ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048920

Parties:

Complaint:

Date of Adjudication Hearing:  07/03/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant submitted two complaints of unfair dismissal.  One of the complaints (CA-00059293-002) stated that he had to leave his job due to the conduct of his employer or others (constructive dismissal).  At the hearing, the Manager of the outlet said he dismissed him following an altercation and because he could no longer tolerate his poor performance and attitude.

Summary of Respondent’s Case:

The Manager of the Respondent’s fast food outlet gave sworn evidence summarised as follows:

On the day of the 15th of September 2023, he arrived at the shop to speak to the complainant about slacking off in his role at around 10:30am. He specifically went to speak with the complainant. He was not rostered to work until later that day. There were numerous informal conversations previously had between the complainant about the same topic over a period of a few months. The Manager believed this to be a verbal warning for the complainant.

The Manager said in his evidence that he walked towards the complainant in the back room where he was preparing the potatoes, to speak to him in relation to how he is doing his job. He explained how he was not fulfilling all his duties and action will need to be taken to resolve the issues.            The Manager said “the complainant became immediately agitated and began shouting “I am working here longer than you; you don’t tell me how to do my job. No one ever had a problem with how I do my job. I said if he cannot do his job right then I am obviously going to speak to him about it. He then started saying “Don’t you think about threatening me about my job – I will drag you through the courts”. I never threatened his job at this point, I said- “Do your job right because I am sick of picking up the slack.” He had a knife in one hand and pointing in my face shouting- “don’t you dare speak to me like that who are you to do that”. While watching his movements with a knife in his hand, I pushed his finger out of my face and told him- “Who are you pointing fingers at, you are the one not doing your job, I am doing your job every day, you can’t work with me with that attitude, you need to leave”. He then shouted – “Who are you to tell me to leave, [the owner] can tell me to leave”. He was repeating “You can’t fire me” – I replied, “I am coming here to tell you to do your job, not to fire you, you are the one shouting and roaring”.

The Manager stated : “with his consistent lack of respect, his incompetency to fulfil all duties of his role, his behaviour towards female staff members, shouting at me while wielding a knife and aggressively pointing his finger in my face, I felt it was fair to dismiss him. He then followed me out and was begging me to reconsider, I told him no. I have been a Store Manager in several fast-food stores for the past 15 years in Ireland, and I have never come across someone with so little respect for his role and co-workers”.

The Manager stated that the incident was building up from tension due to the Complainant’s dissatisfaction about an assistant manager being appointed and his rate of pay and hours not being increased.  The level of aggression displayed by him on the day was unacceptable.

Summary of Complainant’s Case:

The Complainant gave sworn evidence summarised as follows:

He was in the potatoes section when the Manager came in, he did not point a knife in his direction.  He turned off the machine to hear what the Manager was saying.  The Manager told him he was not doing enough work in the 3 hours of his shifts and he told him to leave the shop.  The Complainant felt he had got on great with staff.  He believes there are 3 people doing his job now.  He was dismissed without notice and he felt this was wrong.  He was not looking for work due to personal/carer reasons.

Findings and Conclusions:

The Complainant was dismissed without notice following an altercation between him and the Manager.  No reason for his dismissal was given to him in written format and no procedure was followed.  Statutory Instrument S.I. 146/2000 sets out the basic procedures employers must follow when disciplinary action, up to and including dismissal is taken against an employee.  The employee has the right to know what charge is being levelled against him/her, the right to be heard and be represented and the right to appeal.  No such due process was given to the Complainant in this case.   While there was some conflict of evidence regarding the altercation on 15th September 2023, and the Complainant brought a certain level of aggression to the situation, I find that the nature of the altercation was such that instant dismissal was not warranted.  It is obvious that the Manager had problems with the Complainant’s work performance and attitude, and to that extent, it is understandable that he was dissatisfied with him.  However, in such circumstances, he should have subjected him to a disciplinary process as outlined. 

In the circumstances, I find that the Complainant was unfairly dismissed.  I find that re-instatement or re-engagement are not appropriate remedies in the situation where the employment relationship is irretrievably broken down.  In considering compensation as the appropriate remedy, I have taken into account the lack of mitigation of loss by the Complainant, together with his contribution to the situation in which he found himself.    I therefore award him the sum of €500 compensation for the unfair dismissal.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00059293-001            Unfair Dismissals Act 1977

I have decided that the Complainant was unfairly dismissed, and I award him the sum of €500 compensation.

CA-00059293-002            Unfair Dismissals Act 1977

The Complainant was not constructively dismissed.  I therefore have decided that this element of his complaint is not well founded.    

Dated:   09th of April 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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