Complainant

Respondent

Parties

William Ye

Emerald Court Chinese Restaurant

Representatives

Self-represented

Did not attend the hearing and was not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00056688-001

16/05/2023

In January 2020, Mr Ye got a job as a delivery driver for the Emerald Court Chinese Restaurant.  He said that worked three or four nights a week, and occasionally, six nights.   He reported to Ms Zhu, the owner and manager and he earned €5.00 per hour.  He used his own car to do his deliveries and he wasn’t paid for petrol.  When I asked him why he worked for such a low rate of pay, Mr Ye said that he knew €5.00 was below the national minimum wage, but he sometimes got tips.  He said that he got paid in cash at the end of each shift.  He got no payslips.

For more than a year before he was dismissed, Mr Ye said he had been asking Ms Zhu for a pay increase.  On March 20th 2023, he sent her a text message and asked her if she had considered his request.  He asked her to “make a final decision.”  On Friday, March 24th, Mr Ye said that he arrived at the takeaway at 5.00pm.  At 5.27pm, he got a text message from Ms Zhu in which she wrote, “I’ve found someone replace your work (sic).  You don’t work here anymore.”  Mr Ye said that he phoned Ms Zhu, but she didn’t answer his call.  When I asked Mr Ye why he thought he was dismissed, he said that it could have been because of his age.

I asked Mr Ye if he had any documents related to his employment at the Emerald Court Chinese Restaurant.  He had no contract or employee handbook, and no payslips.  On his phone, he showed me text messages in Chinese which he said were between him and the owner and he told me what the text messages were about.  After the hearing, Mr Ye sent me the English translations of the messages.  Some date from around the start of the Covid-19 pandemic on March 17th 2020 when Mr Ye told the owner that he wouldn’t be at work because of the outbreak of the pandemic.  The following week, he sent her a message asking for masks so that he could come to work.  He said that he worked throughout the pandemic.  Mr Ye produced messages from 2022 when he responded to requests to pick up orders and other conversations between him and Ms Zhu in January 2023, when she asked him to cover for another employee.  Mr Ye’s final communication from Ms Zhu was the text message on March 24th 2023 in which he was dismissed.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“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.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the owner of the Emerald Court Chinese Restaurant to establish the substantial grounds justifying the dismissal of Mr Ye.  As Ms Zhu did not attend the hearing to explain why he was dismissed, I must rely on Mr Ye’s evidence to reach a conclusion regarding the reasonableness or otherwise of her decision.

Section 6(7) of the Act emphasises the importance of fair procedures:

(7) 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 or the Labour Court, as the case may be, considers it appropriate to do so -

(a) to the reasonableness or otherwise of the conduct (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 section 14(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.

Section 14(1) refers to the obligation on an employer to provide an employee with a written copy of the procedure that will be used “before and for the purpose of dismissing the employee.”  No such procedure was provided to Mr Ye. 

Findings

Based on the evidence of his communication with the owner in March 2020, and his evidence that he was dismissed on March 24th 2023, I am satisfied that Mr Ye completed more than one year of service with his former employer and, in accordance with section 2(1)(a) of the Act, I have jurisdiction to hear his complaint.

Mr Ye said that he may have been dismissed because he is not a young man, but the information he provided in his text messages indicates that his dismissal may have been related to his persistence in asking for a pay increase.  Whatever, the cause, I find that, by dismissing him with no explanation, no notice and in the absence of procedures, the conduct of his employer was entirely unfair.  Measured against the standard of “another reasonable employer in the same circumstances”[1], I find that Mr Ye was treated disgracefully.

Redress

Under the heading, “Redress for unfair dismissal,” section 7 of the Act provides that, where a dismissal is unfair, an adjudicator may direct an employer to reinstate or re-engage an employee, or to pay them compensation.  On the form he submitted to the WRC and, at the hearing on October 9th 2023, Mr Ye said that he wished to be compensated.

Section 7(1)(c)(i) provides that compensation must reflect an employee’s loss of earnings and, in this regard, in accordance with section 7(2)(b), I am required to consider Mr Ye’s efforts to mitigate his loss.  Since he was dismissed on March 24th 2023, he said he hasn’t looked for another job.

I have concluded that Mr Ye was unfairly dismissed and I decide that his complaint is well founded.  As he was paid an hourly rate of €5.00, his wages were unlawful and I have based the amount to be awarded in redress on the current legal minimum hourly rate of €11.30, which was in effect when he was dismissed on March 24th 2023.  I direct the owner of the Emerald Court Chinese Restaurant to pay Mr Ye compensation of €1,500, equivalent to approximately four weeks’ wages based on the legal minimum wage of €11.30 per hour.    

Unfair dismissal, failure to follow procedures