Complainant

Respondent

Anonymised Parties

A Chef

A Gastro Pub

Representatives

Jennifer Murphy, HR & Governance Suite

Jason Murray, BL, instructed by O’Connor LLP Solicitors

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-00059760-001

01/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059760-002

01/11/2023

The complainant was employed as a Chef from August 2018. He was paid €675 gross per week. The complainant was dismissed on 21st September 2023, days after the respondent had received complaints from staff. The respondent conceded that there were procedural gaps with the investigation and disciplinary process.

Therefore, the hearing focused on-

·        Reasonable grounds and whether the complainant contributed towards his dismissal.

·        The measures the complainant took to mitigate his loss.

Summary of Complainant’s Evidence

The complainant outlined that he has worked as a Chef since 2001. He commenced his employment with the respondent from August 2018. He said he had a good relationship with management until new owners took over in September 2022. Training took place in January 2023 ahead of a new menu being introduced.

In September 2023, he was called to a meeting by the Director due to complaints from two staff. He answered the complaints and described them as soft arguments which was normal for a busy kitchen. He was suspended on full pay pending an investigation. He said he was not given copies of allegations made in advance of a follow-on meeting and he was dismissed on 21st September 2023. He was shocked in how he was dismissed so quickly, and he explained that he went through a lot of anxiety at this time. He wanted his job back and he appealed the dismissal. His grounds of appeal were that he worked for five years providing good service and it was normal for disagreements to arise in the kitchen. He said that the Head Chef had contributed to a change in atmosphere in the kitchen and it was normal for cursing to arise. He appealed internally although the dismissal decision was upheld. He was paid up to 29th September 2023. He did not work for 6 months after his dismissal.

He said he did not know what he did wrong and was not allowed answer complaints and defend himself. He suffered from depression for a period after his dismissal.

Under cross-examination, he was asked about his ability to work due to depression. He explained that he did not apply for work as his mood was at zero and he needed some time. He started a part-time job in March 2024 earning €450 gross per week. He said there were limited opportunities in his locality.

He was questioned on whether he received a verbal warning in June 2023. He admitted there was an incident, although he did not get a verbal warning. He also recalled another issue but did not get a verbal warning for this either. He said there was an apology. He said no formal meetings took place. He said his behaviour in the kitchen was not aggressive. He was asked about two separate alleged sexual comments to two waitresses. He could not recall these and said there was always banter in the kitchen. He admitted he was no angel although denied making inappropriate sexual comments.

Closing Submission

The complainant’s representative submitted there were serious omissions in the manner the respondent’s handled the staff complaints. The respondent representative had already conceded procedural errors. It was denied that the complainant contributed to his dismissal. From the complainant’s perspective, he followed procedures as much as he could in that he appealed the decision and sought re-instatement.

Summary of Company Director Evidence

The Director outlined that the pub was taken over along with the staff in 2022. He outlined the planned change of menu. He gave evidence of two previous complaints and a verbal warning to the complainant in June 2023. He said these complaints related to aggressive behaviour and a threat to a younger staff member.

On receipt of a joint complaint in September 2023, he interviewed the two staff. Arising from this interview, he suspended the complainant on full pay and proceeded to interview other staff. All but one spoke of grievances about the complainant. Two staff complained that two separate sexual comments were made to them. He raised all these issues with the complainant at a meeting the following week. He was concerned about the alleged sexual comments as they were made to young female staff. He said the complainant’s response was that this was banter, and this happens in kitchens. He said that as the business prides itself on staff treating each other with respect and dignity, he decided to dismiss the complainant for gross misconduct on 21st September 2023. He recognised subsequently that there were some procedural gaps in the handling of the dismissal.

Under cross-examination, he accepted that he gave no advance warning of all complaints prior to the meeting. He confirmed there was no investigation report. He admitted that the minutes were typed subsequently and were not signed or agreed.

There was consistency in the complaints, so he took them as genuine. He confirmed that no verbal warning had been recorded and formalised with the complainant. He confirmed there was no letter to the complainant at the time of his suspension when complaints were received in September 2023.

Summary of Head Chef Evidence

The Head Chef gave evidence that he received complaints by two female staff in September 2023. He brought these to the attention of the Director. He attended follow-up meetings alongside the Director on foot of the two original complaints. The main feedback from staff was that the complainant could be very aggressive, and some staff felt unsafe.

