Complainant

Respondent

Parties

Hao  Tinghao

Kivaway Limited t/a The Odeon

Representatives

Rory Treanor BL instructed by Crushell & Co Solicitors

Peter Ryan, RA Consulting

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-00051552-001

05/07/2022

The Complainant contends that his employment was terminated without due process or fair procedures. 

The Respondent refutes the complaint and asserts that the Complainant was not available to return to work post-Covid.  The Respondent contends that the Complainant did not provide any prior indication of his unavailability, nor did he explain why he was unavailable.

The Complainant submits that he commenced employment with the Respondent in September 2002 as a Bar Supervisor on an annual salary of €33,000.  The Complainant contends that his employment was terminated on 25 January 2022 without any due process or fair procedure. 

The Complainant submits that his place of work, the Odeon Bar, was closed from March 2020 until December 2021.  The Manager called him at the end of November 2021 to return to work.  Unfortunately, the Complainant had Covid-19 from 29 November 2021, so he was unable to return to work.  The Odeon Bar closed again after 2 weeks, and the Manager told him to wait for further notice.

At the end of December 2021, the Complainant’s wife called him from Romania to say that she needed help as her father was unwell, so he went to Romania at the end of December.  During this time, he applied for a Romanian visa.  A few days after he applied for the visa, the Manager contacted the Complainant to ask him to return to work on 25 January 2022, but he could not go because he had sent his passport to the visa office.  The Complainant explained his situation to the Manager and said that he would contact him on his return to Ireland.  Three days later, on 25 January 2022, the Complainant received an email from HR to say that if he did not return in three weeks, his position would no longer be available.  The Complainant replied via email and asked that his position be kept open.  He explained that he did not have a passport and that he would return as soon as he received his visa.  He did not receive a reply to his email.

The Complainant received his passport at the end of February and returned to Ireland on 3 March 2022.  He contacted the Manager and made an appointment to meet him at 5pm in Dame Lane to have a chat.  The Manager did not turn up at the appointed time.  He texted the Complainant to say that he was at a meeting which was due to finish at 7pm.  The Complainant waited until 7pm and then texted the Manager.  The Manager did not respond to his text.  One of the Complainant’s colleagues called the Manager and told him that the Complainant was waiting.  The Manager told the colleague that he would contact the Complainant at the weekend.  He did not receive any further communication from the Respondent.

The Complainant sent a few emails to HR asking if he could return to work and if his job was still available.  Finally, on 4 April 2022, he received an answer to check the email he had received on 25 January 2022.  The Complainant assumed that this meant that he had been dismissed from his job of 19 years.

It is the position of the Complainant that he was unfairly dismissed.

The Complainant acknowledges that the Financial Controller did offer the Complainant his job back on 13 July 2022. However, this was only after he referred his complaint to the WRC on 5 July 2022. 

At the hearing, the Complainant asserted that he was out of work for 7 weeks following his dismissal and that his losses amounted to €4,442.30 (7 x €634.62).  He did not provide any documentation to support his assertion.

The level of the Complainant’s losses was disputed by the Respondent.  The Complainant undertook to provide post-hearing documentation in relation to mitigation of loss.  On 31 August 2023, the Complainant’s solicitor wrote the WRC to say that, despite repeated attempts to secure same, its client had not provided it with the relevant information.

The Complainant was initially employed on a part-time basis and subsequently full-time since December 2017.  His most recent position was as Bartender at the Odeon Bar and Restaurant in Harcourt Street where he worked until March 2020.  

All licenced trade operations ceased in March 2020 as the Government introduced Covid-19 related restrictions and closures.  The Complainant was advised (along with his colleagues) that: (i) a lay-off situation had commenced and (ii) his employment would resume as the situation improved. As the pandemic continued, the Respondent again advised the Complainant (in September 2020) that a resurgence in Covid-19 cases meant that a planned reopening had been delayed due to Government restrictions.

