Recommendation
Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00045730
Parties:
| Worker | Employer |
Anonymised Parties | A Kitchen Porter | A Restaurant |
Representatives | Self-represented | Mr Hugh Hegarty, Management Support Services |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00056509-002 | 06/05/2023 |
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Date of Hearing: 20/10/2023
Procedure:
In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General. At a hearing on December 11th 2023, I made enquiries and gave the parties an opportunity to be heard and to put forward their positions in relation to the dispute. The worker represented himself, with the support of an interpreter, Ms Susana Kozic. The employer was represented by Mr Hugh Hegarty of Management Support Services. Mr Hegarty was accompanied by a manager from the employer’s restaurant. As the subject matter is a dispute under section 13 of the Industrial Relations Act 1969, the hearing took place in private and the parties are not named but are referred to as “the worker” and “the employer.”
Summary of the Worker’s Case:
The worker started in the employer’s restaurant as a kitchen porter on October 27th 2022. He earned €11.30 per hour. On March 20th 2023, he worked until 11.00pm, and he had shut down the dish-washer and was ready to leave when one of the waiting staff brought cutlery to the kitchen to be washed. The worker said that he couldn’t stay long enough to complete the wash cycle and he left the dirty cutlery in the kitchen. He said that he had to leave at 11.00pm so that he could get the last bus home. When he arrived at work the following day, the manager of the restaurant asked the worker why he hadn’t finished cleaning up before he left. The worker claims that the manager was annoyed and that the outcome of the conversation was that he was dismissed. He said that he asked the manager for his wages and that he was informed that it would be lodged to his bank account. When he submitted this dispute to the WRC on May 6th 2023, he still hadn’t been paid. When he wasn’t paid his wages, the worker posted messages on social media, criticising the restaurant. He submitted a complaint under the Payment of Wages Act 1991, but he was paid his outstanding wages before this hearing on December 11th 2023. As he has less than 12 months’ service, under s.13 of the Industrial Relations Act 1969, he claims that his dismissal was unfair. |
Summary of the Employer’s Case:
In a submission presented by Mr Hegarty at the hearing, he said that, as a kitchen porter, the worker was responsible for ensuring that the kitchen was clean and ready for the staff the following morning. Mr Hegarty said that, on the evening before his employment ended, the worker left the kitchen in a mess. In a discussion with the restaurant manager the following day, the worker said that he wouldn’t remain at work after 11.00pm. The manager was busy at the time and he sent the worker home for the day. When he did not return to work the following day, or at all, the manager assumed that he had resigned. |
Conclusions:
I have considered this matter and it is my view that the worker was dismissed on March 20th 2023 following an argument about not finishing the cleanup of the kitchen the previous evening. In an environment where restaurants are very short staffed, if the manager had been in any doubt, it is my view that he would have contacted the worker to ask him why he wasn’t at work. Further hardship was inflicted on the worker when he wasn’t paid his wages, conduct which, from any reasonable perspective, is unfair. I accept that, in general, a dispute being investigated under the Industrial Relations Act is a less formal matter than a hearing under the Unfair Dismissals Act; however, I am guided by the decision of the Labour Court in the case of Beechside Company Limited, trading as the Park Hotel Kenmare and A Worker, LCR 21798. It is clear from this decision that the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act, and the Labour Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures. Before he was dismissed, the worker should have been informed that, if he wasn’t agreeable to stay at work to complete the cleaning of the kitchen at the end of his shift, he would be dismissed. As he had very short service, it would not have been appropriate to go through each stage of a disciplinary process; however, he should have been given an opportunity to address the issues that were causing concern. If, away from the heat of the moment, the manager had explained to him what was required to ensure that he remained in the job in the longer term, he may have adapted and arranged to get home by a later bus or train. Because of the failure of the employer to engage in any procedures, I find that the dismissal of this worker was unfair. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I have concluded that the dismissal of the worker was unfair and not in accordance with any procedures. I recommend therefore that the employer pays the employee compensation of €500, equivalent to approximately two weeks’ net pay. |
Dated: 5th April 2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Dismissal, failure to follow procedures |