He outlined the layout of the kitchen. He was concerned that some female staff said they were seeking other jobs due to the disrespect shown to them by the complainant.

Closing Submission

The respondent representative made a closing submission and is relying on Section 7(2) of the Act in that the complainant’s own actions and conduct contributed to his dismissal. Due to this, it was submitted that he should be estopped from being awarded redress and referred to precedents established by the Labour Court in Medical & Industrial Pipeline Sytstems Ltd v David Dunne [UDD1945] and Smurfit Kappa Ireland Ltd v Nicholas Folan [UDD2156].  It was submitted that the complainant admitted he was no angel and his lack of memory of previous incidents should be factored into the credibility of his evidence.

In conclusion, it was submitted that he did not mitigate his loss and provided no proofs of his attempts to find work. The respondent was relying on Sheehan v Continental Administration Co Ltd [UD858/1999] that ‘he should employ a reasonable amount of time each weekday in seeking work’.

The Law

The respondent representative conceded there was an unfair dismissal on procedural grounds. He submitted the respondent acted reasonably as there were valid grounds to justify the dismissal. It was submitted that he contributed to his own dismissal and failed to mitigate his loss as per section 7.2 of the Act.

The definition of ‘financial loss’ in section 7 of the Act provides: ‘… 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, ………….’

Section 7.2 of the Act states in determining the appropriate award, I must have regard 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.

Contribution to Dismissal

Although the respondent has conceded an unfair dismissal on procedural grounds, I cannot disregard or ignore the procedural deficits. Once two complaints were made, and all staff interviewed, the complainant was on the back foot as the respondent had already decided to dismiss.

I find it very difficult to reconcile how he contributed to his dismissal given no record existed or formal notice issued of a previous verbal warning in June 2023. Also, there was no conclusive investigation report with findings on the complaints in September 2023. He received no details of when and where he made the alleged sexual comments. He co-operated during the short suspension and attended meetings as requested.

Section 7(2) (a) & (e) rightly place a significant onus on the employer particularly as dismissal can have a such a drastic effect on an employee. The first joint complaint was 14th September 2023 with the complainant dismissed on 21st September 2023. The interviews with staff and follow-on decision to dismiss were unnecessarily hurried, particularly as the complainant was already on suspension.

The Director received complaints, investigated, and conducted the disciplinary process. Despite the evidence of the Director on respect between staff, there was no evidence of staff training or policies in these areas. There was no evidence submitted of staff being on notice of a zero-tolerance approach to inappropriate interactions or comments.

I have reviewed the Labour Court cases of Dunne and Folan. Dunne can be distinguished from this case as there were factual records of attendance indiscretions and the case turned on admitting these in evidence. In Dunne, the facts were clearly established and showed a contribution to the dismissal over a prolonged period.

In Folan, there was no question that a serious assault had occurred despite procedural deficits in the investigation. The same cannot be inferred in this case, as the respondent did not take the time to investigation more comprehensively.

For the reasons outlined, I find the complainant’s contribution to his dismissal as insufficient to reduce any financial compensation.

Mitigation of Loss

The complainant gave evidence that he obtained part-time work in March 2024. He provided no documentary evidence of his efforts to seek employment from October 2023. He submitted in evidence that he was shocked at his dismissal, and this affected his health for a period. Given the pace at which events unfolded, it is not surprising that he needed time to come to terms with his dismissal. Even allowing for this, it is still incumbent on the complainant to have sought new employment from an earlier stage and to have provided documentary evidence of this.

I find that the complainant did not take sufficient measures to mitigate his loss as per section 7(2) (c) of the Act.  

Findings

I decide that the complainant was unfairly dismissed. The complainant has sought compensation as redress, and I agree that this is the appropriate remedy. The financial loss is estimated at approximately €16,000. As the complainant failed to provide documentary evidence of how he mitigated his loss over the six-months, I decide it is just and equitable to reduce the award of compensation to €8,000.

CA-00059760-001- Unfair Dismissal Complaint

I find that the complainant was unfairly dismissed. The respondent shall pay to the complainant just and equitable compensation of €8,000.

CA-00059760-002- This complaint was withdrawn by the complainant.

Unfair Dismissal