A re-opening plan was developed for the Odeon and the Complainant was listed as one of six bar staff who would be rostered to return to work in December 2021.  When contacted by the Operations Manager to return, the Complainant simply advised that he was not available to return to work at that time.  He did not provide any prior indication of his unavailability for work, nor did he explain why he was unavailable.   

Further public health measures were announced on Friday, 17 December 2021 which mandated that all restaurants, bars and cafes would close at 8pm with effect from 20 December 2021.  In response to the introduction of these mandatory measures, the Respondent decided to close until the situation improved.  In late January 2022, when all Covid-19 restrictions had been lifted, the Respondent sought to roster the Complainant to return to work, but he was not available.  It transpired that he was out of the country for an extended period.  The Complainant had not advised his manager that he would be overseas: (i) when he was rostered to return (and unavailable) the previous month and (ii) until after he was contacted for a second time in January 2022. 

Having been repeatedly unavailable, the Respondent wrote to the Complainant on 25 January 2022 and noted that: 

•                     He had been required to recommence in December 2021, but he was unable to do so.

•                     When contacted again in January 2022, he advised that he was out of the country.

•                     As a PUP recipient, he was required to be available to return to work.

•                     He made no attempt to contact the Operations Manager to advise that he was not available for work.

The Complainant was advised that the Respondent needed to employ another bartender to fill his position for the reopening as it could not hold his position unfilled for another three weeks and, consequently, that it no longer had a position available for him.

Almost two full weeks passed before the Complainant replied to the Respondent’s email of 25 January 2022 to say that he would be overseas until at least March 2022 .  The Complainant’s reply did not specify a return date in March but simply stated: “I will be back in Ireland as soon as possible”.  The Complainant eventually wrote to the Respondent on 10 March 2022 indicating that he had been scheduled to meet the Operations Manager on 4 March 2022 but that this meeting did not take place.  The Respondent has no record of this appointment and cannot ascertain whether it was scheduled to take place as alleged by the Complainant.  

In his resignation email of 10 March 2022, the Complainant did not indicate any re-assignment flexibility or openness to redeployment elsewhere within the Respondent company despite his protracted absence without notice.  Instead, he indicated that he expected a position as Bar Supervisor rather than Bartender – referring to: “. . . my position in The Odeon as Bar Supervisor”  and advised that “If I don’t get any answer from you until 14th March Monday that means I’m no longer for The Odeon Group employee anymore”.

No further communication was received from the Complainant until he emailed the Respondent on 11 April 2022 seeking payment of his outstanding public holiday entitlements. The following day, 12 April 2022, the Complainant emailed the Respondent, once again enquiring about ‘my position as a Bar Supervisor’ and seeking ‘the bank holiday pay the Respondent owe me for last few years’.   The Respondent replied on 13 April 2022 to advise that the Complainant was entitled to 4 days’ leave and that the payment would be processed before the end of the month. 

Within an hour of the Respondent’s email, and despite his resignation email of 10 March 2022, the Complainant replied asking if his bar supervisor position was still available or if he had been dismissed.

Other than replying to the Financial Controller’s email of 27 April 2022 concerning his public holiday payment, no further communication was received from the Complainant until his solicitor wrote on 5 July 2022 informing the Respondent that the Complainant was: (i) claiming unfair dismissal and (ii) would be seeking compensation.  

The Respondent’s Financial Controller telephoned the Complainant on 12 July 2022 to enquire whether he would be available to meet with organisation’s proprietor to: “. . .  discuss returning to your previous position . . .”.  Unfortunately, the Complainant would not agree to meet but only advised that he ‘would email to confirm when he would be available’.  The Financial Controller suggested a meeting the following day and indicated that the organisation’s proprietor would be on leave thereafter.   The Complainant replied by email on 13 July 2022 to state that his solicitor recommended that he did not meet with the Respondent.   The Respondent wrote to again confirm: “. . . your position is available for you and will remain available so please feel free to contact me anytime should you wish to re-engage with us”.

