ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038171
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Limited Company |
Complaint(s):
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-00050688-001 | 06/04/2022 |
Date of Adjudication Hearing: 27/02/2023 and 24/04/2023
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is alleging that he was unfairly dismissed by his father from his role within the Respondent pub. The Respondent denies the allegation stating that the Complainant is still working with the Respondent. |
Summary of Complainant’s Case:
The Complainant started working with the Respondent in July 2019 when he was still at school. His parents own the business. His parent’s relationship broke down and things became very difficult in the workplace. The Complainant set out a number of allegations in his complaint form in relation to those difficulties. On 25th February 2022 the Complainant was due into work at 12 noon. He received a message at 11.30 from Mr. P asking if he could collect items for the pub from a wholesaler on his way in. The Complainant said that if he did that, he would be late. Mr. P said that that was ok, and he should go. While he was in town, he got a phone call from Mr. P asking him to light the fires when he returned to the premises. When he returned to the premises, he set the fires and he also had to take in a delivery which had arrived before he got there. When he was lighting the first of the fires. Mr. P arrived and started shouting at him “18 years of age and you don’t know how to light a fire”. He found it very intimidating however despite that he started to put away the delivery and get on with this daily tasks. Mr. P then started following him around the pub, watching him in an intimidating way. Later that day when he was on his break, he went to the break room, Mr. P came up and starting shouting at him saying . He told him that “nobody likes you, the staff all think you are a buffoon” and then he said “eat up and get out”. He said he would get the paperwork for him to sign. The Complainant’s mother was on the phone at the time of the altercation, and she heard the conversation. He was so upset he just threw his lunch in the bin, and he went home. On the way home Mr. P called to ask him why he had left and where he was going. The Complainant can’t remember what he said in reply to those questions. When the Complainant got home, he called Mr L the bar manager to say that he wouldn’t be back, as he was unwell. The Complainant’s mother also called to say the same thing and to check if everything was ok. Then he received a text message from Mr. P “left the premises and then a called in sick after having a large meal, not a practise I accept or will tolerate”. The Complainant never went back to work after that. On 16th March 2022 he received a message stating “are you going to work this weekend, as you appreciate we are busy and need assistance. Thanks Dad” The complainant replied “ I would only love to come back to work but I am a bit worried about returning to work after the last time I was there. Why were you abusive towards me and telling me to get out and never come back and say to me that you and the staff think I am a buffoon? I need theses answered and also reassurance that I will never be verbally abused or bullied at work ever again. There is no denying that this didn’t happen because it did”. During Mr. P’s evidence he stated that the Bar Manager called several times asking if he would come in and do some hours. The Complainant only has one text from the Bar Manager asking if he would work over St. Patrick’s weekend. He didn’t. The Complainant has not worked in the premises since then. He works one day a week in a local shop as he is a full-time student. He is paid €62.15. He accepts that he is not available for work full time. Under cross examination the Complainant admitted that he was in the pub last night and he closed the tills at the end of the night. However, he denies that he was working. He admitted that he does help his mother out in the pub regularly, but he denies working here from renumeration. |
Summary of Respondent’s Case:
The Complainant started working in the Respondent business 2019. Ms. V, the Complainant’s mother has a 20% share in the company and is a Director of the Respondent company. In January 2022 she, as an owner and director, took a step back as the marriage between the parties has broken down and is extremely acrimonious. The Complainant took the side of his mother following the breakdown of the marriage. He then stopped taking direction from Mr. P. Any time he was asked to carry out tasks he would call his mother who would in turn then call Mr P to give out to him for requesting the Complainant carry out tasks. The Respondent does accept there was an altercation in breakroom on the 25th February. He does accept that the Complainant left the premises after that but denies that he was dismissed or that he called him a buffoon. At no point was he dismissed. Since then he has been invited to work on a number of occasions by the Bar Manager. He just stopped coming in for a number of weeks. He said he was ill. He didn’t submit a sick certificate. Then Court orders were obtained which restricted the Respondent’s presence on the premises. The Complainant started back working in the business when he was not at college. The Respondent knows that the Complainant is working in the pub. He is using his mother’s rep code when using the tils, so he doesn’t register his presence on the premises. Their relationship has become extremely fractured since the marriage breakdown. The Complainant takes issue with Mr. P’s behaviour and Mr. P takes issue with the Complainant’s lack of respect and refusal to carry out his employment duties. |
Findings and Conclusions:
This case is one that had to be held in camera due to the nature of the evidence in relation to the breakdown of the two Respondent director’s marriage and as a result Mr. P’s relationship with his son, the Complainant. Furthermore, as there is a Court Order in place ordering Mr. P to have no contact direct or indirect with Ms V, restrictions had to be put in place during the hearing to prevent Mr. P from breaching that Court Order. In that regard the Complainant was asked in detail what Ms. V's evidence was going to be. It was established that the only relevant evidence she was going to give was in relation to the words that were spoken by Mr. P to the Complainant in the breakroom on the 25th February. On the basis that Mr. P fully accepts that an altercation took place on the 25th and words were had between himself and the Complainant, which words lead the Complainant to leave the premises, it was agreed that if Ms. V was to give evidence that her version of events would corroborate the Complainant’s version and that I could proceed on that basis in her absence. The Complainant is this case is the son of Mr. P and Ms V who are the Respondent owner directors. It is accepted that the Complainant is employed by the Respondent limited Company and not by either of his parents. It was evident from the evidence adduced at the hearing that the personal relationship between the Complainant and Mr. P has been extremely damaged by the breakdown of the marriage between Mr. P and Ms. V. The events of the 25th February 2022 are what lead to the alleged dismissal and to this claim. The Complainant gave evidence that on the day in question he took issue with Mr. P’s attitude towards him and verbal beratement of him prior to him taking his break. Mr. P gave evidence that he found the Complainant’s lack of respect for him as his employer and his refusal to carry out simple tasks extremely difficult to deal with. It is accepted that it all came to a head when the Complainant was in the breakroom and arising out of that altercation the Complainant left the premises. The Complainant states that he was under no illusion that he had been fired as he was told to “eat up and get out” and that “ the paperwork would be prepared” for him. The Complainant’s evidence that he was dismissed during that altercation is diluted by his evidence of what occurred after that. He accepts that on his way home he received a phone call from Mr. P asking him where he was going and why he left. He accepts that on at least two occasions he was asked to attend work, once by Mr. P and once by the Bar Manager. He also accepts that he never received the paperwork in relation to the alleged dismissal. Mr. P gave strong and compelling evidence that at no stage did he fire the Complainant despite the altercation in the breakroom. The Complainant stated that he has not worked in the premises since the 25th February 2022 however it transpired after cross examination that he has worked there since February 2022 helping out his mother. He said he doesn’t get paid for this work. I found the Complainant’s evidence in relation to his continued work in the Respondent business to be not credible. Initially he denied being there at all. Then he stated that he only is there occasionally helping out his mother. After further probing it transpired and he was working in the premises only last night but only to close the tills. Based on the evidence adduced during the cross examination together with the Complainant’s demeanour when answering questions put to him about his continued employment in the business, I find that on the balance of probabilities, the Complainant is still working in the business. On that basis and coupled with the requests from Mr. P and the Bar Manager for him to attend for work after the 25th February, that the Complainant was not dismissed and is still working for the Respondent. The Complaint is not well founded and accordingly fails
|
Decision:
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.
The Complaint fails. |
Dated: 10-05-2023
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Key Words:
Unfair Dismissal, Continued Employment, Mitigation. |