD has stated that during 2021 the General Manager, Mr. PK had informed him and the Financial Controller that the Complainant would not be returning from layoff as he had his own business and was doing very well. The MD contends that he was surprised at this and had sent a text message dated 9th February 2022 requesting that he (the Complainant) come in and speak to him. The MD went onto state that he met with the Complainant on Tuesday 15th February at 12.30 pm.

At this meeting the MD explained to the Complainant that the Odeon Bar would re-open in late February or early March and that due to the Odeon Bar being in an office area he expected that the bar would be very quiet and would only open Wednesday to Saturday, 5.00pm to close. Due to these restricted hours, it would not be economical to have a manager in place. It was then put to the Complainant that there would be an opening for a general manager in the Dakota Bar and would he (the Complainant) be interested in that position. The MD asked the Complainant to consider this and revert to him (in person) on Thursday 17th February at 11.30am.

A meeting took place on Thursday 17th February 2022. At this meeting the Complainant confirmed that was interested in the offer of a position in the Dakota Bar. It was stated by the MD that was in line with his contract and that he would offer the position at the contracted rate i.e., €50k per annum however the position could be done over 4 days per week. This was effectively a pay rise of 20%. The MD also offered a ‘coming back’ payment of €5k the timing of which would be discussed at a later stage.

The Complainant stated that he would consider the position and revert to the MD on Monday morning 21st February 2022. The Complainant failed to contact the MD as indicated. At 15.25 on that same day the MD sent a text to the Complainant stating “any thoughts on the job offer – call me if you wish to discuss”. The Complainant did not reply to this text. A copy of this text was produced at the hearing of the complaint.

The following day, 22nd February 2022 the MD rang the Complainant at 10.54am. Phone records produced at the hearing show that this telephone call lasted 93 seconds. The MD contends that the Complainant declined the offer of the position of Bar Manager at the Dakota Bar stating that he would have too much tax to pay and the Complainant also asked the MD just to pay him some money.

I note that in an email sent by the Complainant’s solicitor to the Respondent’s representative dated 22nd December 2022 the Complainant’s solicitor states “Our clients firm instructions are that this phone call or conversation never took place”.

In Redmond on Dismissal Law (3rd edition, Bloomsbury Press, Desmond Ryan) chapter 22.13 reads as follows:

In general, a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended (Duggan v A&T Drain Services, UD 1737 (June 2017). Because of the presumption of unfairness in relation to dismissal it might be thought that the benefit of any doubt surrounding the fact of dismissal would accrue to an employee.  However, in determinations in Ireland, the trend is often in the other direction.  The employer likewise frequently benefits where there is a conflict of evidence as to dismissal and the adjudicating body has to make up its mind which side to believe, or which evidence seems more credible (Hyland v Balmoral Dublin Limited UD 63/1978; Casey v Dunnes Stores [2003] ELR 313).

In the instant case there is a degree of conflict in the evidence.

There is considerable doubt in relation to the actual act of dismissal. I do not believe that an actual dismissal took place and it is for this reason that I have to find that the complaint as presented under the Unfair Dismissals Act 1977 is not well founded.

There is considerable doubt in relation to the actual act of dismissal. I do not believe that an actual dismissal took place and it is for this reason that I have to find that the complaint as presented under the Unfair Dismissals Act 1977 is not well founded.

Unfair Dismissals Act, 1977.