Complainant

Respondent

Parties

Ladislav  Balko

Ellmegabb Limited in liquidation.

Liquidator: James Nolan

Harney Nolan Chartered Accountants ,

Deerpark Business Complex ,

Dublin Road , Carlow.

Complainant

Respondent

Anonymised Parties

Representatives

Carol Walsh Poe Kiely Hogan Lanigan Solicitors

Nicola Dowling Williams Solicitors LLP.  Ms.Dowliing appeared as a courtesy to the WRC to confirm that there would be no appearance by the employer.

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-00055521-001

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055521-002

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055521-003

13/03/2023

The complainant was employed as Head Chef with the respondent from the 11th.July 2014 to the 23rd.January 2014.On initial employment the complainant was employed by Mr.Simon Stokes from July 2014 to the 25th.November 2019 when the business was transferred by way of a transfer of undertaking to Ellemgrabb Limited .Following an incident at work on the 21st.January 2023 with the respondent ,  the complainant was asked to attend a meeting  on the 23rd.November at which he was advised that he was being dismissed for gross misconduct. The complainant submitted that the dismissal was unfair and he received no documentation about his dismissal. The complainant submitted that the respondent was in breach of the Minimum Notice and Terms of Employment Act, 1973 for failing to pay him statutory notice on termination of his employment. The complainant  submitted that the respondent was in breach of the Organisation of Working Time Act , 1977 for failing to pay his  outstanding holidays on termination of his employment.

. Introduction

1.1 By way of Workplace Relations Complaint Form submitted on 13th of March 2023(copy of which is at Appendix 1), the complainant complains that he was unfairly dismissed by the Respondent in contravention of the Unfair Dismissals Act 1977 (as amended) (the “Act”).

1.2 As the Complainant’s claim is for unfair dismissal it is, accordingly, a matter for the Respondent to prove that this dismissal was fair.

 1.3 The Respondent has not indicated, prior to the hearing of this matter, whether or not it accepts or rejects the complaint’s complaint.

1.1 It is also submitted that the Complainant’s period of employment ran from 11th of July 2014 to January 2023 (when he was unfairly dismissed) and therefore has the requisite period of continuous service to satisfy the provisions of the Unfair Dismissals Act 1977. The complainant was initally employed previously by Mr Simon Stokes from 11th of July 2014 and under the Transfer of Undertakings, employment was carried forward to Ellemgrabb Limited commencing on the 25th of November 2019.

 2. Complainant’s Dismissal

 2.1 The Respondent is a limited company, which runs a Restaurant (the “Restaurant”) in Abbeyleix Co Laois;

 2.2 On the 19th of January 2023, the complainant was busy working in the kitchen. It was a busy evening and he had two tables left. The respondent asked the complainant to switch off the radio and shortly afterwards, the respondent got the radio and threw it to the ground. The respondent then ran over to the complainant and shouted “What are you going to do”. The complainant, a quiet man, finished his tables and left work. The following day, the complainant showed up to work and the respondent asked him to leave. The complainant, upon hearing this, left that day.

 2.3 The Complainant Mr. Balko instructs us that, on the 21st of January 2023, he was summarily dismissed from his employment at McEvoy’s Restaurant, for alleged 3238653 gross misconduct. At the time of the dismissal, our client had been employed at McEvoy’s for nine and a half years.

 2.4 Prior to this the complainant received no prior warnings; The respondent failed to follow fair procedures as outlined in the Unfair Dismissals Act 1977. The alleged misconduct does not constitute grounds for unfair dismissal.

 It is submitted that the Complainant is an employee pursuant to the Unfair Dismissals Act 1977 pursuant to the contract of employment at appendix “B”.

 3. Supporting Documentation:

 The claimant attaches herewith the claim for loss of earnings together with evidence of their endeavours to mitigate their loss. For the period prior to the unfair dismissal, the complainant was earning €660.70 gross per week. The complaint re commenced work on the 10th of May 2023, therefore there is a loss of earnings of €6,786.78. In this period, the complainant continually tried to regain employment and I attach herewith documentation to support this.

In his direct evidence the claimant advised that he received €700 from the respondent following his departure. He said he received nothing in writing despite requesting it and got no explanation for his dismissal. The day following the altercation , he returned to work and was sent home after 5 minutes. The following day the claimant attended a meeting with the respondent  and was told by the respondent that he was being sacked.The claimant said he was in shock having worked for the company for so many years  .The claimant’s wife was in attendance at the meeting and asked for everything on paper but the respondent  said no .

Ms.Nicola O Dowd  of Williams Solicitors LLP attended to confirm that the company was in liquidation and that there would be no appearance by the respondent .

The respondent did not attend to give evidence

On the basis of the uncontested evidence of the claimant and the submissions made by the  complainant’s representative , I am upholding the complaint of unfair dismissal.The respondent failed to observe the complainant’s right to fair procedures and natural justice and failed to observe the terms of the complainant’s contract which provided that in all cases of dismissal “ a full investigation will be carried out “.Furthermore the respondent failed to observe the requirements of SI146 2000 – the Code of Practise on grievance and disciplinary procedures .

On the basis of the payslips submitted I find that the respondent did pay the complainant 43 hours  holiday pay on the 26th.Jan 2023 and consequently I find no evidence of a breach of the Organisation of Working Time Act 1997.

Based on the complainant’s length of service , I find the complainant  was entitled to 4 weeks notice but was only paid for one week (€700) in his final payment  and consequently I am upholding the complaint under the Minimum Notice and Terms of Employment Act, 1973 .