Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A Bar

Representatives

 Appeared In Person, supported by a friend.

 No Appearance by or on behalf of the Respondent

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-00054690-001

24/01/2023

On 24 January 2023, the Complainant submitted a complaint of unfair dismissal against the Respondent food and beverage business.

The Complainant is a Lay Litigant and presented at hearing with the support of a friend.

The Respondent was notified of the complaint at the business address on March 3, 2023.

On 7 June 2023, both parties were invited to hearing scheduled for 10 July 2023 at 11.00.

On 28 June 2023, I wrote to the Respondent seeking an outline submission in response to that already lodged by the Complainant. None was forthcoming.

The Respondent did not make an appearance or send a representative at hearing.

The Complainant was the sole participant at hearing.

During the course of the hearing, sensitivities on the complainant’s health were revealed and on my own motion, I   asked the complainant if she wished her case to be covered by special circumstances and anonymised in accordance with the provisions of Section 8(6) of the Act?

(6) Proceedings under this section before an adjudication officer shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

The Complainant was unsure of the response she wished to make on this, and I allowed her some time to formulate her response within 7 days. The complainant confirmed that she requested that the decision in the case be anonymised. I agreed to do this.

The Complainant gave evidence under oath.

I requested a record of the complainant’s earnings for 2022. Copies of pay slips were forwarded.

The complainant introduced her claim as having commenced employment on 17 July 2021 as a Kitchen Porter with the respondent business. She earned €210.00 gross pay in respect of a 20-hour week.

The Complainant has claimed unfair dismissal and sought the remedy of compensation.

By way of background, the complainant commenced employment with the respondent, enabled by a vocational learning centre. The contract of employment was submitted with reference to the Company Handbook, which the complaint said she had not received. The contract did not reflect the relevance or proximity of the vocational training centre to the employment relationship.

Termination of Employment was set out at section 9 of the contract of employment.

In the event of termination of employment by either party, a period of one weeks’ notice, in writing will be deemed as sufficient. for employees with service in excess 2 years employment, notice will be in accordance with the Minimum Notice and Terms of Employment Act 1973-2001 will be deemed as sufficient. In the event of termination of employment through dismissal, all disciplinary matters will be dealt with in accordance with the Company disciplinary procedure.

The Complainant wrote on her complaint form that she had an altercation with the chef on 3 September 2022.

On 3rd September, there was an incident between a work colleague, and it was nothing major just a few words exchanged and maybe a little aggressive behaviour, shouting and shoving.

The complainant described a period of uncertainty following this episode, where she sought to resolve matters with her employer, but the other party, the chef had got to the manager, Ms A first.

On 30 September 2022, the complainant learned of her dismissal from Ms B at the vocational training centre.

She wrote:

I found out I lost my job, but Ms A didn’t let me know, again, she rang Ms B and said it to her. So, I found out through Ms B.

Evidence of the Complainant

The Complainant outlined that she had commenced work with the respondent on the 17 July 2021 and received her contract of employment early in January 2022. She confirmed that she was assisted in securing the employment by the vocational training centre, but they had no role in the contract or the day-to-day operation of this contract.

The Complainant gave details of an altercation with the chef during September 3, 2022, in a busy, noisy kitchen, which prompted her to go home.

The next day, she asked to speak with her Manager, Ms A and discuss what occurred.

On 8 September, the Complainant attempted to explain everything and complain the chef to Ms A but was overwhelmed when Ms A appeared to take the chefs side over hers and she believed that she was being blamed for the incident. She formed the view that the chef had got there first. Ms A told her that she would revert.

The Complainant submitted that she worked 9 to 16 September 2022, but was removed from the roster after that.

The Complainant queried this.

On 19 September 2022, Ms A texted to say that “you will be paid “This placed the complainant in a reported limbo.

The Complainant stated that she did everything to try and resolve the matter of her being off the roster and referred to a number of texts where she sought to sit down with Ms A to resolve the issue.

On September 21, she once more approached the respondent seeking to meet. Ms A rang the vocational training centre and directed the complainant to come to the workplace on 26 September, but no time was given.

On September 29, the Complainant wrote to the respondent but did not receive a response.

Dear Ms A

I am writing to you in relation to my job. I had a meeting with you on 8 September 2022. Since this meeting, I have worked one week and from 19 September 2022, I have made numerous attempts to meet and make contact with you to find out about my job to no avail. My contract is very clear that I should be working 20 hours a week. I appreciate that I was paid last week but going forward, I need to know clearly what the situation is. Looking forward to hearing from you. 

On 30 September 2022, Ms B, of the Vocational Centre informed the complainant that her job was gone.

“She was letting you go because of your behaviour “

She did not receive notice and received cesser pay of 3 days.

The Complainant submitted that the dismissal had affected her greatly as she had been “blanked and treated unfairly” by the respondent. She submitted that she was distraught by the unreasonableness of the dismissal. She said she was not the subject of a complaint, nor was she requested to make a statement regarding the incidents of September 3, 2022.

She submitted that two kitchen porters had been taken on before she was dismissed. The complainant contended that she had felt very diminished by being informed that the “chef is respected here “by Ms A.

In response to queries regarding loss and mitigation, the complainant said that she had been unable to look for work after the effects of her dismissal. She did not submit medical evidence of this.

She clarified that she had not been the subject of any prior warnings.

I probed the relationship between the vocational training centre and the respondent. The Complainant clarified that the vocational centre had placed her with the respondent, but the contract was separate to this service, and she was not under their direction or control.

I asked whether Ms B had been involved in on site work support and the complainant said that she had no involvement in her day-to-day work and she was paid by the respondent.