Before addressing the substance of this complaint, I must first address the Respondent’s contention that the Complainant was not dismissed but that he resigned on 10 March 2022.  I note that the Respondent’s email of 24 January 2022 (which was dated 25 January 2022 in the Complainants’ inbox), ends as follows: “I need to employ a bartender to fill your position for the reopening this week as we cannot hold your position unfilled for another 3 weeks.  Consequently, we no longer had a position available to you.”

In my view, the above statement represents a clear and unequivocal termination of the Complainant’s employment by the Respondent.  I find, therefore, that the Complainant was dismissed from his position on 25 January 2022 and that the complaint is properly before me as an alleged unfair dismissal.

Relevant legislation

The Unfair Dismissals Act, 1977 provides as follows:

 “(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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 …”

The application of the law in relation to the dismissal of an employee is relatively straightforward.  The burden of proof to show that a dismissal was not unfair rests with the employer who is, after all, taking the very serious action of terminating a contract of employment. The Unfair Dismissals Act requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss.

Procedural framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

•                     That employee grievances are fairly examined and processed;

•                     That details of any allegations or complaints are put to the employee concerned;

•                     That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•                     That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

•                     That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

"This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The Respondent in this case did not engage with the Complainant in any meaningful way before dismissing him.  There was no attempt to hear the Complainant’s version of events and he was not forewarned that his failure to return to work could result in his dismissal.  Based on the totality of the evidence adduced, both written and oral, it is abundantly clear that the Respondent did not follow any meaningful procedures before coming to the decision to dismiss the Complainant. 

Furthermore, there was no reference made to an appeal in the termination email of 25 January 2022. The importance of an appeal mechanism has been also highlighted in many decisions such as in An Employee V An Employer ADJ-0000381 where the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

I find that the failure to afford the Complainant the opportunity to appeal the decision is contrary to both the principles of natural justice as well as the procedures in S.I. No. 146 of 2000.

In light of all of the above, I find that the dismissal of the Complainant was procedurally unfair.

Substantive matters

I must now decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct. 

In Bunyan -v- United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited -v- Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated; “The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded’’.  

I note that the Complainant travelled abroad while he was in receipt of the Pandemic Unemployment Payment (PUP) and that he was not available to return to his employment when he was requested to do so on 25 January 2022.  Moreover, he was unable to give any indication when he would be in a position to return to work.  The PUP was a temporary measure designed to ensure that employees who were without employment due to Covid-19 would not be without an income.  However, receipt of the payment was contingent on such employees being in a position to resume employment as soon the Covid-19 restrictions were lifted.  Clearly, the Complainant in this case was not available to resume work when requested to do so.

I recognise that the Complainant had worked for the Respondent for a considerable length of time prior to being laid off due to Covid-19.  However, when the Respondent needed him so that it could reopen its business post-Covid, he was not available and was unable to give any indication when he would be available.  I note that the Respondent contacted the Complainant on at least two occasions (December 2021 and January 2022) and on both he was not available for work and unable to give indication as to when would he be available to return to work.

Given the particular circumstances of this case, and notwithstanding the mitigating factors put forward by the Complainant, I am of the view that the Respondent’s decision to dismiss the Complainant was proportionate and reasonable. 

In the circumstances, I find that the Complainant’s dismissal was procedurally unfair within the meaning of section 6 of the Acts. Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts is well founded.

Redress

I determine in the circumstances of this case that the reinstatement or re-engagement of the Complainant is not a practical option.

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.”

While I have found that the dismissal of the Complainant was procedurally unfair, taking into account the Complainants’ contribution to his own dismissal, I am of view that it not appropriate to award any compensation in this case.

In conclusion and having regard to all of the circumstances of the complaint, I find that this complaint is well founded. However, I deem that in the circumstances of this case the appropriate compensation is nil.

Unfair dismissal – well founded but compensation not appropriate.