Complainant

Respondent

Parties

Aybars  Bayram

Starshine View Ltd.

Representatives

Ciaran O' Flynn

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-00054466-001

12/01/2023

The Complainant worked as a doorman at Club Lapello which is owned and managed by the Respondent. He was employed from the end of 2017 until his dismissal, for alleged persistent lateness, on the 14th of July 2022.

Ciaran O’Flynn attended the hearing on behalf of the Respondent and gave evidence under affirmation.

The Complainant had worked as the club’s doorman for a number of years. In the context of the Respondent’s business this is a very important role as the club cannot open without a doorman.

The main issue the Respondent had with the Complainant was that he was consistently late to work.

The dancers at the club are self-employed. If the club is not open, then they’re not earning any income. When the club opens late this creates significant issues for both the club and the dancers.

The Respondent accepts that sometimes there will be situations where a staff member attends late. But this was a consistent problem with the Complainant.  In the last weeks of his employment, they lost 1 hour 45 minutes of trade because of Complainant.

He was on a written warning which Mr Flynn personally handed him on the 8th of July. When he was late again, he was dismissed.

The Complainant has since suggested the dismissal was due to incident with the Gardai. This is not the case.

On 13th of July 2022 GardaÍ went to inspect premise. They were initially stopped by the Complainant until the manager saw they were there and let them in.  The following night Mr Flynn went to try to speak to the Complainant to find out what happened. The Complainant was 45 minutes late. He felt he had no choice but to let him go.

The Complainant never had any valid excuse for being late of offered any apology. They tried to retain him as they don’t like letting people go and door staff are extremely difficult to fill.

The Complainant gave evidence under affirmation. He didn’t get any warning letters. There had been two previous meetings related to staff lateness, but these were general meetings and not particular to the Complainant.

He worked for the Respondent for 4 and half years until he finished his masters. The pandemic was a very difficult time for him as he had to work other jobs. He accepted that at times he was 10 minutes or 15 minutes late. He was never given a chance to sit and talk with Mr Flynn and to discuss what was going on.

He did not refuse access to Gardai. On the night in question, he felt blind sighted when he saw the Gardaí and asked if everything was okay. Then there was a call from inside the club and he was told to let them, in which he did.

On the 14th of July he received phone call telling him not to come to work because he was fired. He was told that this was because of his lateness.

He was paid 17 euro an hour for 40 hours a week.  He was out of work for 3 months. It took him a month to get out of the house and a further month to start looking for work. He was very affected by the dismissal.

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as a result of his persistent lateness.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which justify the dismissal but that the dismissal occurred because of those “substantial grounds.”

As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

There are a number of serious defects in the process followed by the Respondent.

The Respondent argues that over the course of July 2022 they first issued a final written warning and then dismissed the Complainant when his lateness continued to occur. The Complainant disputed ever having received either letter and states that he was only told not to be late on one occasion and that this conversation happened in the context of a group meeting. Regardless of the dispute as to these letters, there is no evidence of any process whereby the Complainant was actually invited to respond to specific allegations of persistent lateness and that such a response was considered before any disciplinary sanction was issued. The Respondent seems to infer that such a process took place but provided no details of any meeting where a forewarned Complainant was allowed to respond to specific allegations and state his case.

In the circumstances, and considering that the burden of proof rests with the Respondent in this matter, the Complainant’s case must succeed.   

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement since he has secured alternative employment.

As such I will limit considering redress to Section 7.1.C, that is financial loss.

7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

The Complainant made no submissions on loss or diminution of his loss under the Redundancy Payments Acts or superannuation. He did provide information as to how long he was out of work. It is accepted by both parties that he was paid €680 per week gross. He was dismissed on the 15th of July 2022 and regained employment approximately 14 weeks later at a higher salary.

The Complainant did not apply for work for two months after being dismissed by the Respondent. He has said he was personally affected by his dismissal and it took him two months to get himself together. While this may be true, in the circumstances, I do not believe it is reasonable to hold the Respondent responsible for this time and should limit any award to the time he was actively seeking work.

The Complainant’s evidence, unsupported by any documentation, is that he looked for work for a month. This would put his actual loss attributable to the dismissal at €2720. This is also the maximum I could award if I found that the Complainant had no loss arising from the dismissal as per section 7.1.C(ii).

I further note that the Complainant ultimately did not dispute the fact that he was regularly late, that his lateness was raised with him and that it caused loss, not just to the Respondent but to his self-employed colleagues. I am satisfied with the Respondent’s evidence that his attending work on time was a key part of his role and that the level of lateness described by the Respondent would normally justify dismissal. I would restate that I am finding in favour of the Complainant because of the Respondent’s failure to present evidence of a clear and transparent process where this misconduct was put to the Complainant and where he was given an opportunity to respond while on notice of the consequences.

Having regard to the above factors and in particular Sections 7.2.b and Sections 7.2.f I am of the view a reduction of 75% is appropriate and that an award of €680 is just and equitable having regard to all the circumstances.

I find that the complaint is well founded and direct the Respondent to pay the Complainant €680.