 Instead, she drew my attention to the contact of employment which issued on 3 January 2022 and pointed to a satisfactory completion of probation within the first 6 months of her employment.

The contract did not have an end date. The complainant told me that she had no idea what caused the delay in her receiving this contract.

The Complainant submitted that this job had been her first job in a considerable period of time and the loss has affected her greatly. She said she found it virtually impossible to relaunch herself into the workplace.

When requested to comment on potential remedies, the complainant clarified that as she had been disrespected, the option of compensation was her preferred remedy in the event of her claim succeeding. She submitted that she could not countenance a return to the workplace.

The Complainant submitted details of pay received, as requested.  

The Respondent did not file a defence in the case. The Respondent did not make an appearance at hearing or send a representative.

I am satisfied that the respondent was properly on notice of the hearing and made a decision not to attend the hearing. I find this decision to be unreasonable by this employer.

I have been requested to make a decision regarding a claim for unfair dismissal in this case.

It is regrettable that the respondent in the case decided not to file an outline submission or make an appearance in the case. I would have liked to have gained an employer’s perspective in this case.

The law of Unfair Dismissal is set down in Section 6 of the Act

Unfair dismissal.

6.— (1) 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 open to a respondent to rely on a defence as contained in section 6(4) of the Act.

Ultimately in the case of an uncontested dismissal, Section 6(6) has application.

(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.

The burden of proof rests with the respondent here and by their absence have waivered that right.

This is a difficult case for me to consider as, while I am in receipt of a contract of employment arising from the complainant’s tenure, I have not seen a document which confirms dismissal.

Dismissal is defined in Section 1 of the Act as:

“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) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

On the facts submitted, which were not contested, the complainant was taken off the roster at the business after 16 September 2022.

The communication of dismissal by a third-party unknown to this Adjudication and not party to the contract is a riddle in the case.

I have no way of knowing what authority, if any, Ms B held in the circumstances of this employment. The vocational training body was not quoted as an employment agency. It was not referenced in the contract of employment, which simply referred to both parties in this case.

I find it difficult to believe that any representative of a vocational training body would communicate a termination of employment to an employee placed there.

I can find no delegated or statutory authority which gave that permission.

Yet, having listened carefully to the complainant at hearing and reflecting on her submitted documents, all of which remain unchallenged by the respondent, I accept her evidence that her employment terminated on 30 September 2022, on a site on which she did not work and articulated by someone who was not her employer.

However, from a careful review of the pay slips for September / October 2022, pay stopped unilaterally   in the complainant case on October 6, 2022. This amounts to a termination of employment under the Act on September 30, 2022.

The contract had no end date and was subject to a ceremonial end in Section 9, which was not honoured in this case. The Respondent does not appear to have followed their own procedures in this case.

It is not my role to determine whether the Chef or the complainant was correct in their actions? My role is to assess whether there were substantial grounds governing dismissal and whether the decision taken to dismiss fell within a band of reasonableness as I might view through the prism of Section 6(7) of the Act.?

I have heard no substantial grounds accompanying this dismissal on 30 September 2022. Based on the evidence adduced, which I accept, the dismissal is procedurally and documentary void and not the actions of a fair or just employer.

If the vocational training body reads this decision and recognises the occurrence recorded here, I would earnestly suggest that the training body reflect on this feedback as an articulation of a dismissal by a training body must surely be a complete antithesis?

  I can find no evidence that the complainant’s welfare was checked by either body after September 30, 2022.

I have a stated concern about this as the complainant told the hearing that this was her first job after a very difficult period in her life.

An employer has a duty of care to maintain an employee in a safe environment and to follow their own documented rules.

Work is a means of social connection, cohesion and can foster a sense of belonging and completeness. The relationship, like every other need careful and responsible management.

The Complainant presented as very vulnerable at hearing, and it was plain that she carried a strong sense of injustice regarding her exit at the respondent business.

It was also clear to me that while she did get an opportunity to state her case at hearing, she wanted to state that case in front of her employer. I saw courage in her presentation.

I have done my best to capture her evidence and feedback the impact of the dismissal on the complainant.

I have found that the complainant was unfairly dismissed.

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.

I have found that the complainant was unfairly dismissed. I have considered all remedies open to her, but having canvassed her views, the complainants preferred redress option is compensation.

I find that compensation is the only practical way forward in this case.

The Complainant has submitted her loss and has sought to be excused from mitigating that loss due to the enduring trauma post dismissal.

The Labour Court is consistently incisive on the need for a worker to actively look for work daily post a dismissal and thus satisfy section 7 (2) (c) of the Act Sheehan v Continental Administration Co ltd UD /858/1999 refers.

(2) Without prejudice to the generality of subsection (1) of this section, 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.

I have found that the circumstances of the dismissal had a paralysing impact on the complainant , which caused her to await her case at WRC without securing new work.

I find that the Respondent in this case paid no regard to their own policies or contract of employment. No reasons were presented to the complainant so as to explain the dismissal or offer an appeal. No effort was made to resolve the interpersonal conflict following September 3, 2022.

In short , the complainant was denied the protection available to her under the Unfair Dismissals Act, 1977 .

In all the circumstances, the respondents conduct towards the complainant resulted in her not being able to relaunch into seeking new work. The complainant presented in employment with a sensitive past and I have found that this was completely disregarded in the manner in which the dismissal occurred. The lack of a filed defence or appearance by the respondent  compounded this wrong .

I order the Respondent to pay the complainant €16,800 in compensation for the unfair dismissal. This amounts to the value 80 weeks  of her stated salary in actual and prospective loss, and recognises the shortfall in mitigation by the complainant  .

Unfair Dismissal